§ 3.5 p.m.
§ The Minister of State, Home Office (Lord Falconer of Thoroton)
My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Clause 25 [Positions of trust: interpretation]:
§ Baroness Blatch
moved Amendment No. 88:Page 12, line 8, leave out "regularlyThe noble Baroness said: My Lords, in moving Amendment No. 88 I shall speak also to Amendments Nos. 89 and 90 standing in my name and to Amendments Nos. 135, 139 and 140 standing in the name of my noble friend Lady Noakes to which my name is added.
Clause 25 stipulates that a person is in a position of trust only if he is regularly involved in the care or supervision of under 18s. That restriction creates a defence for the abuser who can demonstrate that his 12 involvement is irregular. If the abuser works only on an occasional basis in a detention centre, he may be able successfully to defend himself against a prosecution for abuse of trust if he is sexually involved with one of the children there. If the abuser works on a peripatetic basis in different local authority homes, and is brought in to work with under 18s from time to time, he too may be able to rely on that in his defence.
On the first day of Report, the Minister said at col. 1301 that removing the word "regular" would prohibit sexual relationships between a 17 year-old and a supply teacher who covers for only one day while the regular teacher is off. But requiring regularity markedly limits the protection offered by this offence. It is a mistake to limit the level of protection to be given to all children by relying on such unlikely scenarios. In any event, ultimately the responsibility falls on the person in a position of trust to ensure that he is not engaging in sexual relationships with those in his care.
A nurse who takes a shine to a patient should certainly not have sexual relations with that patient during his stay in hospital. The situation is similar with a supply teacher. So long as a relationship of trust subsists between him and the pupil there should be no sexual relationship. Once the person has reached the age of 18 or the position of trust has lapsed we must accept that the offence no longer applies. But while the position of trust exists the protection of the child should be paramount.
If the Government's primary concern is the protection of young people, they ought to agree that the protection of those who are abused by occasional, irregular carers is of greater priority than the freedom of those carers to have sex with those in their charge. If the Minister continues to cite cases of reductio ad absurdum, such as the once-only supply teacher, then let the noble and learned Lord bring forward an alternative form of words that does not impose the requirement of regularity but instead simply has a cutoff point—a de minimis provision. But I hope that the noble and learned Lord will not reject my arguments out of hand.
Similar arguments apply in support of my noble friend's amendments to Clause 47 in respect of care workers. Why should the law create a defence for those care workers who take sexual advantage of their patients but who work only occasionally with them? It makes no sense. The Minister will no doubt quote further examples of care workers whose sexual relationships he does not want to criminalise. But I say again, the onus really should be on the person in the position of trust to control himself.
Finally I put this scenario to the noble and learned Lord. What if prosecutors bring a case before the courts of a care worker who takes sexual advantage of several patients in his care? He works occasionally in a home where they live, but the work is intermittent, covering for staff who are sick. Sometimes he may go for months without working there. Will the word 13 "regularly" in the clause mean that he could escape conviction? If there is any risk that that would happen, the word must be removed. I beg to move.
§ Baroness Noakes
My Lords, I support the amendments tabled by my noble friend Lady Blatch. I shall also speak to Amendments Nos. 135, 139 and 140, which stand in my name and that of my noble friends Lady Blatch and Lord Astor of Hever. Like my noble friend Lady Blatch, I continue to believe that a position of trust arises through the existence of a specified relationship regardless of its duration. Whether we are talking about vulnerable young people or mentally disordered people, they may trust a person in a certain position however long that person has been in the position.
Why regularity other than some other indication of substance was chosen seems obscure. Indeed, on care worker offences, the Government accepted that abuse could take place at the first time of meeting someone with a mental disorder. The possibility of abuse derives from the position of the abuser, not how long or how often the abuser sees the vulnerable person. I struggle to see the logic of the Government's position.
When the Minister dealt in Committee with the corresponding amendments relating to the abuse of trust, he gave the example of a nurse who looks after a 17 year-old during a one-day stay in hospital. He asked if there were to be no allowance for a relationship to occur after the stay in hospital ended. He seemed to conclude that abuse of trust offences would apply if "regularly" were omitted. But as I read the offences under Clauses 18 to 22 the position of trust must exist at the time of the sexual activity. So if a sexual relationship takes place after the position of trust ceases to exist, there is not a problem in relation to the abuse of trust offences.
The Minister, giving an example relating to care workers, said that the case of a person providing any service, such as a shop assistant or a taxi-driver, would be caught. But those people, if not employed by a care home or hospital, would be care workers only by virtue of Clause 47(4), which requires the services to be provided "in connection with" the person's mental disorder. I cannot see that shop assistants and taxi-drivers are within that category.
We see it as a simple issue. Has a vulnerable person been sexually abused? If so, was that abuse carried out by someone who had access to the vulnerable person through a position that gave some power, authority or other status in relation to that person? If so, an offence has been committed regardless of whether it was the first encounter or one of many. I hope that the Minister will reconsider his position.
§ Lord Rix
My Lords, Amendments Nos. 135, 139 and 140 seek some measure of accountability towards a vulnerable person, which would enable us to distinguish the additional responsibility and hence the culpability of a care worker rather than an ordinary citizen. That explains the requirement of regular contact. However, one incident involving someone in a one-off support role can do a lifetime's damage. I can 14 see the case for removing the requirement of regularity, but only if the Government are satisfied that we are still left with ordinary citizens' culpability and care staff culpability.
§ 3.15 p.m.
§ Lord Falconer of Thoroton
My Lords, the purpose of Amendments Nos. 88, 89 and 90 tabled by the noble Baroness, Lady Blatch, is to remove the word "regularly" from the definition of what counts as a position of trust. At present, a position of trust is defined as one where an adult is regularly involved in caring for, training, supervising and/or being in sole charge of a child or children.
The primary purpose of the offences is to provide protection in criminal law for young people over the age of consent who are considered particularly vulnerable to exploitation in an ostensibly consensual sexual relationship from those in a relationship of trust towards them. As the noble Baroness, Lady Noakes, said, her amendments would have the same effect on the care worker position.
Neither of the sexual offences is designed primarily to deal with other sexual offending behaviour, such as sexual intercourse with a child under the age of consent or non-consensual activity, which fall within the scope of a range of other sexual offences. We are dealing with 16 and 17 year-olds. It is intended to deal with abuses of a position of trust where a young person is especially vulnerable because of their circumstances or because the relationship is particularly strong. Imposing the severity of the criminal law can be justified only where the breach of trust is sufficiently serious to warrant the creation of the criminal offence.
As the noble Baroness, Lady Blatch, made clear, the amendments seek to extend the offence beyond those who have regular responsibilities in relation to the child. The amendments pose the question of whether it is desirable to catch by the clause very brief contact in which there is no opportunity to build a relationship of trust with the 16 or 17 year-old. As I understand the position of the noble Baroness, Lady Blatch, her amendment seeks to cover the risk of what might happen if a supply teacher comes for one lesson, irrespective of the fact that there is no further contact. As the noble Baroness. Lady Noakes, said, it is only during the lesson that the relationship exists. Even if one comes occasionally, if one comes regularly, that is sufficient.
I am genuinely interested to discover what it is that the noble Baroness, Lady Blatch, wishes to catch. If I am right in my analysis—the noble Baroness, Lady Noakes, agrees as regards timing—if there is only one-off contact, the only period of the contact during which the relationship exists is, for example, where the supply teacher is teaching. Is it really sensible to amend the law in that way when that would also give rise to other related difficulties? I would be interested to know whether that is the situation that the noble Baroness is trying to catch.
I shall take the further examples of a supply teacher teaching a single lesson to a 17 year-old, or a Connexions advisor covering for a colleague for a 15 single meeting with a child. If we do not want just to catch what happens during the meeting, it is important that we make that clear by retaining the requirement for regular involvement. We believe that those people do not have sufficient influence over a child of that age to merit their engagement with the child being considered a position of trust for the purposes of the offence.
To return to the first example, if a supply teacher covers a colleague's maternity leave or regularly covers different teachers' leave across the school—the noble Baroness, Lady Blatch, gave that example—it is likely that those circumstances would already fall within the scope of the offence. A nurse on temporary placement to a children's wing or a social worker on secondment to a children's home would similarly be covered. The noble Baroness, Lady Blatch, gave the example of a nurse treating someone for one day, perhaps as an outpatient at an A&E department. A 17 year-old comes in with a broken leg and is treated by the nurse for a period but never sees the nurse again in a nursing context. Is it what happens during that period that we should cover by omitting the word "regularly"? The noble Baroness, Lady Noakes, is nodding. But is that a sensible way of dealing with the problem?
I remain committed to the view that codes of conduct and disciplinary guidelines that exist in the professions concerned are the most appropriate means of dealing with consensual relationships where the existing requirements of the abuse of trust offence are not met.
Care worker offences raise similar issues in the parallel situation of dealing with care workers. The government amendments tabled in Committee went some way to meet the concerns expressed in the amendment tabled by the noble Baroness, Lady Noakes. They allow for a breach of a relationship of care to be committed on a first meeting where it was likely that subsequent contact would be regular. However, to go any further by including irregular contact risks infringing the freedom of choice of those with a mental disorder or learning disability who have the capacity to consent to sexual activity.
The amendments would catch, for example, the temp from an agency undertaking for a day reception duties at the hospital clinic that a person with a mental disorder attends. We think, with respect, that that is going too far.
A balance has to be struck, and we think that although the matter is difficult, we have the balance right. However, if there are particular examples that I have not dealt with that the noble Baronesses are seeking to capture in their amendments, I would be interested to hear them and I would consider them.
§ Baroness Blatch
My Lords, I am grateful to the Minister for his answer, but he has missed a number of points.
16 First, the level of casual working in social services establishments, children's homes and the places where care workers work is very high.
§ Lord Falconer of Thoroton
My Lords, I apologise for intervening. Please do not misunderstand that because one is a casual worker one cannot be a regular worker.
§ Baroness Blatch
My Lords, many of them are not regular. The Minister has not so far given a proper definition of "regular" for the purposes of the Bill and the defence against abuse. I have posed a number of questions, including a specific one this afternoon, to which the Minster has not responded. It is essential that we understand what is going to stand up in court as being "regular" contact. We do not know. I referred to casual workers.
I am also bothered by the situation in an establishment when a young person of 16 or 17 years, or even a young person in a sixth form, or with a mental impairment, who would be a concern of the noble Lord, Lord Rix, believes that a teacher, a care worker or a social worker who comes before them is in a position of trust, it is not said that because they are only in for one day that they are not in a position of trust—unlike the person that they see for five or seven days a week. Anybody in a position of authority, who exercises some power in one of those establishments, is deemed to be by the patient, the school pupil or the person in the children's home, to be in a position of trust. If an abuse takes place in that situation an abuse is an abuse. The idea that they are given on a plate a defence as set out in the Bill is wrong. We shall return to that matter. I hope that at the next stage of the Bill the noble and learned Lord will come forward with a scientifically worked-out view of the definition of "regular". I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 89 to 92 not moved.]
§ Clause 27 [Sections 18 to 22: sexual relationships which pre-date position of trust]:
§ Baroness Blatch
moved Amendment No. 93:Leave out Clause 27.The noble Baroness said: My Lords, I oppose Clauses 27 and 49 because they introduce into the abuse of trust provisions an outrageous defence for pre-existing sexual relationships. I also oppose government Amendment No. 105B which attempts to insert a similar pre-existing relationship defence in respect of familial sexual abuse.
The amendment appears to mean that if the family relationship within Clause 30(3) and (4) comes into existence after a sexual relationship has begun the sexual activity can continue legally. In a letter that I received only today the Minister gave an example about two young people. I am using the same analogy. A 16 year-old and a 21 year-old meet socially and strike up a romantic relationship, and, through that relationship, their respective parents come together and set up home, either inside or outside of marriage. The young people are now step-siblings and come 17 together in the same house. One could be 21 to 25 and the other just 16 or 17. If the parents disagree with that relationship. now that they are living under the same roof and are probably in the same bed, continuing and developing a sexual relationship, the parents have no defence whatever. What the youngsters are doing is legal because of the defence set out in the Bill. Previously, the two may have engaged in nothing more than petting. However, now, living together under the same roof as brother and sister, they can legally engage in full sexual intercourse, safe in the knowledge that they have a defence. I cannot understand why the Government should continue to approve of that.
I am especially disappointed about the proposed defence for familial sex abusers. I was delighted when the Government agreed to my amendment in Committee to remove the defence for relationships which began prior to the legislation, but now an even worse defence is being created. The arguments against having that sort of defence, against a charge of abuse of trust, or for care workers, hardly need repeating. The Government have recognised that there are those who obtain positions of trust so that they can begin to take sexual advantage of youngsters or people with mental disorders. It is astonishing that the Government should fail to recognise that such people might obtain such a position in order to continue such abuse.
Clause 27 gives carte blanche to teachers and others in positions of trust to continue sexual relationships with young people in their care as long as they can produce evidence that the sexual relationship started prior to the position of care. Clause 49 does the same for care workers who look after people with mental disorders. The "evidence" of the pre-existing relationship may be fabricated. It might be that a teacher begins a sexual relationship with a 16 year-old in his class and the two of them agree that, if they are ever asked, they will claim that the relationship started prior to the position of trust. That could become a standard technique. Even if the relationship really does begin prior to the position of trust, why should that justify the continuance of that sexual relationship during the time the child or mentally disordered person is in the care of the other? Why should the teacher who begins his sexual relationship with a pupil a week after he starts his job be guilty of a criminal offence, but not the teacher who begins his sexual relationship a week before? That makes no sense. The person who takes up a position of trust over someone with whom he is in a sexual relationship ought simply to choose between the relationship and the job. To allow the relationship to continue without legal sanction eats away at the very trust on which professions such as teaching and caring are built.
Furthermore, the pre-existing relationship may possibly have been a relationship between equals, but the ongoing relationship after the position of trust arises cannot be. There is no telling how much extra influence the person in a position of trust might have as a result. That may mean that the relationship lasts for much longer than it would have done. Perhaps the relationship prior to the position of trust essentially 18 involved mild petting. The presence of the relationship of trust might enable an adult to persuade or pressure the child or mentally disordered person into engaging in full sexual intercourse in the knowledge that that would be legal. That might result in the vulnerable person being drawn into a much more frequent and perhaps more deviant sexual relationship than might otherwise have occurred.
Similar arguments apply to the new defence for familial abuse. In a letter of 30th May the Minister wrote to the noble Baroness, Lady Carnegy of Lour, on the issue of pre-existing relationships. He stated that the Department for Education,would expect a teacher who was in a pre-existing relationship with a 16 or 17 year-old not to move to the establishment that the young person attends, or to ensure that the young person goes to a different establishment from the one in which they teach".That is precisely why we believe that that should be a criminal offence. It is all very well saying that that is what the Department for Education would expect. What if the teacher ignores that advice? He can ignore it with impunity because there is a defence set out in the Bill. There will be nothing in law to prevent him from doing so.
On the contrary, that teacher will find that the Bill specifically gives him a defence allowing him to continue his sexual relationship with the child in full view of all the other staff and students at the school, without fear of prosecution. To create scope for that kind of abuse by including that definition within the Bill cannot be right. I beg to move.
§ Lord Rix
My Lords, my stance, and that of Mencap, on Amendment No. 143 is straightforward. It is that a sexual relationship between consenting adults is not in most cases a matter for intervention by others. However, where one party has a professional responsibility or duty of care towards the other party, that needs to end for the relationship to be legitimately a sexual one. Imagine the situation in a residential home where a care worker is having sex with a resident because of a prior relationship, whereas in all other cases such a relationship would be taboo. Such an argument is insupportable.
§ 3.30 p.m.
§ Lord Falconer of Thoroton
My Lords, we have three amendments to deal with. Amendments Nos. 93 and 143, which were tabled by the noble Baroness, Lady Blatch, would, in effect, get rid of the defence of a pre-existing sexual relationship—a sexual relationship that pre-exists the relationship of trust. The noble Baroness wishes to remove that defence, and I anticipate from her remarks that she will oppose government Amendment No. 105B, which will be moved later. It will insert a similar defence in relation to familial sex offences.
I shall deal first with Amendment No. 93. The primary motivation for having the abuse of trust offences is the need to protect young people aged 16 or 17, who, although over the age of consent to sexual activity, are considered to be vulnerable to exploitation by a person who holds a particular 19 position of trust or authority in relation to them and so has considerable power over them. If the 16 or 17 year-old enters into a sexual relationship with a person with whom there is no such relationship of trust, the purpose of the abuse of trust offences is not brought into play. In those circumstances, there can be no basis for interfering with such a relationship. If the relationship came into existence separately from the relationship of trust, the policy purpose would not be offended. For that reason, we think that the fact that the sexual relationship exists before the relationship of trust should be a defence. An obvious example would be a Connexions adviser who is having a relationship with a 16 or 17-year old and then meets him or her in that context.
There is a second issue that arises in relation to the care worker offences. The noble Baroness will be aware of situations in which, for example, one member of a couple who are not married but have been in a long-term sexual relationship develops a mental disorder and the other starts to look after him or her. We hope that, in that situation, we would not criminalise a sexual relationship that continued while the "well" member of the couple cared for the other. That would not be appropriate for that situation.
A third situation might be that of two 17 year-olds—A and B—who are in a sexual relationship. As a consequence of that relationship, A's mum and B's dad meet and marry, and they all decide to live in the same house. According to the logic of the noble Baroness's resistance to our amendment, the relationship between the two 17-year olds would have to stop. That is not sensible, and I hope that, when the time comes, noble Lords will support Amendment No. 105B.
§ Baroness Blatch
My Lords, that is, again, a disappointing answer. There has been no definition of a prior relationship. It could be extremely cursory. It could be an agreement between two people simply to say that there had been a prior relationship, as it would not be provable. It could just be a close encounter on one evening, prior to the person's taking up the job.
The noble and learned Lord has not commented on the point made by the noble Lord, Lord Rix. Even if there is an established and provable relationship, if the person concerned works in an establishment and continues a sexual relationship with one of the patients—that is probably not the most appropriate word—of that establishment or one of the people in its care, that professional person has the choice of working in another establishment in order to makes things regular. In other words, the code of practice put in place by the Department for Education and Skills should become the basis on which professionals are judged.
The noble and learned Lord unfairly used the example of a very long-standing relationship involving somebody with a mental impairment or between two people who have lived together, of whom one is now a carer for the other. If that happens in their own home, there is no argument. I concede to the noble and 20 learned Lord that it may not apply in the particular case that he mentions. However, we are talking about 16 and 17 year-olds, and, if a relationship continues in an establishment in which one of the people is a professional—
§ Lord Falconer of Thoroton
My Lords, in the example that I gave about one member of a couple in a long-standing relationship beginning to suffer from some sort of mental disorder and the other caring for him or her, we are talking about adults. Will the noble Baroness acknowledge that that is the position?
§ Baroness Blatch
My Lords, I acknowledge that that is the position in the example that the noble and learned Lord gave. However, if a person works in an institution as a professional and is having a sexual relationship with one of the people in it, it would be improper to accept it simply because there had been a prior relationship. In education, such a situation has been deemed to be improper by the Secretary of State. The same should apply in the situation described by the noble Lord, Lord Rix.
We shall return to the matter. The noble and learned Lord has not understood the point that we make. It will be very difficult. There is a choice for the person in such a position: they should work in a different establishment and should not compromise their position. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 28 [Sexual activity with a child family member]:
§ [Amendments Nos. 94 and 95 not moved.]
§ Clause 29 [Inciting a child family member to engage in sexual activity]:
§ [Amendments Nos. 96 and 97 not moved.]
§ Lord Falconer of Thoroton
moved Amendments Nos. 98 to 100:Page 14, line 43, leave out subsection (4).Page 15, line 7, leave out "Unless subsection (4) applies,Page 15, line 10, leave out "(4) orOn Question, amendments agreed to.
Clause 30 [Family relationships]:
§ Baroness Noakes
moved Amendment No. 101:Page 15, line 23, after "half-sister" insert "step-sibling or foster-siblingThe noble Baroness said: My Lords, in moving Amendment No. 101, I shall speak also to Amendments Nos. 102 to 105 in the group.
The amendments would significantly change the way in which family members and others are brought within the ambit of the familial child sex offences in Clauses 28 and 29. In Committee, the Minister, when referring to the familial relationships that should be covered, said:It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim… The definition of the family unit also 21 needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships".—[Official Report, 10/4/03; col. 386.]We do not dissent from that, but we find it surprising that Clause 30 should produce a hierarchy of relationships, involving, first, some close family members; then, some other family members but only if they lived or had lived in the same household or had some care relationship; and, finally, some non-family members who lived in the same household and had some form of care relationship.
We did not find that logical. It meant that step-siblings were included only if they were in the last category. Similarly, the spouse or partner of a child's aunt or uncle was included only in the last category. In Committee, we concluded that that would have excluded the uncle of the murdered teenager, Danielle Jones, and we felt that that was not right.
The amendments would include all with a family relationship within the ambit of the familial child sex offence provisions. Not only would blood relationships count, but step- and foster siblings would be included. The spouses or partners of all the core family relations set out in subsection (2)(a) would be included. The rationale is that the existence of the relationship is the crucial factor. I am sure that we can all quote from personal experience examples of how a grandparent has been so remote from his or her grandchild that any position of power is negligible, while uncles, such as that of Danielle Jones, can establish strong power-based relationships. That is why it is right that the family relationship should not be qualified by the need for a family member to live in the household or have a caring relationship.
We are not sure that the catch-all provision in subsection (4) is necessary. If it is required, there is no need to confine it to relationships that rest on current residence and caring. Amendments Nos. 104 and 105 would extend the subsection to cover past residence and caring. If a position of power has been set up in a family setting, current residence may not be needed to keep it alive and capable of abuse.
The government amendments in this group respond in part to the issue of step-siblings that I raised in Committee. I am grateful that the Government have looked again at this issue. The Minister's amendments certainly improve the clause, but we do not think that what is proposed is enough. My amendments are more radical and provide a greater degree of protection to young people. I beg to move.
§ Baroness Blatch
My Lords, when we last debated this issue, the Minister said:The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships".—[Official Report,10/4/03; col. 386.]It seems to me that my noble friend's Amendments Nos. 101 to 105 do exactly that.
It is highly anomalous that the familial abuse provisions of this Bill, as currently worded, should include step-parents and foster parents—as they do when taken together with the corrigendum sheet for 22 Clause 30—but should not include siblings related in the same way. The relationships between foster siblings and step-siblings can be just as close as between full and half-blood siblings. There is certainly just as much opportunity for abuse. For example, an older step-brother can exert almost as much influence as a step-parent. It cannot be right to exclude them from the scope of subsection (2) of this clause.
Government Amendment No. 103A addresses step-siblings, but it places them in subsection (3), thereby requiring proof that they lived together in the same household or that one cared for the other. My noble friend's approach is better. It places them instead within subsection (2) where they are automatically covered by the offence.
I understand Amendments Nos. 102 and 103 take a similar approach to cousins and ex-spouses or ex-partners of those mentioned in Clause 30(2)(a). It deems them as automatically covered by the offence. I think that my noble friend's approach is correct. It is unhelpful to apply a kind of "residence" test before extending the protection of the law to a victim of familial sex abuse. I hope that the Minister will accept my noble friend's amendments.
§ Lord Campbell of Alloway
My Lords, I have already supported the rationale of these amendments and repetition will not add any weight to that support. But I shall support them again today.
§ 3.45 p.m.
§ Lord Falconer of Thoroton
My Lords, these are important amendments and it is an important area. Amendments Nos. 101 to 105 tabled by the noble Baroness, Lady Noakes, and supported by the noble Lord, Lord Astor of Hever, are designed to extend the scope of the child familial sex offences which are designed to protect children within the family environment. We have given a great deal of thought to which relationships should be covered and what the criteria for inclusion should be. As the noble Baroness, Lady Noakes, pointed out, there are differing ways in which one gets included in the format of our Bill.
In Committee, I explained that we had crafted the offences on the basis that there are three categories of person who could be said to be in a familial relationship with a child and who would be able to abuse a position of power and influence in their lives in order to manipulate them into a sexual relationship. These are core family members, covered by subsection (2); wider family members, such as the partner of the child's parent who lives or has lived in the same household as the child or who holds or has held a position of trust or authority in relation to the child, covered by subsection (3); and, finally, other persons who are living in the same household as the child and who hold positions of trust or authority in relation to the child at the time of the alleged offence, covered by subsection (4). Those are the three categories and the criteria.
Amendment No. 101 seeks to treat step-siblings and foster siblings in the same way as full and half-blood siblings for the purpose of child familial sex offences.
23 In Committee, I agreed to consider a similar amendment. We have decided that step-siblings and their equivalent through partnership rather than marriage and foster siblings should be brought within the scope of subsection (3). That means that the relationship will only be covered if the parties either live or have lived in the same household or if one of them is or has been regularly involved in caring for, training or being in sole charge of the other. Government Amendments Nos. 103A, 103B and 105A will introduce those changes to the Bill.
I think that they should be included in subsection (3) rather than subsection (2) as proposed by the amendment tabled by the noble Baroness, Lady Noakes, because step-siblings share one parent only through marriage or partnership. There is no blood tie and they may never actually live together in the same household or have a position of power or influence in the young person's life. I do not believe that there is any reason why they should automatically be excluded from sexual relationships and should only be covered by the offences if they fulfil one of the criteria in subsection (3).
Similarly, although foster siblings would share the same set of foster parents and might live together as part of a family unit, they may also be fostered at very different times and may never actually live together in the same household. Again, that is the reason for putting it in subsection (3) rather than in subsection (2).
Including step-siblings and foster siblings in subsection (3) will ensure that they would be covered if they ever lived in the same household or if one of them at any time takes on the role of regularly caring for, training or being in sole charge of the other. That is when we believe the potential for familial abuse would arise and when the intervention of the criminal law is justified.
Amendment No. 102 would have the effect of moving cousins and existing or ex-partners of the child's parents into the scope of subsection (2). Again, we can see no justification for automatically criminalising consensual sexual activity with these family members unless they actually assume a familial role by living in the same household or regularly caring for, training or being in sole charge of the cousin or the child. These are the circumstances in which the risk of familial abuse is most likely to arise. We believe that these are the circumstances in which these offences should apply. Examples have been given during the course of earlier debate and noble Lords will know that those particular advances were covered by the much more serious offences for which the person involved was charged. It is always possible to identify examples of people in relationships way beyond those that any of us seek to include. We should be careful to ensure that a measured approach is taken.
Amendment No. 102 would bring also within the scope of subsection (2) partners and ex-partners of grandparents, siblings, half-siblings and aunts and uncles. For the reasons I have just explained, I do not see a real basis to include those categories within the 24 scope of subsection (2). I am satisfied that the appropriate action is for them to be covered if they fulfil the criteria in subsection (4) which applies if the parties are living in the same household and one of them is regularly involved in caring for, training or being in sole charge of the other. Your Lordships will recall that we included partners and ex-partners of aunts and uncles in subsection (3) of the first print of the Bill and that we have decided to withdraw this provision and to include them only if they fall within the scope of subsection (4). We believe that this is proportionate to the circumstances in which a child is likely to be at risk from abuse.
I note that Amendment No. 103 would have the effect of striking out subsection (3) but realise that it is intended to be purely consequential upon Amendments Nos. 101 and 102 being accepted, as this would make subsection (3) redundant. Amendments Nos. 104 and 105 are intended to widen the scope of subsection (4) so that it would cover anyone who lives or has lived in the same household as the child and is or has been regularly involved in looking after the child, as defined. That would make the scope of subsection (4) too wide. The subsection is intended to cover those who have got no blood or familial relationship with the child or whose relationship is very distant in circumstances where a real opportunity for an abusive or exploitative relationship exists.
The criteria of subsection (4) mean that anyone living in the same household as the child and regularly involved in caring for, training or being in sole charge of the child at the time of the alleged offence and, as a result, in a real position of power and influence in the child's life, will be covered by these offences. We think that these are the right criteria to apply. As drafted, the amendments would capture the au pair even after he or she has left the household and no longer has a caring role in the young person's life. Nor would we want to catch, for example, the ex-lodger who continues to give a young person driving lessons after moving on to live elsewhere.
We believe that there are certain categories which should be caught only by the child familial sexual offences while living in the same household as the child and taking on a certain role in the child's life. That is the purpose fulfilled by the existing subsection (4) and we do not want to change it. We think that the balance has got to be struck in a sensible place and that we have got it about right. For the reasons given, I cannot accept Amendments Nos. 101 to 105, but would urge noble Lords to accept Amendments Nos. 103A, 103B and 105A. I resist the amendment before us.
§ Baroness Noakes
My Lords, I thank my noble friend Lady Blatch for her support and the Minister for his reply. The difference between the Government and ourselves is straightforward. The noble and learned Lord sees whether the individuals are living together and in a caring relationship as the critical criteria. We say that proximity in the context of extended family relations is the critical event in triggering the relationship.
25 As to the non-family relationships in Clause 30(4), the Minister referred to a continuing relationship after an au pair had left his or her employment. If the relationship with the young person who was capable of being abused had built up during that time, which is what grooming is all about, it would fall outside the clause. That concerns us.
We agree with the noble and learned Lord on the need for a measured and balanced approach but we see that occurring in slightly different places. I shall consider further the Minister's response and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 and 103 not moved.]
§ Lord Falconer of Thoroton
moved Amendments Nos. 103A and 103B:Page 15, line 29, after "cousins," insert—( ) one of them is or has been the other's stepbrother or stepsister,Page 15, line 30, after first "parent" insert "or present or former foster parentOn Question, amendments agreed to.
[Amendments Nos. 104 and 105 not moved.]
§ Lord Falconer of Thoroton
moved Amendment No. 105A:Page 16, line 3. at end insert—( ) "stepbrother" and "stepsister" include the child of a parent's partnerOn Question, amendment agreed to.