My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.
I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.
The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, when adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.
Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.
However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.
As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.
I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.
Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.
As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.
I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.
The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.
In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.
Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.
I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.
The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.
The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.
In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.
I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.
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I am clear on the need to ensure that these professionals are fully supported and equipped with the knowledge and skills to properly identify and understand the impact of domestic abuse on victims and their children. In that context, the noble Baroness, Lady Warwick of Undercliffe, is no doubt right that the court process can appear daunting to non-lawyers and especially daunting to those who are already the victims of domestic abuse.
It is for those reasons, among others, that training for professionals is essential. That is why the Government have already committed to improving domestic abuse training across the family justice system. In this context, I listened with concern to the examples given by my noble friend Baroness Helic and the noble Lord, Lord Rooker, of cases where, despite the training given, judges appear to have unwittingly made a bad situation
worse. Judges, like all of us, are human and, although such cases no doubt exist, it is important to use this occasion to also pay tribute to the members of the judiciary who sit in the family court. They deal with the hardest cases that come before the courts with care and compassion and with an urge to do justice in the particular facts of each case.
In the Government’s response to the harm panel report published last year, we acknowledged that more could be done to improve domestic abuse training. We have committed to trial improved guidance and training across the family justice system in England and Wales, but we are not persuaded that primary legislation is the way to go about this. Rather, the individual bodies that make up the family justice system each have their own requirements for the undertaking of domestic abuse training. I suggest that there is benefit in allowing those different bodies to tailor and adapt their training and approaches, which will depend on the needs of their staff and the people they work with, so that the training is bespoke rather than “one size fits all”. We will be doing further work with all those bodies, in particular the Judicial College, as part of the implementation of the Bill.
Planning for reform across family justice is under way and training is a crucial element of that reform. I can assure noble Lords that the relevant sector leaders, including government, the judiciary, Cafcass and social workers are already engaged and supportive of this aim. I can assure the noble and learned Baroness, Lady Butler-Sloss, in particular that we will be working with the Judicial College as part of the implementation of the Bill. I will read and take on board the comments made by the Court of Appeal in the case to which she referred as part of that.
I will pick up one point made by the noble Baroness, Lady Warwick of Undercliffe, who talked about soft skills. I confess, I have always found that a very unfortunate description. Those soft skills are actually very hard to learn and, sometimes, by using the phrase “soft skills”, there is a danger that we underplay their importance. Those soft skills are very important and they will play a part in the training, but they will be contextualised to the needs of the particular group.
Having said all that about training going forward, I emphasise that I am not negating the value of existing domestic abuse training, which is significant. Sector-specific training supports professionals across the family courts, with appropriate variation to allow for focus on key aspects of importance for different professions. The judiciary and Cafcass social workers all already receive domestic abuse training via their respective professional frameworks. As has been said, for many of the professionals in the family court, such training and development is mandatory for the purposes of continued professional registration. In that context, I know that both Cafcass and the judiciary have recently piloted new domestic abuse training and will be rolling out more this year. As part of their post-qualifying standards, children and family social workers are expected to have the knowledge and skills to identify the impact of domestic abuse and to work with other professionals to ensure that vulnerable adults and children are safeguarded.
For those reasons, I am confident that the Government are already seeking the same outcomes as the noble Lord is in his amendment. We are committed to improving the experience and outcomes of domestic abuse victims and their children in the family courts and we recognise the central importance of training in this.
Amendment 134 highlights the issue of the impact of trauma on the evidence given by survivors of domestic abuse in family law proceedings. We know that many of the survivors of domestic abuse whom we see in the family courts have suffered trauma, and that the effects of this can be wide-ranging and long-lasting. I respectfully agree with the noble Baroness, Lady Hamwee, that we are still learning in this regard. The effect of trauma on the brain has been said by some to be the final frontier of medical science. We do know, even now, that this trauma can have a material and detrimental impact on the evidence that people who have been subject to trauma can give to the court, and the means by which it is appropriate for them to give that evidence. It is important that we do all we can to ensure that they are not retraumatised by the court process, and that they can give good quality evidence to the court. It is fair to recognise the steps which have already been taken in this context, and the judiciary’s awareness of this matter, as explained to the Committee by the noble and learned Baroness, Lady Butler-Sloss.
I will take this opportunity to set out—I hope fairly briefly—how the current practices and procedures in the family court do protect survivors of domestic abuse, and the work which is ongoing to strengthen that protection. We are aware, as a result of the harm panel report, that many domestic abuse survivors continue to experience retraumatisation through the family court process. The noble Lord, Lord Rosser, asked me what work is being done; I will explain. In response to that report, the Government have initiated a number of steps to improve the support and protection provided to domestic abuse survivors in the family court. The Committee has already debated some of these in the context of the provisions in Part 5 of the Bill. I referred earlier today to our commitment to improving the use of barring orders and our plans to pilot integrated domestic abuse courts. We are also working with the President of the Family Division to consider amending practice directions to ensure that independent domestic violence advisers, domestic abuse advocates and mental health advocates are allowed to accompany the party they are supporting in court.
We can also look to the experience and knowledge of our judiciary—who are experts in assessing the credibility of witnesses and are given considerable training in domestic abuse—to identify those cases where further protections are required. I agree with the noble Lord, Lord Marks, that Amendment 134 brings the Committee back, in large part, to the issue of training raised by Amendment 133. That training identifies the range of behaviours that domestic abuse can encompass, including emotional, economic, physical, and sexual abuse, and the dynamics that may be present in an abusive relationship. For family court judges, training on vulnerable court users is also provided through scenarios, including relevant issues in case studies that judges are asked to consider in syndicate
exercises. I agree with the noble Lord, Lord Marks, that it is dangerous, not only for the reasons he gave but also as a matter of principle, to put specifics in statute, where the matter is best left on a general basis for the judges to apply their discretion and powers on a case-by-case basis.
I turn to Amendment 135 and the transparency of court arrangements for the appeals process. It is one of the cornerstones of our legal system that there must access to justice for all. That means that the court process needs to be as accessible as possible, allowing parties effectively to navigate the justice system, and that includes the appeals process. It is therefore important that parties know when they are able to appeal against a court decision, what the court process is for doing so and, as was pointed out in the debate, any relevant time limits that may apply. That applies in all cases, but perhaps particularly where domestic abuse is in issue. In that regard, I listened with care to the personal experience that my noble friend Lady Newlove brought to this part of our debate.
The amendment seeks to impose a duty on the Lord Chancellor to amend the Family Procedure Rules to place a requirement on a judge in family proceedings involving domestic abuse to include information on the appeals process as part of their ruling. In the Courts Act, the power already exists for the Lord Chancellor to require the Family Procedure Rule Committee to make provision for this in the Family Procedure Rules, so to this extent the amendment is unnecessary. However, I should point out that this power has not been used since the enactment of those provisions, because it has been regarded as preferable for the Lord Chancellor to work with the Family Procedure Rule Committee to agree procedures, rather than imposing requirements on it.
Nevertheless, there is an important issue raised in the noble Lord’s amendment: the accessibility and comprehensibility of the appeals process. I appreciate that family court proceedings often involve complex subject matter and court procedure. The Government are committed to supporting parties to navigate the justice system and understand the options available to them. In response to the point put to me by the noble Lord, Lord Marks of Henley-on-Thames, Her Majesty’s Courts and Tribunals Service now provides guidance, both in hard-copy form and online at GOV.UK, explaining the court process, and that includes how to appeal against a decision made in the family court. That information indicates that parties may wish to seek legal advice and also signposts the support services of Citizens Advice and local law centres.
Moreover, in August last year, the Government announced the launch of a joint initiative with the Access to Justice Foundation, which provided £3.1 million of funding to not-for-profit organisations across the country at a local, regional and national level to provide free legal support, known as the Legal Support for Litigants in Person programme. The aim of that initiative is to ensure better advice and clear guidance for people without legal representation. Importantly, alongside helping litigants in person to understand legal processes and their rights within them, they will also be provided with practical support throughout the duration of proceedings.
Finally, I turn to Amendment 136, which seeks to prevent family courts including in a Section 8 order any provision requiring a victim or complainant of domestic abuse to pay or share the costs of child contact in specific circumstances.
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In a case where domestic abuse has occurred but the court none the less considers that direct contact is safe and beneficial for the child—which of course brings us back to an earlier debate today—the court will consider if any directions or conditions are required to carry the order into effect. In particular, the court will consider whether contact should be supervised and, if so, where and by whom. The court will also consider whether such contact should be for a specified period or contain provisions that are to have effect for a specified period. That could include, for example, transitional arrangements for a limited time.
In considering whether to make an order for any interim direct contact, the court can require that to take place under supervision. Cafcass has contracts with a number of supervised child contact centres to provide a fixed number of sessions that enable the impact of direct contact to be monitored and reported to the court. No charge is made to the parties for those sessions and, in 2019-20, Cafcass spent £1.9 million to provide more than 2,000 families with support through this short-term intervention.
In response to the point made by the noble Lord, Lord Rooker, I should say that the Government acknowledge concerns about the ongoing costs of contact arrangements for domestic abuse victims once proceedings have concluded. As we stand here today, it is not clear in what circumstances, or indeed how often, orders for paying or sharing the costs of contact are made. Nor is it clear in how many cases domestic abuse victims are required to pay such costs. Not all cases involving domestic abuse are the same and it would be important to understand the circumstances in which the court may order costs to be paid or shared and why. In that regard, the example given by the noble Lord, Lord Marks, is valuable and underlines the point that I have sought to make on a number of occasions this evening—the critical importance of treating each case on its merits and allowing the judge to have suitable discretion to make an appropriate order in each individual case.
However, the Government have already made a commitment in response to the harm panel review to commission a study on the implementation of current judicial guidance in cases involving domestic abuse and other forms of harm. We would not want to pre-empt the findings of that study and will consider further recommendations in that regard in due course. Therefore, in response to the question put to me by the noble Lord, Lord Rosser, as to when we would be able to provide further information on this point, I am afraid that I do not want to pre-empt the result of that study.
I apologise to the Committee for the length of my reply but that has been the case for two reasons. First, the amendments each raise important and sometimes quite complex issues. Secondly, it was right and proper
to acknowledge the important speeches and contributions made on each of the disparate points. I hope, therefore, that I have been able to reassure my noble friend Lady Bertin and the noble Lord, Lord Rosser, that the Government take seriously the issues that they have raised and that they will be reassured by my somewhat lengthy explanation and the actions we are taking to address these issues. With that, I invite my noble friend to withdraw her amendment.