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""community home" has the meaning given by section 53(1) of the Children Act 1989 (c. 41);"

On Question, amendments agreed to.

[Amendment No. 283 not moved.]

Lord Falconer of Thoroton moved Amendment No. 284:

""voluntary home" has the meaning given by section 60(3) of the Children Act 1989 (c. 41)."

On Question, amendment agreed to.

Clause 48, as amended, agreed to.

Clause 49 agreed to.

Clause 50 [Sections 43 to 47: sexual relationships which pre-date care relationships]:

On Question, Whether Clause 50 shall stand part of the Bill?

Baroness Blatch: Clause 50 exempts a care worker who engages in sexual activity with a person in his care, provided that they already had a sexual relationship immediately before the position of trust arose. Some have thought that Clause 50 is necessary to deal with the case of a married couple where one spouse suddenly becomes subject to a mental impairment and is then cared for by the other spouse. But the marriage exception in Clause 49 comprehensively covers that situation.

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Entirely properly, married couples are exempt from the offences in Clauses 43 to 47. Even where a couple are engaged to be married and one fiancee becomes mentally disordered, Clause 50 is still unnecessary. The reason for that is that any mentally disordered person who is capable of consenting to sex is by the same token capable of consenting to marriage. The contrary position is also true: if one fiancee became legally incapable of consenting to marriage, neither could they legally consent to sex. Such a person would then be protected by the Bill. So the position of marriage is well and truly covered.

Clause 50 creates a serious loophole in the Bill that could radically undermine the protection contained in Clauses 43 to 47. All the accused would have to argue is that he had a sexual relationship with his victim prior to taking up the post.

By definition, the offences in Clauses 43 to 47 are likely to have a victim who is unwilling to accuse the person who has abused a position. Those offences are necessary because we are talking about activity that is apparently consensual but where the consent is undermined by the care relationship that exists. They are not offences where there is evidence that force has been used. Prosecutors are not prosecuting for rape, sexual assault or one of the offences in Clauses 33 to 42. The victim has apparently consented. But the same vulnerability that makes the offences necessary in the first place makes such a defence open to abuse.

A care worker who begins a sexual relationship with a patient the day after he starts a new job will be committing an offence. A care worker who begins a relationship the day before will not. The result will be two tiers of protection. Those who were drawn into a sexual relationship with a carer before he began his job are not protected. There is a danger that prosecutions under Clauses 43 to 47 could routinely become bogged down in arguments about whether there was a sexual relationship before the accused started his job.

If paedophiles seek out responsible positions over young people, those who abuse adults with a mental disorder can also act in the same devious way. They can seek employment as a care worker in order to carry out their abuse. Clause 50 provides a technique for them to gain immunity from prosecution. It provides many opportunities for manipulative care workers to escape the clutches of the law. Either it is right to criminalise care workers who seek sexual gratification from disabled people in their care or it is not. But it makes no sense to create a halfway house whereby those who start their abuse just prior to taking up the position as a carer, or persuade their victims to say they did, escape the reach of the offence.

If the defence remains, we might see disturbing examples before the courts such as the following. A man has a job interview at a care home. While there he befriends a patient. Shortly afterwards the two meet up. A sexual relationship begins. The man then receives a job offer from the home and starts work. He continues his sexual relationship with the patient, relying on the Clause 50 defence.

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A further example is where a man with Down's syndrome lives in his home with two other adults with similar disabilities. Social services send in a home help who provides personal care to the man. The home help happens to live on the same street. The two begin a sexual relationship. When the relationship is reported to the police, the home help claims that the relationship began before the position of trust arose. He tells the man with Down's syndrome that unless he backs up his story they will both go to gaol. The man corroborates the home help's story.

For those reasons, I do not believe that Clause 50 should stand part of the Bill and give people with these manipulative skills a defence against an abuse of vulnerable people.

Baroness Howarth of Breckland: I support the noble Baroness in looking again at this clause. I have some very real practical concerns about working in an establishment where one care worker has such a relationship with someone with that kind of dependency. In all the situations in which I have worked, I have made sure that if someone was in such a relationship, they did not work directly in the same establishment as the person with whom they were having the relationship; otherwise, the whole home and its atmosphere would be compromised by the situation, however appropriate it may or may not have been in advance. It is inappropriate for people to apply for posts in that situation. It would be useful to look at the matter again. I understand the nature of what the clause tries to drive at, but it would be useful to have another look at its implementation.

Lord Falconer of Thoroton: We have had similar debates about relationships of trust involving young people and carers. The noble Baroness, Lady Blatch, accurately identifies the effect of the marriage exception. We are not dealing with married couples where someone cares for his or her partner after he or she has suffered some mental impairment.

As the noble Baroness, Lady Blatch, said, the clause deals primarily with two situations. One is a situation in which a sexual relationship starts involving someone who already has a mental disorder and the person with whom they have the relationship is not in a care relationship with them. We take the view that, just as a position of trust between a carer and a child or young person should not be abused by someone to enter into a relationship, such relationships should not be criminalised. People with a mental disorder are entitled to a sex life with whomever they choose. It should be a defence to show that the relationship pre-dates the relationship of trust.

The noble Baroness, Lady Blatch, identified the possibility that it might be difficult to prove precisely when the relationship started. In the criminal law we must identify the relevant criminality. The pre-existing sexual relationship must be lawful. There would be no defence if the sexual relationship would have fallen within the offence set out in the 1956 Act of intercourse with a defective or intercourse between, say, a father and his learning disabled daughter.

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The other situation covered by the exception is an unmarried relationship if the condition of one partner declines, as a result of which one looks after the other. The noble Baroness, Lady Blatch, said that that could be dealt with by marriage. In some cases, it could; in some cases, it could not. If the couple had decided not to get married before, it would be wrong to say that they must do so in order to avoid committing a criminal offence.

For those reasons, broadly, it would be wrong not to have the defence set out in Clause 50. I note what the noble Baroness, Lady Howarth of Breckland, said, and we will think about it. However, there is a difference between, on the one hand, the appropriate management of a care home, and, on the other, the criminalising of conduct. Somebody might come to work in a home because someone with whom they had had a relationship before a mental disorder set in needed full-time care. I can see how difficult that would make life in the residential home, but, for reasons that should be obvious, it would not be right, in those circumstances, to criminalise the relationship.

I will think about what has been said, but I am not sure that the answer is to amend Clause 50. I hope that, in the light of what I have said, the noble Baroness will feel able to withdraw her objection to the clause.

Lord Lucas: What is being said is that a sexual relationship is not appropriate in the context of a care relationship if the two people are not married and one is caring for the other. If one is having an affair with someone who goes into care, it would be inappropriate to be employed by the care home and put oneself up as the carer for that person. One would not be in a position to provide the sort of independent relationship that a carer should provide.

I do not wish to discourage the continuation of a sexual relationship after one person has gone into care. I am saying that the other person in that position should not be the carer. The crime is not so much having the sexual relationship as not declaring it and, therefore, not disbarring oneself from the job of carer.

Lord Falconer of Thoroton: I sought to deal with the point made by the noble Baroness, Lady Howarth of Breckland. Many people will continue to care for their partner, to whom they are not married, when they are at home. Without Clause 50, that would be a criminal offence. I would regard that as wholly inappropriate.

9.30 p.m.

Baroness Blatch: I hope that the noble and learned Lord will take the advice of the noble Baroness, Lady Howarth of Breckland. There is scope, at least, for some reflection on some of the things that were said.

In response to a point that I raised, the noble and learned Lord recognised the difficulty of proving a "pre-post" relationship, but I am also talking about cases in which someone maliciously establishes such a relationship in order to continue a sexual offence, exempt from the clauses of this Bill.

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The noble Baroness, Lady Howarth, and my noble friend raised the point about a person who is professionally employed to care for someone with whom they have a sexual relationship. As the noble and learned Lord recognised, the arguments are exactly the same as in the previous set of amendments when we were talking about young people. They do at least have the option of doing the same professional work, using their skills professionally, but in a different context. It seems that not only is there a difficulty for the people themselves but that there is a difficulty in terms of relationships generally throughout the institution in which they are working.

I shall reflect on the particular point made by the noble and learned Lord about a couple who are living at home and where informal care—not that which is employed and paid for by an organisation—is provided by a partner in a loving relationship. I shall think about that but I hope that the noble and learned Lord will continue to reflect on what has been said in the course of this amendment. There is a concern here that it can become a loophole to be exploited, with complete immunity from any kind of prosecution, for what I consider to be unacceptable sexual activities and establishing a relationship which would be damaging within the institution.

I withdraw my objection to the clause standing part of the Bill now, but I hope that the noble and learned Lord will take on board what has been said during the debate.

Clause 50 agreed to.

On Question, Whether Clause 51 shall stand part of the Bill?

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