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Lord Falconer of Thoroton: My Lords, in the example that I gave about one member of a couple in a long-standing relationship beginning to suffer from some sort of mental disorder and the other caring for him or her, we are talking about adults. Will the noble Baroness acknowledge that that is the position?
Baroness Blatch: My Lords, I acknowledge that that is the position in the example that the noble and learned Lord gave. However, if a person works in an institution as a professional and is having a sexual relationship with one of the people in it, it would be improper to accept it simply because there had been a prior relationship. In education, such a situation has been deemed to be improper by the Secretary of State. The same should apply in the situation described by the noble Lord, Lord Rix.
We shall return to the matter. The noble and learned Lord has not understood the point that we make. It will be very difficult. There is a choice for the person in such a position: they should work in a different establishment and should not compromise their position. I beg leave to withdraw the amendment.
The amendments would significantly change the way in which family members and others are brought within the ambit of the familial child sex offences in Clauses 28 and 29. In Committee, the Minister, when referring to the familial relationships that should be covered, said:
We did not find that logical. It meant that step-siblings were included only if they were in the last category. Similarly, the spouse or partner of a child's aunt or uncle was included only in the last category. In Committee, we concluded that that would have excluded the uncle of the murdered teenager, Danielle Jones, and we felt that that was not right.
The amendments would include all with a family relationship within the ambit of the familial child sex offence provisions. Not only would blood relationships count, but step- and foster siblings would be included. The spouses or partners of all the core family relations set out in subsection (2)(a) would be included. The rationale is that the existence of the relationship is the crucial factor. I am sure that we can all quote from personal experience examples of how a grandparent has been so remote from his or her grandchild that any position of power is negligible, while uncles, such as that of Danielle Jones, can establish strong power-based relationships. That is why it is right that the family relationship should not be qualified by the need for a family member to live in the household or have a caring relationship.
We are not sure that the catch-all provision in subsection (4) is necessary. If it is required, there is no need to confine it to relationships that rest on current residence and caring. Amendments Nos. 104 and 105 would extend the subsection to cover past residence and caring. If a position of power has been set up in a family setting, current residence may not be needed to keep it alive and capable of abuse.
The government amendments in this group respond in part to the issue of step-siblings that I raised in Committee. I am grateful that the Government have looked again at this issue. The Minister's amendments certainly improve the clause, but we do not think that what is proposed is enough. My amendments are more radical and provide a greater degree of protection to young people. I beg to move.
It is highly anomalous that the familial abuse provisions of this Bill, as currently worded, should include step-parents and foster parentsas they do when taken together with the corrigendum sheet for
Government Amendment No. 103A addresses step-siblings, but it places them in subsection (3), thereby requiring proof that they lived together in the same household or that one cared for the other. My noble friend's approach is better. It places them instead within subsection (2) where they are automatically covered by the offence.
I understand Amendments Nos. 102 and 103 take a similar approach to cousins and ex-spouses or ex-partners of those mentioned in Clause 30(2)(a). It deems them as automatically covered by the offence. I think that my noble friend's approach is correct. It is unhelpful to apply a kind of "residence" test before extending the protection of the law to a victim of familial sex abuse. I hope that the Minister will accept my noble friend's amendments.
Lord Falconer of Thoroton: My Lords, these are important amendments and it is an important area. Amendments Nos. 101 to 105 tabled by the noble Baroness, Lady Noakes, and supported by the noble Lord, Lord Astor of Hever, are designed to extend the scope of the child familial sex offences which are designed to protect children within the family environment. We have given a great deal of thought to which relationships should be covered and what the criteria for inclusion should be. As the noble Baroness, Lady Noakes, pointed out, there are differing ways in which one gets included in the format of our Bill.
In Committee, I explained that we had crafted the offences on the basis that there are three categories of person who could be said to be in a familial relationship with a child and who would be able to abuse a position of power and influence in their lives in order to manipulate them into a sexual relationship. These are core family members, covered by subsection (2); wider family members, such as the partner of the child's parent who lives or has lived in the same household as the child or who holds or has held a position of trust or authority in relation to the child, covered by subsection (3); and, finally, other persons who are living in the same household as the child and who hold positions of trust or authority in relation to the child at the time of the alleged offence, covered by subsection (4). Those are the three categories and the criteria.
I think that they should be included in subsection (3) rather than subsection (2) as proposed by the amendment tabled by the noble Baroness, Lady Noakes, because step-siblings share one parent only through marriage or partnership. There is no blood tie and they may never actually live together in the same household or have a position of power or influence in the young person's life. I do not believe that there is any reason why they should automatically be excluded from sexual relationships and should only be covered by the offences if they fulfil one of the criteria in subsection (3).
Similarly, although foster siblings would share the same set of foster parents and might live together as part of a family unit, they may also be fostered at very different times and may never actually live together in the same household. Again, that is the reason for putting it in subsection (3) rather than in subsection (2).
Including step-siblings and foster siblings in subsection (3) will ensure that they would be covered if they ever lived in the same household or if one of them at any time takes on the role of regularly caring for, training or being in sole charge of the other. That is when we believe the potential for familial abuse would arise and when the intervention of the criminal law is justified.
Amendment No. 102 would have the effect of moving cousins and existing or ex-partners of the child's parents into the scope of subsection (2). Again, we can see no justification for automatically criminalising consensual sexual activity with these family members unless they actually assume a familial role by living in the same household or regularly caring for, training or being in sole charge of the cousin or the child. These are the circumstances in which the risk of familial abuse is most likely to arise. We believe that these are the circumstances in which these offences should apply. Examples have been given during the course of earlier debate and noble Lords will know that those particular advances were covered by the much more serious offences for which the person involved was charged. It is always possible to identify examples of people in relationships way beyond those that any of us seek to include. We should be careful to ensure that a measured approach is taken.
Amendment No. 102 would bring also within the scope of subsection (2) partners and ex-partners of grandparents, siblings, half-siblings and aunts and uncles. For the reasons I have just explained, I do not see a real basis to include those categories within the
I note that Amendment No. 103 would have the effect of striking out subsection (3) but realise that it is intended to be purely consequential upon Amendments Nos. 101 and 102 being accepted, as this would make subsection (3) redundant. Amendments Nos. 104 and 105 are intended to widen the scope of subsection (4) so that it would cover anyone who lives or has lived in the same household as the child and is or has been regularly involved in looking after the child, as defined. That would make the scope of subsection (4) too wide. The subsection is intended to cover those who have got no blood or familial relationship with the child or whose relationship is very distant in circumstances where a real opportunity for an abusive or exploitative relationship exists.
The criteria of subsection (4) mean that anyone living in the same household as the child and regularly involved in caring for, training or being in sole charge of the child at the time of the alleged offence and, as a result, in a real position of power and influence in the child's life, will be covered by these offences. We think that these are the right criteria to apply. As drafted, the amendments would capture the au pair even after he or she has left the household and no longer has a caring role in the young person's life. Nor would we want to catch, for example, the ex-lodger who continues to give a young person driving lessons after moving on to live elsewhere.
We believe that there are certain categories which should be caught only by the child familial sexual offences while living in the same household as the child and taking on a certain role in the child's life. That is the purpose fulfilled by the existing subsection (4) and we do not want to change it. We think that the balance has got to be struck in a sensible place and that we have got it about right. For the reasons given, I cannot accept Amendments Nos. 101 to 105, but would urge noble Lords to accept Amendments Nos. 103A, 103B and 105A. I resist the amendment before us.
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