HL Deb 21 January 2004 vol 657 cc311-72GC

(Second Day)

Wednesday, 21 January 2004.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

Lord Ampthill

Before proceedings begin, may I make a short personal statement? A number of exchanges took place at the start of the Grand Committee proceedings on Monday which I hope all of us would regret because they departed from the spirit of self-regulation. If self-regulation is to work—and I believe that all Members want it to work—we must follow the practices of the House and any guidance in the Companion.

The Grand Committee on Monday was in uncharted waters because of the need to have a discussion about business before going through the Bill and the amendments. My interventions were based on the assumption that the formal proceedings of the Committee had not begun and that it was my duty to get them started. I wish to make it clear that I would not, and could not, have intervened as I did once consideration of the Bill had begun.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I remind noble Lords that we are in Grand Committee. Noble Lords will speak standing and there are no Divisions. I believe that the noble Lord, Lord Campbell of Alloway, wishes to ask the Minister a question.

Lord Campbell of Alloway

I am much obliged. Is the Committee prepared to consider postponing consideration of Clause 5 until the report of the Joint Committee on Human Rights has been received? I say that because I happened to see and approve a draft yesterday, or the day before—I cannot remember which. It will, in any case, be published within a week—it is ready for publication—and it is highly relevant to Clause 5. Your Lordships will remember that, I believe on Second Reading, my noble friend Lady Anelay raised the point of requiring assistance on Clause 5. I believe that I did, too. In the circumstances, it would be quite pointless to proceed with Clause 5. I cannot, of course, say exactly what is in that report. All I can say is that I ask noble Lords to accept from me that it is highly relevant to our considerations. That is a matter, of course, for all Members of the Committee but I just thought that I would mention it.

Lord Carlisle of Bucklow

The chances are that we shall not reach it anyway, despite the Minister's admirable qualities and the way in which she approaches the Grand Committee. I think she would agree that she usually explains the various amendments at substantial length. I believe that Clause 4, which creates a totally new criminal offence, is likely to take up a considerable amount of the afternoon. If that is so, is it not better to decide that now and to agree to end our discussion at the end of Clause 4 rather than at the end of Clause 5?

Baroness Anelay of St Johns

I support my noble friend Lord Campbell of Alloway and thank him very much for bringing Clause 5 to the attention of the Select Committee. I appreciate his discretion in bringing to the attention of the Grand Committee the fact that matters in a report that is yet to be published could well be relevant to our considerations. While maintaining the strict confidentiality by which he is hound, as he says, it is a matter for the Committee's decision.

Baroness Walmsley

Would it be possible to clarify that the noble Lord, Lord Campbell of Alloway, is referring to Amendment No.38 onwards and that he has no objection to discussing Amendments Nos. 32 to 37, which refer to Clause 5? The controversial part, I believe, is Amendment No. 38. Perhaps the noble Lord will he kind enough to clarify that.

Lord Campbell of Alloway

My suggestion was solely related to the amendments to Clause 5. Then my noble friend Lord Carlisle said that we would not finish anyway. That is fair enough, but you never know, do you? These Committees sometimes run until eight, nine or ten o'clock.

Noble Lords


Lord Campbell of Alloway

My straight answer to the noble Baroness is that I am concerned to preserve Clause 5 only because it would be a sheer waste of the Committee's time to consider it without the assistance of that report.

The Minister of State, Home Office (Baroness Scotland of Asthal)

I thank the noble Lord, Lord Campbell of Alloway, for raising this matter at this stage. The Companion provides at paragraph 6.74 that clauses or parts may be postponed on a Motion made to that effect of which notice has been given. I do not want to take a technical point, but notice has not been given in relation to this matter. I would say to the noble Lord that the importance of Clause 5 is such that I think we would benefit from having a debate on this. This is obviously a matter to which we can return on Report, particularly after we have had the benefit of reading, inwardly digesting and thinking about more fully, the report which is about to be issued by the Committee.

I take on board what is said by the noble Lord, Lord Carlisle. I apologise if in his remarks the suggestion was made that I was perhaps overlong in my explanation.

Lord Carlisle of Bucklow

No, the noble Baroness is always courteous in her replies to this Committee. I would not suggest anything other than that of the noble Baroness.

Baroness Scotland of Asthal

I am gratified I fear that I had proposed, for the assistance of the Committee, for my explanation to be quite full, as in my experience that is what the Committee wants; that is, first, to put on the record the Government's thinking and, secondly, to tease out anomalies or difficulties that noble Lords have identified which I can answer. We may have thought of many of the troubles already.

I would invite the Committee to allow us to consider in a way that is proper all the matters with which we are seized today. It may be that we do not reach Clause 5; I hope that we shall. However, I reassure the noble Lord, Lord Campbell of Alloway, that I do not think that any debate we have today on Clause 5 would be futile. I understand that in any event the Government will have to explain the thinking which caused them to come to the view that they now have in relation to the way it is phrased. I accept that once the report is to hand, the House will want to return to it on Report if it finds on mature reflection matters which need to be explored further. It may prove to be an advantage for the Committee to have heard what I say about these issues when it comes to consider the report and what will be our best way forward.

Lord McNally

Before the Minister sits down, I would ask her to take on board the words of the wise old owl, or the noble owl, Lord Carlisle. The noble Lord, Lord Renton, speaking from his unique perspective, points out that the noble Lord, Lord Carlisle, is not old; indeed, he is not. If Clause 4 is to take the time suggested and we get past seven o'clock, we shall not have the kind of deliberation of Clause 5 which the noble Baroness suggests would be good for the Committee. Perhaps we could keep an eye on the clock.

Baroness Scotland of Asthal

Perhaps I may respond to that before the noble Lord, Lord Campbell, replies as it may help him. Certainly, we can look at it at that time. I should also say that from the perspective of this House, the noble Lord, Lord Carlisle of Bucklow, is in the first flush of youth.

Lord Campbell of Alloway

I apologise to the noble Lord. I did not see him rise. Perhaps I may very briefly reply to the noble Baroness. I did not say that it was futile; I said that it would be wholly unsatisfactory from what I had read and know. I asked the Committee whether it would accept it because I cannot say exactly what I have read until it is published.

On the question of notice, I gave notice to my noble friend and she said that it was all right; I gave notice to the noble Baroness and she said, "Well, that was all Heir, and that she thought it made perfect sense. It is a matter really for this Committee whether it wants to do what I want to do, or suggest that we should do.

As to requiring notice, if the noble Baroness had been in the room just about 45 seconds earlier, I would have given her notice, but I do not suppose she would have agreed. That does not matter. The point is: what do Members think? I cannot put the matter clearer than saying that to try and debate Clause 5 without the assistance of that report is not futile, it is just a waste of time.

Baroness Scotland of Asthal

Perhaps I may suggest to the Committee that we see how we go. If the noble Lord, Lord Carlisle, is right and the noble Lord. Lord McNally, also makes sure he is right, we may well reach the stage where we decide as a Committee that the issue needs more time. I absolutely agree that this is a very important part and that we want to take a little time on it. So, if we get to a stage very near to seven o'clock and we think that we cannot do it justice, the Committee can indicate whether it would like to draw stumps at that moment.

Baroness Walmsley moved Amendment No. 12:

After Clause 3, insert the following new clause—

Amendment to Part 1 of the Family Law Act 1986 Use of recovery orders In Part I of the Family Law Act 1986 (c. 55) (child custody), after section 34 insert— 34A USE OF RECOVERY ORDERS IN CASES INVOLVING EITHER ALLEGATIONS OF DOMESTIC VIOLENCE OR A POTENTIAL RISK TO THE CHILD

  1. (1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.
  2. (2) If there is no residence order in favour of either parent, the court may grant a recovery order.
  3. (3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.
  4. (4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must
    1. (a)check their records to see whether either party has committed acts of violence;
    2. (b)check to see whether either party is included on the register of domestic violence perpetrators;
    3. (c)having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.
  5. (5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—
    1. (a) not remove the child from the respondent;
    2. (b) advise the respondent to seek legal representation;
    3. (c) notify the court of their action immediately.
  6. (6) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.
  7. (7) Ex parte residence or contact orders should only he made if there is evidence that a party is wilfully refusing to attend court."

The noble Baroness said: I rise to move Amendment No. 12. I am pleased to recognise that we have very effective laws designed to recover abducted children. Through them any person with a legitimate interest in proceedings under Section 8 of the Children Act 1989 can apply for orders under Sections 33 and 34 of the Family Law Act 1986 and an application for a contact or residence order will usually be made simultaneously. As those measures are intended specifically to deal with child abductions, it is a quick procedure and orders can be made ex parte without prior notice being given to the other party.

That is all well and good. However, there is a danger that a violent parent will be able to use those measures to track down the child and its mother. Amendment No. 12 is designed to prevent that. The amendment seeks to clarify the legal procedures for dealing with child abductions to ensure that such measures are not used inappropriately in cases of domestic violence. That is necessary because violent perpetrators have in the past been able to use "seek and recovery orders" to track down their victims and to recover children even from women's refuges.

If an abused woman flees from the family home taking the children with her, her violent partner may claim that that is a case of child abduction. If he does not know where the woman has gone, he can apply in private law proceedings for an order requiring the disclosure of information as to the whereabouts of the child and also a recovery order requiring the child to be returned to him. That is merely a ruse to find out where the mother is.

The person on whom the order is served must immediately disclose to the court all the information they have about the whereabouts of the child. By various means the perpetrator may obtain this information. Orders may be served on relatives of the woman, on schools or education authorities. There have even been instances of staff in women's refuges being ordered in court to disclose the full address of the refuge—something that is usually most closely guarded—where the woman and children are staying, sometimes even in front of the perpetrators.

Recovery orders make it possible for abusers to take action so fast that the mother has no time to seek legal representation or to attend court to give her side of the story before the child is removed from her care. Although the address will usually—but not always—be disclosed only to the court and not to the perpetrator, such a process is profoundly shocking for an abused woman. It is likely to undermine her confidence in the law as a protector of the innocent and in the refuge as a place of safety, and it may make her despair of ever escaping her abuser. It is also a very effective way for the abuser to demonstrate that he is still in control of the situation. It is all part of the power relationship between the abuser and the abused woman.

In the fourth annual report of the Advisory Board on Family Law of 2000–01, the Children Act Sub-Committee recommended that, the whereabouts of the missing parent and the children should not …be disclosed to the parent who has instituted the proceedings, or to that parent's solicitor, unless and until the court gives permission for that information to he disclosed". However, some judges seem to have difficulty in distinguishing between cases of domestic violence and cases of abduction because they are still granting orders for children to be found and returned to violent parents. They are also granting ex parte interim residence orders to perpetrators.

In a national survey conducted by the Women's Aid Federation of England in May 2003, seven refuge organisations reported problems with recovery orders. Their comments indicate that that can happen even when the father has a police record for violence and the mother is staying in a refuge. In those circumstances, because the mother is viewed as having abducted the child, she is likely to be treated harshly by the court and the wishes and feelings of the child will riot be taken into consideration at all. We shall come to that matter in a later amendment. That is made very clear in the following case provided by one of the survey respondents: One of the worst cases, still ongoing. Mother fled to another area with her young son. Father applied to the High Court for `seek and recovery' and ex parte residence order, and this was granted. Local police had to remove the boy forcibly and found this traumatic, as he became extremely distressed. Because this was an ex parte order, it could not be challenged. Mother returned to her home town to be near her son. She now has an order for contact to be supervised by the father at his house!This is because father says he fears she might abduct the child again. This enables him to continue being violent and abusive towards her. and she is terrified of him". As domestic violence features in nearly three-quarters of cases where children are on the child protection register, the family justice system should recognise the need to protect children and mothers who are fleeing from violence. It is essential that family law should not enable perpetrators to track down their victims and obtain ex parte orders for contact or residence before the court is fully aware of the circumstances of the case. Amendment No. 12 should ensure that, and I recommend it to the Committee. I beg to move.

3.45 p.m.

Baroness Gould of Potternewton

Amendment No. 13, to which I wish to speak, has been grouped with Amendment No. 12. On the surface, it may appear as though it deals with quite a different subject. However, that is not necessarily the case because the evidence shows that about 26 per cent of children who were not properly supervised at contact centres were either abducted or involved in an abduction attempt. Therefore, in that respect, there is a relationship between the two amendments.

Amendment No. 13 would ensure that child contact centres in domestic violence cases are adequate to guarantee the safety of the children involved. The report, Safety and Justice, stresses that, once contact has been agreed, it must take place in a safe environment for all parties. Dedicated child contact centres can help to fulfil that role. It goes on to say that the objective is to ensure that children and families are referred to the child contact centre with the appropriate facilities for the family. That is particularly important when domestic violence is the issue. The problem is that that objective cannot honestly be fulfilled because in some areas of the country there are no adequate supervised centres.

The Government are right in their report. It is critical that all child contact arrangements take place in a safe, congenial environment for all parties but especially for the children. However, at present, there

is an acute shortage of contact centres—in particular, those offering supervised contact facilities. The result is that a court order for supervised contact sometimes means that no contact can take place at all, so depriving children of the chance to keep in touch with both parents after their separation or divorce. I stress "both parents" because the lack of contact centres tells against fathers. I believe it is terribly important that we recognise that fact.

Funding and the geographical availability of contact centres have until now been entirely ad hoc, which is no longer a tenable situation. The Government must develop a national strategy for the provision of child contact centres, plus adequate funding to ensure that there is at least one accessible supervised contact centre in every local authority area. Not to do that would create a gap in an otherwise admirable Bill.

I appreciate that making arrangements for children to keep in touch with both parents after family breakdown is often difficult. In cases of domestic violence, contact visits can be fraught with danger. There is much evidence highlighting the risks of contact for children, and contact arrangements made by the courts are not always safe.

In 1999, a survey of 130 abused parents found that 76 per cent of the 148 children who were ordered by the courts to have contact with their estranged parents were said to have been abused in the following ways as a result of contact visits. Ten per cent were sexually abused during contact; 15 per cent were physically assaulted; as I said before, 26 per cent were abducted or involved in an abduction attempt; 36 per cent were neglected during contact; and 62 per cent suffered emotional harm.

In 2003, a survey involving 178 refuge organisations found that, since April 2001, 18 children were ordered to have contact with parents who had committed offences against children. Sixty-four children were ordered to have contact with parents whose behaviour had caused the children to be placed on the child protection register. In 21 of those 82 cases, unsupervised contact was granted, so there was no protection for the child whatever.

Research commissioned by the Lord Chancellor's Department and published in 2002 found that in a significant minority of contact arrangements the well-being and safety of women and children was being compromised. According to Women's Aid, 23 children had been killed in England and Wales as a result of contact arrangements with violent parents. One means to keep children safe and protected during contact is ensuring that contact takes place in a supervised contact centre with professionally skilled and trained staff offering individual family support.

Child contact centres in this country have developed in an ad hoc manner, as I said, and there are uneven levels of provision across the regions. The majority of contact centres fall into the broad category of providing supported contact, which generally involves low vigilance of several families at a time in a large room. Many of those services are provided by the voluntary sector, charities and Churches and staffed in the main by volunteers. Nobody would want that to change—those volunteers do an amazing job—but local authorities have a responsibility to ensure that the proper facilities and provision are there to assist those volunteers.

A smaller number of centres has been set up to deal with contact arrangements where there are safety concerns or a history of domestic violence and/or child protection concerns. Those supervised contact centres involve high vigilance and are more likely to employ qualified staff. Within those centres, a worker will be present throughout the contact session and only one family will be in the contact room.

Recent evidence presented to the Lord Chancellor has revealed a large demand for more supervised centres to manage cases involving risk to children and parents. There is an acute shortage of centres able to provide individual supervision for high-risk cases. At the beginning of 2001, 99 per cent of contact centres were supported and only 1 per cent supervised. That shortage of centres means that supervised contact visits with a violent parent can far too quickly become unsupervised and high-risk cases can be referred to contact centres, which cannot provide high vigilance contact.

Funding arrangements for contact centres and. in particular, supervised centres, are unsatisfactory and piecemeal. Currently contact centres attract funds from a variety of sources, statutory and voluntary. Many services have been developed by putting together complex packages of funding from different government sources. Those include Legal Service Commission money for mediation work, CAFCASS, Sure Start and children's fund money from the DfES. I appreciate, as do the people working in this field, that in the past three years the Government have provided £1.7 million and we welcome the Government's announcement in 2003 that they will be spending another £2.5 million over the next three years for the expansion of supervised contact centres in England.

However, that does not deal with the concern about the current funding arrangements and the fact that some centres are facing potential closure. That is partly due to the unintended consequences of strategic decisions by the Legal Services Commission and CAFCASS. By April 2004, the LSC intends to contract only for fixed-price mediation and that could impact on the sustainability of some projects. CAFCASS is cutting funding for family mediation services. The overall cuts equate to 57.5 per cent in the past year.

Funding arrangements are at the discretion of local CAFCASS managers, constrained by budget limitations and high service demand. The impact of that, for example, on the NCH Family Mediation and Children's Support Service is an estimated shortfall of around £500,000 required to sustain family mediation and contact work in 2004.

It seems to me that urgent measures need to be taken to ensure that we have a properly funded child contact service. I hope that those child contact centres would be properly equipped, in the right place, well supervised and safe. Only then can we be sure that the children will be safe and not come to the harm I listed earlier.

Baroness Howe of Idlicote

I should like briefly to support both amendments and to say a particular word about the amendment moved by the noble Baroness, Lady Gould. Those of us who served on the Children Act sub-committee heard disturbing evidence about the situations in which families and children are placed. Indeed, there has been criticism that not enough attention has been paid to the situation, both physical and emotional, in which children are placed, even under this very important and welcome Bill. Much evidence was given about the unevenness of the quality of supervision, not even the fact that in some areas there was supervision and in some there was not. It is crucial that the amendment, or one to this effect, goes into the Act, along with provisions on training, and the funds to ensure that all this happens.

At Second Reading I asked about the extent to which figures were available. We have heard some figures given today, but I remember hearing from the organisations that no official statistics are kept of deaths of children and adults which have resulted from these kind of situations. Therefore, it is important that we pay attention to these two amendments. Above all, I ask that some method is provided whereby a track can he kept of where serious damage or, indeed, death, occurs in situations of domestic violence.

Baroness Thornton

I want to make two comments in support of both amendments. As regards the first, I draw attention to the irony of a situation in which the Government's policy is to encourage women to report domestic violence to the police. Indeed, we would all want to encourage that. Women have to have confidence in the system to give them and their children proper protection. The briefings we receive from Women's Aid are clear. Numbers of such incidences are small but they point to that particular issue.

My second point concerns contact centres. I should like to put in a word for fathers. The inadequacy of provision of proper contact centres, a proper spread of contact centres and, indeed, supervised contact centres means that it must be heartbreaking in some circumstances for fathers who wish to have contact with their children and need to travel to do that. Fathers who want to re-establish contact with their children and build up to having unsupervised access are denied the opportunity to do that because of the inadequacy of provision.

There is a serious child protection and domestic violence issue here but there is also an issue that these fathers are being very badly served and, therefore, their children are too.

4 p.m.

Lord Donaldson of Lymington

I wish to raise a point which may be thought to go wildly outside the scope of the Grand Committee but, nevertheless, has ripples that effect it. That is the concept that an ex parte order has to be obeyed instantly, without any recourse if there are problems with it—perhaps it has been obtained by fraud. When I was still serving, I met a situation under what is called an Anton Piller order. An ex parte order is obtained so that one party can go to the premises of the other party, hang on the door and say, "I want all your documents". It seems to me manifest that that did not work as a practicl matter. I can remember giving judgment—though heaven knows where it is—saying that the practical way of dealing with this is, provided that the applicant can be reasonably satisfied that the documents will not be destroyed, there ought to be a standstill position while the aggrieved party or respondent is able to go to the courts and say, "Hold everything" and explain what the reasons may be.

It seems to me that the same problem applies to ex parte orders in the context with which this Committee is concerned. It is obviously important in some cases that one obtains an ex parte order—I suppose it is called something different now—without the other side knowing, because otherwise the other side will just decamp. That is clear. But having identified where the child is, and that he is not in any particular danger, there ought to be some machinery for providing a standstill in which the alleged abductor cannot get away with the child and the child is disturbed as little as possible, but the order is not carried out while there is an immediate application to the court to review the original order. I do not know whether that machinery exists, but it plainly ought to exist.

Baroness Anelav of St Johns

Both of these amendments are extremely important. They raise issues that, as the noble and learned Lord, Lord Donaldson, said, should take us beyond the confines of the amendments themselves. I am glad that he has added the contextual background to this discussion. While recognising how important Amendment No. 12 is, I think extra thought will have to be given to it and I suspect that those moving it will wish to come back at Report to look at it again. It is only in that context that I want to ask one or two questions about the drafting.

I am sympathetic to the objective that, at all costs, we want to ensure that abused children are not in the hands of their abuser. I shall look forward to hearing from the Minister whether there are statistics available to show that courts are failing in their duty. The noble Baroness, Lady Howe of Idlicote, raised this question. If there are statistics, what are they? If there are not, do the Government agree that the courts are failing in their duty? If so, what other measures do they believe are more appropriate than this to have redress? That is obviously for the Minister to answer.

My questions are on the drafting as I suspect we will see Amendment No. 12 again in either this or another form. I notice that subsection (5)(a) refers to "respondent" but subsection (6) refers to "defendant". Who is that? I am getting a bit puzzled, that is all. Subsection (4) refers to a police check of records to see whether either party has committed acts of violence—quite right, I agree with that—hut then subsection (5) states: If the records show that the applicant has a history of violence"— it is the applicant here— the police will …not remove the child from the respondent". But what about if that search of the records shows that the respondent has committed acts of violence? What do the police do with the children then? We are putting a very heavy responsibility on the police in this amendment and we need to take account of that. According to the Liberal Democrat Amendment No. 12, the police do not remove from the respondent. Where no exception is allowed here, one has to look very carefully at that as there could be problems.

As a postscript on Amendment No.12, I heard what the noble and learned Lord, Lord Donaldson, says about ex parte orders—that perhaps there is something different now. I understand that they are now "without notice applications" so perhaps I could just tease Liberal Democrats by saying that when the courts are trying to be more modern and avoid Latin they have slipped back into the old terminology—and what is wrong with that?

Turning to Amendment No. 13, I have great sympathy with its objectives and, possibly, with its implementation but I see the problems for the Government on this. I wonder what the LGA view is about this amendment. I have not been able to contact it since I saw the amendment when it was published last Friday. At the end of last week, the LGA very properly circulated all noble Lords with an interest in the Bill with a briefing and a small leaflet that it publishes. I looked at it, but there was no mention of this issue at all, which concerned me. Even if I had not seen this amendment, I would have been concerned by the lack of mention of this issue.

I wonder whether the noble Baroness, Lady Gould. will he able to follow up contact with the LGA. I undertake that I will continue to try to do so. I have a complete disinclination to enable national government to tell local government what to do, even if it is a matter of good practice—whose good practice? The LGA may have completely good reasons for not wanting to have a specified contact centre in each and every area. It may well be that the area it covers is so enormous that it makes more sense to make use of a contact facility in a neighbouring LGA area. It may be cheaper to buy into that and far more convenient for the parents involved. So, while the direction of this amendment appeals to me because of its principled approach, it does not appeal to me because it directs the LGA to do this "or else". The "or else" may be more appropriate to both parents and children. Having said that. I wish to follow this up with the LGA.

Baroness Gould of Potternewton

Perhaps I may say to the noble Baroness, Lady Anelay, that I am, I think, an honorary vice-chair of the LGA so I will certainly take the matter up. When I saw its briefing, I was surprised that there was no mention of this at all. I will certainly be in touch with the LGA.

Lord Campbell of Alloway

I will be very brief. I have no expertise in family law and have never tried a family law case, but I totally accept, and am sympathetic to, the objectives of Amendments Nos. 12, 13 and 39. Using my common sense and having heard what has been said, I accept that urgent measures are required and are absolutely essential. Something should he done and it is important that some method must be found. Be that as it may, what worries me is the method proposed. I speak without expertise on this, as a general common law advocate. It seems to me that implementing regulations are needed because one is primarily concerned with matters of procedure. Generally speaking, these are not suitable provisions to embody in primary legislation.

4.15 p.m.

Baroness Scotland of Asthal

I thank all noble Lords who have raised this matter and most of all I welcome back the noble Baroness, Lady Walmsley. I know that she has only just come back from Antarctica and I was amazed when I saw her present in the Committee on the last occasion. I want to salute her for having the dedication to come back to this issue. It is very important.

I hope that I will be able to explain how the system already works; how the provisions that we seek to introduce will amplify and accelerate the kinds of practice the noble Baroness seeks; and why, therefore, the amendment that she puts forward, Amendment No. 12, is not necessary. I want to make absolutely clear that I am in sympathy with her in relation to the concerns that are raised by women and, particularly, children but also by some men, too, as a result of these circumstances.

As an introductory note, I want to reassure the noble and learned Lord, Lord Donaldson, first, that, in dealing with ex parte orders in the family context, the good sense that he spoke about is well established in that jurisdiction. Noble Lords will know that when any party comes to court and asks for an order without the other party being present, there is a duty on that applicant to tell the court everything that he knows about the case, both to his advantage and possible disadvantage, so that the court can come to a proper conclusion. Secondly, it will be open to the court to set the parameters of the exercise of that order—for example, by giving timelines and saying the applicant must come back to court immediately or must not remove the child and other matters of that kind.

Perhaps I may go back to the mischief that the noble Baroness, Lady Walmsley, seeks to cure and take a little time to explain how it works. Amendment No. 12 seeks to place additional duties on the court and on the police when an application is made under Section 34 of the Family Law Act 1986. In effect, Section 34 gives the court the power to enforce an order made under the Children Act 1989 to give up a child to another person. The order would give an officer of the court or a constable the right to take the child into charge and to deliver him or her to the person concerned. Where the applicant has a residence order, the amendment seeks to establish a presumption, returning the child to that party after an alleged abduction.

If I may respectfully say so, the proposed amendment does not sit well with the requirements of the existing Section 34(1) because it makes no mention of them. The section provides that there must, first, before reaching Section 34. be a Part 1 order—for the most part, defined as Section 8 orders under the Children Act 1989. Noble Lords will know that there will be an order either for residence, for contact or for matters of that kind. or an order for the enforcement of a Part 1 order requiring a person to give up a child to the person concerned before the authority can be given to an officer of the court or to a constable to take the child into charge.

Generally, the relevant Part 1 order will be either a contact order, providing precise details regarding when the child should be returned, or a specific issue order obtained following the failure to return a child to the applicant. The proposed amendment makes no mention of the requirement of an existing Part 1 order where the court will have already considered what is in the best interests of the child under Section 1(1) of the Children Act 1989 regarding whether or not the child should be returned to the applicant.

The proposed amendment, which provides for a presumption of return in favour of the party with a residence order, may not be in the child's interest. I believe that that was alluded to by the noble Baroness, Lady Anelay. The court will not be obliged to look at the precise arrangements for the return of the child or at whether the child should be returned at all, but, under the present system, it will have done that at some stage.

Therefore, while we fully understand the good intentions behind the amendment, we do not think that it can be right for an applicant who already has an order of the court to have to have the order reheard when a child is not given up as so directed by the court. The noble Baroness will know that in many cases—sometimes quite intransigent, difficult cases—a war almost goes on between the two parties: breach, counter-breach; breach, counter-breach. We must do all that we can not to exacerbate that situation but to make it easier to manage.

Respondents to children at Section 8 applications of course have the right to appeal and can seek variations of the order. So the Section 34 application is not the place for a rehearing of the facts of the case. The noble Baroness will know that there will be occasions on which a parent will become anxious about what is happening in the resident parent's home because something may occur which makes that parent concerned. If that parent does not wish to comply with an order returning the child to the resident parent, the proper course is to go back to court and say, "This is what has happened. I am very concerned. Please can I have a variation

The proposed amendment is also unnecessary in that the existing remedies regarding the enforcement of residence orders against those who do not comply with them are, we believe, sufficient. First, the existing procedures under Section 34 of the Family Law Act 1986 provide appropriate measures to enforce residence orders while at the same time protecting the welfare of the child. Secondly, it is also possible to apply to make the child a ward of court and to apply for a location order or a collection order.

Those of us who did nothing but wardships in the early 1970s will know what a flexible tool it is. Basically, the judge in the High Court can order the parties to do anything. Technically. he can order that each party stands on his head and does cartwheels down the main road, if that is in the interests of the child. So there is a wonderfully flexible tool.

Under wardship, it will be possible for the court to give directions to the tipstaff—the tipstaff is the officer of the Supreme Court who is akin to a constable—to locate and/or to take charge of the child concerned. The tipstaff is usually directed to take the ward into his, or her, custody—we now have some female members of the tipstaff staff—and deliver the ward to a person named in the order. Once a child has been made a ward, the court determines what happens to the child and has wide powers indeed.

Thirdly, where a person is in breach of arrangements of a residence order made in any court, provided that person has been served with a copy of the order, the person in favour of whom the order was made may seek to enforce it under Section 63(3) of the Magistrates' Courts Act 1980. That allows the court to order the person in breach to pay a sum not exceeding £50 for every day during which he is in default, or a sum not exceeding £5,000, or to commit that person to prison. Committal proceedings would also be available following the non-compliance of a court order.

In addition, under Section 34(3) of the Family Law Act 1986 a residence order made by a family proceedings court may be enforced under Section 34(1), even though it does not specifically require the person concerned to give up the child or specify when the child should be given up. The magistrates' court will do that only if it is satisfied that the settled arrangement under the order has been breached in that the child has not been given up to the person who should have had him under the order.

Perhaps I may say in passing that I understand why all of that is not plain on the face of the Bill. I know that one must put the structure together, rather like making a jigsaw puzzle. But it is all there.

Where neither party has a residence order—there are no orders at all—and accusations of violence are made, the amendment seeks to place additional duties on the court and the police to inquire into whether the allegations of violence are justified. If they were, the court would not return the child to the applicant, but the respondent would be advised to obtain legal advice.

No one disputes the need to ensure effective protection for women and their children who are in danger. However, to apply for an order under Section 34 of the Act, there must first be an initial court order under the Children Act 1989 directing that the child be given up. The court will have had that opportunity.

So in deciding any issue in relation to the upbringing of a child, Section 1 of the Children Act 1989 requires the court to have the welfare of the child as its paramount consideration. Section 1(3) of the Act also provides the court with a checklist to which the court must have regard. This checklist includes the physical, emotional and educational needs of the child and any harm which the child has suffered or is at risk of suffering. In reaching this decision, the court may also request additional information, usually from CAFCASS, direct a local authority to investigate the child's circumstances if it believes that the child may be of such risk of significant harm that a care or supervision order may be necessary.

The proposed amendment also seeks to restrict the making of ex parte residence and contact orders to when there is evidence that a party is wilfully refusing to attend court. I hope that after all I have said Members of the Committee will agree that this is not necessary and, what is more, may not be in the best interests of the child.

From all the interventions made by the noble Baroness, and from those of all other noble Lords who have participated in the Bill—the noble Baronesses, Lady Gould, Lady Thornton and Lady Howe, and the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway—I know that our joint intent is to put the children at the forefront.

The amendment does not appear to be necessary. The court has developed strict guidelines as to when ex parte Section 8 orders should be made. For example, the Court of Appeal in Re H, (A minor)(Interim custody) in 1991 to be found at 2 Family Law Reports, page 411, held that it was undesirable for ex parte orders to be made except in the most exceptional circumstances, and only on very strong evidence.

I hope that through that quick but intensive, mind-numbing exposition of the law, your Lordships will understand why we believe that the added value we have brought in the Bill meets the need, and it is not necessary for us to have it further amended by Amendment No. 12, although we absolutely agree with the thrust of why the noble Baroness tabled it.

I turn to Amendment No. 13, tabled by my noble friend Lady Gould of Potternewton. She made some very valuable points and I want to say to her and to my noble friend Lady Thornton how much I understand the thrust of their concerns on this matter. They were echoed, quite properly, by the noble Baroness, Lady Howe. No figures have been collected at the moment. The reason is that it is difficult to collect such information because most contact is agreed between the parties without it ever going into an order. Indeed, the tragic deaths about which my noble friend told us today were not, as far as we are aware and can tell from our research, as a result of a court-ordered contact. Regrettably, as on many occasions, dispute between the parties has never come before a court and that causes some difficulties.

I understand the reason why my noble friend has tabled the amendment. Local authorities already provide facilities for children in their care to maintain contact with their families. What I believe Amendment No. 13 seeks to address is supervised contact facilities for private law cases. We carried out a mapping exercise in 2002 that confirmed in some areas there was concern about lack of provision, as my noble friend highlighted. The Government are addressing this issue in partnership with the Child Contact Centre Implementation Group, which includes representatives from all interested fields, including local government.

My right honourable friend the Minister for Children, Young People and Families is currently considering applications for new supervised contact centres totalling £3.5 million. This includes £600,000 for training, research and to fund the National Association of Child Contact Centre's Change Programme, whereby it moves from an affiliated to an accredited organisation.

So, even with this significant injection of funds, we still recognise that provision will not be universal. We will continue to address this through working with the implementation group to establish better ways of utilising existing services as well as how we can extend service provision within available resources. Three initiatives, funded by the Treasury's Invest to Save scheme, are currently in progress in Inner London, Greater Manchester and the West Midlands to develop on the ground partnership arrangements.

I should also mention that many families would not wish to use local authority contact facilities for fear of stigmatisation and so forth. We believe. as do all the key players in this field, that the voluntary sector is best placed to provide contact facilities. They are seen by families as neutral from the state sector (courts or local authorities) and that is a key ingredient in their success. People trust them; they feel comfortable about going there; and they do not feel threatened. We are working with the voluntary sector to devise a strategy not only to extend provision but also to sustain existing services.

I apologise for having spoken at such length, but I thought it only right that noble Lords know precisely what we are doing. The Government very much echo the concerns expressed by a number of Members of the Committee on this issue.

Lord Campbell of Alloway

Perhaps I may ask the Minister one question and thank her very much for her comprehensive explanation of the court's position. I am concerned with subsections (4), (5) and (6) of Amendment No. 12, which are wholly related to the police. Does the Minister agree that it is a matter for secondary legislation? It can be implemented——there are means of doing it but I shall not waste time on saying what they are. The Minister knows them perfectly well. Does she agree that it is a matter worthy of consideration?

Baroness Scotland of Asthal

I hear what the noble Lord says and I know the reason why he alights upon secondary legislation. It is because we are dealing with changing practice as opposed to having something static. We, too, think a proper emphasis may be in changing practice, and therefore the protocols that are being brought out, the guidance that is being given and the inter-agency working are issues on which we will concentrate. But those issues need not necessarily be in secondary legislation.

We need to have a good modus operandi—a good way of working together in partnership—which we all understand and can use to the betterment of the children and families we seek to serve.

Lord Ackner

The Minister in her tour d'horizon or tour de force mentioned the issue of a child being made a ward of court. Am I right in thinking that the ex parte application does not automatically make the child a ward of court, but that it enables the judge then to consider the merits of that application before the child is made a ward of court?

4.30 p.m.

Baroness Scotland of Asthal

There are two routes, of course. There is the route through the 1986 orders, which we have talked about. If there is no order—the noble Baroness, Lady Walmsley, talked about situations in which there may not be an order—and a child is improperly removed from a custodial parent, the non-custodial parent, or the person from whom the child has been improperly removed, can go to court and say, "My child has been removed from me by the other parent without my knowledge and consent. I wish you to make the child a ward and oblige the child to be returned to me". That is under the inherent jurisdiction, as opposed to under the jurisdiction of the 1986 legislation or the Children Act. Those are separate routes but they are both available.

Noble Lords will know that Section 100 of the Children Act provided that the inherent jurisdiction under wardship will not be capable of being exercised once the Children Act rights have been exercised and in relation to local authorities. But I believe that subsection (4) provides that in exceptional circumstances, even where it is a public law case, it can be done. So the inherent jurisdiction remains; it can be used where a child is at risk but it is available to parents where there are no orders in being between them, and a child is wrongfully removed.

Noble Lords will know that the Child Abduction Act 1984 deals also with the issue of a child being removed outwith our jurisdiction, and that Act brought the Hague Convention into force. So there is a panoply of provision which can operate, dependent upon the nature of the removal and the family circumstances and on whether there have been orders in the past.

Lord Ackner

Thank you so much.

Baroness Walmsley

I thank the Minister for her recognition of the intrepid nature of the activities of the Science and Technology Committee in the Antarctic. I commend her and the rest of the Committee to the report on international scientific treaties, which we propose to publish in June.

I should like to give a view on Amendment No.13 before I speak to my own amendment. I, too, very much support the spirit of what the noble Baroness. Lady Gould of Potternewton, is trying to achieve, but I have some sympathy with the concerns expressed by the noble Baroness, Lady Anelay. I am sure that the noble Baroness, Lady Gould of Potternewton, will be looking at other ways of ensuring that the spirit is fulfilled. It is important that fathers who may have had a very unfortunate relationship with a child and its mother in the past have the opportunity to rebuild it in a situation in which the child is safe.

On Amendment No. 12 and with regard to without notice applications, or ex parte applications—the noble Baroness, Lady Anelay teased me about this hut I think the Latin is much more elegant in many cases, as is the French—the very speed of their implementation, as highlighted by the noble and learned Lord, Lord Donaldson, made us insert subsections (4) and (5) into the amendment. However, I thank the Minister for her exhaustive and complicated tour d'horizon: through the jigsaw of legislation covering this issue. I hope that when the organisations which asked me to table the amendment look carefully at her answer in Hansard, they do not find a little blue bit or a little green bit missing. It would be tragic if the Government's intention, which is quite clearly expressed by the Minister and is very much in line with our own, were to be undermined by a little missing piece in the corner.

I will study the Minister's explanation very carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Baroness Anelay of St Johns moved Amendment No. 13A:

Page 2, line 28. leave out "or vulnerable adult"

The noble Baroness said: In moving Amendment No.13A, I should also like to speak to Amendment No. 29A, grouped with it. We now reach one of the most innovative and, perhaps, controversial clauses in the Bill.

On Second Reading, the Minister made it clear that she was in listening mode with regard to amendments. That has been noted with keen interest not only by noble Lords but by voluntary organisations which have an interest in the Bill. I hope that we may prove persuasive with some of the amendments to Clauses 4 and 5 in particular in this part of the Bill.

I have grouped my amendments so that we can debate the main issues of the offence in Clause 4 in two major groups. I should like to give advance notice of how they fall; I have done a bit of grid to hand out to my noble friends, but it may assist other noble Lords if I give a partial explanation of the groupings. The group led by Amendment No. 15 will give us an opportunity. I hope, to have a general look at all the issues involved in holding somebody to account for the non-accidental death of a child in a household. In Amendment No. 25, I have imported a Law Commission definition of the household. Other amendments will tackle specific stand-alone questions. This group refers only to the position of vulnerable adults. It is right, at this stage, that I put on the record my overall view about Clauses 4 and 5 so that I can save time in later groups and concentrate at this moment on Clause 4. It means I will not have to repeat views when debating either my amendments or those of other noble Lords.

I made it clear on Second Reading that I support the objective of Clauses 4 and 5. We agree with the Government that it is unacceptable that a child's killer should go unpunished, that a way should be found of addressing the problem that exists where a child is killed in a household where more than one person is present, and it is not clear which of the carers has directly caused the death.

As the law stands, as a result of the Court of Appeal's ruling in Lane and Lane, it is likely that a trial would not proceed beyond a defence submission of "no case to answer". As a result, neither parent nor carer can be convicted and one or other parent or carer—or both of them—might well literally have got away with murder.

As the Law Commission points out in paragraph 1.2 of its consultative report No. 279 entitled Children: Their Non-Accidental Death or Serious Injury (Criminal Trials), even though one parent may not have struck the fatal blow or blows, he or she may be culpable through having participated in the killing actively or by failing to protect the child. In many cases of this type, it is difficult, or impossible, to prove beyond reasonable doubt who did what, and therefore neither parent nor carer can be convicted.

I agree that we need to take action, but I have serious doubts about the drafting of Clauses 4 and 5. We need to test the implications of the route the Government have followed and, in particular, ask them to justify why they have diverged from the Law Commission's proposals. This first group of amendments tackles the question of divergence from the Law Commission's proposals.

The offence created in Clause 4 relates to both children and vulnerable adults. My amendments remove the reference to vulnerable adults in order to ask the Government to explain why they departed from the Law Commission's proposals that were confined only to children. What was the genesis of the Government proposals? Which organisations were consulted and have those responses to consultation been published?

When I was writing my speaking notes over the past week and at the weekend, I took the chance to reread the briefing we received on Second Reading. I subsequently noted that the NSPCC briefing states that as far as it is aware, no consultation exercise equivalent to the work that has been done in relation to children has been conducted in relation to vulnerable adults. It therefore raises the question of whether this group has been given the attention it deserves prior to launching into legislation that does not appear to it to have been well thought out. Naturally and properly, the NSPCC adds that this is not its area of expertise; it leaves it to those who represent vulnerable adults to make their own representations. The problem is that, so far, I have received no representations either way from such groups, so I am rather in the dark.

I therefore thought it right that I should table this amendment to ensure that at least the matter receives some attention today. I shall certainly do my best to contact the relevant organisations to find out what has been going on behind the scenes and ask them for their views.

I can certainly understand the very good intentions behind trying to ensure that those who are unable to protect themselves as adults should be brought within the scope of Clause 4. But that would also be a good argument for ensuring that adult victims of domestic violence were covered by this defence to the offence. Flow far does the definition of a vulnerable person go in subsection (6)? Does the reference to "or otherwise" at the end of the subsection mean that all adults who are the victims of domestic violence are covered by that subsection? What do the Government intend the words "or otherwise" to cover?

In practical terms, how would the fact that somebody fell within the definition of "vulnerable adult" be verified after his death? What is the Government's expectation? Would medical records be required? Since the person is dead, what would be acceptable proof of his vulnerability, especially those who fall into the category of "or otherwise"? After all, children's details are easily verified by a birth certificate. There are simple physical records; one just has to prove age. But as soon as one enters the realms of vulnerable adults, I foresee difficulties in properly defining who should be protected by that definition. I beg to move.

Lord Carlisle of Bucklow

I support my noble friend Lady Anelay. Many of us who practise in the courts have been familiar with a situation in which a child has died but there is no evidence of which of two people committed the offence. I was amazed—if I have understood the figures correctly—to see how widespread that is.

According to Law Commission figures, no fewer than three children under the age of 10 were killed or suffered serious injury every week. Approximately one half were under six months old. And yet 61 per cent of investigations which reached a conclusion—which presumably means a conclusion that the child had been killed and an offence had been committed—resulted in no prosecution for any offence following a decision either by the police or the Crown Prosecution Service. I presume that that means that more than 50 per cent of the cases where children of this age are killed are not proceeded against because of the particular difficulty of managing to prove which of the two or three people it involved.

Therefore, I accept that it is right and arguable that we should attempt to deal with that situation. I am sure that the Minister will also agree that we are creating a very serious new criminal offence which, if 61 per cent be right, may lead to considerable numbers of trials in the future. If we are introducing a new criminal offence, it is surely important that we should scrutinise every word of the definition of that offence. When it comes to Clause 5, we should also ensure that we have not so affected the burden of proof as to be unacceptable in the wording involved.

If I may speak purely to the amendment moved by my noble friend Lady Anelay, the Law Commission, which is accepted as a body of highly respected academics and practitioners, in recommending this offence, specifically said that it should be limited to children. What has led the Government to add the phrase "or vulnerable adult"? What is meant by "vulnerable adult"? I see that the phrase is defined in Clause 4(6) as, a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise". One seems to be moving straight from an area where an offence which was, as I understand it, led by the concern of abuse to children, the perpetrators of which were unable to be successfully prosecuted, into the whole area of people whose mental facilities are failing as they get older. Is it really intended that we should make the offence as wide as that? I do not know. I do not know what the figures are—clearly, they are not 61 per cent.

I do not know what has led the Government to feel that vulnerable adults should be included, but I think that it will lead to considerable argument over the definition of "vulnerable". It takes the Bill far wider than one assumed was intended.

I ask these questions merely to probe the Government's thinking. Clearly, the situation in the courts requires new legislation; it is right that the Government should tackle it, but they should be cautious about how wide they go. When the Law Commission, with all its experience, has specifically recommended that the offence should be limited, as I understand it, to the death or abuse of a child, to widen it to cover vulnerable adults seems a major step.

4.45 p.m.

Lord Eden of Winton

May I briefly follow up what has been said? In doing so, I have to confess that I am making a maiden speech in a Grand Committee, and I almost feel that 1 need to ask for the indulgence of noble Lords.

I am grateful to my noble friend Lady Anelay for tabling the amendments. They provide a welcome focus on an aspect of the Bill which so far has not been dealt with in Committee. I may, therefore, be taking a slightly different view from that of my noble friends. The Bill, after all, deals with domestic violence. Such violence is not limited to children; it means violence in the home, and it applies to old people as well.

I shall not go into detail, but for many years, many years ago, I was Member of Parliament for a constituency which had a substantial number of old and retired people. Certainly, one could draw attention to the vulnerability of those people. I should say—I hope without causing offence anywhere—that the violence or abuse to which elderly people can be subject is by no means restricted to the domestic scene. It also arises in institutions to which elderly people have gone for the remaining years of their life.

It will be within the experience of all noble Lords in this Committee that elderly people can be deeply harmed by verbal as much as physical abuse, by the harassment and intolerance that can take place, quite often in the home, by those on whom the elderly person is, necessarily, entirely dependent.

One could easily enumerate examples which cause one to welcome the fact that attention is being paid to the grievous harm to which many elderly people are subjected in their own home. I hope, therefore, that when she comes to reply, the Minister will take this opportunity to emphasise why the Government feel it is necessary that elderly people should be included within the terms of the domestic violence legislation.

Baroness Scotland of Asthal

I certainly will take up the invitation given by the noble Lord, Lord Eden of Winton, and reinforced by the noble Baroness, Lady Anelay. I want to thank her for her interest in this important area and also for the way in which she has sought to analyse our proposals. I know that she has said, as has the noble Lord, Lord Carlisle, that she wishes to probe the reasons why we have formulated the familial homicide offences in the way we have, and she is certainly doing that. Before I turn to the specifics of the amendment, it may be helpful if I say a few words about why we have formulated the offence in this way.

I should, at this stage, answer the question raised by the noble Baroness about consultation. We consulted Action on Elder Abuse and Carers UK. Action on Elder Abuse has commented about this; I hope that many noble Lords will have seen the press release welcoming it. At its meeting with officials, the British Council of Disabled People welcomed these measures. We have also contacted Mencap and RADAR, and although we consulted them in writing, we have received no comment from them. The usual indication, when that is so, is one of assent. When they think we are up to no good, they tend to tell us rather rapidly.

This is a complicated area of law. As the noble Lord, Lord Carlisle, and the noble Baroness have indicated, it has been the subject of the Law Commission's report, Children: Their Non-Accidental Death or Injury (Criminal Trials), which we have studied very closely. We should pay tribute to the Law Commission and the NSPCC, as the noble Lord, Lord Carlisle, did, for their excellent work in this area. They have made a major contribution to resolving some of the difficult cases and have made our proposals, and this debate, possible.

In brief, our proposals are intended to meet two objectives. First, we see the new offence as an important offence in its own right. It extends personal responsibility for household members for the well-being of the young and vulnerable in certain circumstances. I should make it clear that this is a significant change in how we view the responsibility of those in positions of care for vulnerable people who, quite often, either through age, disability— whether it be mental or physical—are dependent on others for their succour and well-being. It is not a step, as indicated by the noble Lord, Lord Carlisle, that we have taken lightly. We thought long and hard about doing it.

We believe that we all have a clear responsibility, as members of society, not to look away and ignore what is happening in such circumstances. If we are members of a household in which abuse or neglect is taking place, we need to do something about it.

Secondly, we believe this provides a means to "crack open" the classic "which of you did it" cases where there is a known risk to a child or vulnerable person within a household.

Unlike our single offence, the Law Commission's proposals are for two different offences covering these two objectives. On the Law Commission's second offence, we think it is too widely drawn. We think our definition of "household" provides a tighter, more justifiable, group to bring within the new responsibility.

We are also not convinced that the first offence would serve to "crack open" the cases in the way that we want. It builds on the existing child cruelty offences in Section 1 of the Children and Young Persons Act 1933. There is no equivalent offence for adults. We strongly believe that we should offer the improved protection to vulnerable adults. I shall turn to explain why in a moment. But it would be odd, and give rise to questions in the court, if we were to construct two offences offering parallel protection to the two groups but which were constructed in fundamentally different ways.

We shall be discussing later—I hope in some detail—how we constructed our proposed offence; the definition of "household", which we have put forward rather than confining the offence to those with a duty of care; and various other points questioned by other noble Lords, certainly at Second Reading. We shall also be looking at how we hope procedures can strengthen the overall package, which is a combination also favoured by the Law Commission. Obviously, I shall not go into those issues now because the noble Baroness says that we will be looking at them in the next group.

However, I should say that I am happy our proposals should work well in practice and make a significant contribution in dealing with some of the most sensitive, serious and difficult cases faced by our courts. I, too, would say to the noble Lord, Lord Carlisle, that when I came to scrutinise these figures I was shocked by the level of abuse that currently seems to be escaping proper attention.

I turn to the subject matter of the group of amendments. Members of the Committee are right to question whether this offence should apply to vulnerable adults as well as to children and, if so, how it should apply. I am also sure that noble Lords would support the attention and protection that we need to give to vulnerable adults.

If we look back at our understanding of child abuse and the need for protection for domestic violence cases, there are certain indicators that have caused us to be alert to a group of people who may be under the control of others, have an inability to protect themselves and are in need of protection. If one looks at the criteria that we have applied to one group and one applies it to others, one sees some very clear similarities.

So, we believe strongly that we should extend the protection to vulnerable adults. We know of at least one case where a vulnerable adult has died in domestic circumstances. The details of that case are very disturbing indeed. It perhaps would not be right for me to go into them here. Suffice it to say that one of the close family members must have been responsible for that person's death, but the prosecution was unable to prove which one it was. The family members all chose to remain silent.

That is a similar situation to the child who dies in domestic circumstances. In this situation, the other members of the household clearly have a responsibility to the vulnerable member to protect that person from harm and are complicit in the death. We have made death the important causal link, which makes it necessary or permissible for us to introduce these new procedures. That is determinant, not just abuse and serious harm but death.

So, we think that in terms of our responsibility to protect the most vulnerable in our society we have a strong policy case for extending the provisions to cover vulnerable adults. As I said earlier, we do not favour a separate offence for vulnerable adults. It would be sending a signal that we regard the offences as different in kind from offences against children, which is not the case. We would be failing in our duty when we are faced with such cases if we have the opportunity to amend the law to help us solve them and we do not do so.

We think it is right that we should restrict this to vulnerable adults who are unable to protect themselves. It would be a step too far to place such a legal duty on all members of the household where the person concerned was healthy and well able to take care of him or herself, or summon the relevant help if necessary. We have not gone down the route therefore of a complex legal definition of a vulnerable adult. We believe that this is a matter of common sense and properly and safely left to the courts.

The noble Lord, Lord Carlisle, asked us about the term "or otherwise" which is in the definition. The term "or otherwise" should be construed in the light of the preceding words: that is, physical or mental disability or illness, through old age". They are connected with those things. We think it is crucial that there should be a linkage in relation to that definition. But the crucial part of the definition is that the person's ability to protect himself from violence, abuse or neglect is significantly impaired". It will, of course, be a matter for the court to determine in each case whether that person's physical or mental disability through illness or age was significantly impaired. Of course it will be a matter of evidence whether it is medical, physical or otherwise. I refer to evidence from neighbours who will be able to assist in providing evidence to indicate the nature and extent of the vulnerability.

In essence, although we absolutely understand that this was not something that the Law Commission chose to deal with, we consider that we would neglect our duty when looking at victims generally—the Bill also concerns victims—if we failed to take a step that we could and should properly take to protect an identifiable vulnerable group who are subject to similar concerns that we now have in relation to children.

5 p.m.

Lord Donaldson of Lymington

May I raise the "or otherwise" problem? Of course, people of my age group cannot speak English, but I always understood the words "ejusdem generis" could be construed in the same way as the words "going before". However, one has some difficulty to decide whether, for instance, words such as "or otherwise" are to be construed as "ejusdem generis" or whether they can be construed as meaning something quite different. The Minister says that they are intended to be construed as meaning "ejusdern generis", but it may be worthwhile asking parliamentary counsel whether they think that something could be added to make it clear that that is the intention.

Baroness Scotland of Asthal

Obviously the comments I have made will be recorded in Hansard. One of the things of which we are very conscious is, just as with domestic violence, definitions change rapidly. There may be a new species, which could include "or otherwise", about which we do not know. That is why we have included the measure. However, I certainly hear what the noble and learned Lord says.

Lord Carlisle of Bucklow

May I ask the Minister two questions arising out of the very interesting and full answer that she gave? First, I refer to the point raised by my noble friend Lord Eden. He referred to vulnerable adults in homes. Would they be covered or not? Would they come within the definition of "household"? If so, how do you justify the distinction between the person who is killed in a home by the people looking after him or her as opposed to the person living at home with his family? Secondly, while I fully understand—the Minister explained this very lucidly—the argument she put forward regarding why she wanted to include vulnerable adults in the Bill, the argument applies to all cases of murder, does it not? Does it not apply to all cases of domestic murder? I see that the Minister shakes her head but one can think of certain famous murders where parents have been murdered for their money by members of the household and where it may well be the case that one is unable to prove which member of the household did it. If the justification for going wider than the Law Commission intended is that it seems wrong to legislate for children but not for vulnerable adults, does not logic take us to the fact that the measure should concern any murder in a domestic setting?

Lord Eden of Winton

Before the noble Baroness answers my noble friend, I hope that I may labour one small point and in doing so possibly save the Committee's time. I am concerned about the impact on elderly people in the home in the event of a member of the household being found guilty of an offence against that person under the terms of the provision that we are discussing. This probably goes beyond what is in the clause under our immediate consideration. However, it is likely in some situations that a member of the family who is looking after an elderly person who is disabled for one reason or another is found guilty of violence against that vulnerable person. That person is then removed, presumably away from the domestic scene. What happens to the vulnerable person in those circumstances?

The second aspect of that, if I make myself clear—I probably do not—is that what happens to the' vulnerable person is of great importance, quite clearly, to that individual. I am sure it is often the case that an elderly person who has been abused in the home by an individual, a member of the family looking after the vulnerable person, does not in any way want that member of the family to be removed from the home, nor does he or she wish to be removed from that home. It is a very difficult situation. I fear that the Government will open up a whole minefield unless they also address those secondary points.

Baroness Scotland of Asthal

I say straight away to the noble Lord, Lord Eden, that that is why we restricted the application of these provisions to cases where the vulnerable person has died. I refer to a death that has occurred within the household which is capable of only one explanation; namely, that the person has been killed unlawfully and there is no way of deciding, as in a murder mystery or whodunit. We believe that in those circumstances, as the vulnerable person in that household should have been able to rely on the care and protection of its members, that gives rise to a need for those members to give an explanation of what happened.

I absolutely understand the noble Lord's thinking in relation to serious injury. That is a matter with which we wrestled with regard to drawing an appropriate line. We are contemplating introducing something very radical in order to identify the perpetrators of unlawful killing. That is why we have said that the measure we are discussing is not about serious injury; it refers to the case where someone has had his life taken away by members of the household. How do we bring those people to account? How do we regularise the situation so that members of society consider that there is a realistic prospect of finding out what happened?

I turn to the issue raised by the noble Lord, Lord Carlisle. He referred to the measure that we are discussing applying in certain circumstances and asked why it did not apply in all cases of murder in a domestic setting. We have taken the view that very special circumstances pertain when a person is within the sanctity of what they believe to be their own home which deserve special and extraordinary measures separate from the norm. We have not at this stage sought to extend the measure to public institutional care. The Committee will know that when elderly or other vulnerable individuals are placed in the care of an institution supervisory and regulatory controls apply with regard to how that person is managed and monitored and there is a degree of accountability that one can pursue. One of the differences regarding living in your own home is that most people believe that is an area where they are utterly safe, that it is private and that there is no external supervisor who comes into that home as of right to monitor the management and care that is given. Therefore, this is a very difficult, almost intractable problem to resolve. We seek to eat this elephant one bite at a time.

As we are doing something so radical in terms of addressing this issue and responding to what is a radical problem, we believe that we should be constrained and conservative in our aspirations to start off with. Of course, if we find that the provisions need to be extended in the future, we would need to consult on that matter very broadly with professionals to consider whether the ambit of extension was necessary. However, we do not think that it would be appropriate to do so now. We have some very specific issues to deal with. We know that there is a problem regarding the deaths of those who are vulnerable either through old age, youth or disability. Those are the people we think that we need to protect.

Baroness Anelay of St Johns

I am very grateful indeed to all noble Lords who contributed to the debate on Clause 4 in such thoughtful vein. I am grateful to my noble friend Lord Carlisle of Bucklow for saying how important it is that we get our definitions right. As the Minister said, a radical step is being taken and we need to be very careful how we define those who will be caught by the Bill's provisions in terms of being protected and in terms of being prosecuted.

I was grateful for the comments of the noble and learned Lord. Lord Donaldson, who referred to the term "or otherwise". I tabled the relevant amendment. As a layman, I am very concerned about how the term might be construed. When I asked staff of the Library here and experts elsewhere for advice, the information I was given made me even more worried as it was clear that there was concern outwith this House about how the term might be construed. I agree with the noble and learned Lord that it would he helpful if the Government reconsidered that matter. I may consider bringing the measure back on Report to see what progress has been made on that.

I was particularly grateful to my noble friend Lord Eden of Winton for raising an important issue regarding extending the provision to vulnerable adults. In my opening remarks I made it clear that I was probing the issue as I wanted to know the basis on which the provision we are discussing had been introduced. My noble friend was right to mention the fear of elderly people who are at the mercy of those who care for them and who may not—as the Minister made clear—have anyone outside the household looking out for their best interests whom they can trust. I was grateful to my noble friend for mentioning institutions. He couched his observations in a very careful way. He did not wish to imply that those who care for elderly people in institutions might do anything improper as a matter of course.

From my limited experience of a mother-in-law who went into care, I am certainly aware of the extraordinary devotion that people can devote to that work. My mother-in-law received remarkable care at a time when her mental and physical state rendered her unable to care for herself. However, we are all aware of cases recorded in newspapers and reports regarding people in institutional care who have not been so fortunate. My noble friend was right to say that we need to consider those cases as well. I am certainly aware that the Law Commission tried to frame its provisions in such a way that they did not catch the social services or institutions as it was aware of the difficulties to which the Minister alluded.

I believe that this debate will range on, perhaps on the Floor of the House in Wednesday afternoon debates. It is very much fertile ground for noble Lords' consideration and concern.

I was certainly grateful for the Minister's comments and the care and consideration that she gave to the issues in her response. I was interested in what she said about the consultation and the groups who did not respond because, apparently, they were so pleased with the measure. I agree with her—often silence is taken to be consent. However, I shall "stir" things a little and be sure to contact them. The Minister would expect nothing less.

I was intrigued by the foretaste of what might happen in future debates when the noble Baroness said that the Government's definition of "household" was tighter than the Law Commission's. Goodness me, I thought that the Government's definition was much broader than the Law Commission's, which was why I incorporated the Law Commission's definition in my amendment.

I was particularly interested to hear the Minister refer to the definition of "vulnerable people" as those who are under the control of others, who need protection and who cannot supply it themselves—I paraphrase her remarks—and who could quarrel with that? However, when I look at Clause 4 it seems to my untutored eye that one could be defined as a vulnerable adult within the terms of Clause 4 and end up as a defendant in a case concerning a child who has died in that household. There are some intriguing matters here that I shall need to consider very carefully. I give the noble Baroness a chance to reply to that.

5.15 p.m.

Baroness Scotland of Asthal

Is the noble Baroness saying that the person in question would be alive?

Baroness Anelay of St Johns


Baroness Scotland of Asthal

The whole point of the way in which the noble Baroness describes the vulnerable adult is that the person who is now dead merited the kind of protection that we are discussing. I hope that the noble Baroness will never ever find herself in that position.

Baroness Anelay of St Johns

Me too!I realise, of course, that the vulnerable adult is the person who is dead in the circumstances that I am describing. There are two points here. First, this is a foretaste of the debates that we shall have on Amendment No. 14 with regard to serious harm and I shall not encroach upon that. Secondly, I mention this matter only because I shall discuss the position of people who I consider to be vulnerable adults; that is, people who suffer from domestic violence and may find themselves in difficulties as a result of the operation of Clauses 4 and 5. I agree with the noble Baroness entirely that the definition in Clause 4 that we are discussing is intended to refer only to the dead and not the living. However, I believe that there is not quite another world but certainly a cross-over in that regard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Walmsley moved Amendment No. 14:

Page 2, line 28, after "dies" insert "or is seriously harmed"

The noble Baroness said: In moving Amendment No. 14, I wish to speak also to Amendments Nos. 17, 23 and 26 with which it is grouped. We may already have heard part of the Minister's response to this group of amendments when she responded to the previous group. However, I shall soldier on.

The children's organisations and in particular the NSPCC are very eager to see the introduction of this new legislation to address the problems of cases involving the non-accidental death of children. However, as the Minister stressed in responding to the previous group of amendments, the Bill has omitted the causing of non-accidental serious injury (or harm) to children from the new offence in Clause 4 despite the fact that "serious harm" is referred to in subsection (1)(c) of Clause 4 and defined in subsection (6) of that clause. That omission is what we are questioning in tabling this group of amendments. In other words, we invite the Government to take one more bite of the elephant.

Both the NSPCC's "Which of you did it" working group and the Law Commission included serious injury to children in their examination of cases that cannot be prosecuted because it cannot be proved which of two, or a small number of suspects, actually caused the injury or death. That was a very substantial piece of consultation. The report of the "Which of you did it" working group contains research from the police that indicates that 83 per cent of the children unlawfully killed or seriously injured are under the age of two years and 50 per cent are under six months. The serious injuries that we are concerned about in relation to these vulnerable babies and children include violent blows to the head as well as children who have been shaken, poisoned or smothered. Arguably, a baby or child who has been left with severe brain damage has suffered as great an injustice as a child or baby who has been killed and this is why we want to include the relevant measure in Clause 4. To leave no remedy for these cases in this new legislation is totally unacceptable. Our amendments therefore allow the inclusion of non-accidental serious harm to children in the new offence.

Turning to vulnerable adults living in care homes, the same concern applies to them—as the noble Lord, Lord Eden of Winton, mentioned in the debate on an earlier amendment—because care homes and residential services for vulnerable adults are just different descriptions for what people living in them actually call home, as the noble Lord, Lord Carlisle. also emphasised. For this reason, any provisions aiming to protect victims of domestic violence must ensure that all vulnerable adults, wherever they live, are equally protected. Supervision does not always work. Time and time again victims with learning difficulties as well as other vulnerable adults in care are let down by criminal justice agencies that are unwilling to look behind closed doors to charge offenders and to support victims, who they often consider to be unreliable witnesses, to give evidence. The current non-statutory provisions of No Secrets are not enough to make sure that crime is appropriately dealt with. Instead assaults, thefts and other offences are dealt with by in-house disciplinary procedures and social care led vulnerable adult protection policies.

The problem of offences such as mistreatment and neglect—often actually amounting to common assault—going unchallenged has become so great that many organisations are calling for extra legislation to create specific criminal offences. In fact, Tom Burgner, who led an independent inquiry into the Longcare case —where a host of offences including rape, sexual assault and many other offences against the person were found to have occurred in privately run homes over a period of years before action was finally taken, and for which victims and their relatives eventually won record compensation—recommended in his report that a new arrestable offence of causing harm or exploitation of a vulnerable adult should be introduced with a maximum penalty of 10 years in prison, as with child neglect.

This group of amendments would provide the necessary additional protection for children and vulnerable adults both in relation to their death and in relation to serious harm as defined on page 3 of the Bill. I beg to move.

Baroness Anelay of St Johns

I understand entirely why the noble Baroness, Lady Walmsley, has tabled the amendments in the group that we are discussing. Indeed, the information that she provided shows that a serious problem exists. No one could gainsay that. However, she is aware—the NSPCC is also aware of this—that I cannot support the amendments as the Bill is currently drafted for many of the reasons that the Minister gave. However, I go further. I am so concerned about the drafting of Clauses 4 and 5—I believe that they go very far indeed in terms of eroding human rights—that I cannot contemplate including further offences within them as they are currently drafted. That is not to say that I do not fully sympathise with the approach of the noble Baroness, Lady Walmsley. I appreciate that we must find a way of dealing with those offences. However, I just do not think that the current wording of Clauses 4 and 5 constitutes the right solution.

Baroness Scotland of Asthal

As the noble Baroness made clear, these amendments would extend the offence to cover cases of serious injury. As I mentioned when discussing the previous group of amendments, at the moment it applies only where the child or vulnerable person has died. I must confess that this is something that caused me considerable concern and deep thought when we formulated our proposals for this offence. The line between death and serious injury can in practice sometimes be a pretty narrow one. Sometimes arriving just a few minutes later at the hospital can make the difference. Sometimes a child can suffer such serious brain injury that he or she has no real quality of life at all. Certainly, someone who has seriously harmed a child may have acted just as reprehensibly as the person who has killed a child. Speaking entirely personally, I have worried very much about this. The Law Commission produced proposals that included serious injury, although only in respect of failure to protect a child, and a seven-year maximum penalty. Its main offence concerned only cruelty contributing to death, with a 14-year penalty.

The question that the noble Baroness rhetorically asked—or maybe not so rhetorically—was: why we have confined ourselves to death? As we discussed earlier, the purposes of our new offence are two-fold. First, it is a serious offence in its own right. Secondly, we want it to function in a way that allows us to find the prime offender, so to speak, in "which of you did it" cases. As regards it being a serious offence in its own right, where someone is in a position of care over a child, such conduct, which amounts to cruelty short of death, will already be caught by the child cruelty offence, with a maximum penalty of 10 years. What will not be caught are other household members, as under our definition. For vulnerable adults there is no equivalent offence as the law is far less developed in this area.

In looking at this, I am conscious of the magnitude of the step we are already taking in our proposals in terms of attributing responsibility to those who do not already have a duty of care to a vulnerable child or adult. We are breaking new ground with this offence. Offences that result in the death of the victim have always been viewed in our legal system as particularly serious and meriting unique treatment. This makes a natural and appropriate starting place for extending the bounds of responsibility in the way we propose. I am not ruling out revisiting the question in the future, when we have seen how the new offence works in practice, and possibly extending it to serious harm. But I am very reluctant indeed to do so at this stage. We should be aiming for something clear, simple and well focussed initially to add to the statute book.

My view on this is strengthened if we look at the second purpose of the offence; its use to aid identification of the prime offender. For this to work, the maximum penalty needs to be set under the level of the prime offence. So both our proposal and the Law Commission's first offence set the maximum penalty at 14 years, given that the maximum penalty for murder and manslaughter is life. This provides the incentive for the lesser offender to break ranks and give evidence. The Law Commission's second offence has a maximum of seven years, again a level set under the standard child cruelty offence and the other offences in their list. So at the very least we would need a lesser penalty than that proposed if serious injury rather than death had resulted.

For children, we need to look at the role of the offence of child cruelty, which will continue to underpin the new offence. It is often possible to convict two or more people of the offence of child cruelty or neglect and there is a maximum sentence of up to 10 years attached to that. This in itself often provides a solution to the "which of you did it" conundrum where the child has suffered injury, even serious injury. In cases where a child has died, we can still use the offence of child cruelty and charge more than one defendant if that is what the circumstances warrant.

When the child has died, a 10-year penalty may not be adequate. Our package of proposals aims to ensure that we have as much evidence as possible to put before the court. After a great deal of thought, we concluded that we should confine the present proposal, at least for the moment, to cases of death and not include serious injury.

There are a few, perhaps more minor points, which I should make. First, in cases of serious injury, it may be less likely that we shall not know who did it. because the victim, unless he or she is too young, injured or confused to give evidence, is a source. Secondly, if the victim is injured but not dead, the other household members may have a greater incentive to give evidence, since it will help to protect the victim in future. Finally, we would need to consider carefully how to define "serious harm", and what it should cover. The Law Commission's proposal defines it quite widely, referring to a number of violent and sexual offences, and even attempts to commit those offences. We believe that that is probably too wide. The amendment would confine the definition to that which already exists in the offence of "serious harm"—that serious harm is harm that would be an offence of, grievous bodily for the purposes of the Offences against the Person Act 1861". The amendment would therefore be clearer and simpler than the original Law Commission's proposals. However, we would still be faced with the question why we should confine the offence to "serious harm", and not say "harm" more generally. We must ask ourselves, if the harm caused is injury rather than death, whether a 14-year sentence is appropriate. The fact that we have heard a number of different answers to that question demonstrates how difficult it is. We wish to remain focused on where we believe there is a problem.

I invite the noble Baroness to withdraw her amendment. However, I should also like to say to the noble Baroness, Lady Anelay, that the reason we crafted the measure as we did was so as not to trespass against the provisions of the ECHR, so that we are proportionate and limited and can justify the reason for taking this course on clear and precise grounds.

5.30 p.m.

Lord Eden of Winton

In the light of the Minister's comments, will she be good enough to clarify why it is necessary to have Clause 4(l)(c)? The phrase "at that time" presumably means at the time when the vulnerable adult or child died. Why is it necessary to import any reference to, the risk of serious physical harm being caused"? The physical harm would have predated the death, since we are now talking only about death and what arises following the death, as the Minister made clear. Why is it necessary to introduce something that must have happened preceding the death, which would be covered by other provisions?

Baroness Scotland of Asthal

We are looking at the species of cases with which these provisions usually deal. In many of them, the death is not actually a one-off incident but a culmination of acts that happen over a period of time. Others in the household often say that they knew nothing of what was going on. The person who did not do the act will be guilty only if he knew of the risk of significant harm. He may say that he had no idea, that there was no history or indication that it might happen and that it happened spontaneously, out of the blue. There is a question about the responsibility of care that they have—should that person have done something and was there a duty on them to say something? That is why we believe that the provision is important.

As we move into a new arena, we have had to analyse the nature of the cases with which we have dealt. That is why we believe it to be proportionate and reasonable to ask whether there was any previous indication that what happened might or could have happened. Did the person know of the risk and do nothing? That is what would make him culpable.

Lord Carlisle of Bucklow

Really one could argue about these matters for ages, I suppose. I am bound to say, speaking purely for myself, that if the Minister's concern is to limit the provision, I would rather that it were limited to death or serious harm to children, rather than widening it to include vulnerable adults and leaving out the question of serious harm.

Baroness Scotland of Asthal

I hear what the noble Lord says. However, we believe that those who are vulnerable, by way of age, infirmity or other disability, are in need of a similar level of protection. It was Shakespeare who talked about the many ages of man. Noble Lords will know that the beginning and the end tend to be very similar.

Baroness Walmsley

I am most grateful to the noble Lord, Lord Eden, for raising a question that had also occurred to me. about the need to mention serious harm if the Government did not intend to include it as one of the offences. I thank the Minister for her explanation of the Government's position, and in particular for her recognition of the very fine line between death and serious injury. The problem is that child cruelty offences do not necessarily catch other household members, and certainly do not address the case in which it cannot be established which of the number of carers in the household did it.

I am particularly pleased to hear the Minister tell the Committee that the Government are keeping their mind open to the possibility of extending the offences at some time in the future, to include serious harm. It remains to be seen whether breaking ranks actually occurs, as the Government expect that it might, given the current wording of the Bill.

I accept that it is possible to charge more than one defendant with child cruelty, but I remain concerned about the omission of serious harm from the offence, particularly in view of what I believe was considerable consultation on the matter. I wonder whether the noble Lord, Lord Carlisle, and I might be able to get our heads together and come forward with a slightly more limited amendment on Report, which would satisfy both of us at least partly about the clause. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 15:

Page 2, line 30, leave out sub-paragraphs (i) and (ii) and insert—

  1. "(i) was a parent and guardian of V. and
  2. (ii) was present at the time the unlawful act took place'

The noble Baroness said: In moving this amendment, I shall also speak to Amendments Nos. 16, 18, 19, 20, 22, 24 arid 29, which are grouped with it. This group of amendments seeks to probe the overall impact of Clause 4, leaving aside some Law Commission issues for later.

Subsection (1) sets out the circumstances under which a person is guilty of an offence of allowing the death of a child or a vulnerable adult. It draws the net widely and applies to all members of a household who had frequent contact with the victim. It makes the assumption that a person who has frequent contact must be held responsible for the death. However, what frequent contact means is left undefined, which means that the clause is fraught with difficulties.

Amendment No. 15 would redraw the definition of those who can be caught as a defendant by this provision. My amendment covers those who are a parent or guardian and were actually present. at the time that the unlawful act took place. Amendments Nos. 18 and 24 are consequential on that. Amendment No. 29 complements Amendment No.15 by defining "guardian" for my purposes as a person who has legal responsibility for the victim; or who is a partner or former partner of the defendant; or is employed as a carer for the victim.

Amendment No.16 would probe the circumstances in which a person could he held responsible to those in which the serious physical harm was actually being caused. That is to probe the Government's definition of "significant risk". We have already had some comment about significant harm. Amendment No.19 is consequential to it.

Amendment No. 20 is intended to raise a wider issue of the impact of the clause on people of different ethnic backgrounds. I recognise that it is not well drafted—I say that immediately, as many of my amendments are not well drafted. However, it is the only way in which I felt that I could approach the matter at this stage. before we have the Government's full explanation about Clause 4.

My concern is as follows. Family members from some ethnic and religious communities in the U K would be likely to visit their children regularly and perhaps stay with them, but would not necessarily be in a position to see whether a grandchild was being ill treated. If the signs of abuse are physical, it is very easy for the conniving and abusing carers to hide that abuse beneath clothing that covers arms and legs. After all, if that did not happen, teachers and social workers would be far more likely to spot the physical abuse early, when they were in contact with the family.

How does the Government's drafting protect innocent family members in those circumstances? Amendment No. 22 would knock out subsection (3), which provides that only those who are aged 16 or over may be guilty of the offence unless they are the parent of the victim. I am intrigued by the Government's use of the age of 16 as the dividing line. I am very grateful to the consortium that works for children for its briefing on these matters. Why do the Government not protect young persons up to the age of 18? Can parents under 16 and others between the ages of 16 and 18 really be considered able to take the decisions made necessary by this clause to avoid prosecution?

The summary of the issues the Government need to address today is as follows. Why does the clause apparently allow a person to be caught by it, even when they are not physically in the home at the time of death? How frequent does the frequent contact in subsection (1) need to he before a person can fall foul of the provisions? What is the Government's definition of "significant risk"? The Minister has just said, in criticism of the amendment tabled by the noble Baroness, Lady Walmsley, that significant harm would have to be defined. What is sauce for the goose is sauce for the gander: why not define "significant risk" in subsection (1)(c)?

Do the Government acknowledge that the clause could catch within its grasp the visiting grandparent who is not aware of child abuse? How does the clause appropriately respond to the circumstances within different ethnic and religious groups in the UK, and why are 16 year-olds liable to prosecution? I beg to move.

Baroness Walmsley

I have a little concern about the wording of the amendment. The noble Baroness. Lady Anelay, can correct me if I am wrong, but it appears to me that removing subsection (l)(a)(i) and inserting the wording in the amendment would exclude some people who are very often perpetrators of this kind of abuse. I refer to the boyfriends of the mother of the child. Those people are not parents or guardians.

The amendment also says, and …was present at the time the unlawful act took place". If the wording was "or", I might be a little more sympathetic to the amendment. As it is, I fear that it cuts out the boyfriends, who are often the violent perpetrators, from the offence.

Lord Donaldson of Lymington

I raise a parallel objection. There must be plenty of cases in which death ensues when it is extremely difficult to tell what was the time of the unlawful act. If the period extended for over an hour or so, we might certainly have a situation in which both parties said that they were not there, which would mean we were back exactly where we are at the moment.

Lord Carlisle of Bucklow

I do not wish to be accused of being repetitive by raising matters on the amendments after what has already been said. However, there is one matter that the Minister should deal with. There is a clear and very obvious distinction between the word "household" as defined by the Law Commission and as defined in the Bill. In the Law Commission definition, two parties are connected if they live in the same household. Yet in the Bill, a person is to be regarded as a 'member' of a particular household, even if he does not live in that household. if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it". Obviously, that is a clearly thought-out decision by the Government. Has their choice of words, as against the words used by the Law Commission, widened the offence and the people who may come within the catchment of the offence? If so, since they have rightly said that we must be cautious when starting with a new major criminal offence, limited to a group which is definable and with which we can see how it works in practice, is it wise to have widened the definition of "household" as they have done?

5.45 p.m.

Baroness Scotland of Asthal

I shall go through all the points that were made, but I shall pick up the last one immediately. The Bill seeks to recognise the reality of the domestic arrangements that we now are faced with. Members of the Committee will know that there are many households in which the parties do not live together every day; they may live next door to one another or around the corner from one another, but they visit very regularly. The noble Baroness, Lady Walmsley, rightly highlighted the fact that quite often the perpetrator may he a frequent visitor but not a permanent resident. It may be a violent boyfriend or another disagreeable person who comes around regularly. If one considers the mischief that we are seeking to cure and analyses the species of cases with which we deal, the household would have to encapsulate those who are regular visitors.

We should perhaps recall the comments made by my noble friend Lord Desai. He talked about the extended family arrangements that there can be in other cultural set-ups, in minority groups, when the whole family and not simply the nuclear family is responsible for a child. That also reflects the need to be understanding about the households with which, in 2004, we have to deal. In considering the mischief that we want to cure, we decided that the Law Commission's definition was too narrow in that it might exclude many of the cases that currently fall through the net and which we wish to catch.

Before I turn to the other issues raised by the noble Baroness, Lady Anelay. I shall address the issue of the age of 16. Members of the Committee will know that 16 is the age adopted in a number of other pieces of the legislation. For those who commit the offence. that is the age in the child cruelty offence. In addition, carers of vulnerable adults may be as young as 16. It is also given as the age of the child as the victim in a case of child cruelty.

The age will be relevant in deciding on the reasonable steps that a person could have taken in the circumstances. The court has another opportunity to consider the appropriate responsibility to be placed on that person. The reason why we made the exception with relation to the parent is that, regrettably, there are a number of parents below the age of 16 but they may have direct responsibility for their own children within a household. They would be caught as parents. as opposed to minors.

The noble Baroness, Lady Anelay, rightly asked some probing questions, not only in her remarks but in her amendments. Amendment No.15, taken with Amendment No. 29, would do two things: it would change the group of people to whom the offence would apply and, in doing so, change the nature of the offence quite radically. Amendment No.15 would also make the offence apply only to those who were present at the time of the death—a point already taken up by the noble and learned Lord, Lord Donaldson, and the noble Baroness, Lady Walmsley.

The next set, containing Amendments Nos. 18, 19 and 20, complement the previous amendments by concentrating the offence on the time of death and removing the references which make it apply to the person who was aware of the risk but did not take reasonable steps to prevent it.

Amendment No. 22 would remove subsection (3), which limits the liability of those under 16 other than the mother or father of a child. Amendment No. 24 would remove subsection (4), which expands on the definition of members of the household. Those amendments are all consequential on Amendment No. 15. If taken together, they would produce a radically different scheme from the one that the Government propose.

In our discussion on vulnerable adults, I hope that I set out our policy on confining the scope of the offence to members of the victim's household who have frequent contact with the victim. In brief, the offence we have developed applies only to members of the household who have "frequent contact" with the victim. The rationale for this is that frequent contact, and the proximity to the child or vulnerable adult in its own home, should, we believe, lead to a responsibility for the member of the household, whether they wish to have that responsibility or not. You cannot be in the company of a child or vulnerable adult for long periods and simply ignore their ill-treatment or neglect.

Of course, I take full cognisance of the noble Baroness's remarks on physical abuse, which may be covered. However, she will know from her wide experience of the issue that physical abuse is quite often manifest in emotional disturbance. One may not see the marks on the child's body. but one notices the behaviour of the child change. If one is close to and interested in the child, that alerts one to the fact that something at home is wrong.

The first group of amendments would provide too wide an application for the offence, in bringing in carers outside the household. That would have major implications for the child care sector that we would need to consider very carefully and look at in the context of other legislation, such as the Care Standards Act 2000, and the professional duties of those concerned. We would need to discuss it with the various bodies in the field, including professional groups. It is premature at this stage to go outside the domestic context, and the victim's own household, for this offence, as I believe I made clear earlier.

I also think the proposed definition limits the application of the offence too far. First, it would limit it to parents and those with a specific caring or legal responsibility. That would not, for example, cover the case of the vulnerable adult, who may be looked after by a relative who strictly has no legal responsibility towards the victim. It would also not cover the live-in lodger who has frequent contact with a child in the house and, while not caring for him as such, nevertheless can properly he deemed to have some responsibility to take action if he sees him being abused or neglected. That is why the offence as currently drafted talks about "frequent contact". The phrase is intended to encapsulate the responsibility of the close members of the household without being too limiting. We need to be very wary that family relationships in modern times are much more fluid and flexible than they have been in the past, and may become more so in future. We need to draft to allow for that.

Secondly, the proposed definition is too narrow in limiting its scope to those present at the time of death. The noble and learned Lord, Lord Donaldson, referred to that matter. That is also delivered through the second group of related amendments. In looking at this, we should bear in mind a crucial part of the purpose and point of our offence. It is to help us deal with the "which of you did it" cases, which have proved so difficult for so long. The way we have designed the offence, taken with the procedural measures, is intended to ensure that the court has the evidence before it to solve these cases beyond reasonable doubt.

In order to do that it is important that there is one offence with which we can charge all the suspects in the case—the person who caused the death and the person who failed to take reasonable steps to protect the victim. They can then all produce their evidence. In the circumstances where the new offence will apply, all the household members who have frequent contact with the victim may be guilty of an offence. Either they caused the death or failed to take reasonable steps to protect the child, having been aware of the risk and done nothing. So we feel that we are justified in saying that the group should all stand trial so that we can establish who did what and the degree of guilt which attaches to each individual.

I should stress again that no individual who takes reasonable steps will be caught by the offence as drafted. But equally, no member of the household who is aware of the risk and fails to take reasonable steps can be absolved of all responsibility, even if they were not present when the death occurred.

The second group of amendments, taken with the previous set, will catch the person who was present when a death or serious injury took place, when there was a risk of harm. But crucially, it would not catch the person who knew of the risk but happened not to be present at the time. That would greatly reduce the ability of the offence to help to solve the "which one of you did it" conundrum for many cases. It is often precisely because we do not know who was present at the time of death that we cannot bring the case to justice.

In addition, the amendments would put the point of required intervention at the time of death, which may be impossible, for example, for a battered wife. We want her responsibility to lie earlier, when reasonable steps, such as alerting the social services, may be possible. Under the amendment, she would have no earlier responsibility. That would undermine the philosophy underlying the whole offence.

I have some other misgivings about the amendment as drafted. For example, it is difficult to see how the courts would interpret having a "responsibility" to the victim, be it a child or vulnerable adult. "Frequent contact" is a term which is perhaps more readily understandable and one which we believe embraces, as I mentioned earlier, the idea of taking responsibility.

All the amendments reflect valid concerns; we need to take them seriously, and we will do so. But I hope that I have convinced Members of the Committee of the integrity and value of the proposals in the Bill as they stand. I invite the noble Baroness to withdraw the amendment.

The term "significant harm" must be familiar to the noble Baroness from her days of sitting as a magistrate. It is a term that is peppered throughout our legislation, in the Children Act 1989 and elsewhere. People are very familiar with it and there is a good deal of case law and jurisprudence based on it. Therefore, one hopes that it will be an easy tool to apply.

Baroness Howarth of Breckland

I have been convinced by the Minister's erudite arguments, but I have one scenario to put to her which might be worth thinking about, and which some organisations have been concerned about.

In volatile households extended members of the family, particularly grandparents, are often the people who ease the situation and enable the household to move on. One concern expressed to me is that, if those people became fearful, knowing that the household is volatile and that there is a danger to the child, they may decide that it is safer not to visit the household at all. That would put the child in even greater danger. I wonder what safeguards there can be in situations in which grandparents do not yet see that it is a matter for social services but realise that there is an aggressive boyfriend, husband or stepfather in the household. They may decide not to visit at all. I have an anxiety that that could cause real difficulties.

6 p.m.

Baroness Scotland of Asthal

That is why I tried to underscore our clear intention that those who take reasonable steps have nothing to fear from these provisions.

The noble Baroness will know from her great experience of these cases that the difficulty is really getting people to say anything, to come forward and tell the authorities what is going on. It is also an issue, in terms of policy, of dealing with those who are fearful and who say "What do I do? What do I say? Is it my place to raise this?". We want to give them the advantage by saying, "Yes, it is your place. It is perfectly permissible if you think that about your grandchild, a child you see regularly, who is not related to you but you are a regular visitor to that home. There is a responsibility on you to do and say something and that is okay".

We will certainly do all we can to reinforce that message and to support those who feel that they are ambivalent as to whether they should or should not intervene. Those who have to decide whether or not a prosecution under these provisions is appropriate will look at the matter very carefully. The authorities will have a much better opportunity to assess the level of culpability, if any, of those who disclose.

Baroness Anelay of St Johns

I am very grateful to noble Lords who have spoken and to the Minister for her response to this clutch of amendments. They were intended to open up our debate on Clause 4, which purpose they have served. I accept entirely the criticisms of drafting. I drafted the amendments in such a way as to provoke opposition in order to find out where the weaknesses were in the Government's situation as well as my own. My overall intention in the amendments has been to highlight my difficulty by the Government focusing on the words "frequent contact".

The Minister made it clear that the Government are imposing the responsibility on certain people whether or not they wish to have it. However laudable and objective that is, there are inherent difficulties, not least with how—if the Bill goes through in its current form and is enacted—one then fairly implements its provisions upon an unsuspecting public.

One of my problems still comes back to: will frequent contact, as a definition, catch people who are doing their best? The noble Baroness said that if they have taken reasonable steps they should not fall foul of that. I wonder. I was thinking of circumstances while the noble Baroness. Lady Howarth, was speaking. Perhaps you are a grandparent—grandmother, grandfather or whatever—and visit on a fairly regular, frequent basis and stay in the household so you are not living there but are in and out all the time. You notice that something is not right and you are the person who wants to act as an arbiter. You want to make it work if at all possible.

You care for all the people in the household, in the sense you do have a care about them. So you try to put the situation right by helping. You might child-sit. baby-sit and so on. You might talk to the people in the household. When you are away from the household you talk over the telephone to perhaps your daughter and she assures you, "Don't worry. We have done what you have said. We have gone to see social services and the doctor. We are sorting the matter out. We are having counselling. We are going the whole hog here. There is not a problem now".

You have taken those reasonable steps. Of course something may still go wrong after that. If those are reasonable steps at the inquiry, that would go a long way to allaying my concerns and those of others. If, however, the reasonable step is to do what the Minister indicated—that is, to tell social services yourself as a grandparent—that is when I get worried because the grandparent has been assured by a child, "Don't worry. We have sorted it. We are doing A, B and C".

Let us face it, the grandparents are not likely to approach social services, full stop—I try not to use that phrase, given the very good use that the NSPCC has made of it. They may not approach social services at all because there is always a fear—however unreasonable—at the back of people's minds that if they do, the family will never see the children again.

I shall need to look carefully at what the noble Baroness has said and to consider in great detail what "frequent contact" means and what implications that has for people who are trying to take reasonable steps but who may end up in a situation where a child dies. I gladly give way to the noble Baroness.

Baroness Scotland of Asthal

One difficulty is that one cannot be prescriptive. In the circumstances that the noble Baroness has just described where there was no sign of overt physical injury identified by the grandparent, all those things may be entirely reasonable; one could not expect any more. So, really it will be on a case-by-case basis for the court to determine what was reasonable in the particular circumstances.

I say to the noble Baroness that we anticipate that quite extensive guidance will be issued in relation to the application of these matters where we can seek to assist those agencies making the decisions on these cases as to how they should be interpreted. It will be fairly impossible for me to set in stone for the noble Baroness, whether now or later, that if one does this, there is an absolute guarantee. One of our difficulties is that there are no absolute guarantees in these cases. One just has to do one's best, taking all the circumstances into account.

I am sure any judgment on what is reasonable will look at the nature of the relationship, the frequency, what was reasonable in those circumstances, what was the purpose of the intervention, whether it was reasonable to do A, B and C, and also to understand that we can never have a counsel of perfection. We are not looking for perfection but merely for people to do what they reasonably can.

Lord Donaldson of Lymington

Alarm bells are beginning to ring over this concept of guidance. It is for the courts to decide what is reasonable in all the circumstances. Guidance may be helpful to the authorities, but let us not run away with the idea that it could have any part in the trial of an action.

Baroness Scotland of Asthal

I want to quieten immediately the noble and learned Lord's trembling heart. I am absolutely relying on the good sense of the judge in the case as to what is reasonable. The judge will hear all the evidence and will make an assessment of the parties about what was reasonable to expect. That is one aspect. Another is what is the agency's response to it. We must have some kind of common understanding between the agencies in terms of how we work.

Lord Carlisle of Bucklow

The Minister says that it is the judge, but is it the judge or the jury?

Baroness Scotland of Asthal

It is both, is it not, judge and jury working together? But it will be the judge giving the directions of law on the matter.

Lord Carlisle of Bucklow

The judge will be giving directions on the law. The decision on whether it is reasonable surely in the Bill as drafted is not a decision for the judge but one for the jury, provided the judge decides that there is evidence on which they can come to that conclusion.

Baroness Scotland of Asthal

I thought it was implicit. If it was not, perhaps I may say that I concur with the noble Lord.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord, Lord Donaldson, for that intervention. I was going to ask a question along similar lines, and ask the Minister whether she could confirm the agencies she is thinking of. I assume it would be CPS and Police. I think she is signalling her assent.

Baroness Scotland of Asthal

I anticipate that it will. I tremble a little because of course the person who usually deals with CPS is the noble and learned Lord the Attorney-General. I am surmising—I make it plain—at this stage that it would be he or the Home Office working together who will be doing this, in terms of whether it is a protocol or how these matters will be dealt with.

Baroness Anelay of St Johns

I am grateful for that. The Minister will not be at all surprised that the usual question of opposition when guidelines are mentioned is to ask who is going to have them and when they will be published. She might well find that we would be happy to receive a letter from the Home Office and the Attorney-General giving us some information about guidelines. Otherwise, it might just pop up as an amendment on Report. I give her the alternative of a letter instead if that is more appropriate. Such a letter could be placed in the Library of the House and so would be available to other Members of the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 20 not moved.]

Baroness Anelay of St Johns moved Amendment No. 21:

Page 2, line 41, at end insert— (IA) For the purposes of subsection (1)(d)(ii), in determining the reasonableness of the steps which D could have been expected to take, the court shall have particular regard to the extent to which D has been subjected to domestic violence or is in fear of being subjected to domestic violence.

The noble Baroness said: Amendment No. 21 is supported by the noble Lord, Lord McNally. I tabled the amendment in order to explore issues raised at Second Reading by Refuge and Liberty in their briefings. I thank them for that. Refuge points out that in determining whether an individual failed to take reasonable steps to protect the victim, it is crucial that consideration should be given to what constitutes "reasonable steps". We have had a small discussion about that but this part—I hasten to add—explores a different issue.

This time I want to look at the experience of being a domestic violence victim and how that affects whether one can take reasonable steps. It is crucial to understand the real risks involved in leaving a violent partner and a person's reasonable fear that he or she would be killed if he or she attempted to escape or seek help.

Where a woman's or a man's psychological health has been compromised by living with violence, or where that occurs in combination with real and persistent threats of harm, what is reasonable must he considered against this unreasonable reality.

Refuge has further concerns about this offence and its application to those who are aged 16 years. Again this is slightly different territory from that which the Minister has already approached. Refuge argues that as boys of this age—l6—are unable to move to refuge accommodation with the rest of their family, it is more likely that they and their mothers will remain with the abuser. It argues that we should ensure that mechanisms are in place to prevent silent and fearful 16 year-olds being charged alongside their mothers when a violent man kills a member of the household.

Liberty believes also that added protection is required to protect a person who on the face of it may have committed an offence under Clause 4, but whose failure to take the necessary steps was motivated by the fear, or indeed the reality, of domestic violence.

Recently, I received a briefing from Southall Black Sisters. It makes the very important point that one should not forget those women who are in a minority in this country, who are subjected to domestic violence and who are under immigration control. Although I considered the point in the context of asylum, I had not considered it in the context of the Bill. Southall Black Sisters make the point that of course these women have no recourse to public funds and that that restricts their right to leave a violent relationship. So again they are in a very fragile situation. Their ability to take reasonable steps to protect themselves and their children is against the background of what happens if they actually leave that relationship.

My amendment would provide protection by ensuring that domestic violence is made an explicitly relevant factor in considering the reasonableness of the defendant's failure to act. I beg to move.

Baroness Walmsley

On behalf of my noble friends Lord McNally and Lady Thomas of Walliswood, who have added their names to the amendment, I support the noble Baroness, Lady Anelay, in what she is trying to achieve. If one listens to any of the organisations that work with women who have been subjected to domestic violence, it is very clear that the relationship between the perpetrator and the victim is a power relationship. In that situation, it is right that the court should "have particular regard"—I emphasise those words—to that situation when considering what has happened in that household.

The way the amendment is worded does not mean that there is never any responsibility at all on the part of someone—even though she has been subjected to domestic violence—when the death of a child occurs. But how the amendment has been worded is very reasonable, given this power relationship.

I, too, have heard from Southall Black Sisters. I am very concerned about the plight of women who have come into this country sponsored by husbands with a right to be here. These women are in their period of two years' probation, as it were. It is almost impossible for them to leave their situation, even if there is domestic violence, because they would find themselves as illegal immigrants with no means of support, either for themselves or for their children. For those various reasons, I support the amendment.

6.15 p.m.

Lord Renton

A number of attempts have already been made to try to improve the drafting of Clause 4(1). The amendment is a very important attempt and I am glad that the national Liberal Democrat representatives support it. Merely to say that D failed to take such steps as she could reasonably have been expected to take to protect V from the risk leaves too much uncertainty. Amendment No. 21, tabled by my noble friend, which amplifies the position, is extensive.

In passing, when we reach the question of whether Clause 4 stand part, I shall have reason to stand up and say that I think that it is regrettable that the letters D and V are being used in the drafting in an unusual way. I think that it will be regretted in future years if we leave the provision like that.

Lord Donaldson of Lymington

Perhaps I may put forward a thoroughly unpopular view. I may have to try and find the English for it, but in my day it was called expressio unius exclusio alterius. It seems to me that the immigrants are a good example of that concept. It is quite clear that if one has an immigrant wife coming into the country who is definitely at risk from the husband, but it is an implicit risk rather than anything else, it would be unreasonable not to take account of that.

Once we start concentrating on that particular situation, as disclosed by the amendment, we will downgrade other considerations that might impinge on the whole concept of reasonableness. Rather like the man on the Clapham omnibus, reasonableness is indefinable, and was never intended to be defined: it is a jury question. I do not think that one should try to give juries directions in a statute as to what is or is not reasonable. That is not the function of a statute. One ends up by saying that something is reasonable and by implication saying that something that one had not thought of is not reasonable.

Lord Borrie

I can see the points the noble Baroness, Lady Anelay, has been making. There must be many examples, including the ones that she and the noble Baroness, Lady Walmsley, gave, where it is clear that if someone has been beaten up, or is likely to be beaten up, it is hardly suitable that they should be regarded as responsible for allowing someone to be killed. I deliberately used the phrase "beaten up" because I think that if someone has been beaten up, or is likely to be, they can hardly be expected to look after some small child and take every possible care that the boyfriend or whoever does not engage in unlawful activity.

One has only to think of the variations on assault. Surely, there must be many borderline situations where instead of having been beaten up, or being likely to be beaten up, there is a risk of some unfortunate happening which is not quite so bad as that. Does one suggest that in all those circumstances under the amendment the adult, because he or she may be subjected to domestic violence, should he relieved from any responsibility for allowing a young child to be killed? That is what we are talking about here.

The very fact that there can be so many variations of such conduct means that one should leave the matter to the court, the judge or the jury, whatever it is, to determine whether D has failed to take such steps as he could reasonably have been expected to take; and that the court will inevitably take into account how much violence that person has been subject to.

Therefore, the most serious examples given by the noble Baroness, Lady Anelay, surely will come within that particular phrase in the Bill. I would not like it to be extended too far because I fully agree with the noble and learned Lord. Lord Donaldson, that if one specifies one particular example then it suggests that the others will have a different conclusion.

Baroness Howe of Idlicote

I hate to take the opposite view from the noble Lord, Lord Borrie, but in this particular instance, there is reason for concern. It may be that the concern of certain members of this Committee and beyond exists because of the extent to which they believe there is not a realisation of the fear that a particular person may have. That may well cause them not to take action when quite clearly you and I would take action.

Under those circumstances, this amendment is good because it draws attention to this issue and, in particular, it provides that the court shall have regard to the extent to which D—I agree with the point made about the titling of Ds and Vs and so forth—may have been subjected in the past to mental or physical domestic violence. I accept that putting too much detail in the Bill and fettering, or appearing to fetter, the discretion of judges is not what is intended and should not be intended. On the other hand, I think there is a case here. Dare I say it: It may he that there are not quite as many female judges as male judges.

Lord Donaldson of Lymington

Not yet.

Baroness Scotland of Asthal

Perhaps I may say how much we agree with the spirit of the amendment, although we do not agree that it is in its proper place. Although I agree with the noble Baroness, Lady Howe, that it would be a great joy to see an increase in the female members of the judicial Bench, I remind Members of the Committee that there are a number of very honourable men who have discharged their duty with great efficiency, great effect and great humanity, for which I have regularly given thanks.

Baroness Howe of Idlicote

I agree.

Baroness Scotland of Asthal

When the courts consider what reasonable steps a person might have taken, it is important that they look at all the circumstances of the individual, and what might be considered reasonable. There may be particular problems where the person who fails to take steps is a victim of domestic violence and, as noble Lords know, it is all too common that more than one person in the household is the subject of such violence. There may be little that the mother can do in those circumstances. She may he in fear that the abuser will turn on her if she tries to interfere to protect the child. She may be afraid that her children will he taken into care. She may fear that she will not be believed and that she will be blamed for the abuse. She may simply not know to whom she could report the abuse.

I am sure that we can sympathise with all of that. But even where the steps that she can take are limited, as the noble Baroness, Lady Walmsley, generously accepted, that woman still has a responsibility towards her children. As drafted, the Bill does not expect her to do more than is reasonable in the circumstances in which she finds herself.

I agree with my noble friend Lord Borrie and the noble and learned Lord, Lord Donaldson, that it is not helpful to single out victims of domestic violence in the way that the amendment suggests. The Crown Prosecution Service will need to assess what were reasonable steps for any individual to have taken in deciding whether there is sufficient evidence to proceed. The courts will have to look at each case individually and determine whether, as a matter of fact, reasonable steps were taken. We would also expect the court to take into account all the circumstances of the individual when it is sentencing so the victim of domestic violence might not be liable to attract the same severity of sentence as others who could have acted but who failed to take any action to protect the victim.

We are working very closely with the Crown Prosecution Service on guidance for prosecutors covering these difficult points. I am grateful to noble Lords for tabling this amendment and giving us the opportunity to debate this important issue. Our debate will help to inform the preparation of the guidance and will allow Parliament's views to be taken into account. However, it would be wrong of us to put domestic violence cases in a separate category for the reasons that we have just explored.

Lord Eden of Winton

I would like clarification in the light of what the noble Baroness has just said. Until this point the whole emphasis of subsection (1) of Section (4) has been on the definition of the offence and on the degree of guilt or responsibility for the offence that D is deemed to have committed which resulted in the death of V. What my noble friend Baroness Anelay has put forward in her amendment highlights a substantially different point, namely the degree of provocation which might have arisen from the actions of V which led to D taking the action that he did, resulting in the death of V. This is a new and very important emphasis and it should be included.

Baroness Scotland of Asthal

I have responded to why we disagree with that. One of the difficulties with which we are faced is that there are a huge variety of circumstances when this will arise. Therefore, it is impossible for us, as I think was highlighted, to cover the full spectrum. There may be different variants of grey: dark grey, mid grey, light grey, vaguely grey, almost white. What the prosecutor will have to decide is where on the spectrum the individual who may be accused of an offence under this section should appear. Was it reasonable? As I said earlier, the difficulty is that what is reasonable to expect in situation A may be wholly unreasonable to expect in situation B. That flexibility needs to be there for us to respond to the needs of the individual case.

"Reasonable" has stood us in very good stead for a very long time. It is like my elephant. It is difficult to describe, but we all know one when we see it. If it were a new term. which was awkward, not well understood or was difficult to apply, I would be far less sanguine than I am now in saying that this is a judgment that has to be made on a case to case basis and it would be wrong to single out one area in a way which would make it differ significantly from another.

Lord Campbell of Alloway

With respect, perhaps I may intervene briefly. This amendment is not concerned with provocation. It has nothing to do with that.

otland of Asthal

I did not respond to that point, but I am happy to clarify that the amendment has nothing whatever to do with provocation.


Baroness Anelay of St Johns

The debate was intended to be about what is reasonable in the context of subsection (1). The Minister rightly said that the term "reasonable" is of long usage in courts and is well understood by some, if not all. However, my point is that it is an old term but this is a new offence. I wanted, and have happily received, a debate about what "reasonable" might be seen to mean in this context. I agreed entirely with the noble Lord, Lord Borrie, when he spoke about the dangers of creating a new category of people who might find themselves exempted from an offence. I alluded to that in an amendment that I moved earlier. I agree entirely with the noble Lord on that point.

However, my other concern has been that, in creating an offence, one should not thereby include a category of people whom one does not want to be the target of the punishment that might then follow. I also agree (I have been in a very agreeable mood today) with the noble and learned Lord, Lord Donaldson—as I usually do; heaven forfend if I did not!—that this is a jury point on direction by the judge.

I believe that the difficulty that arises is that there may well be a case where someone could be adjudged by the prosecuting authorities to come within the net and not to have taken reasonable steps and who would go through the whole process of being arrested. There may be other children in the family who would be taken into care. Here, we are considering a group of people who may be arrested and find themselves subject to prosecution. They may not be given hail. We do not know what the circumstances are. We are putting them in a very difficult situation. They may go through the whole gamut of prosecution only for a jury to determine that they fall within the definition of having taken reasonable steps.

That will happen. It is human nature and part of the prosecuting system. There will be occasions when, quite rightly, people will be acquitted. I am trying to ensure that we minimise the number of occasions on which people are put through that process when they should not have been. I am sure that the Minister is following exactly the same line. Everything that she has said persuades me that that is the case. At this stage, I beg leave to withdraw the amendment.

Amendment. by leave, withdrawn.

[Amendments Nos. 22 to 24 not moved.]

Baroness Anelay of St Johns moved Amendment No. 25:

Page 3. line 6. leave out subsection (4) and insert—" () This subsection applies if D—

  1. (a) is at least 16 years old;
  2. (b)has responsibility for V; and
  3. (c)is connected with V.
()D is connected with V if—
  1. (a)they live in the same household;
  2. (b)they are related; or
  3. (c)D looks after V under a child care arrangement.
() D and V are related if they are relatives within the meaning of Part 4 of the Family Law Act 1996 (c. 27) (family homes and domestic violence). ()D looks after V under a child care arrangement if D
  1. (a) looks after V (whether alone or with other children) under arrangements made with the person who lives in the same household as, or is related to, V; and
  2. (b) does so wholly or mainly in V's home.
() It does not matter whether D looks after V for reward or on a regular or occasional basis.

The noble Baroness said: In moving Amendment No. 25, which is supported by the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley, I shall speak also to Amendment No. 27, which is grouped with it.

At the briefing on the Bill, which was helpfully given by the noble Baroness, Lady Scotland, before we started this process, she said that subsection (4) imposes a duty of care on a particular category of persons. Therefore, my amendment has been tabled to ask the Government to justify why they have diverged from the Law Commission's proposals. References were made to this earlier, but I certainly believe that the Law Commission's proposals narrow the definition, whereas the Government say that they widen it—a source of some concern. When we reach Amendment No. 27 shortly, I shall address the issue of whether the Government have made it sufficiently clear that there is a duty of care.

Amendment No. 25 is supported by the NSPCC. As other noble Lords remarked earlier, the work that that organisation has done in this area of policy is outstanding. Its briefing makes it clear that it is eager to see the introduction of new legislation to address the problem cases involving the non-accidental death of children. However, it believes that there are two very serious flaws in the Government's legislation. We have heard of one—serious harm: my amendment addresses the other.

The wording that I have used is taken directly from Law Commission report No. 282 in its draft Bill at page 75. The Law Commission sat in as observers on the NSPCC's "Which of you did it?" working group, which examined the issues for more than a year and published its report on the findings in late 2003.

The Law Commission says that it has built upon the findings of the NSPCC working group and conducted a comprehensive consultation exercise to test its own proposals on these matters. It incorporated the results of its consultation into the report and the draft Bill.

The NSPCC points out that, by contrast, the Home Office has proposed this part of the legislation without the benefit of a specific consultation on the definition of who should have the duty of care in subsection (4). Therefore, the NSPCC feels that it has been drafted without the benefit of experts in the field from a wide range of perspectives, including, as it says, those who are particularly concerned with the legitimate rights of the defendant and those particularly concerned with civil liberties. It was on that basis that I tabled the amendment—that is, to ask the Government why they took this route and not that of the Law Commission.

My Amendment No. 27 is very simple. When I read the clause as constructed, it did not leap off the page at me that subsection (4) was creating a duty of care. When, in her briefing, the Minister said that that was what it was all about, I did not consider the subsection to highlight that. Therefore. I wanted to ask the Government why they adopted this drafting and not something that would hit one between the eyes—I should not use violent language—or which would have made it perfectly clear to all of us that that was what subsection (4) was all about. I beg to move.

Baroness Walmsley

I rise to support the amendment. It has been laid out very clearly by the noble Baroness, Lady Anelay, and therefore I intend to say very little. Clearly, the people who put forward the amendment are trying to define who has a duty of care for a child. The approach is to adopt the statutory formulation in Section 17 of the Children and Young Persons Act 1933. I believe that that is the correct and cohesive way to bring together all aspects of the different pieces of legislation. Therefore, we support the amendment.

Lord Renton

Briefly, I want to point out, as has been pointed out many times previously in debate on recent legislation, that ignorance of the law is no defence. However, when lay people see Clause 4 with its frequent use of "D" and "V" instead of the matter being expressed simply in the usual way, as has been done not only for generations but for centuries, they may find it difficult to ascertain what the law is. Therefore, although I agree with the substance of my noble friend's amendment—again, I am glad that it is being supported by the noble Baroness, Lady Walmsley, on behalf of the Liberal Democrats—I feel bound to point out that it will give rise to confusion among lay people.

Lord Borrie

I hate to disagree with the noble Lord, Lord Renton, on this or any other matter. However, before we started our discussions and having read the Bill on my own, I believed that "V" for "vulnerable person" and "D" for "defendant" helped to alleviate the difficulty of understanding the clause.

Lord Campbell of Alloway

I do not believe that I agree or disagree with anyone other than my noble friend Lady Anelay. I support the amendment basically because it is clear and more precise than the wording in the Bill. The way in which Clause 4 is drafted is related to a visitor and it is rather vague and imprecise. It really is too imprecise to constitute the basis of a serious offence, which this is. For those reasons, even if my noble friend has it slightly wrong, she has it right in principle because the Bill is wrong.

Lord Carlisle of Bucklow

I thought we had this whole debate about half an hour ago on an earlier amendment. On that occasion, having heard the Minister, I was foolish enough to say that she had persuaded me that she was right and that the Law Commission was wrong in relation to the definition of the word "household". However, I may now be persuaded to take the opposite view.

Baroness Anelay of St Johns

Perhaps I may assist my noble friend. I very carefully separated this matter as it concerned a different argument. Earlier, I tried to treat subsection (1) as a separate issue. I believe that the difficulty with the Government's drafting is that we have to consider a multiplicity of subsections in order to gain any idea of who will be accused of "having done it".

Baroness Scotland of Asthal

Noble Lords cannot expect me to say anything other than that the drafting is a matter of beauty and delight.

Amendment No. 25 would make the offence apply to all those connected with, and having responsibility for, the victim. I recognise, and accept entirely, that its wording is close to the Law Commission's definition in relation to its second, wider offence. It would mean that fathers who live elsewhere, as well as childminders and babysitters, would be caught by the offence. I want to reassure the noble Lord, Lord Carlisle of Bucklow, that he can stay with me because my further arguments do hold good.

Amendment No. 27 will impose a duty of care on the persons to be regarded as members of the household, for the avoidance of doubt". However—I hope that Members of the Committee understood what I said in relation to this—the importance of the Bill as a whole is that there is a responsibility for being part of the household. We believe that that entitles us to place a duty in the Bill in the way that we have described.

As we have said, our proposed offence is confined to members of the household. It is drafted with the idea that members of the household will know enough about the activities of the other members that they can be expected to be aware of the risk to the victim and take action. They are "complicit" in the offence, either directly or by proximity, through standing by during the preceding abuse or neglect and doing nothing. Therefore, in this context, if one were to ask, "Am I my brother's keeper?", the answer would be, "Yes".

Those outside the household, such as absent fathers, may also have a duty of care. I agree that that is very important, but I do not believe that it means they should be, or need to be. included in this offence. Such people are in a different—indeed, arguably, a more difficult—position. The father may, for example, have a difficult relationship with the mother. To place on that father a duty to take "reasonable steps" to safeguard his child may only increase the pressure in an already difficult situation. He is outside the household and may possibly be perceived as holding a grudge or as being a trouble-maker. He may not, as a result of the orders made against him, be able to enter the household at all. In addition, where his neglect is of sufficient magnitude, lie may already be liable for child cruelty through his continuing duty of care for the child. But he is not complicit in the homicide, either directly or through close proximity to or association with the household.

Similarly, ad hoc babysitters or other carers may fall outside our proposed definition of "household". They may be in charge of a child while in the household. However, even when they are aware that the child is being neglected or abused, it is a very big step essentially to label them as complicit in the activity unless they take action, backed up by a criminal offence with a maximum penalty of 14 years. Any carer who neglects or mistreats a child will, of course, still be subject to the full sanctions of the Children and Young Persons Act 1933.

Therefore, we believe that drafting the offence so that it will not apply to those outside the household—whether parents or other carers—is right and justified. As the offence applies only if a person has frequent contact, it will not apply to a lodger who lives with the family but sees the child rarely. We believe that that is right. Such people are not in the same position as those who have frequent contact with the victim. In any event, they would probably not he in a position to be "aware of the risk" to the victim. Therefore, they would fall outside the offence for that reason, too. However, our definition of a household member who has frequent contact with the victim provides an extra safeguard.

We have left the term "household" to be interpreted by the courts. In the absence of any specific definition, the courts will adopt the normal English interpretation. Broadly, it will mean those living together as a family group in the same house. But we have qualified the word "household" to include the person who, though not resident, visits the household so often and for so long that it makes it reasonable for us to regard him or her as a member of that household.

Earlier, I talked about modern lifestyles having changed, and I was pleased to hear that Members of the Committee accepted that reality. As currently drafted, Clause 4(4)(b) deals with the situation where, for example, a child lives part of the week in one household and part of the week in another. The same might apply to a vulnerable adult where families share the responsibility and the vulnerable person splits his time between two households. In that type of situation, the vulnerable person can be part of two households. Each household should be responsible for the safety of that person while he is there. Hence, if an unlawful death occurs and the other circumstances of the offence are all met, all the members of the household may be liable for the offence. In that case, we believe that it would be wrong to treat the two households in the same way. Thus, members of the second household would not be responsible for the actions of those in the first household.

That leads me to Amendment No. 27 and the "duty of care". This amendment would place a specific duty of care on all members of the household covered in the new offence. Basically, it would be "for the avoidance of doubt". I do not believe that it is entirely right to talk about a duty of care in that way. We have drafted the offence in terms of "frequent contact" and the responsibility that that brings. However, I do not believe that that quite equates to a duty of care as we normally understand it. When we were talking about an explanation, I tried to describe the creation of a responsibility.

We need to consider the issue of credibility and public perception in relation to this matter. The lodger who has frequent contact with a child in a household should, I believe, accept that that gives him some responsibility to take steps if he sees the child being abused or neglected. But I do not believe that such a person would sec that as a specific duty of care, which carries a large amount of legal baggage in its train. We need to be careful about any duty of care. People need to be very clear about what their duties are and what the sanctions are if they breach those duties. I believe that the amendment is in danger of blurring those duties.

As the offence is drafted, the duty bites in very limited and closely defined circumstances. There must he frequent contact with the victim and the victim must have been at significant risk of serious physical harm. I believe that that type of phrase fits well with the criminal law but it would not equate to a general civil duty of care. I do not believe that this involves a disagreement of principle on who should be covered by the offence; rather, it is a matter of terminology.

I invite the noble Baroness to accept the explanation that I have given. I absolutely understand why the amendments have been tabled. I believe that, in trying to develop this matter, we have teased out many of the issues ourselves. I confess to the Committee that I have gone through both sides of this argument in my head. As I have set the arguments up, I have knocked them down. and this is basically where, ultimately, I have come out.

6.45 p.m.

Lord Campbell of Alloway

Before the noble Baroness sits down, does she appreciate that, with regard to the drafting of subsection (4)(a), beauty is in the eye of the beholder? Frankly, it is a hit of a mouthful to say, if he visits it so often and for such periods of time". If it were simply to read in the terms that the noble Baroness used—that is, if he has such contact that it is reasonable to regard him as a member of the household"— it would make far more sense. That is a fairly simple concept and the jury can work it out. However, the use of phrases such as "such time" and "such visits" seems to he a terribly complicated way of drafting the subsection.

Lord Donaldson of Lymington

I wish to say one word about Amendment No. 27. I can think of no more insulting amendment to a parliamentary draftsman than to insert "for the avoidance of doubt". If there is doubt, he should not be using the words.

Baroness Scotland of Asthal

As attracted as I always am by the productive suggestions of the noble Lord, Lord Campbell, I cannot yield on this occasion. The whole purpose of providing that definition is to differentiate between those who may come to the household infrequently and those who come regularly. It gives the clarity to some of the worries of the noble Baroness, Lady Anelay, that someone can visit the household but rarely see the child, and/or have seen nothing which would have alerted him to the risk that the child was experiencing at the time. Those are important hurdles for us to get over before we are entitled to place a responsibility on someone in those circumstances. We will hold him responsible and it is fair that we have very clear benchmarks that differentiate those who are culpable from those who are not.

Baroness Anelay of St Johns

We have had a lot of comments about the drafting. I suspect that the last person to be offended would be a draftsman because he knows that the role of the Opposition is to find any way they can to hang the argument on a convenient peg. Those pegs are sometimes very uncomfortable; this is one. I take his chiding, of course, but I will keep on trying.

I am very grateful to the Minister. I had the difficulty, which she referred to, about the imposition of a duty of care. I entirely take what she said, that the Government are constructing a legal responsibility here. We need to turn it around and look at that. We will need to look further at whether the definition of those who have this responsibility is appropriate.

The Minister has gone a long way today to reassure me about the route that the Government are taking, in particular when she was referring to when there is more than one household. One of the instances with which I have been concerned was hinted at earlier on in the debate we had about contact centres. That is when a child's care is shared between parents. It may well be that that care starts off by being in two households. It may be that on occasion the contact has to be through a third party, because of worry over violence. My concern has been about how wide is the group of people who might be caught in this net and how many households might be caught. It is not unknown for care to be shared between one parent and a grandparent. We need to look very carefully at how broadly we draw the responsibility that we are imposing on people, a responsibility that could have exceptionally serious consequences if things go wrong.

I am very grateful to the noble Baroness and I will look very carefully at my amendments. I can assure the noble and learned Lord that one that will certainly not come back is "for the avoidance of doubt". Amendment No. 27, but I cannot promise not to use "for the avoidance of doubt" again in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

Baroness Anelay of St Johns moved Amendment No. 28:

Page 3, leave out line I9.

The noble Baroness said: I hope that this is very brief. 1 tabled Amendment No. 28 simply because I found it very difficult to understand and I want an explanation.

I found subsection (5) difficult to follow and there vias no explanation in the Explanatory Notes, which are always extremely good. I appreciate that Explanatory Notes cannot cover every single small point. Subsection (5) describes what will be considered to be an unlawful act for the purposes of this section. Paragraph (a) is easy; it provides that an unlawful act is an act that constitutes an offence but paragraph (b) then states that it excludes the acts that would otherwise be an unlawful act, except where it is done by a person who is under 10 or someone who is entitled to rely on a defence of insanity. I am still with it there. The problem then arises out of the final proviso. It says: Paragraph (b) does not apply to an act of D". If it means that the people described in paragraph (b) escape, is that not already made clear by the wording at the beginning of paragraph (b), would constitute a offence but for being the act or? It is just a case of please explain. I beg to move.

Baroness Scotland of Asthal

I am grateful for the noble Baroness's explanation because the amendment would remove the safeguard that we think we have built in to ensure that people lacking criminal capacity cannot have their behaviour deemed unlawful when it would not otherwise be possible to prosecute them. Paragraph (b) is there specifically to deal with the case where the death has been caused by someone who lacks criminal responsibility. No one will be charged with the murder, but the members of the household who stood by and failed to take reasonable steps to prevent the death should be liable just the same. We think it is an important principle. We have designed the offence to leave no doubt that where members of the household have frequent contact with a child or a vulnerable adult, they have a duty to protect that person from harm by other members of the household. This is particularly evident with children, but the duty is just as pressing with vulnerable adults.

As I said at the outset, this is a significant change in the way we view our responsibilities that I believe is fully justified. That duty applies, perhaps even more. when the risk is from a household member who is not criminally responsible. However, the last line of subsection (5) provides a significant safeguard for the person who lacks mental capacity. It makes clear that a person cannot be charged with an offence by reason only of subsection (5)(b) when he would otherwise be deemed to lack criminal capacity. I hope that that clears up what seemed to be impenetrable.

Baroness Anelay of St Johns

I am very grateful. It was the use of the word "only" and the noble Baroness's response satisfies me. I beg leave to withdraw the amendment and will not return to it.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 and 29 A not moved.]

Clause 4 agreed to.

Lord Renton moved Amendment No. 30:

After Clause 4, insert the following new clause—


(1) A person's voluntary intoxication is to he disregarded in determining—

  1. (a)for the purposes of section 4(1)(d)(i), whether he ought to have been aware of the risk; and
  2. (b)for the purposes of section 4(1)(d)(ii), what steps he could reasonably have been expected to take to protect V from the risk.

(2) A person's intoxication is voluntary if he takes an intoxicant, or allows an intoxicant to be administered to him—

  1. (a)knowing that it is or may be an intoxicant; and
  2. (b)otherwise than in accordance with medical advice.

(3) "Intoxicant" means alcohol. drugs or anything else which may impair awareness.

(4) A person's intoxication is to be taken to be voluntary unless sufficient evidence is adduced to raise an issue with respect to whether it was voluntary.

(5) Where sufficient evidence is so adduced. the court is to assume that his intoxication was not voluntary unless the prosecution proves beyond reasonable doubt that it was."

The noble Lord said: I can be very brief because I have already drawn attention to a most unfortunate type of drafting that we find in Clause 4. Indeed. it is the only clause in the whole Bill of 25 pages in which this method of drafting is used. We need to hear in mind that legislation, especially in criminal matters, should be drafted in a way that it can be understood by the millions of people in this country. If we go into this method of drafting, it could become even more elaborate when applied to other circumstances. Therefore, I implore the noble Baroness to consider having this clause redrafted in the normal way between now and Report. If that is not done, we shall have created a precedent that can do immense harm in the years to come.

Baroness Thornton

I recall other Bills where A, B and C were used. I think it was probably used in the Sexual Offences Bill. I found it very useful. Another point is that people do not read Bills. They read newspapers and reports of what the law says. I am not saying that our Bills should not be comprehensible, they should be. As my apprenticeship in the House is still going on, I find it hard to read Bills and understand them and I found this quite useful.

Baroness Howarth of Breckland

I shall simply reiterate that. As a lay person in terms of law. I found this extremely helpful. It may be that we who are new and see this change find it easier to follow. I thought the noble Lord, Lord Borrie. made it very clear.

Earl Russell

I apologise as a latecomer to the debate. If I had been here earlier I might have known exactly what the noble Lord, Lord Renton. was proposing. His suggestions on drafting matters are never to be taken lightly. The trouble that we have here is that we are trying to describe in the Bill conduct which itself as observed—as it might be observed through the medium of the cinema—is not understood by the ordinary member of the public when he sees it. That makes it extremely difficult to apply the noble Lord's principle as we would like to apply it. There is a kind of immobility that comes on a person in that frightened situation. The analogy of the rabbit in the gaze of a snake comes to mind, although it is not as simple as that either. One cannot describe what that feels like, and if one cannot do that one cannot describe with the clarity one would wish exactly what one would wish to do about it.

That is why in the end the ultimate achievement of the clause, much though we want what it attempts to do. will be as much educational as practical. However, if the noble Lord has further suggestions later, I should be interested to hear them.

7 p.m.

Baroness Scotland of Asthal

As always, I have listened carefully to what was said by the noble Lord, Lord Renton, in relation to the way in which Clause 4 is drafted. However, I think that there is some power in the utility of the way it has been drafted on this occasion because it is echoed from those Members whom we greatly respect who want to have a better understanding of the Bill. My noble friend Lady Thornton, and the noble Baroness, Lady Howarth, who are not lawyers, have both said that this is of utility, and the noble Lord, Lord Borrie, who most certainly is one of our finest members of the legal profession, found it equally helpful. It is very unusual indeed for that to happen and I should like to rejoice in that.

However, this methodology is not as innovative as the noble Lord, Lord Renton, believes. It was used in the Criminal Justice Bill, the Sexual Offences Bill and in the Police Bill, which is now an Act. We are dealing with quite a difficult complex arena where one has to chart one's way through some fairly choppy waters. Being able to use the symbol appears to work well. I shall of course consider what is said by the noble Lord, but I am much heartened that there is a buffer to the noble Lord's censure in the voices of other noble Lords around the table.

Clause 4 agreed to.

Viscount Bridgeman moved Amendment No.30:

After Clause 4, insert the following new clause—


(1) A person's voluntary intoxication is to be disregarded in determining—

  1. (a)for the purposes of section 4(1)(d)(i), whether he ought to have been aware of the risk: and
  2. (b)for the purposes of section 4(1)(d)(ii), what steps he could reasonably have been expected to take to protect V from the risk.

(2) A person's intoxication is voluntary if he takes an intoxicant, or allows an intoxicant to be administered to him—

  1. (a)knowing that it is or may be an intoxicant; and
  2. (b)otherwise than in accordance with medical advice.

(3) "Intoxicant" means alcohol, drugs or anything else which may impair awareness.

(4) A person's intoxication is to he taken to be voluntary unless sufficient evidence is adduced to raise an issue with respect to whether it was voluntary.

(5) Where sufficient evidence is so adduced, the court is to assume that his intoxication was not voluntary unless the prosecution proves beyond reasonable doubt that it was."

The noble Viscount said: Amendment No. 30 inserts into the Bill a new clause regarding the effect of intoxication and is taken from Clause 3 of the Law Commission's draft Bill at page 53 of its report number 282.

The amendment specifically excludes voluntary intoxication from consideration when the questions of the defendant's awareness of risk or the reasonableness of steps he or she could be expected to take are being considered. Thus, while those tests have elements of both objectivity and subjectivity, this provision prevents the defendant from taking advantage of his or her own voluntary intoxication in the court's assessment of what is reasonable for him or her to be aware of or to do. Intoxication covers not just alcohol but drugs or naturally occurring stimulants such as fungi.

There is, therefore, an evidential burden on the defendant to displace the presumption of voluntariness. Once displaced, the burden on the prosecution of disproving voluntariness is to do so beyond reasonable doubt. I should be grateful if the Minister could set out the Government's reasons for rejecting this proposal from the Law Commission. I beg to move.

Lord Campbell of Alloway

Perhaps I may ask my noble friends respectfully what this adds to the broad effect of extant law. I do not pretend to understand the law, but I should like to know what it is in this clause as it stands that is defective in the law.

Viscount Bridgeman

I thank my noble friend Lord Campbell for his comments. We are trying to cure a defect in the new law rather than in the old one.

Baroness Scotland of Asthal

Perhaps I may say respectfully that the noble Lord, Lord Campbell, puts his finger on it. We already have solid jurisprudence on this, which applies across the piece. Intoxication can present particular problems for courts in deciding whether a person was responsible for his actions at the time when he or she committed a criminal act. The problems are clearly increasing because the use of drink and drugs for recreational purposes is increasing in our society. However, intoxication can play a particularly dangerous role because it creates circumstances where violence is more likely.

The Law Commission identified that in its work on child deaths. Noble Lords have also clearly and rightly identified this as a particular problem in the "familial homicide" scenario. But, frankly, I am not convinced that this amendment is the right way to deal with it. I do not disagree with the thrust of the amendment, but the case law on the effect of voluntary intoxication generally and the specific wording of the Bill make the amendment unnecessary. Indeed, spelling out the effect in this way in this case may be a recipe for confusion.

To begin with, I think it is important that the possible effect of intoxication is dealt with consistently across the piece as far as concerns criminal law. So I am very reluctant to consider treating a particular offence separately in this regard. It is well established that a defendant cannot escape liability for offences on the basis that he was too drunk to appreciate a risk that would have been apparent when sober. It is also clear from the wording of the Bill that the test in Clause 4(1)(d)(i) relates to a risk of which the defendant, was, or ought to have been, aware", and in (ii) the steps which, he could reasonably have been expected to take". In any event, appreciating the risk of harm and taking reasonable steps to prevent the harm occurring are not in general single, self-contained events. They take place over a period of time. So I think it would be difficult for any defendant to put forward the argument that he did not realise there was a risk of harm because he was too drunk to make that assessment. He might have been too drunk on Tuesday evening to realise that there was a risk, but the risk would have been present earlier on the Tuesday, and on the Monday and Wednesday too. Nor can a defendant say that he could not reasonably take steps to prevent the harm because he was drunk because, again, he has time to take the steps when he is sober, so that will not do either. No doubt the court will take a view on whether it was "reasonable" for him to be drunk in the first instance. I know that some people think there can be given cause, although I am teetotal and have difficulty with that.

In short, intoxication is a general difficulty but I think the amendment before the Committee does not add any practical value to the provisions of the Bill. As noble Lords are aware, there is always a danger in legislating where it is not needed and in adding provisions which, by their very existence in one specific context, may affect interpretation of other areas of criminal law. I know from the strictures which have come at me from all parts of previous Committees that that is not something with which noble Lords find favour.

Lord Thomas of Gresford

For the avoidance of doubt, can the noble Baroness therefore confirm that involuntary intoxication by drink or drugs remains a defence to this new offence?

Baroness Scotland of Asthal

It does because of the case law. It indicates that if someone slips you a Mickey Finn, he does something without your knowledge and somehow suborns your will. Let us suppose that one of your Lordships is minded to tell me that the orange juice he was giving me was in fact laced with vodka but I did not notice and there were consequences, certainly I would say that was pretty involuntary.

Viscount Bridgeman

I am grateful to my noble friend Lord Campbell for assisting in the clarification of this point and also to the noble Lord, Lord Thomas. I shall read carefully what the Minister said and in the mean time beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 31:

After Clause 4, insert the following new clause—


(1) A person who is regarded as a member of the household within the meaning of section 4(4) at the relevant time has the responsibility imposed by this section ("the statutory responsibility").

(2)"The relevant time" means—

  1. (a) the time when the offence was committed (if known); or
  2. GC 370
  3. (b) any time during the period within which the offence could have been committed.

(3)The statutory responsibility is responsibility for assisting the court in any proceedings in respect of the offence, by providing as much information as the person is able to give about whether and, if so, by whom and in what circumstances the offence was committed."

The noble Baroness said: I rise with some trepidation to move Amendment No. 31 and wait to see what my noble friend Lord Campbell of Alloway will have to say on this. I have tried, as a matter of course, to give the Government the opportunity to respond on the record to the proposals by the Law Commission. There are organisations outwith this House which wonder why the Government have diverged from them. My noble friend's previous amendment was one such example and we received a robust answer on that.

I turn to what is called "the statutory responsibility". The objective of the Law Commission amendment is to create a statutory responsibility to assist the police and the courts. This is different from Amendment No. 27, which simply asked the Government to clarify the fact that Clause 4(4) imposes a responsibility upon a particular category of people so that they can fall foul of the offence in Clause 4 if they cause harm or fail to prevent harm occurring to a child or vulnerable person where that harm results in death. So, this is a different approach. The Law Commission adopted a completely different approach to the whole of Clause 5 and in a sense this is a precursor to the debates on Clause 5, which I now suspect we shall have on another day.

My new clause establishes a statutory responsibility in persons who have responsibility for a child or vulnerable adult who has been the victim of the offence that has led to their death. The responsibility is to assist the police and the courts by giving such information as they are able to do.

The Law Commission noted that on its own this proposal attracted little adverse comment as a matter of principle and amended its original proposals to avoid all opposition. The change it made was so that the responsibility to give information was limited to that which you were able to give. It was not just a straightforward case of "give information or else", but only information which you were able to give. This is the alternative approach to that which we are building up to in Clause 5. I beg, to move.

Lord Donaldson of Lymington

I am extremely surprised to hear that this originates from the Law Commission. It seems to be contrary to natural justice. It is almost certainly a breach of the Human Rights Act and of various other things which one might add. What it is saying is, "You committed the offence and it is your duty to tell us whether you did. Put your hand up and say, 'I did it'." That does not make sense at all.

Lord Carlisle of Bucklow

I am saying nothing!

7.15 p.m.

Baroness Scotland of Asthal

I am tempted to say just that I agree. However, I know that the noble Baroness wants me to put on the record what the thinking is so that those outside the Committee will understand it. As I always do what the noble Baroness invites me to do, 1 think I should.

The amendment seeks to develop the proposal made by the Law Commission in its report that those with responsibility for a child at the time that they are the victim of certain specified offences should be under a responsibility to assist the police with their investigations into the offence and the courts in any proceedings in respect of that offence. The responsibility is to provide as much information as the person is able to about whether and if so by whom and in what circumstances the offence was committed.

The amendment, as did the Law Commission's draft, focuses the responsibility slightly differently by linking it to the proposed new offence in Clause 4 and by limiting it to a responsibility to assist the court rather than the police and courts. However, the thrust of the comments made by the noble and learned Lord, Lord Donaldson, is still there.

The Law Commission's work on this subject has been enormously helpful and has moved this whole area on a great deal. The commission saw its proposed statutory responsibility as an important part of the scheme linked very closely to the drawing of adverse inferences and the postponement of the "case to answer" decision that they also proposed. We have also developed proposals for adverse inferences and the postponement of the "case to answer" decision, which we shall shortly discuss in more detail, but—it is a very important "but"—we have linked this closely to the circumstances of the new offence rather than founding these in a statutory responsibility. We therefore think that our package of proposals will be effective in tackling the core cases at which they are targeted and that a statutory responsibility may not add substantially to this package.

However, the Law Commission certainly saw some attraction in setting out in statute a clear message that we expect those with responsibility for children and vulnerable adults to provide information where that child or vulnerable adult is the victim of a serious criminal offence, although I should make clear that this proposal was of course subject to the right not to incriminate oneself.

The proposal certainly merits further consideration. From the response of the noble Baroness and that of the noble and learned Lord, Lord Donaldson, I hear the indication that I should not trouble myself unduly in considering this proposal much further. If that indication is made by the noble Baroness at the end of my response, I should be happy to do so.

Likewise, the amendment before the Committee targets the responsibility at the court process rather than the police and courts as the Law Commission proposes. The benefits of these two different approaches perhaps needs to he considered if we were to go down this line.

While building on the work of the Law Commission, the scheme that we propose differs in key respects. Therefore, a statutory responsibility would not have the same role to play in our scheme as the Law Commission saw for its proposed responsibility. However, I am grateful to have had the opportunity to chase this hare because I am waiting for the invitation from the noble Baroness to stop here.

Lord Thomas of Gresford

In the next clause, the Government do their best to drive a coach and horses through the right to silence and the right not to incriminate oneself, and so on. Therefore, it is very nice to hear the noble Baroness standing on the side of the angels in relation to this matter. I suggest that the weakness of the amendment is that there is no sanction if a person says, "Well, I am a member of the household. You are giving me a statutory responsibility but I am going to be irresponsible". So where does that get us? It seems to me that if the Law Commission had a clause such as that, it certainly could not be extracted bleeding from its proposals in the way the amendment seeks to do.

Baroness Anelay of St Johns

I purposely extracted the measure bleeding from the Law Commission's Bill because I hoped to set in train the debate that we have had. I refer to the opening words of the noble Lord, Lord Thomas of Gresford. If Members of the Committee think that this amendment breaches the European Convention on Human Rights, I wait to see what the noble Lord, Lord Thomas, says about Clause 5 and whether that might also breach human rights. I am grateful to the Minister for putting on the record why this particular approach would not be appropriate, and I agree with her on that. Clause 5 is yet to come.

She tantalisingly said that she will always do what I invite her to do. Given the time, I am looking invitingly at the Government Benches and hoping that, as I beg leave to withdraw the amendment, the Government Whip will propose that we meet on another day to discuss the joys of Clause 5. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

The Deputy Chairman of Committees (Baroness Gould of Potternewton)

In the light of the discussion we had earlier, it would not be appropriate to start Clause 5. I believe that the Committee should adjourn

Baroness Scotland of Asthal

If I were to invite the Committee to continue, I believe I would be accused under the European convention of cruel and inhumane punishment. Nothing that I have said in relation to the last amendment should give anyone any indication that I think that the proposals in Part 5 are not robust and compliant.

The Deputy Chairman of Committees

The Committee stands adjourned until Wednesday, 28 January at 3.30 p.m.

The Committee adjourned at nineteen minutes past seven o'clock.