§ 7.1 p.m.
§ Report received.
Lord Scarman moved Amendment No. 1:
After Clause 4, insert the following new clause:
§ "Restriction on prosecutions for offence of kidnapping
§ . Except by or with the consent of the Director of Public Prosecutions no prosecution shall be instituted for an offence of kidnapping if it was committed—
- (a) against a child under the age of sixteen; and
- (b) by a person connected with the child, within the meaning of section 1 above.").
§ The noble and learned Lord said: My Lords, I beg to move the amendment tabled in my name. Your Lordships will have noticed that on Thursday of last week the House, in its judicial capacity, recognised the existence of the common law offence of kidnapping a 684 minor child and went on to assert that a parent may be convicted of kidnapping his own minor child. When this Bill was introduced and when it was in Committee the judicial decision of the House was not known and it was naturally assumed that the Court of Appeal decision would stand; namely, that there is no such common law offence which can be committed by a parent. The House has now declared otherwise. Plainly it becomes necessary to consider the provisions of this Bill in the light of what we now know to be the common law offence, that a parent can kidnap his minor child.
The nearest statutory offence proposed in the Bill to the common law offence declared last week is to be found in Clause 1. Clause I makes it an offence if a person connected with a child under the age of 16—that includes a parent or guardian of the child—takes or sends the child out of the United Kingdom without the appropriate consent. "Appropriate consent" is later defined in the clause. That offence will attract a liability, on conviction, to imprisonment for a term not exceeding seven years. Since it is plainly a very sensitive area of the criminal law and one which is to some extent covered by the family law and the ability of the family court, using the process of contempt of court, to enforce its own orders, one finds in Clause 4(2) a restraint placed upon prosecution, Its purpose is plain: to keep the criminal law out of these matters unless the criminality of the acts committed is such that there must be resort to the criminal law. Subsection (2) provides, quite simply:
No prosecution for an offence under section 1 above shall be instituted except by or with the consent of the Director of Public Prosecutions".
§ The purpose of my amendment, which is phrased in language very similar to Clause 4(2), is to ensure that the common law offence of a parent kidnapping his own child shall not be the subject of prosecution except by or with the consent of the Director of Public Prosecutions. The object of my amendment is precisely the same as the object of Clause 4(2) in respect of the statutory offence. It is to ensure that, save where it is absolutely necessary, the criminal law will not be used to enforce family obligations in respect of children.
§ But from time to time it has to be invoked. I do not know how many of your Lordships have had an opportunity to read the speeches of the Lords of Appeal in the appeal last week. I do not wish to recite them, but your Lordships will immediately see that the acts there alleged to have been committed by the parent were very serious criminal acts which should indeed be the subject matter of the criminal law, if proved.
§ I should mention one further matter. The statutory offence in Clause I of child abduction by a parent or other person connected with the child is limited to an abduction out of the United Kingdom, Your Lordships' House, in its judicial capacity, has found that the common law offence of a parent kidnapping his own minor child can be committed, even though the child is not taken out of the jurisdiction. That is substantially the difference between the common law offence and the proposed statutory offence.
§ These two offences—the common law offence and the statutory offence—can happily co-exist together, 685 provided that in both cases the same restraint is placed upon invoking the criminal law. The common law offence of kidnapping is, by definition, a very serious offence indeed and can be very criminal in character, even when the child is not taken out of the United Kingdom. Therefore, there is no difficulty in the overlap between these two offences. Any embarrassment that might arise is perfectly well met by the provisions of my amendment, which is that the common law offence of kidnapping, like the proposed statutory offence, can be prosecuted only by or with the consent of the Director of Public Prosecutions. I beg to move.
§ Lord Denning
My Lords, I wish to make only one point. I was so pleased to read the recent decision of the House of Lords which ensured that kidnapping is made a criminal offence. I should like to tell your Lordships what the husband did in that case. On 13th December 1978 the father, who had earlier returned from New Zealand to England, again, forced his way—
§ Lord Scarman
My Lords, if I may be allowed to intervene, I should like to say that this is very important. The father was not convicted of the offence alleged against him in December 1978. It would be quite wrong to say so.
§ Baroness Trumpington
My Lords, I would just remind the noble and learned Lord that on Report a noble Lord must ask leave of the House to speak a second time unless he is a mover of the Bill. A noble Lord may speak a second time only on a point of order.
§ Lord Scarman
I most humbly apologise, but as a judge I was concerned to ensure that a man was not spoken of as having committed a crime of which he was acquitted.
§ Lord Denning
My Lords, I will say no more except that I was only repeating a part of the story given in the House of Lords' Hansard. I did not say that the man had committed a crime. I stand reproved and will utter not a single word more except that I entirely agree with the amendment proposed by my noble and learned friend Lord Scarman.
§ Lord Mishcon
My Lords, it is a dramatic day in the history of this House when the noble and learned Lord, Lord Denning, says that he stands reproved. I assure him that, whether he is reproved or not, he will still be in our affections whatever may happen, even on future occasions.
I at once make my position clear. It is, of course, an individual position because this is a Private Member's Bill. Without any doubt at all I support the amendment moved by the noble and learned Lord, Lord Scarman, who was, of course, a distinguished Member of your Lordships' House, sitting judicially, 686 in the case to which he referred; known as the Daily case. My reason for rising is my feeling of disquiet, in spite of what the noble and learned Lord, Lord Scarman, said in his accompanying remarks, at the way in which we are dealing with legislation in your Lordships' House, especially Private Member's Bills.
I promise to spend only a second in talking about another Bill—the Video Recordings Bill—where I had a certain point of view, which had support, in regard to an essential element of export. Because most of us were so anxious that the Bill should become law, we were told—and I know it was said perfectly sincerely—that if we pressed our amendments, because it was a Private Member's Bill, we would jeopardise the passage of that Bill through Parliament. Therefore, as the noble Lord, Lord Elton, knows, I took a certain course in that regard.
Now we have another Private Member's Bill, dealing with a very important point—child abduction. Again, most of us in your Lordships' House want to see such a Bill on the statute book. We take the view that when the Criminal Law Revision Committee reported in 1980 it might have been a very good idea, on an important and human matter of this kind where so much hardship is being caused, and might have been expedient for a Bill to come before Parliament even before 1984. But I detect, if I may say so with respect, an element of clumsiness and thoughtlessness in regard to the way in which this Bill, too, comes before your Lordships.
The noble and learned Lord, Lord Scarman—and I am so glad that the noble and learned Lord the Lord Chancellor is present—
§ Lord Mishcon
My Lords, if he is not present in his usual place, at least he is able to hear what I am saying, unless his hearing is not as good as all of us know it to be.
The fact is that the reason given for this Bill being before Parliament was essentially that the law was in an unsatisfactory state as a result of the decision of the Court of Appeal in the Daily case, with all the horrific details that the noble and learned Lord, Lord Denning, was going to give us but denied himself the privilege of reciting. We understood the law to be—and this is how the Bill was introduced to the House—that the present common law crime of kidnapping did not apply to minors and, furthermore, certainly did not apply to parents in regard to their children under the age of 18 unless the child happened to be married.
In the very learned judgment that was given in the House of Lords, sitting judicially, that was deemed to be the reflection of a 19th century morality and ethos whereas, now we had walked into the 20th century, there was a different view of family life and a different view of the role of the father and the mother. The pliable common law—a pliability which, as long as one adheres to principles is something of which we are proud—made your Lordships' House, sitting judicially, walk into the 20th century and say that that could no longer be a consideration.
687 The result is that when we came to Second Reading I mentioned, as others did, the Daily case and supported the fact that this Bill ought to be on the statute book because of the decision of the Court of Appeal. The noble and learned Lord the Lord Chancellor—and this is why I am glad he can hear my remarks—referred to the Daily case and was courteous enough, as he always is, to say that I had mentioned the Court of Appeal decision with correctness and with relevance. The Second Reading took place on 21st May. In column 98 of Hansard the noble and learned Lord went on to say this:I can tell the House— because these hearings are held in public and the noble Lord. Lord Mishcon, will be able to infer what I mean—that their Lordships of the Appellate Committee did not think it necessary to call upon the appellant to reply to the respondent's argument. So that the law of kidnapping is another parameter—if I may borrow a phrase that is popular nowadays—in the calculation which we must make.Lower down in the column the noble and learned Lord says,But it has had this curious result"—referring, incidentally, to the instance of the Director of Public Prosecutions—that the long abeyance into which the offence fell in practice has led to a certain imprecision and doubt about the necessary ingredients of the offence.Now I turn to Col. 99:When the Appellate Committee delivers its judgment—which, as I say, I trust will not be long—we hope that some of the imprecisions and doubts will have been removed. But there are some points, at any rate, which will not be available to the House in its legal jurisdiction to make certain, owing to the nature of the facts which were then before it".The noble and learned Lord the Lord Chancellor then dealt with the very point that the noble and learned Lord, Lord Scarman, makes in his amendment.For instance …the Director's consent necessary in a prosecution for kidnapping, as well as child abduction under this Bill, would not be open to the Appellate Committee or to this House in its appellate jurisdiction to entertain one way or the other. This is a matter which we may have to consider".That means there are other matters which we have to consider as a result of what the noble and learned Lord, with complete diplomacy and, as always, with complete propriety, hinted at in relation to what the decision of your Lordships' House, sitting judicially, might be.
It is all very well saying that we have got a tidy situation because we put in this amendment which makes the Director of Public Prosecutions the deciding person as to whether a prosecution should be brought in regard to kidnapping. But this House and Parliament itself, in order properly to consider and tidy up the situation, especially when it was known at Second Reading that a decision of this kind was going to be made in your Lordships' House sitting judicially, ought to have had a proper opportunity to consider the possible overlapping and clean up the state of the law.
If I alone were saying this from an individual point of view, your Lordships might wonder whether my view was really worth considering. I say that in all humility. The Times has this morning a leader on this very subject. It is headed, "Child Abduction" and it talks about the overlapping provisions that there might be. This is what The Times says in the concluding paragraph of its editorial: 688Parliament has fashioned a better instrument than the judges for dealing with the problem of child abduction. Once the Bill becomes law, the common law offence will serve no useful purpose so far as it relates to the abduction of children under 16. If it is now too late for the Bill to be amended to get rid of the overlapping common law offence, at the very least its potential for abuse should be restricted. Lord Scarman has tabled an amendment to the Bill, designed to place the decision to prosecute for the common law crime in the hands of the DPP where the abduction is by the parent, guardian, or custodian of a child under 16. In the absence of a more radical proposal, the amendment deserves to be supported in the Lords today".I say this to your Lordships. This is not a tidy, proper way to legislate. If we waited for four years, we could have waited a little bit longer to consider the implications of the judgment of your Lordships' House sitting judicially—the overlap provisions. We could have heard the noble and learned Lord, Lord Scarman, with his view that possibly not much, if any at all, harm has been caused by the overlapping. We might have heard other views—I say this with respect—which are in line with what The Times felt in its editorial of today. But just to have one amendment, without the consideration of what The Times calls possibly a more radical way of dealing with the matter, and tidying up our law properly in view of the decision of the House of Lords, is not the proper way to proceed.
I am unhappy. I am unhappy again because this is a Private Member's Bill and I know that I am inhibited by the fact that if I, or anybody else, makes a fuss and asks for a postponement of this, for an amendment which ought to cover all these matters or for the opportunity of debate, what I will be doing is possibly wrecking a very good Bill. But I repeat my plea that, as with video recording, we ought to have a tidier and more sensible way of dealing with these Bills; and possibly the answer is that when they are important enough they should not be Private Member's Bills; they should be Government Bills for which proper time is allocated.
§ 7.23 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, as the intervention of the noble Lord, Lord Mishcon, is directed principally at the Government's management of their business and the business of private Members, I wonder whether your Lordships will permit me to intervene briefly at this stage and to be as tidy and responsible in so doing as I can. If I may make only one allusion to the Video Recordings Bill—which is not the subject of this evening's debate—it is simply that there is a difference between that Bill and this in regard to amendments, as there is between every Bill and every other Bill which has to go through another place on a limited timetable. It is a question of the likelihood of changes to it putting it in peril; and of course a different change will have a different effect. While I sympathise with the noble Lord in that he most courteously and public-spiritedly did not move an amendment of his to the other Bill, I do not think that that in itself is a fair comparison with the amendment which I hope my noble friend will say she is accepting to this one.
The noble Lord, Lord Mishcon, was good enough to give a hearty welcome to this Bill and to the amendment, and that I would endorse; but he went on 689 to say that the timing of the Bill was wrong because of the timing of the Daily appeal. I must remind him that work began on the Bill in the summer of 1983, that the Long Title was published in July of 1983 and Daily was decided in November 1983, so the Bill was conceived before the judgment of the Court of Appeal in the Daily case. It was therefore conceived on the assumption that the offence of kidnapping could be committed in respect of a child of any age and could be committed by a parent against his own child, although one would perhaps expect prosecutions in those circumstances to be rare. These assumptions have now been upheld by the Judicial Committee of your Lordships' House.
As the Government see the matter therefore there is no conflict between the final judgment in R v. Daily and this Bill. It is of course correct to say that if the final judgment in the Daily case had been to the effect that no offence had been committed, the Bill would have been even more useful than it is, because it would have been the only means of getting at the situation wherein one parent took away a child from the other. But the fact that an offence of kidnapping may be charged in some circumstances does not by any means imply that the Bill has no useful part to play or that it is not justified on its merits.
The differences between the offence of kidnapping and the offence of abduction which are created in the Bill are set out very clearly in the Criminal Law Revision Committee report. It is an essential ingredient of kidnapping that the person has been taken away against his will. There remains a need—and it is with this that the present Bill is concerned—to deal with a situation in which the child, in so far as his or her will can be ascertained, is a willing party. As the Criminal Law Revision Committee expressed it:The offence of kidnapping protects the liberty of the child while the offence of abduction protects the rights of parents".The leader in The Times this morning comes near to suggesting that, if Parliament passes this Bill, we can do without the offence of kidnapping so far as the relationships between parents and their children are concerned. But that, too, would be an oversimplification. This Bill deals with abductions by parents only when the child is taken or sent out of the country. The noble and learned Lord put it much more clearly than I could hope to do. The law of kidnapping continues to have its place so far as removal of a child to a place within the United Kingdom is concerned.
§ Lord Mishcon
My Lords, I am sure that the noble Lord, with the permission of the House, will allow me to intervene. The point was made—and this is where I am talking in terms of untidiness—at Second Reading that the reason that this Bill need not deal with kidnapping or abduction inside the United Kingdom was that our civil law could so easily deal with that that it was quite unnecessary for this Bill to deal with it as well. Now, with great respect to the noble Lord the Minister, he is turning Second Reading speeches on their head.
§ Lord Elton
My Lords, I am always loathe to do that Australian performance at the Dispatch Box. I would 690 only say to the noble Lord that the noble and learned Lord has given a very good example of the timeliness of this Bill by his amendments to put the criminal law offence on a parity with the statutory offence. I do not want to detain your Lordships on the handling of Government business, and nor does the noble Lord. We have taken his disquiet on board. But I would point out that had we awaited the judgment as he suggested, we should have waited until last Thursday for the Bill to be drafted. Even though the noble Lord smiles, that is what he suggested, and I would not wish him to intervene again. Had we introduced the Bill at that stage, it would not be a question of waiting a little while but of waiting till very nearly this time next year before the legislation was on the statute hook, and in that time I think that much injustice might be done which this Bill will prevent.
The noble Lord has ventilated his concern. I have registered it. What we are really concerned with is the wise and authoritative amendment which the noble and learned Lord, Lord Scarman, has put before your Lordships. I shall now get out of the way so that my noble friend can do what we all hope she will do and accept it.
§ Baroness Faithfull
My Lords, may I first thank the noble Lord, Lord Mishcon, for the comments he has made, because obviously he thinks and feels very deeply about it. May I also thank my noble friend the Minister for replying. I say at once that I am indeed glad to accept the amendment moved by the noble and learned Lord, Lord Scarman. I am particularly grateful to him for taking such an interest in this Bill and for taking the trouble to ensure that the Bill continues to be consistent with what has been decided in relation to the case of Daily.
It must be right that prosecutions of a parent in relation to the offence of kidnapping his own child should be as carefully scrutinised as those in relation to the offence of abduction in Clause 1 of this Bill. We cannot ignore the hurt and desperate feelings, sometimes engendering malice and spite, which matrimonial discord can generate. The criminal law should not be used as a weapon by an aggrieved parent, with no good grounds, for charging the other parent with either of these very serious offences.
Perhaps I might also add that the final judgment in relation to the case of Daily will reassure many who were uneasy at the earlier position. This Bill was designed only to fill those gaps in the law of child stealing and parental abduction which the Criminal Law Revision Committee identified and which are serious enough. However, it seemed at one point as if it would be the only protection for children against the even more brutal offence of kidnapping, which, the judgment given by your Lordships' House makes clear, involves the absence of consent on the part of the person being taken away.
During our debate on Second Reading I said that the Child Abduction Bill is but one strand among many which must be woven together to protect our children. The present amendment makes the law more consistent and the judgments which prompt the amendment make the body of law stronger. I have consulted with the promoter of the Bill in another place, Mr. Timothy Wood, the Member of Parliament 691 for Stevenage. He and I are indeed happy to accept this amendment.
§ On Question, amendment agreed to.
§ Clause 5 [Offence in Scotland of parent, etc. taking or sending child out of United Kingdom]:
Baroness Faithfull moved Amendment No. 2:
Page 4, line 7, after ("without") insert ("the").
§ The noble Baroness said: My Lords, with Amendment No. 2, I wonder whether your Lordships would permit me to speak also to Amendments Nos. 3, 4, 5, 6 and 7.
§ Amendment No. 3: Page 4, line 24, after ("section") insert ("the").
Amendment No. 4: Page 4, line 27, leave out from beginning to ("the") in line 32 and insert—
("(i) the consent of each person—
§ Amendment No. 5: Page 4, line 41, leave out ("and (II)").
§ Amendment No. 6: Page 5, line 3, after ("without") insert ("the").
§ Amendment No. 7: page 5, line 5, leave out ("and (ii)").
§ This small group of amendments involve a matter of drafting only. They ensure that the definition of the appropriate consent is the same in Clause 5 as it is in Clause 1. At the moment the wording of the definition in Clause 5 is slightly different, and its effect may not therefore be the same. The definition of who may give consent to a child's removal from the country ought to be the same in Clause 5 as in Clause 1—that is to say, in Scotland and in England and Wales—so that there is no doubt or difficulty. These amendments achieve that. I beg to move Amendment No. 2.
§ Lord Mishcon
My Lords, I am so happy that without any bitterness at all, and without any anxiety, I can recommend the House—certainly from where I stand—to accept the amendment so tidily moved by the noble Baroness.
§ On Question, amendment agreed to.
§ Baroness Faithfull moved Amendment No. 3:
§ [Printed above.]
§ On Question, amendment agreed to.
§ Baroness Faithfull moved Amendment No. 4:
§ [Printed above.]
§ On Question, amendment agreed to.
§ Baroness Faithfull moved Amendments Nos. 5, 6 and 7:
§ [Printed above.]
§ The noble Baroness said: My Lords, I beg to move these last three amendments.
§ On Question, amendments agreed to.