My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in
such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
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I turn to one of the central points made by the amendment. It deviates significantly from the underlying principles underpinning Clause 63 in relation to cross-examination. I shall make three short points, some of which have been anticipated by the noble Baroness, Lady Hamwee. First—and I suspect I will be dealing with this point in more detail in the next group of amendments—the clause is explicit that any legal representative appointed by the court to carry out cross-examination will not be responsible to the party in whose place they ask questions. By contrast, in the amendment it is the clear intention that the advocate will represent the parties where engagement is prohibited and will owe them all the duties of a lawyer to his or her client.
The second deviation from the principles underlying Clause 63 is that the steps that must be followed before the court appoints a legally qualified representative are different. There is no requirement in the amendment that the court must consider alternatives to legal representation before inviting the parties to do so. By contrast, the clause makes that an express requirement.
Thirdly, and significantly, the amendment does not make any provision as to how a legal representative appointed by the court where engagement is prohibited will be paid. There is no indication as to whether they are to be paid by the parties or, as will be the case for those appointed to conduct cross-examination where that is prohibited by the party, from the public purse.
In that context, the noble Lord, Lord Rosser, raised the broader issue of funding. I probably should not go into this in too much detail, given the narrower confines of this amendment, but the noble Lord will know that we are currently conducting a review of the means test with regard to legal aid, as part of which we are specifically considering the experiences of victims of
domestic abuse. We have made a public commitment to look at the capital thresholds for victims of domestic abuse where these apply. However, at the moment, the legal aid agency is able to apply for an eligibility waiver for victims of domestic abuse who are applying for an injunction or other order for protection. Therefore, an applicant for such an order may be eligible for legal aid even if they have income or capital above the thresholds in the means test, although they may have to pay a financial contribution towards their legal costs. That review is ongoing, and we would seek to implement any final recommendations as soon as practicable after a public consultation.
Coming back to the main thrust of the amendment, however, for the reasons that I have set out I do not believe that a new prohibition on direct or indirect engagement is necessary, given the current and new protections in the Bill. However, we will monitor their effectiveness and continue to assess whether any further measures should be necessary. Therefore, irrespective for these purposes of the points that I have mentioned of a lack of clarity in the amendment as to how legal representatives would be remunerated as well as the lack of a requirement to consider alternatives to legal representation, for the reasons that I have set out as points of principle, I invite the noble Lord to withdraw the amendment.