Contribution
My Lords, my Amendments 16, 25 28 and 33 arise from the recommendations of the Joint Committee on Human Rights, of which I am a member. The Joint Committee has written to the Ministry of Justice on a number of occasions regarding these issues and has so far not met with a satisfactory response. I shall listen very carefully to what the Minister says on these points.
As the Bill stands, the Crown Court must make a prohibited steps order after sentencing. It is right that an offender should not be able to exercise parental responsibility, but there should be safeguards in the Bill to ensure that children do not suffer as a result, especially if the effect of the order is that there is no one who can exercise parental responsibility.
On Amendments 16 and 28 in my name, unlike the family court, the Crown Court would have limited discretion about how best to protect the interests of affected children, as we heard identified by the noble Lord, Lord Hacking, in the previous group. Under the Bill, the Crown Court’s main discretion is that it must not make an order if
“it appears to the Crown Court that it would not be in the interests of justice to do so”—
a well-hallowed phrase in legislation that noble Lords will find in Clause 3(4)(c).
In this context, it is unclear what is meant by the phrase—in particular, whether it would allow the court to consider the interests of the affected children or just of the offender. The Joint Committee wrote to the Minister asking for clarification as to whether the effect of the Human Rights Act would be that the Court would be able to consider the interests of the child when making the order. The Minister replied that the court would have to act compatibly with the ECHR. In fact, she said:
“Under our existing measure, the Crown Court will be able to consider all of the information available to it, as part of the criminal proceedings, when deciding whether to exercise the interests of justice test (and in doing so, will be bound to act compatibly with the Convention Rights given section 6 of the Human Rights Act 1998)”.
As noble Lords can see, that is an answer that, I fear, lacks clarity.
Amendments 16 and 28 would provide clarity on this point. They would ensure that the Crown Court was able to get information about the children’s circumstances and itself consider the implications for the children before making an order. They would simply append, after
“in the interests of justice”,
the words
“or that it would not be in the child’s best interests”
to make the prohibited steps order.
On Amendments 25 and 33, there would be particular concerns if the effect of such an order was that no one was able to exercise parental responsibility for a child. In Jade’s law, as we heard in the previous group, there is an attempt to address this by requiring the relevant local authority to apply to the family court immediately after the Crown Court has made its order. We can see that in new Section 10B(2) of the Children Act 1989 in Section 18 of the Victims and Prisoners Act 2024.
Amendments 25 and 33 are carefully modelled on that provision in the 2024 Act. They would impose the same requirement on the local authority if an order under the new provisions had the effect that there was no one who could exercise parental responsibility for the child. In correspondence with the Joint Committee on Human Rights, the Minister said that such a provision was appropriate in the case of Jade’s law, where one parent had killed the other, because in those cases there would almost always be no one with parental responsibility. But in the cases covered by the Bill, in contrast, there might or there might not be. The Minister said that the local authority would be aware if the child might be left in this position and would be able to take appropriate action.
That is a very unsatisfactory answer. There can be no confidence that the local authority will simply be aware of this scenario and there would be no detriment to making it clear in the Bill. Relying entirely on a local authority’s discretion invites the risk that a child is left without someone with parental responsibility and falls between the gaps.
These amendments would mean that the local authority would be under a duty to apply to the family court in such cases in exactly the same form as it would under Jade’s law. The Minister said in correspondence that local authorities would always know the circumstances of a particular case, so the Government should agree, and have already agreed in principle, that it would be workable for the Bill to impose a duty on them. There is no good reason for these amendments not to be accepted. I beg to move.