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Domestic Violence Victims: Cross-Examination

Volume 619: debated on Monday 9 January 2017

(Urgent Question): To ask the Secretary of State for Justice to make a statement on the emergency review to determine how to ban perpetrators of domestic violence from directly cross-examining their victims within the family court.

I am very grateful to the hon. Member for Hove (Peter Kyle) for the chance to update the House on an important issue. To put this in context, the issues at stake in family proceedings are always sensitive and often complex, and the decisions of the court can have far-reaching implications for the individuals involved. The presence of domestic abuse only exacerbates an already traumatic situation, so the Government have already taken steps to make sure that victims in the family justice system have support and protection. We have protected legal aid for individuals seeking protection from abusers. We continue to invest in the court estate to improve the physical security of family courts and the emotional support available for users. We have placed particular emphasis on training for those who work in the family justice system, making sure they understand the nature and impact of domestic abuse and that they act appropriately when they come across it.

However, we know that there is more to do. As the Under-Secretary of State for Justice, my hon. Friend the Member for Bracknell (Dr Lee), made clear when this was debated in Parliament on 15 September, the Government are determined to improve the family justice response to domestic abuse, and we have worked closely with judges and others to consider what additional protections may be necessary. We are particularly concerned about the fact that unrepresented perpetrators of abuse can directly cross-examine their victims in family proceedings. I want to make family court processes safer for victims so they can themselves advocate effectively and for the safety of their children. This cannot happen while a quarter of domestic violence victims face cross-examination by their abusers.

The Lord Chancellor has requested urgent advice on how to put an end to this practice. This sort of cross-examination is illegal in the criminal courts, and I am determined to see it banned in family courts, too. We are considering the most effective and efficient way of making that happen. That will help family courts to concentrate on the key concerns for the family and always to put the children’s interests first, which is what they are supposed to do. This work, which is being fast-tracked within the Department, is looking in particular at the provisions in the criminal law that prevent alleged perpetrators from cross-examining their alleged victims in criminal proceedings, and we are considering how we might apply similar provisions in the slightly different circumstances of family proceedings.

Members will appreciate that such a proposal requires thought, but we want to resolve the matter as soon as possible. We will make further details available shortly, once the work is complete. I want to thank the president of the family division, Sir James Munby, who has argued passionately that this practice should be outlawed for good.

This issue has been wreaking untold devastation on victims of domestic violence. I have now spoken to numerous survivors of abuse whose accounts of torment under cross-examination in the family court—often by convicted rapists—are devastating to hear, but impossible for most of us even to imagine.

I have spoken to a woman who was cross-examined by the man who was in jail for numerous counts of rape and abuse that had left her unconscious and hospitalised. As a result of the family court process, this extremely vulnerable woman needed weeks of medication and months of counselling to recover. She has now suffered such an ordeal three times. I have spoken to the sister of a woman who was abused so grievously that the abuse resulted in her death. The convicted murderer then sued for custody of their child from the prison where he was serving a life sentence for murder. He directly cross-examined the sister of the woman he murdered, even having the grotesque nerve to ask, “What makes you think you can be a parent to my child?” Abuse is being continued and perpetuated right under the noses of judges and the police, the very institutions that should be protecting the vulnerable with every sinew of state power.

On 15 September 2016, in response to speeches by Members on both sides of the House in a Back-Bench debate, the Under-Secretary of State for Justice, the hon. Member for Bracknell (Dr Lee), said that this is a

“scourge, which blights our society.”—[Official Report, 15 September 2016; Vol. 614, c. 1119.]

Yet he made no commitment to review or to change policy. Sadly, it took the excellent coverage in The Guardian during the Christmas break for such a commitment to emerge from the Ministry of Justice.

The source was anonymous, so will the Minister provide clarity in these areas? Lord Justice Munby, the president of the family division, supports measures to outlaw the cross-examination of victims by perpetrators, and he has said that this will require primary legislation. Does the Minister agree with that assessment, and if so, will he make the drafting and introduction of any such legislation a priority? The anonymous source told The Guardian that this was a matter of urgency for the Secretary of State. Will the Minister tell the House when she started the review, and more importantly, precisely when it will be completed? Victims of abuse need to have precision and clarity at this moment of great importance for them. Speed is of the essence, but so is consultation—we need to get this right—so will the Minister tell us what process is in place to enable victims, campaigners and support organisations to feed in their essential experiences and views so that the review is at all times carried out with, not done to, survivors of domestic abuse?

Finally, as I told the House back in September, it is a source of shame to me personally that I got to the age I am today without being aware that such barbarism is being practised within our own legal system. In addition to my lack of inquisitiveness, which I regret profoundly, the secrecy imposed by law on the family court process allowed this to continue without journalistic oversight. Will the Minister consider longer term assessment of the wider operational activity in the family court system? Such assessment should look, in a considered and detailed way, at the overall operation of family courts with a view to ensuring, where appropriate, greater transparency and oversight of the family court process is introduced.

Before we proceed, let me just say this. The hon. Gentleman has raised an extremely serious matter on the back of very considerable knowledge and research, and he has aired it in this House with great sensitivity. I did not wish to interrupt him—not least for that obvious reason—but perhaps I can announce to the House a new year’s resolution: from now on we must, without fail, stick to the established time limits for urgent questions. The hon. Gentleman was notified of the two-minute limit and he took over three minutes. That is the first point. A lot of more experienced Members will be well aware of my second point, but perhaps I can just underline it. The briefest preamble of description is fine, but an urgent question is supposed to be just that: neither a speech nor a contribution to debate, but a series of questions. I know the hon. Gentleman well and he will not, I am sure, take offence. He has raised very important matters. In future, however, doing so must be done in accordance with the proper form and time.

I agree with many of the hon. Gentleman’s points. Judges have always had wide discretion on family proceedings to try to get to the truth of matters, and to protect the interests of the family and so on. Judges have discretion to ask the questions themselves to try to avoid situations arising that are against the interests of justice. In recent years, judges have become more concerned—as the hon. Gentleman has—about situations where abuse is being perpetrated through the proceedings. That is why Sir James Munby has spoken out, why I have made the comments I have made today, and why the Department is treating this as something that should be dealt with as a matter of urgency.

Is it necessary to change the law? The answer is yes it is. Primary legislation would be necessary to ban cross-examination. I also think there are related ancillary matters that would require primary legislation. Clauses, therefore, are required. Is work being done? Yes, work is being done at a great pace to ensure that all these matters are dealt with in a comprehensive and effective way—the urgency is there. I became the Minister responsible for these matters in October, and I have chaired the Family Justice Board, which has become very concerned about this issue over that period. The Lord Chancellor shares that concern, which is why we are moving at speed to try to tackle it.

The extent to which consultation is necessary is something I will consider in the light of the hon. Gentleman’s comments, and perhaps discuss with him privately if he wishes. My feeling is that what is required is pretty straightforward: a ban, and then the necessary ancillary measures to allow cross-examination without the perpetrator doing it. I would question, therefore, the extent to which a wide consultation is needed, but I will discuss that with him.

On transparency in the courts, journalists are now able to attend court and report the proceedings, although there are obvious restrictions to protect children and so on.

The Minister of State and the Lord Chancellor are to be congratulated on moving promptly on this matter. The president of the family division is also to be congratulated on his frankness in relation to the deficiencies he finds within the family jurisdiction. Does my right hon. and learned Friend accept that the simple solution is to adopt, more or less lock, stock and barrel, the criminal procedures under the Youth Justice and Criminal Evidence Act 1999; to use the forthcoming courts and prison reform Bill to put that into primary law; and accept that the very modest public expenditure of a court-appointed advocate to do the cross-examination where justice so requires would be a drop in the ocean compared with the benefits, in the interests of justice, to individuals who are the victims of abuse?

I am grateful to the Chair of the Justice Committee for those comments and agree with a good many of them. There are some differences from criminal proceedings, for example in a case in which an injunction is sought and there is no charge, or a case in which money is being considered but there is a background of abuse. There is a range of issues. For legal aid in cases of domestic abuse in family proceedings, there is a wider list than is available for criminal proceedings, but his basic point is right.

I am not able to give a commitment on the Bill. It depends on how quickly the work is concluded, and I am working on it very quickly.

I thank my hon. Friend the Member for Hove (Peter Kyle) for asking the urgent question and the Minister for his response. I recognise that this issue unites the House.

The practice of unrepresented parties against whom domestic violence is either proved or alleged questioning victims in court has been raised repeatedly in the House and in the media. Many Members on both sides of the House have constituents who have been left devastated by the experience. That the Government are doing something to end that practice is welcome, but there is a clear admission that their legal aid cuts have caused this situation. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed much family law from eligibility. Victims of domestic violence struggle to provide evidence of their abuse because they are frequently not believed, and in some cases because medical evidence is difficult to obtain. Their experience is made worse still because their abuser, who is also unable to get representation, is allowed to question them, even when they would be prevented from contacting the person in any other situation. The abuse therefore continues.

It need not be that way. In the criminal courts, cross-examination by an unrepresented party accused of domestic violence is not allowed. Is the Ministry of Justice counting the number of litigants in person in the family courts? How many of those are victims of domestic violence? How many are convicted or alleged to have committed domestic violence? Will the Minister look at the practice in criminal courts? Along with prohibiting cross-examination, will he introduce the greater use of more sensitive procedures? When will the LASPO review finally begin?

On the hon. Lady’s final point, as she knows, the LASPO review has to be concluded by April 2018. It is not overdue, but it is something that the Government have very much in mind, and that we will have to start fairly shortly.

On the hon. Lady’s other points, legal aid is available in cases of domestic abuse. That is why the Government concentrated efforts in legal aid on situations where life or liberty are at stake, and on domestic abuse and housing when homes are at risk. That is not an issue, but I accept that the evidence criteria are important. That is why the Government have allowed a longer period and a wider range of evidence to be used, which has been welcomed.

Cross-examination by litigants in person takes place too much. The hon. Lady asked what the exact number is. It is not clear, but it is certainly a considerable number, which is why the Government consider this to be an important issue to tackle.

I congratulate my hon. Friend the Minister and welcome everything he has said on the Government’s attitude to this long-standing problem. May I urge him please to look at the rules on legal aid? There is certainly strong anecdotal evidence from former colleagues of mine at the family bar and the judiciary that there is a direct consequence and link between the rise in litigants in person and the changes to legal aid, which was begun under the Labour Government. That link between litigants in person and legal aid is causing so much of the problem. If he at least looks at it, he could provide some of the solution.

As my right hon. Friend rightly says, this is a long-standing issue but one that has now become urgent—the cries for help from judges and others have become more urgent—and that is why the Government are tackling it. It is necessary to find a way to prevent litigants in person from using proceedings to continue the abuse, and that is what we aim to do.

May I welcome the Justice Secretary’s emergency review and stress how important it is that we all focus, across the UK, on how to prevent the perpetrators of domestic abuse from using the processes of the justice system to re-victimise the survivors of domestic abuse? In Scotland, the Government are engaged in a significant overhaul of the justice system, ahead of the introduction of new legislation on an all-encompassing offence of domestic abuse that will include all forms of coercive behaviour, but in Scotland legal aid is widely available in both criminal and civil cases. In England and Wales, cuts to legal aid mean that 80% of family cases now see at least one party without a lawyer, while in 60% of cases in the family courts neither party has one. In addition, victims of domestic abuse can only access legal aid in England and Wales if they cross a threshold test that has already been found to be too restrictive in a judicial review case. In addition to this important review, we therefore need a review of the criteria for access to legal aid for victims and survivors of domestic abuse. When will the Government commit to such a review?

I thank the hon. and learned Lady for that and for her news from Scotland. On legal aid in England and Wales, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) deliberately decided to concentrate the effort on cases involving people’s life, liberty, home or, as in this case, domestic abuse. Given that it was a period of austerity and decisions had to be made, I believe he got that judgment right. On the criteria for legal aid and the evidence that needs to be provided, it is not as though the Government have said, “This is set in stone”; where criticisms have been made, we have changed the rules to tackle those criticisms. My overall point is that the Government are responding when we should be.

I welcome my right hon. and learned Friend’s announcements today and his work with the Lord Chancellor, but may I draw his attention to a report published last April by the all-party group on domestic violence, chaired by myself and the hon. Member for Birmingham, Yardley (Jess Phillips), that not only picked up on this issue of cross-examination but considered special measures in courts to make it is easier for some of the most vulnerable victims to give evidence without feeling intimidated?

I pay tribute to my right hon. Friend’s work in this area and for the important work of the all-party group, of which the Government and the ministerial committee on violence against women and girls take particular note. On special measures, the family courts have always had available to them a wider set of tools than the criminal courts and their judges have a wide discretion. Such measures as cross-examination by video, which in the criminal courts is provided for under section 28 of the 1999 Act, can be taken in family cases. Family courts can take evidence in a wide variety of ways, so there is a lot of protection. As I said in response to the urgent question, however, we are going further. Measures to do with the court estate, such as ensuring separate waiting rooms, screens and all those sorts of physical aspects, are being covered, as is staff training, through the Children and Family Court Advisory and Support Service and so on. That is very important, too.

I am grateful to the Minister for highlighting the discretion already available, but given that primary legislation might take some time, what steps is he taking now to remind the judiciary of the discretion they have and how they can apply it?

The hon. Lady makes an important point. As she will know, there are practice directions in the family division, and one is being prepared at the moment, so I will make sure that her comments are taken well on board. We do not make the practice directions, but we can certainly pass on her comments.

I and my staff have been struck in my constituency surgeries by the clear feedback on this anomaly around cross-examination. One of my constituents who complained about it was a former police officer. May I urge the Minister to take every step and use every tool possible to get the matter resolved as soon as possible?

We all have examples—I am glad that my hon. Friend was able to get her example on the record—of cases where some form of abuse has occurred in the courts. That is unconscionable and it needs to stop. We are going to tackle this issue very urgently.

On who should be involved and consulted in the review, will the Minister bear in mind that party litigants cross-examining their victims is just one species of the controlling behaviour that lies at the heart of domestic abuse and that, for that reason, there is a real and important role for organisations such as Women’s Aid to have their voices heard in this process?

The right hon. Gentleman makes an important point, and the Department does, of course, listen to what is said by Women’s Aid. It does seem to me that this is a fairly discrete issue—an issue about banning cross-examination by alleged perpetrators and making arrangements to ensure that cross-examination can take place in a suitable way. I would not want to sacrifice speed in tackling that for anything.

Last week, the country was shocked and saddened by the death of my constituent, Jill Saward, who campaigned tirelessly on behalf of victims of rape and sexual violence, following her own horrific personal ordeal. Jill was instrumental in the campaign to change the law, so that accused rapists are barred from cross-examining victims. Will my right hon. and learned Friend join me in paying tribute to Jill and expressing our sincere condolences to her family, and does he agree that it is absolutely right to extend this law to the victims of domestic violence?

I certainly believe it important to pay tribute to Jill Saward, who suffered the most vile ordeal, yet showed through the rest of her life what a wonderful person she was, by campaigning for others and doing a tremendous amount of charity work. She was a model, and someone who set an example of being good. Yes, I would like to pass on the law that applies to criminal cases into family cases, so that we can tackle the sort of abuse that has been described.

I declare my interest as a member of the Wilberforce barrister chambers in Hull, although I am not currently practising. I welcome the Justice Secretary’s position to bring forward a review on this important issue, but the Minister will know that this was created as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The truth is that the vast majority of people today are refused legal representation in family proceedings unless they can prove domestic violence, which is virtually impossible to prove. The Government should bring forward a review of LASPO, which is not working. They should do something about it.

I do not agree with the hon. Gentleman, but there will be a review of LASPO. It is something that we have promised, and the date by which it has to be completed is April 2018. We are committed to that. As for family proceedings, I think it right that families can come together in many cases and reach agreements, so we do not have the problem that the hon. Gentleman outlined. Where abuse is present for a significant number of individuals, it is important that in those cases the individual who is the victim should not be cross-examined by the alleged perpetrator. That is what we want to solve.

Thank you, Mr Speaker. I congratulate the Minister and the Lord Chancellor on taking action regarding the travesty of litigants in person being able to cross-examine their victims. In his statement, the Minister referred to the problem as urgent and said that it has the utmost priority. When the review is complete, will he commit to bring this forward as emergency legislation? I think that would gain support from both sides of the House, and we could pass the legislation in one day, ensuring that we can bring about the change as quickly as possible.

I think that the importance of that issue is accepted throughout the House. Whether or not my hon. Friend’s suggestion is an appropriate way to deal with it, one thing is clear: it should be dealt with as a matter of urgency, and that is what I am committed to doing.

Perhaps I should have said earlier that there were instances in which this problem arose before LASPO. It is not a new problem, and many people were refused legal aid representation under the Labour Government.

The answer that Members receive from the Dispatch Box is, of course, “shortly”, and that is what I have said, but it does mean shortly.

The Government’s reforms of the family courts were designed to keep some of these antagonistic cases out of court altogether, but the legal aid changes have undoubtedly led to the involvement of more litigants in person in very sensitive cases. Does my right hon. and learned Friend acknowledge the problems that litigants in person are causing in relation to court resources? They often spin out the time that cases take, with judges themselves requiring constant advice on legal procedures. We really need to do something about that, because it is messing up the family courts.

I fully accept that how litigants in person are helped with court proceedings is important, and the Government are spending £3.5 million on helping them. Let me make another point with which my hon. Friend may agree. Not every case needs to be decided in court; I am a strong supporter of mediation, and I should like to see more of that.

The emergency review is welcome, but cross-examination is not the only way in which perpetrators exploit family court processes to perpetuate their abuse. Will the review consider the ways in which abusers can, for example, string out judicial process in the family courts to continue to abuse former partners and their children?

I should be happy to discuss the issue with the hon. Lady, and to look into it in due course. This, however, is a discrete matter and an important one. I should like it to be tackled swiftly, and I do not intend to widen what we are doing at present, because I want to get on with that.

Women’s Aid has raised this issue on a number of occasions, most recently in its important and hard-hitting report “Nineteen Child Homicides”, which revealed that 25% of women interviewed had been cross-examined and that one woman who had been raped, beaten and abused for six years was cross-examined for three hours. Notwithstanding the need to get it right in the review, will my right hon. and learned Friend introduce legislation as soon as possible to ensure that that can never happen again?

My hon. Friend has highlighted an important case, as well as the work done by Women’s Aid. He is right to say that that issue needs to be tackled urgently.

The need for training of the judiciary goes beyond the family courts. A constituent came to see me because her ex-partner had taken a case about the management of family property to the civil court, and the judge had said it was irrelevant that he had been imprisoned for raping her daughter. That cannot be right. Judges need to be trained as well.

It would not, of course, have been a family justice case; it would have been a civil case. I agree with the hon. Lady that that is an important consideration, and I will look into it.

I welcome what the Minister has said today and his commitment to legislation, but in the meantime will he ensure that the best support is available to vulnerable victims before, during and after the proceedings?

As I said in my initial response, a great deal of effort has gone into training both CAFCASS and court staff to provide the emotional support that is needed.

I think that we all welcome the tone of what the Minister has said today, but this is supposed to be an urgent review, and many women are going through cases of this kind right now. Will the Minister make it clear that the review will be concluded by Easter at the latest and that we can then hope to see improvements in our courts?

I welcome the tone of the Minister’s remarks so far. Does he agree that the point about legal aid misses the fact that some of these perpetrators are almost certainly using the ability to cross-examine their victims as a tactic in the courts? As that is motivating what they are doing, it is even more important that this plug in the law is made to stop this practice continuing.

My hon. Friend and a number of other colleagues are saying that cross-examining the victim in these circumstances is a form of abuse in itself. I agree, which is why we are keen to conclude this review on a short timetable, as I said to the hon. Member for Leeds West (Rachel Reeves).

I am grateful to the Minister for the terms in which he has replied to the urgent question. He has talked this afternoon about the urgency of this issue and I think that he has accepted the words of the president of the family division of the High Court, Sir James Munby, that primary legislation would be needed. What commitment can the Minister give to the survivors of domestic violence and abuse that change to primary legislation will be brought forward urgently?

I can certainly give the assurance I have already given, which is that we are tackling this as a matter of urgency. The hon. Gentleman will be aware that there is a busy legislative timetable with all sorts of matters to do with Europe and the like, and we will have to see what exactly can be achieved in terms of the legislative timetable, but I want to tackle this urgently.

On behalf of my constituent Claire Throssell, whose two children were murdered by her ex-husband, I welcome this review, but in the debate in September that I co-sponsored, the Under-Secretary at the Minister’s side, the hon. Member for Bracknell (Dr Lee), made a clear commitment to overhauling the culture of the family courts and in particular to a review of practice direction 12. Are the Government still committed to that broader set of changes, which we so urgently need?

I pay tribute to the work that the hon. Lady has done on this issue. I chair the Family Justice Board with the Minister for Vulnerable Children and Families. We are committed to improving the overall way in which the courts work and are in the process of introducing a new practice direction in the area of victims. This is certainly a point we are very much alive to.

Everyone who has spoken today, including the Minister, has said the situation is urgent. In view of that and the fact that he said primary legislation will be needed, is there any reason why he cannot commit to the Government presenting that within three or four months?

As I have said, we are keen to complete this review as a matter of urgency. The legislative programme is a complex matter at the moment for reasons I have hinted at, so we will have to see what is possible, but we would like to tackle this urgently.

The focus of questions has understandably been on domestic violence, but can the Minister confirm he is also seeking to implement this protection for victims of emotional and financial control and other forms of non-violent abuse, which the Government have, to their great credit, sought to criminalise in recent months?

As the hon. Gentleman will know, there is a cross-governmental approach to abuse that has its own definitions and so on, but the areas of abuse covered in terms of applications for legal aid are far wider than just physical violence and include sex abuse cases and the like, and we are alive to the need to cover a wider area than simply domestic violence.

While I appreciate the urgency and scope of the investigation, will the Minister give consideration to cases where the Department for Work and Pensions is sharing domestic abuse victims’ information with the perpetrators of the crime when making decisions about benefits claimants? The anonymity of a constituent of mine was taken away from her and the information was passed on by the DWP.

I am sure that the hon. Lady is making an important point. If she wants to write to me or speak to me about it, I would be more than happy to look at it, but this is not what we are doing in this exercise of looking at the cross-examination of victims by perpetrators or alleged perpetrators. We are tackling a discrete, narrow area, and we want to do this urgently. Her point is important, but it concerns a different matter.

Survivors of domestic abuse tell us that they feel re-victimised and re-traumatised by their experiences in the family courts. Will the Minister please give us more clarity on how the voices and views of survivors of domestic abuse will be considered in this emergency review?

My view is that this is a narrow issue involving banning perpetrators or alleged perpetrators from cross-examining victims, as we do in criminal cases. That is a narrow issue on which I think we all agree. The sort of arrangements that will need to be put in place have already been tried in the criminal courts. If the hon. Lady has any particular ideas or concerns, I would obviously be happy to discuss them with her, but I do not think that this is a complicated matter. It is a simple one that needs urgent action.

I am aware that this focuses on the adult victims of domestic abuse, but research from Safelives has shown that an estimated 130,000 children in the UK live in households with a high risk of domestic abuse and a significant risk of harm or death. Thousands more live with other levels of domestic abuse every day. Will the Minister please clarify that, as recommended by Women’s Aid, there should not be an assumption of shared parenting in child contact cases where domestic abuse is a feature?

The hon. Lady makes an important point, and the courts are clearly alive to this matter. We have to give some discretion, however, because family cases involve a wide range of factors. I think that the judges do a good job. I want to put on record that these are not easy cases and that our judges have to have an element of discretion. I would like to ensure that that remains the case, although I acknowledge that she makes a good point.

A constituent who came to see me was extremely distressed because her husband was repeatedly taking her back to the family court over access issues. She was not only undergoing cross-examination but being driven into financial poverty through constantly having to fund her own defence. Will the Minister look at how the courts can deal with the vexatious, repeated requests relating to access that are behind a lot of coercive behaviour and at the financial poverty that families find themselves in as a result?

The hon. Lady makes an important point, and I should like to pay tribute to the work that she does in this area. I am more than happy to raise that point in the Family Justice Board and to look at the matter, but it is not part of the important work that we are doing to deal urgently with the question of cross-examination. Her point bears on that work, but it is not the focus of what we are doing at the moment. We will, however, look into it.