My Lords, having started to grow old in the family courts, I feel that I ought to address some of these amendments, some of which I would like to support and some of which I would like to qualify.
I begin by clearing up one particular point, which was possibly a slip by the noble Baroness, Lady Brinton. There is no question now of unrepresented litigants being allowed to cross-examine mothers, particularly in contested cases involving domestic abuse allegations. It simply is not tolerated. No judge would tolerate it and we all know how to deal with it when it arises.
Turning to the individual amendments, as quickly as I can, and dealing first with Amendment 82 relating to parental alienation, I am worried by the proposal to restrict the family court’s approach to cases involving allegations of so-called parental alienation by what would amount to a statutory exclusion of evidence. There are two main grounds for concern that I suggest. First, the amendment would restrict the scope of what the court might want or need to consider. Secondly, and ironically, it might tend to elevate the significance of the concept of parental alienation. Allegations of alienation, whether justified or not, have become part of the weaponry of high-conflict parental disputes. The concept of parental alienation is controversial, and, indeed, as the noble Baroness, Lady Chakrabarti, said, the idea that there is a syndrome is largely discredited. That in itself may be one reason why it should not find its way, in any way, into a statute.
I was not going to refer to what was recently said by the President of the Family Division, but in view of what I have heard, I will say that in an important recent decision, in 2023, the President of the Family Division said:
“Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court's focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied”.
It is often said that the family court has to take a holistic view of the child’s welfare. It has to look not only at what happened in the past but at what might be possible in the future. Cases of this type have a particular complexity. The signs of parental alienation are, frankly, not difficult to identify. In my experience, Cafcass is well equipped to do that. The causes are more difficult to understand. Cases in which one parent tries to turn the child against the other parent, consciously or unconsciously seeking to punish the other parent, present differing degrees of alienation and varying motivations.
These cases are not easy to resolve. They require an understanding of the family dynamics, and an assessment of the impact of what has happened and of the harm to the child concerned. The evidential picture is not always clear-cut. Indeed, there are some cases in which there may quite well have been some level of domestic abuse by one parent, but the alleged parental alienation is wholly unrelated to it; or the persistent hostility revealed is quite out of proportion to the type of abuse that has been experienced. The Children Act and the practice direction governing cases in which abuse has been established fundamentally require the court’s assessment of harm, or risk of harm, from all sources. Those are the vital considerations.
Amendment 82 would insert the label “parental alienation” into primary legislation. It could artificially restrict—and, indeed, distort—the proper analysis of parental behaviour and attitudes in their context, and could restrict the careful handling that such cases sometimes require. I doubt that would be helpful. Indeed, it could well be unhelpful.
I turn now to Amendment 84 and others that wish to introduce the use of Section 91(14) orders. For the uninitiated, Section 91(14) orders restrict further applications to the court without leave of the court. It is a valuable power. Although Section 91(14) orders are not strictly speaking barring orders, as sometimes described, they provide a necessary protective filter to ensure that inappropriate applications will not be allowed to proceed.
In reality, a Section 91(14) order may or may not be necessary in any individual case of this type—that is to say, a case involving the application of Jade’s law. However, in these extreme cases, if there is any possibility of an inappropriate application by the convicted offender, such an order would be justified. Indeed, under current guidance there does not always have to be a risk of repeated applications, but rather the risk of any application without merit.
In the situation covered by the Bill, when, unfortunately, one parent has killed the other and the victim’s family or foster carers have stepped in to care for the child or children, they should be shielded from the prospect and distress of further court proceedings. However, in that context, and slightly tangentially, I will just qualify one observation made by the noble Baroness, Lady Chakrabarti, when she referred to parental rights. One of the great improvements brought about by the Children Act 1989 was to remove the concept of parental rights. What is being restricted here is the exercise of parental responsibility.
My only reservation about the Section 91(14) amendments relates to the question of who should be responsible for making such orders and when they should be made. From experience, I emphasise that the orders require careful, case-specific drafting. It is therefore always necessary, when making such an order, to specify its duration, which is not dealt with by Section 91 itself. That may require consideration of the age and circumstances of the child and, in these situations, the position of the surviving adults. I rather assume that those proposing these amendments would wish the order usually to run until the youngest child reaches 18 years of age, but I suggest that should be made clear, either in the statute or in the order.
However, I add that these are not orders of which most Crown Courts will have had any experience. At the sentencing stage in the Crown Court, there might not be the material on which to craft an appropriate order. Accordingly, while I do not in any way wish to oppose the principle of the amendments relating to the use of Section 91(14), I suggest that under the existing scheme of the Bill it would be better to leave any mandatory imposition of a Section 91 order to the required review hearing in the family court, for which the Bill provides in new Section 10B.
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At the time of the sentencing hearing in the Crown Court, there really will not be an immediate need for a Section 91(14) order. It is highly unlikely that between the sentencing hearing in the Crown Court and the review hearing in the family court, the offender would attempt to make any, or any inappropriate, application to the court. I therefore suggest that it would be quite safe, and more sensible, to introduce the duty to impose Section 91(14) orders at the slightly later stage of the review by the family court, when there should be a better picture of the whole family circumstances. Subject to those comments, I would support those amendments.
I turn more briefly to Amendment 89, which seeks to disapply Jade’s law if the offender was the victim of domestic abuse. I question the practicality of this amendment, at least in its present form. How will it be reliably established that the offender was the victim of domestic abuse? The fact that there was evidence to suggest that there was domestic abuse in the past may not be sufficient. That leads me to question what type or degree of domestic abuse would be required. The noble Baroness, Lady Chakrabarti, referred to prolonged domestic abuse but, as drafted, one wonders, for example, whether it would be sufficient for there to have been a relatively minor incident years before the killing at the centre of these provisions. How would it apply in cases of murder as well as manslaughter?
So far as cases of manslaughter are concerned, is the situation not sufficiently—and, arguably, better—covered by new Section 10A(5)(b) already in the Bill? I fear that there must be some risk of the amendments in this form creating satellite litigation, which is really best avoided in such unhappy situations. However, again, if this amendment or something like it is thought to have some merit, I suggest that it is another matter that would be better dealt with by the family court, rather than as part of the sentencing exercise carried out by the Crown Court.
At the risk of taking too much time, I will touch briefly on the question of experts, and psychologists in particular. Family justice cases now involve a range of professionals with expertise. Unfortunately, there has been a declining number of suitably qualified experts willing to involve themselves in family justice cases. The rules, and other guidance, generally ensure that these cases have experts who are able to show that they have the required relevant expertise. The particular problem relating to the status of psychologists, and who should or should not be instructed, was covered in great detail last year by the decision of the President of the Family Division in a case called Re C. That decision gave clarity and guidance, and should really be required reading for practitioners.
While I well understand the argument in support of this amendment, it would be helpful to know the views of the relevant professional regulatory bodies concerning psychologists. I also question whether the specific control of assessments in family cases, which the amendment seeks, should be confined to assessments of victims. So often, it is the perpetrators or alleged perpetrators who require effective psychological assessment to provide analysis of risk and to enable properly
informed decisions. In many cases, one is asked to approve what are called “global psychological assessments”, which are certainly of value. That could raise the standards of assessment to the benefit of all concerned.
At the risk of boring everybody completely, I will speak briefly in support of Amendment 111, in that it prohibits unsupervised direct contact in specific circumstances. My only reservation relates to situations in which there has been or may have been some police investigation but bail conditions have not yet been set. It is sometimes hard to ascertain whether in fact a police investigation is still ongoing—and, believe it or not, the parties concerned do not themselves know. Although I support this amendment, I add that it has to be recognised that suitably supervised contact is not always possible to arrange. An appropriate friend or relative may not be identifiable or available to provide reliable supervision. Professionally supervised contact at a centre may involve delay or expense, and be unaffordable. Delays in the criminal process may also mean that the restrictions envisaged by this amendment could continue for a considerable time. However, despite those difficulties, with which practitioners are all too familiar, I consider that to be a worthwhile amendment.