§ Mr. Timothy Wood (Stevenage)
I beg to move amendment No. 1, in page 1, line 5, leave out 'subsection (5)' and insert 'subsections (5) and (7)'
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
With this it will be convenient to take the following amendments: No. 3, in page 2, line 45, at end insert—'(7) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority or voluntary organisation or who is committed to a place of safety or who is the subject of custodianship proceedings or proceedings or an order relating to adoption.'
§ No. 4, a new schedule—Modifications of Section 1 for Children in Certain Cases—
§ "Children in care of local authorities and voluntary organizations
§ 1.—(l) This paragraph applies in the case of a child who is in the care of a local authority or voluntary organisation in England or Wales.
§ (2) Where this paragraph applies, section 1 of this Act shall have effect as if—
- (a) the reference in subsection (1) to the appropriate consent were a reference to the consent of the local authority or voluntary organisation in whose care the child is; and
- (b) subsections (3) to (5A) were omitted.
§ Children in places of safety
§ 2.—(1) This paragraph applies in the case of a child who is committed to a place of safety in England or Wales in pursuance of—
- (a) section 40 of the Children and Young Persons Act 1933; or
- (b) section 43 of the Adoption Act 1958; or
- (c) section 2(5) or (10), 16(3) or 28(1) or (4) of the Children and Young Persons Act 1969; or
- (d) section 12 of the Foster Children Act 1980.
§ (2) Where this paragraph applies, section (1) of this Act shall have effect as if—
- (a) the reference in subsection (1) to the appropriate consent were a reference to the leave of any magistrates' court acting for the area in which the place of safety is; and
- (b) subsections (3) to (5A) were omitted.
§ Adoption and custodianship
§ 3.—(1) This paragraph applies in the case of a child—
- (a) who is the subject of an order under section 14 of the Children Act 1975 freeing him for adoption; or
- (b) who is the subject of a pending application for such an order; or
- (c) who is the subject of a pending application for an adoption order; or
- (d) who is the subject of an order under section 25 of the Children Act 1975 or section 53 of the Adoption Act 1958 relating to adoption abroad or of a pending application for such an order; or
- (e) who is the subject of a pending application for a custodianship order.
§ (2) Where this paragraph applies, section 1 of this Act shall have effect as if—
- (a) the reference in subsection (1) to the appropriate consent were a reference—
- (i) in a case within sub-paragraph (1)(a) above, to the consent of the adoption agency which made the application for the order or, if the parental rights and duties in respect of the child have been transferred from that agency to another
1272 agency by an order under section 23 of the Children Act 1975, to the consent of that other agency;
- (ii) in a case within sub-paragraph (1)(b), (c) or (e) above, to the leave of the court to which the application was made; and
- (iii) in a case within sub-paragrah (1)(d) above, to the leave of the court which made the order or, as the case may be, to which the application was made: and
- (b) subsections (3) to (5A) were omitted.
§ Cases within paragraphs 1 and 3
§ 4. In the case of a child falling within both paragraph 1 and paragraph 3 above, the provisions of paragraph 3 shall apply to the exclusion of those in paragraph 1.
§ 5.—(1) In this Schedule—
- (a) subject to sub-paragraph (2) below, "adoption agency" has the same meaning as in section 1 of the Children Act 1975;
- (b) "adoption order" means an order under section 8(1) of that Act;
- (c) "custodianship order" has the same meaning as in Part H of that Act; and
- (d) "local authority" and "voluntary organisation" have the same meanings as in section 87 of the Child Care Act 1980.
§ (2) Until the coming into force of section 1 of the Children Act 1975, for the words "adoption agency" in this Schedule there shall be substituted "approved adoption society or local authority"; and in this Schedule "approved adoption society" means an adoption society approved under Part I of that Act.
§ (3) In paragraph 3(1) above references to an order or to an application for an order are references to an order made by, or to an application to, a court in England or Wales.
§ (4) Paragraph 3(2) above shall be construed as if the references to the court included, in any case where the court is a magistrates' court, a reference to any magistrates' court acting for the same petty sessions area as that court."
§ Mr. Wood
In Committee mention was made of children in the care of local authorities and voluntary organisations, and the hope was expressed that the provisions of the Bill could be extended to cover that group. Amendments Nos. 1, 3 and 4 amend clause 1 and introduce a new schedule to achieve that aim. They will provide protection not only to children in care but to children who are subject to place of safety orders and those who have reached certain stages in custodianship and adoption proceedings.
Amendments Nos. 1 and 3 insert a new subsection (7) into the Bill, which makes the categories of children whom I have just mentioned subject to the provisions of the Bill. Those categories are important, and I should like to outline details of the children concerned.
The largest group covered by amendments Nos. 1 and 3 are children who are in care. We are talking about children for whom parental rights have been vested in a local authority or voluntary organisation, children committed to the care of a local authority as a result of other proceedings such as wardship or matrimonial proceedings and children in voluntary care where restrictions exist on their removal from care.
Many hon. Members will be aware of the unfortunate circumstances in which some children are committed to care. For example, the Children and Young Persons Act 1963, under which the highest proportion of children are committed to care, requires that the following grounds are satisfied: his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated; or it is probable that that condition will be satisfied in his case, having regard to the fact that the court or another court has 1273 found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs; or he is exposed to moral danger; or he is beyond the control of his parent or guardian; or he is of compulsory school age within the meaning of the Education Act 1944 and is not receiving efficient full-time education suitable to his age, ability and aptitude; or he is guilty of an offence, excluding homicide; and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under that section in respect of him. In situations where those conditions are satisfied, a court has a variety of orders which it can make, including a care order placing the child in the care of a local authority.
For the year ending March 1981, just over 46,000 children in England and Wales were in care on the grounds that the conditions I have mentioned were satisfied. Many other avenues exist by which children are committed to care but the numbers involved are small and I do not propose to go through them.
Another category of children provided for by the amendments are those who are subject to place of safety orders. A place of safety order is an emergency arrangement for the removal of a child from its home surroundings in circumstances where the child is being ill-treated or neglected. A place of safety order can be made only by a magistrate or a magistrates court, and it expires automatically. The order can be for up to 28 days. Approximately 6,600 place of safety orders were made in England and Wales in the year ending 31 March 1981.
One other category of children who will be covered by the Bill as a result of amendments Nos. 1 and 3 are those who are subject to custodianship proceedings. Hon. Members may be less familiar with those proceedings, for they are provided for in section 33 of the Children Act 1975, which is not due to be implemented until the end of this year.
A custodianship order will vest the legal custody of a child in the persons caring for him on a long-term basis. It is expected that most applicants will be step-parents — living with the natural parent— and local authority foster parents. Those people do not at present have in law the same parental responsibilities or duties towards the child as a natural parent, although in fact they are acting as parents on everyday matters. It is estimated that there are about 10,000 children aged 12 and under who have been boarded out by local authorities. Many of those children could benefit from custodianship.
The last category of children who will be affected by the amendments are those involved in adoption proceedings. Hon. Members may know something of the procedure by which an adoption order may be made vesting in the adopters the parental rights and 'duties relating to a child. By such an order the existing parental rights and duties and financial obligations of natural parents are extinguished. As a result of those proceedings, over 10,000 adoption orders were made in 1982.
In the area of adoption, new arrangements, in addition to those operating in respect of adoption orders, will be introduced with effect from 27 May this year. These "freeing for adoption" provisions, which are contained in section 14 of the Children Act 1975, will enable an 1274 adoption agency to apply to a court for an order freeing a child for adoption, with the effect that the parental rights and duties are transferred to the agency. The agency will be able to plan a child's future with greater certainty once a freeing order is made, and the child can then be placed with prospective adopters in the knowledge that the question of parental agreement has already been resolved.
Having set out the new groups of children who will be encompassed by the Bill, I will explain the consent arrangements appropriate to them.
Amendment No. 4 provides for a new schedule to be added to the Bill. The schedule outlines the arrangements required to ensure that "appropriate consent" to the taking or removal of a child out of the United Kingdom is clearly defined.
Amendment No. 4 will ensure that appropriate consent to the taking or sending of a child out of the United Kingdom will come from a local authority or voluntary organisation where the child is in its care; any magistrates court in the area where the child is committed to a place of safety; an adoption agency which made an application for a freeing for adoption order where an order has been made, or another agency holding transferred parental rights as the result of an order; a court to which an application has been made for a freeing for adoption order, or custodianship order; and, finally, a court which has made an order relating to adoption abroad or to which an application for such an order has been made.
I appreciate that I have spoken at some length on amendments Nos. 1, 3 and 4, but I hope that hon. Members will acknowledge that I have had much ground to cover in a complex area of child care legislation. I hope that in doing so I have convinced the House of the need for the amendments
§ Mr. Nicholas Lyell (Mid-Bedfordshire)
I am glad to support the amendments because they fill what might in numbers have been a small gap but in human suffering is a very important gap in the Bill to date, because they concentrate, above all, on children in circumstances in which they are really at risk.
We are considering the addition of three categories. The first is where children are taken into the care of the local authority, usually after magistrates court proceedings. The second is where children are initially placed voluntarily in the care of the local authority but where the local authority then has to take the steps which are open to it under existing legislation to prevent their being removed. Those circumstances can be highly contentious and can lead to a wish from the parent or guardian to do something drastic and foolish in relation to the child, which may be very damaging to the child's interests and to the interests of another parent or guardian. The classic method now, with such ease of travel, is to take children abroad.
The third category is the place of safety order. A place of safety order is put into effect in relation to a child only if it is thought that there is urgent need to bring the situation under control for 28 days while getting a more permanent order. It is exactly during those 28 days that the parent or guardian, or whoever it may be, may be tempted to remove the child from jurisiction altogether in order to prevent the wise effects of the existing legislation. Custodianship proceedings fall equally well into that category, and so, in a small minority of cases, do adoption proceedings.
1275 One is happy to be able to say that most adoptions proceed amicably, but not all of them do. In any case which might be described as a "tug of love", people are moved to do things which, on more careful reflection, they would realise were very foolish and could be very damaging to the child whom they purport to love. One of the things that such people seek to do is to buy a ticket for themselves and the child, get on to a boat or an aeroplane, and go abroad. It would be a great pity if this excellent Bill were to get on the statute book having omitted the three or four circumstances in which children are likely to be particularly at risk.
I congratulate my hon. Friend the Member for Stevenage (Mr. Wood) on tabling the amendments and preparing the ground for them, and I thank the Home Office for its assistance in that respect. I am sure that the amendments embody what the Criminal Law Revision Committee, in its careful work, wished to see embodied in the legislation. I give my strong support to the amendments
§ Mr. Roger Gale (Thanet, North)
I seek clarification on one issue that is of some concern to me. It relates to the position of a child in the custody of a local authority.
Over the past few months I have experienced some disquiet over the manner in which children are held in the custody of a local authority, sometimes for very long periods. I have in mind a case involving two parents, my constituents. As I have not had the opportunity to discuss the matter with them, I shall not name them. Their child has been in custody for about four years and has been placed with foster parents. It is a sad fact—I believe that the authorities acknowledge it—that in this case the pressures in the family have led to circumstances in which it is now possible for the local authority to say that the child has been fostered for so long that it has come to regard the foster parents as its natural parents, and that therefore it would be improper, in the child's best interest, to return it to its natural parent. I accept that final decision, because it has been taken, but the circumstances leading up to it are the fault of the local authority.
I raise this matter today, and ask for clarification about it, because I can envisage a situation in which a local authority, considering the possibility of releasing a child from a care order back into the care of the two natural parents—and in the knowledge that those parents might be considering taking the child abroad—might feel that it was not in the child's best interests to allow that situation to develop and might, therefore, continue to hold the child in care for longer than it would otherwise have done.
That might be regarded as a natural caution on the part of the local authority, but I should hate us to create a situation in which an authority might exercise over-caution and deny what in my view are the proper rights of natural parents.
§ Sir Nicholas Bonsor (Upminster)
I wish to add to the remarks of my hon. Friend the Member for Thanet, North (Mr. Gale) regarding the rights of foster parents and others who have had the custodianship of a child by, as it were, the grace and favour of the local authority. I share his concern for some of the ways in which some local authorities exercise their discretion regarding, in particular, the relationship between foster parents and the children whom they foster.
While it is outside the scope of this measure to look again at that relationship, I hope that the Minister will bear 1276 in mind the need to strengthen the position of foster parents as against the local authorities which have the ultimate control of the children in their care.
I welcome the amendment because it is important that adequate powers are vested in local authorities, provided that they are properly exercised, to ensure that the children in their care are not removed abroad. As my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) said, the most contentious of all areas with which the Bill is likely to deal is the battle that may occur between the local authority and the people who otherwise would have the care and control of children.
It would have been singularly unfortunate if the powers which the Bill vests in the courts to prevent children from being taken abroad by one or other parent, or by somebody else who should not do so, were not extended to cover the instances of children in the care of local authorities.
§ The Under-Secretary of State for the Home Department (Mr. David Mellor)
I crave the indulgence of the House to comment on the generality of the Bill. By the courtesy of the House, so that it should make progress, it was given an unopposed Second Reading. Because it is an important measure, I wish to use this first occasion on its return to the Floor of the House to put on record why the Government give the Bill a warm welcome.
It would be inappropriate not to say how grateful the whole House should be to my hon. Friend the Member for Stevenage (Mr. Wood) for bringing forward the Bill and for working so hard on it. The hon. Member for Battersea (Mr. Dubs) will join me in that because, although we have had our differences on the Juries (Disqualification) Bill, he and his hon. Friends have been most helpful on this measure, and I hope that he is pleased that some of the points that Opposition Members raised in Committee have been incorporated in the amendments that are now before the House. Peace has broken out this Friday morning, as is only appropriate.
My hon. Friend the Member for Stevenage has done extremely well because it is easy, when one is invited to bring forward a private Member's Bill, to turn to a small area for limited change—and there are, plainly, limited changes that are valuable. There are, however, larger issues that sometimes need to be grasped. The problem of child abduction is one of the more troubling social problems that we have faced, and in taking on the Bill my hon. Friend has addressed his mind to an issue that has caused a great deal of distress.
Happily, child abduction cases are not frequent. Most families in Britain can go through the whole of their lives without any untoward incident taking place. But in an age when more people are marrying nationals of other countries and when we must, I fear, accept that many more marriages are breaking down, the problems of a parent being left in one country with children and the estranged parent living perhaps halfway across the globe, and not being content with the situation that has been decreed by the British court, can, and often do, lead to trouble.
My hon. Friend the Member for Keighley (Mr. Waller), who has taken a great interest in the measure and who advises one of the groups of parents who have banded together for self-help, because they have lost children in this way, spoke movingly in Committee of the distress that is caused.
1277 Nothing that this House can do can prevent a determined and ruthless parent, either by force or by subterfuge, taking a child out of the lawful custody of a parent domiciled here and taking it overseas, either back to the other parent's address overseas or, as has happened in some cases, to the address of a British parent who has gone to work abroad for the sole purpose of taking a child overseas.
Nor, though we strive mightily to do so, is it possible always to enforce British custody orders effectively in overseas jurisdictions. A great deal of advance has been made. Successive Law Officers and Ministers in successive Governments have made real efforts to do that. But it is not easy, and the problem is compounded by the fact that the criminal law is inadequate and anomalous. As a result of that, it is difficult at present for the police to intervene effectively to prevent an estranged parent who has stolen a child from leaving the country.
Although in some cases a child can be abducted and the errant parent can be on the aeroplane within hours, there are some other distressing cases. My hon. Friend the Member for Keighley mentioned one, when it was a matter of days before the child was actually removed from the jurisdiction, and because of the inadequacies of the present law the former wife was not able to obtain the effective assistance from the police to which she felt she was entitled, assistance which, all other things being equal, the police would have wished to have given.
Therefore, while a change in the law cannot deal either with the desperate inclination of some parents to abduct their children, or with the difficulties — if that is successfully done — of getting the child back from another jurisdiction, it can ensure that there is an effective and modern framework of law to deter that by providing appropriate penalties for what is a wicked offence.
However much an estranged parent may love a child, one can think of nothing more wicked than taking a child away, usually from the mother's care, at a very early age to a country in which, in all probability, the child has had no previous background and away from his or her friends. I should have thought that, while one understands the strength of parental feeling, that was a damaging way in which to deal with such a situation. The courts, in granting custody, say that the welfare of the child is paramount, whereas the child abductor says that his welfare is paramount, and that is what is so unacceptable
§ Mr. Lyell
I have been pondering on the amendments. I should be grateful if my hon. Friend could say whether they will apply to children who are taken into the care of local authorities in Scotland or in Northern Ireland. I am a little worried that there may be a lacuna in the Bill in that it may be possible to abduct children in England and take them to Scotland or to Northern Ireland and somehow not fall within the ambit of the Bill. I raise this matter because I have personal experience of cases where children have been abducted and taken to Scotland, and these days it is easy to fly from Scotland to almost any part of the world
§ Mr. Mellor
My hon. and learned Friend can be reassured on one aspect of his concern. We hope that subsequent amendments that we shall be considering later will close most of the loopholes involving Scotland. However, there is a problem with children in care in Scotland. That will remain a slight loophole because the 1278 law in Scotland relating to such children is different. I understand that this is one of the matters with which my hon. Friend from the Scottish Office will be dealing. I do not want to give an inadequate answer to a question with which he will deal more adequately later. To tie up any of the residual differences between England and Scotland, it is the intention of my right hon. Friend the Secretary of State for Scotland to refer these matters to the Scottish Law Commission.
The Bill is designed to put a deterrent in the way of a parent who seeks to take his child by force from his or her estranged partner. It recognises that that is a social evil. The Bill makes it a criminal offence punishable by seven years' imprisonment and gives the police the powers that they need to act swiftly.
There are other issues that need to be addressed. One issue specifically addressed in the amendments concerns children in the care of local authorities. The hon. Member for Battersea raised that matter in Committee. It seemed to me then that it had force. It had seemed to us before that that action was needed. We have had lengthy consultations with my right hon. Friend the Secretary of State for Social Services and, as a result, these amendments have been drafted. I shall hope to show later that they are worthy of support.
It is also worth reminding the House that it is not just estranged parents who try to interfere with small children. I fear that there are others who also take a delight in doing it. When that interference is in a direct sexual sense—lamentably a number of those incidents come to our notice every year—there are specific criminal offences to deal with it. But it has been distressingly apparent over the years that sometimes people take children for no good reason. They do no actual criminal harm to them, but there is no doubt that such actions are wholly improper and plainly against the interests of the community and damaging to the children involved even if they are not physically or sexually harmed. The criminal law should be clearer about what remedies are provided to prevent that, and the Bill addresses its mind to it.
Even more important, the Bill addresses its mind to the most sinister manifestation—what may be termed the third party intervention where the estranged parent hires a gang of thugs to carry out the abduction. That is perhaps the most wicked aspect, and I am delighted to see that my hon. Friend has dealt effectively with it. His Bill will comprehensively replace a mass of outdated legislation.
It is a pleasure always to see my hon. Friend the Member for Cambridge (Mr. Rhodes James) in his place. It was a great sadness to many of us that his efforts in the last Session to do much the same as my hon. Friend the Member for Stevenage were not successful. But I am delighted that he is here to lend his support to the Bill. His presence is a token of his continuing interest in this problem. My hon. Friend the Member for Cambridge blazed a trail that my hon. Friend the Member for Stevenage has followed, and it is appropriate that he is here to make his contribution to the debate.
The problems that my hon. Friend the Member for Stevenage seeks to remedy are worthy of a few minutes' attention, so that people who are not otherwise familiar with this complicated and arcane area of the law may know exactly the debt of gratitude that we shall owe my hon. Friend if the House approves his Bill.
The aspect of the law that we are considering has been a source of worry to successive Governments, and the 1279 Criminal Law Revision Committee was invited to consider it and to make its recommendations. My hon. Friend's Bill follows the report of the Criminal Law Revision Committee and makes one or two important additions to it, to which I shall come in a moment. I know that my hon. Friend wishes to join me in paying tribute to Lord Justice Lawton, the chairman of the committee, who has been of invaluable assistance in ensuring that the Bill could be looked at by an experienced eye. I cannot think of a more experienced legal eye currently active. He ensured that proper account was taken of the time that had elapsed since the report and of one or two significant cases, especially that of Regina v. D., which needed to be considered. He recognised generously that there were points where the draft Bill which the Criminal Law Revision Committee appended to its report was in some respects not the only way in which the provisions that the committee wanted to see could be drafted.
Lord Justice Lawton also played a part in vetting some of the changes that my hon. Friend sought to make in the interests of clarity. My hon. Friend has drawn an important distinction so that there are separate offences for those committing the offence who are connected with the children — the estranged parents — and for the mercenaries and others. The estranged parents find their place in clause 1. The mercenaries and others find their place in clause 2. That assists clarity, because the issues involved in each offence may be different even though both are serious.
When the Criminal Law Revision Committee looked at the present state of the law it exposed how vague and anomalous it was. That is inevitable, bearing in mind that the offences that we have to protect children against abduction at the moment are three principal ones, two of which are lost in the mists of time and the common law and one dating back to an Act of 1861.
False imprisonment is an old-established common law offence punishable with life imprisonment and is committed where a person unlawfully and intentionally or recklessly restrains another's freedom of movement from a particular place. That is a fundamental protection that we all enjoy. It does not apply just to children. But it has now fallen very largely into disuse. The Criminal Law Revision Committee revealed that in 1977 there were 12 prosecutions and in 1978 only two. Far from being an effective safeguard for children at risk, it is fair to say that false imprisonment has become very much an offence of the past, although it remains on the statute book and can be used from time to time.
Kidnapping is a common law offence punishable with life imprisonment, and was defined a long time ago in East's "Pleas of the Crown":The most aggravated species of false prisonment is the stealing and carrying away or secreting of some person, sometimes called kidnapping, which is an offence of common law,That remains the definition. However, as I shall show later, one of the points with which my hon. Friend has had to come to terms is the fact that the common law offence of kidnapping is not as wide as previously thought. The contentious case of Regina v. D., which, as I said in Committee, threw a rather large cat among the pigeons as to the effective use of kidnapping in the context of child abducting by a parent, requires some correction, and that is dealt with in the Bill.
1280 11.30 am
Finally, and perhaps most important, the principal safeguard in today's law against child abduction is the offence of child stealing under section 56 of the Offences Against the Person Act, 1861. That offence, on the face of it, appears to cover the points that all of us have in mind, and about which we are concerned. Under section 56, it is an offence, called child stealing, for a person to abduct by force or fraud a child under the age of 14 with intent to deprive any parent, guardian or other person having the lawful care or charge of the child, of the possession of the child. However, by a proviso to that section,no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecutedfor an offence under the section. Thus it cannot be an offence under the section for one parent to abduct a child from another, even where the court has granted lawful custody of the child to the latter. That is why, notwithstanding that there has been an adjudication with the due solemnity of the High Court of the country, it is so difficult, if a parent chooses to take the law into his own hands and to take the child away by force, having lost in the High Court, for the authorities to do all that they would want to do under the present law.
The Criminal Law Revision Committee in 1980 recommended, therefore, that section 56 of the 1861 Act be replaced by new provisions, which, among other things, would extend the criminal law to parents who abduct their children with the intention of taking them out of the realm. The committee's reasoning, which it is worth putting on the record, because it was as cogent as the committee's recommendations usually are, was:If the child is taken by a parent who does not intend to leave the country … this is best dealt with by courts having family jurisdiction as a breach of a court order and not by the criminal courts.I think that my hon. Friend agrees with that, and so would the whole House. No one wants to make the criminal law intrude into any part of the civil law more than it has to. Where the civil courts have jurisdiction, there is no problem. However, the committee continued:However, the law does need to be able to act quickly if a parent abducts his child with the intention of taking him out of the country without the consent of the other spouse. Such situations cause severe distress to those having lawful control and, once the child has left the jurisdiction, obtaining his return is costly, usually slow and on occasions, impossible.I think that that was well put.
I come next to the heart of the Bill, clauses 1 and 2. Clause 1 gives effect to the substance of the committee's recommendations by making it an offence for a person connected with a child to take or send him out of the country in certain circumstances, and, of course, defines those who are connected with the child to be the child's parents, his guardian or other person with custody of the child under an order made by a court in England or Wales and, in the case of an illegitimate child, a man in respect of whom there are reasonable grounds for believing that he is the child's father. That offence is here included, with the anomalies removed, not the least of them the unfortunate implications of the case of Regina v D. where the Court of Appeal held that a parent cannot be convicted of kidnapping his child, even if force is used, if the child is under 16 or, if unmarried, under 18. That is why my hon. Friend has thought it right to increase the age limit of 14 years in clause 1(1) provided for in the Criminal Law 1281 Revision Committee's draft Bill to 16 years, to ensure that the unfortunate effect, as so many see it, of the restriction of the law of kidnapping in the case of a parent consequent upon Regina v D. is corrected, and that statutory protection is given to children over the age of 14. I believe that I would take the House with me in saying that there are cases where someone may be on the verge of adulthood, 14 or 15, who is still entitled, as a minor, to the protection of the courts, and to criminal sanctions as well as purely civil ones.
Clause 2 of the Bill deals with those others with no connection with the child, as defined in clause 1, who interfere with a child. It will cover the wretched mercenaries about whom I have already said my piece. It also corrects another genuine omission from section 56 of the Offences Against the Person Act 1861, because that section is unduly narrow, in that it is confined to the taking or enticing of a child only where force or fraud is present. There are doubts in the subsequent case law about whether a person who interferes with the possessory relationship between a parent and a child can be convicted, unless the interference is substantial. That is why the Criminal Law Revision Committee recommended that a new offence be created of detaining a child, or causing him to remain where he is, or to accompany another, so that he is kept out of the lawful control of his parent or guardian or other person having lawful control of him without their consent. With minor modifications, clause 2 gives effect to that. There have been instances—the case of Jones was one such, which was quoted in Committee—where there was a real interference with the parent's rights over the child, but where the anomalies of the 1861 Act made it difficult for effective action to be taken.
I hope that I have not detained the House unduly in setting the scene, but it is important, in welcoming on behalf of the Government what is a major change in the criminal law, that I should have said, in as thorough way as I can, why this is a most significant day in the House, because we are making a change in an important area of the law for the first time in over 125 years
§ Mr. Ivan Lawrence (Burton)
I am grateful for the careful way in which the Under-Secretary of State has presented the Government's case. Could he say something about the extradition aspects of the new criminal law that we are about to pass? What is needed is the total enforcement of the law, and, if the enforcement of the law can be evaded by everyone going lock, stock and barrel out of the jurisdiction, and no further steps can be taken, the purpose of the law is obviously severely restricted
§ Mr. Mellor
As so often, my hon. and learned Friend has touched upon an important point. The essential benefit of the Bill, in terms of the cases that my hon. and learned Friend has in mind, is that it will be clear for the first time that in most of the cases that have caused trouble in recent years, the fugitive, in doing what he has done, has committed a serious criminal offence against the law of England. There is no doubt that in most jurisdictions it is a lot easier to enforce the criminal law by way of extradition proceedings than it is to enforce civil law orders, although every effort is made, as my hon. and learned Friend knows, to enter into arrangements with overseas countries so that both can be achieved. However, there is an additional gravity consequent upon a breach of 1282 the criminal law as opposed to a breach in the case of, let us say, a custody order of the High Court. There is much greater gravity about a breach of the criminal law than of civil law or law of custody which makes this an enormous step in the right direction. I have to say to my hon. and learned Friend that what it cannot do is ease all the problems of the law of extradition as we now find them to be.
Extradition treaties have to be entered into. There are crucial gaps in the number of extradition treaties that we have. As no doubt my hon. and learned Friend is aware, there is a feeling abroad that the British laws of extradition make it so difficult for many overseas countries to get their fugitive offenders back that their enthusiasm is dampened for sending fugitive offenders back here. I was not aware that my hon. and learned Friend would raise this point, and so I hope that he will forgive me if I am not as fully briefed on it as I might have been, but I think that one country has recently abrogated its treaty with us for exactly those reasons. That is why a working party was set up to consider the law of extradition and that is why the question of tightening up the law on extradition is now being given careful consideration by the Home Office.
This area of law is difficult and sensitive. Although the enacting of this and other criminal statutes makes it easier to bring back fugitive offenders, they do not resolve the whole problem. One has to take an overall view, and also be committed to making it easier for extradition to take place instead of sitting back and saying that now that there is a criminal statute all the problems are resolved.
Indeed, I have been anxious to point out that all the problems will not be resolved. There will still be parents who will be ruthless and people who will be ready to be bought to help in such operations. Although, as has been said, the Home Office tries immediately on learning of such cases to have people at the ports to intervene—and it is much easier to justify intervention when there is a breach of the criminal law rather than when there is a breach of custody—people will still go overseas and it will still be difficult sometimes to get them back.
§ Sir Nicholas Bonsor
I believe that there is a European convention and a Hague convention dealing with the question of returning children to their countries of origin when there has been a dispute, but that Britain has not yet ratified either of them. That is really a matter for the Foreign Office, but I wonder whether my hon. Friend knows how things are likely to progress
§ Mr. Mellor
As my hon. Friend has said, that is really a matter for the Foreign Office. However, I assure the House that any problems in negotiations on such matters have nothing to do with any lack of commitment to effective rules on the part of this Government. Far from it
§ Mr. Gerald Bermingham (St. Helens, South)
I shall refer to a particular case later, but I am particularly concerned about the child who goes abroad on holiday and is then detained by the other parent. That is particularly prevalent in the middle east and the far east. There has been no abduction, as it were, within the jurisdiction, but there has still been an abduction, and I am sure that other hon. Members, like me, would like to see that situation covered by the Bill, by extradition arrangements or by some form of international convention.
§ Mr. Mellor
Unfortunately, as the hon. Gentleman well knows, that point raises more difficult issues. The best advice that can be given to a parent is that she should be very sure that she can trust her estranged husband before letting her child out of our jurisdiction. There are difficulties, just as any offence committed overseas raises difficulties. We have always had a very clear rule in Britain that only in the gravest circumstances is extraterritoriality of offences total.
I commend the amendments to the House. It comes as a shock to many hon. Members to realise how many children are in the care of the local authority at any one time. I think that the figure of 46,500 was mentioned, and that last year in over 6,000 cases place of safety orders had to be made. I understand that about 10,000 children are in foster homes. That is a formidable number of children. If my arithmetic is right, and without making any allowance for the fact that some of those for whom place of safety orders were made may move on to care orders, we are talking about more than 60,000 children. That is a very substantial number.
We also know that problems are often associated with the circumstances in which children go into care. Few hon. Members have not had the experience of parents asking for their assistance when the child—they say wrongly—has been put into care. They are very distressing cases and often, alas, although the parent may appear to be extremely cogent when at one's advice centre, that appearance is contradicted by the report from the social services department.
It is not part of my case to say that every time that the parent is aggrieved by a care order made by the court that parent must be wrong. I do not suppose that the courts are any more certain to be correct in their judgments on care orders than anything else. Like the rest of us, they are fallible. However, I hope that hon. Members will agree that if a parent has failed to retain care and control of the child and the local authority has an order taking the child into care, neither the parent nor anyone else should be able to interfere with what the local authority does.
This is a difficult subject and not all the loopholes can be closed. Nevertheless, children in the care of local authorities and voluntary organisations—and many of them are in the care of such voluntary organisations, who still do a great deal of useful work—are entitled to the protection offered by the Bill. It was called for by the hon. Member for Battersea. Much work has gone into getting the drafting right. At first we were troubled that the insertion of lengthy provisions might overburden the Bill, but on balance my hon. Friend the Member for Stevenage has been persuaded that it would not be right to miss this opportunity, and I hope that the House will agree with him in due course
§ Mr. Wood
One of the crucial points to be borne in mind is that we are endeavouring to make it a criminal offence to take children out of the legitimate and lawful control of those who have such control. My hon. Friend the Member for Thanet, North (Mr. Gale) rightly commented on the concerns that are sometimes expressed about local authority decisions, but I believe that it is for the civil law and administration of our country to take the appropriate decisions in such cases, and that a parent or another should not be allowed to take the child out of the 1284 country, and thus destroy any legal redress under our civil law. That is a crucial point, which must be borne in mind when considering the amendments and the Bill.
Of course, there will still be disputes between parents, between parents and local authorities and perhaps even between parents and foster parents and so on, but they should be resolved in this country, under our civil law. We cannot allow the situation to continue whereby a parent or someone else can simply take the child out of the country and so destroy the hopes of those who properly have control of him.
After we have dealt with this set of amendments, I shall talk about some of the matters relating to clause 1. I hope that we have clearly covered the various considerations to widen the scope of the Bill to cover children in care. I commend the amendments to the House.
§ Amendment agreed to
§ Mr. Wood
I beg to move amendment No. 11, in page 2, line 15, leave out subsection (5) and insert—'(5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—
- (a) he does it in the belief that the other person—
- (i) has consented; or
- (ii) would consent if he was aware of all the relevant circumstances; or
- (b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or
- (c) the other person has unreasonably refused to consent, but paragraph (c) of this subsection does not apply where what is done relates to a child who is the subject of a custody order made by a court in England or Wales, or were the person who does it acts in breach of any direction under section 7 of the Guardianship of Minors Act 1971 or section 1(3) of the Guardianship Act 1973.(5A) Where, in proceedings for an offence under this section, there is sufficient evidence to raise an issue as to the application of subsection (5) above, it shall be for the prosecution to prove that that subsection does not apply.'.Worries were expressed in Committee about the burden of proof in certain circumstances. I wish to emphasise some of the concerns and considerations so that people can understand clearly the context in which questions of burden of proof arise.
Few hon. Members have not been approached at some stage by a troubled parent fearful that his or her partner or former partner will try to vanish abroad with their children, or, worse still, by the distressed parent whose children have already disappeared. It is, nevertheless, worth reminding ourselves of the unhappy cases that hit the headlines all too frequently and that illustrate in human terms the problem that the Bill will, I hope, go some way to remedy.
Perhaps the most common case that comes to my attention is where children are taken abroad, in defiance of a court order, by the parent who was not awarded custody in the proceedings. However, a great many snatches take place at an earlier stage, either before legal proceedings are started or during the course of the proceedings, but before the court has reached its final determination on the issue of the children's custody. In those cases, one of the parties often seeks to pre-empt the court's decision by removing the children from the country so as to be beyond the reach of the court. Moreover, we should not forget those unfortunate cases involving the parent who, while not awarded custody of the children by the court, nevertheless enjoys access to them and works hard to maintain the parental relationship with them. Such 1285 parents, too, suffer when their links with the children are severed because the custodial parent takes the children abroad, notwithstanding the court's prohibition on their removal from jurisdiction. All the circumstances that I have just described are covered by the Bill.
I have spoken of the plight of parents, but it is, of course, more often than not the children who are the real victims in these so-called tug-of-love cases. The children are the prime concern of the courts when they make orders as to custody and access and orders prohibiting the removal of children from the country. Indeed, it is a statutory principle. Section 1 of the Guardianship of Minors Act 1971 provides:Where in any proceedings before any court … the custody or upbringing of a minor … is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father … is superior to that of the mother, or the claim of the mother is superior to that of the father.The courts do not take their responsibilities in custody cases lightly, especially where the issues are hard fought. To assist them with their decision they have the power to call for a welfare report, so that the fullest information is available to them and the issues are examined in detail. One cannot help contrasting that approach with that of parents who abduct their children abroad and who, in many instances, are surely concerned only with their own wishes and desires and give no thought to whether it is in the children's best interests to be uprooted from their home and deprived of their links with the other parent, their relatives and their friends.
It is appropriate to mention one case that came to my attention which happily illustrates the concern of a mother who did put her child's interests above her own. The case concerns a two-year-old boy who was made a ward of court some six years ago, when the father made threats to take the child abroad. Unhappily, the father failed to return the child to his mother after a period of access and disappeared from the country with him. Luckily, the mother was able to find out where her son was living, and visited him the following year. Some of the most tragic cases are of mothers who do not even know whether their children are alive, still less where they are living.
The mother discovered that her sister-in-law was caring for the boy and taking pains to treat him as her own son. Consequently, the mother considered that it was in the boy's best interests that he remain where he was because, after months of trauma, he had finally settled in well. The mother visited her son once more later that year and once again determined not to uproot him and subject him to further disruption. She maintained close contact with her sister-in-law and visited her son again the following year.
Two years ago, however, she learnt that things were no longer going well and that her husband had formed a relationship with another woman which was detrimental to her son's welfare. She decided to visit, and fortunately with her mother-in-law's backing she was able to stay in the family home and strengthen her relationsip with her son. With great good fortune and the co-operation of the British high commission she was able to obtain her son's passport when her husband sent it for renewal, so she was ready to make her move.
She took him from school and, pursued by the father, crossed into a neighbouring state where she and the boy 1286 were detained for a day. Fortunately, the authorities upheld her rights to the child and allowed them to proceed to the United Kingdom. The mother was aided, no doubt, in that she was in possession of English court orders giving her custody of her son which persuaded the authorities to act the way they did, and to disregard the allegations and arguments by the father. The boy has subsequently settled down well in this country, but his mother lives under the constant threat that his father will return to this country and take him from her.
That is but one illustration of the vast number of cases —at least 50 a year—that have proved so tragic and heart-rending for many families.
Concern was expressed in Committee that in seeking to control properly the tragic and distressing child abduction by a parent the provisions of the Bill should not risk imposing harsh or repressive sanctions on innocent travel arrangements made by a parent accompanying a child abroad. There are many occasions on which a lone parent will be travelling with a child. We must take care to ensure that if such people are challenged they do not risk conviction for an extremely serious offence, imprisonable for seven years, solely because they are unable to prove —albeit on the balance of probabilities—that they held certain beliefs.
My hon. Friend the Under-Secretary of State undertook in Committee to look again at whether the onus of proof should lie differently, and we have concluded that it should. This amendment and one to be moved later in relation to Scotland by my hon. Friend the Under-Secretary of State for Scotland ensures that it should fall upon the prosecution to prove the absence of the beliefs and other matters detailed in the paragraphs of the amended clause, rather than upon the defendant to prove their presence. It has long been part of good practice in framing criminal offences to have regard for the mental element of an offence
§ Mr. Lawrence
I wish to place no obstacle in the way of the conduct and progress of this admirable Bill. But how does the prosecution ever establish that a person had no belief, or even that he had a belief?
§ Mr. Wood
It is a difficult and delicate matter. However, at the very least there will be a great deal of circumstantial evidence of the behaviour and activity of the parent or abductor of a child. Such an individual would have to present some information and evidence, which it would be the duty of the prosecution to question.
Here it has been less easy than in some other offences since the mental element of the crime consists not only in wishing to remove the child without the appropriate consent but also in the absence of a belief that consent had been given or would have been given had it been sought.
It is right, however, that before a person is convicted of a crime, and particularly before a parent stands convicted of a serious crime against his own child, the prosecution should have persuaded a jury that the accused did not believe that the other parent would consent to the child's removal, or that the other conditions were not at the material time fulfilled.
The case for altering the burden of proof in this way has been presented to me by a considerable body of respected legal and academic opinion, as well as indirectly in discussion of the Bill in Committee. If I felt that the evil 1287 that clause 1 is designed to control would be less successfully controlled by the amendment, I should not be moving it today, but I do not feel that this is the case, especially as the amendment does not allow the defendant to sit back in court and do nothing—he cannot make the prosecution prove that any part of subsection (5) does not apply unless he adduces sufficient evidence to raise an issue on that part. We all have an interest in good and careful law making, and that interest is best served by continuing to formulate offences with careful regard to the proper placing of the burden of proof and scrupulous testing of the public interest in the circumstances in which prosecutions may be brought.
In the light of these considerations—like my hon. and learned Friend, I had some reservations —I have thought it right to move the amendment to clause 1, although I say at once that the same considerations do not apply to clause 2 which deals with strangers, not parents, and frequently with brutality and vice rather than a "tug of love". In a clause 2 offence, there is no question of having regard for the peculiarly distressing position of a parent charged with an offence against his own child, or of the many circumstances in which innocent travel arrangements might be made by a responsible parent who is unable to contact an estranged partner before making an urgent trip abroad. Clause 2 deals with strangers who have no business to be with a particular child, and I adhere strongly to the view that the onus here lies on the adult to show why he should have taken or detained the child from where he or she was supposed to be.
Returning to the mischief to which clause 1 is directed, I should like to take the opportunity of expanding a little on the current procedures which are available for dealing with breaches of custody and related orders and will, of course, continue to be available when my Bill is on the statute book. It is useful to look at these in some detail so as to have a composite picture of the administrative and legal steps which can be taken when these very sad cases occur.
Where a court in England and Wales makes an order relating to the custody of a child it is, generally speaking, for the parties involved to comply with it. The order does not of itself entitle the person in whose favour it is made to enforce his or her legal rights. To enforce the order through the legal process in the event of non-compliance, it is necessary to take further proceedings. Many custody orders, however, contain a prohibition on the removal of the child from England and Wales. Where this is the case, it is possible in practice to seek the assistance of certain Government Departments in preventing such a removal. The two primary administrative measures available concern the grant of passport facilities to children and the Home Office arrangements for alerting the major sea and airports to a potential removal.
A prohibition on the removal of a child from England and Wales is automatically included in a custody or care and control order made in the course of divorce proceedings unless the court otherwise directs. In the case of custody orders made in guardianship proceedings or in magistrates' matrimonial proceedings it is open to the parties to the proceedings to apply to the court for a direction to this effect. A child who is a ward of court may not be taken out of the jurisdiction without the leave of the court and this applies with immediate effect as from the making of the wardship application, when the child becomes a ward of court automatically.
1288 There is, in addition, a passport office "caveat" procedure whereby any parent whose child is the subject of a court order precluding the child's removal from England and Wales, or the mother of any illegitimate child, may request the passport office not to issue a passport in the child's name without his or her knowledge. If at the time of making such a request the child already has a valid passport, or is included in the valid passport of a relative, the passport office has no power to compel the surrender of the passport in order that the child's name be removed. The most that the passport office can do in these circumstances is to note the name of the child in its records for a period of 12 months. If during that time the passport concerned comes into its possession for any reason, or another application for passport facilities for the child is made, the passport office will take action in respect of the objection lodged by the parent.
Those arrangements do not apply to the issue of a British visitor's passport, which is available from main post offices. This document is valid for one year and can be used for travel to certain Western European countries, Bermuda and Canada, but only for holiday purposes.
In April this year the president of the Family Division issued a practice direction which advised that where courts order the surrender of a United Kingdom passport issued to or containing particulars of a child, it is essential that the court concerned notifies the passport office so as to prevent the issue of a replacement passport.
I should add that I and other Members have pursued the question of passports. Although there are difficulties in the present position, I believe that the difficulties entailed by introducing more restrictive arrangements would overwhelm the advantages that might be gained in cases of this kind.
I turn now to port precautions, which can be taken by the Home Office when a child is a ward of court or the subject of an injunction or custody order containing a prohibition on the child's removal from England and Wales. If it appears that there is a real danger of an attempt being made to remove the child within 24 to 48 hours, the Home Office will institute, on request, such precautions as are possible at ports and airports to prevent the unlawful removal. This service is available 24 hours a day, although it is not possible to contact all ports and airports outside normal office hours. A "stop-list" is maintained at all points of immigration control and an immigration officer identifying a child whose name appears on the list will bring the child and anyone accompanying him to the attention of a police officer. Persuasion is normally used to prevent embarkation, but where this fails force may be used. Where it has been authorised by a court, a child intercepted in this way may be detained at the port until delivered to the person entitled to custody or care and control. The Home Office "stop-list" procedure was initiated by the then Home Secretary and Lord Chancellor in the early 1950s. In 1982 the Home Office was consulted and port precautions were instituted in 355 cases.
It is worth looking also at the procedures for the formal enforcement of a court order. As mentioned, the enforcement of a custody order by way of legal process necessitates the taking of further proceedings. Depending on the court and the nature of the proceedings in which the custody order was made, these may include applying for an order for the return of the child, applying to have the person in breach of the order dealt with for contempt of court and seeking an injunction.
1289 An order of the court for the return of a ward of court to the person to whom the court has entrusted custody can be enforced by directing the tipstaff to take possession of the child and deliver him to that person. If the ward has disappeared, the court can summarily order anyone who knows or may be supposed to know of the ward's whereabouts to give information to the court. In addition, the tipstaff can seek the assistance of the police in tracing a missing ward. The arrangements set out there are without prejudice to any help that the police might give informally at an earlier stage. Once a missing ward is traced, the tipstaff is immediately informed so that he can enforce the order.
Failure to comply with a wardship order or any other order relating to the custody of a child constitutes contempt of court. In the High Court and county court, disobedience to the terms of the order is punishable with committal, sequestration or fine. In the magistrates court contravention of a custody order can also attract the sanction of imprisonment or a fine.
In the case of the removal of a child abroad, the difficulty with the enforcement machinery at the disposal of the court is that of the speed with which it can be mobilised. However, in an emergency, where there is no order of any sort prohibiting the removal of the child abroad, the child can be made a ward or an injunction restraining removal can be sought as a matter of urgency. This action, by making the removal unlawful, can then be followed by a request for Home Office assistance at the ports.
To complete the picture, it is worth while looking also at national and international developments relating to the removal of children. I should point out, however, that most procedures relate to children who are the subject of an order for custody, whereas my Bill will also protect fully the child of a subsisting marriage. Once a child has been taken out of England and Wales there are no means whereby his return can be brought about by legal proceedings undertaken in this country. It is necessary to try to obtain custody of the child through the courts of the country where he is now living. This is the case whether the child has been moved from one law district of the United Kingdom to another or outside the United Kingdom altogether.
Within the United Kingdom, the Law Commission and the Scottish Law Commission have been undertaking a joint study of the basis of the courts' jurisdiction to make orders for the custody of minors and the enforcement of such orders as between the three separate law districts of Scotland, Northern Ireland and England and Wales. Following the issue of a discussion paper on the subject in 1976, the law commissioners are now in the final stages of preparing a report and draft Bill on the reciprocal recognition and enforcement of a child custody order and the harmonisation of the rules governing jurisdiction to make such orders.
At the international level, the improper removal of children or their retention abroad is a problem which has received increasing attention in recent years and the Government have played a major part in international discussions to find a way of helping in such cases. As we discussed earlier, two conventions have been prepared.
The first is the Council of Europe convention on recognition and enforcement of decisions relating to the 1290 custody of children. The 7th conference of European Ministers of Justice set up a committee of experts to study forms of co-operation for affording children increased international protection based solely on their welfare. The resulting convention was signed by 15 states, including the United Kingdom, at the 12th conference of European Ministers of Justice on 20 May 1980. Other signatories are Austria, Belgium, Cyprus, France, the Federal Republic of Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Portugal, Spain and Switzerland. The convention has so far been ratified by France, Luxembourg, Portugal and Switzerland.
The second is the Hague convention on the civil aspects of international child abduction. This convention was finalised by the Hague conference on private international law at its 14th session in October 1980. The signatories so far are Belgium, Canada, France, Greece, Portugal, Switzerland and the United States. Of those Canada, France, Portugal and Switzerland have also ratified it.
To a large extent the conventions follow similar lines. The interests of the child are of paramount importance; both envisage the establishment of a central authority to act as the point of contact between states and secure the child's prompt return, and both cover children in the care of institutions.
Ratification of the conventions by the United Kingdom is some way off, since legislation will be required following extensive consultations with the judiciary and other interests. The resolution of the legal conflict within the United Kingdom surrounding jurisdiction and enforcement in child custody cases will also be an essential preliminary. Ratification of the Council of Europe convention, which the United Kingdom has already signed, cannot readily be considered in isolation from the signature and ratification of the Hague convention, since the legislation which would be required to give effect to them would also need to reconcile their slightly different requirements and to establish which should apply in areas where the two conflict.
§ Mr. Lyell
I have read amendment No. 11 carefully and I am a little worried about the punctuation. The amendment says:A person does not commit an offence under this section …if … (b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him".Is not that too wide a let-out? Would it not let out someone who knew perfectly well that even if he succeeded in communicating there would not be consent and who chose a moment, perhaps quite a long period when he knew that he could establish that he could not communicate, to take the child, perhaps at a time when the child would be especially vulnerable? I do not know whether my hon. Friend can answer this point in full now, but I draw his attention to it. Should not the punctuation of subparagraphs (a) and (b) be rather different and require it to be shown that one had both a belief that the other person would consent in all the relevant circumstances and had taken all reasonable steps?
§ Mr. Wood
I am grateful to my hon. Friend for that comment. In the first instance, it is clearly necessary to establish the point that it may be extremely difficult for an individual to communicate. There are many cases in which one parent is completely out of touch with another and therefore it could be wholly unreasonable to expect that 1291 satisfactory communication could have occurred. Nevertheless, I take the point. If on further consideration there needs to be any modification, I am sure that that can be given consideration in another place.
I have now gone into considerable detail about the context and the requirements of clause 1 to ensure that while we have the panoply of civil law governing actions taking place within Britain, at the same time we must prevent that being overridden by someone taking a child out of the United Kingdom.
I hope that amendment No. 11 will set the balance of prudence correctly, perhaps after consideration of the valuable point that my hon. Friend made. If the amendment is incorporated in clause 1, it will fulfil our intentions admirably
§ Mr. Lawrence
I want to address my remarks to the burden of proof which arises in clause 1(5)(a). I am not at all happy with the way in which this has been drafted. It is almost impossible for the prosecution to establish that a man had any particular belief. What he believed at the necessary time is a matter which could only be established, and perhaps even then not perfectly, if he said what he believed. One cannot open up a man's mind to examine its inner workings. Perhaps one day science will enable us to do that but at present one cannot foresee that that will ever be done at a particular date, at a particular time in history.
Clause 1 requires a subjective test—what does a man believe? It says:A person does not commit an offence … if he does it in the belief …Therefore, in a circumstance where an accused is placed in no position to be forced to say what his belief was, it is thoroughly unsatisfactory to place the burden of proof upon the prosecution. My hon. Friend the Member for Stevenage (Mr. Wood) said that he is not forced into that position, but consideration must be given to circumstantial evidence. With great respect to my hon. Friend the Member for Stevenage, that is riot satisfactory either
§ Mr. Lawrence
I will be happy to give way when I have made this point.
As the new clause is drafted, the requirement is that he should have the belief. That is a subjective test. It is not an objective test in which circumstantial evidence will be relevant. The courts have had plenty of trouble in the past over the mental element required to be established before crime can be established, and a great deal of heart-searching in the law has taken place in recent years about the circumstances in which the subjective or objective test can be applied.
It is clear from the drafting of the new clause that the test must be—and will be interpreted by the courts as being—a subjective test. The important thing would be what was in the man's mind. The circumstantial evidence is therefore irrelevant. The circumstantial evidence might indicate strongly to a reasonable person—to a man on the Clapham omnibus — that such and such is the situation, but the man from whom the court requires belief may say, "Those may be the circumstances, but I can only tell you about myself. I did not believe it, perhaps because I was so carried away by my enthusiasm, or so angered and upset by the situation, that my ordinary man's balance of mind was for a moment taken away and I was incapable 1292 of making a rational judgment." The fact remains that the clause requires that his belief must be established. It may not be possible to establish that belief if he does not have to give an account of himself
§ Mr. Lyell
My hon. and learned Friend seems to be worried that the test of belief is a subjective test. Every day, courts have to decide whether somebody did something dishonestly — that is part of many criminal statutes—or whether they have a claim of right made in good faith. Are the courts not then deciding whether someone, subjectively, had a certain belief? How does one draw a distinction between those circumstances, with which my hon. and learned Friend will be very familiar, and the problem which he raises in this case?
§ Mr. Lawrence
My hon. and learned Friend raises the question of a claim of right made in good faith. That is a defence which has to be raised by the accused. The burden is upon the prosecution to displace it, but it has to be raised in the first instance by the accused. There is no provision in the clause for a defendant to raise such a claim. As for the general burden on the prosecution to establish what is in a man's mind, it is very difficult for the prosecution to establish what is in a man's mind in circumstances where what was in his mind is the only issue.
It is easy for the prosecution to establish guilt if a man is caught red-handed and identified as taking part in a robbery. There is no question there of what was in the man's mind. What is in a man's mind may be inferred. If a man robs a bank with guns and masks, we infer that he was not intending to go about his lawful business. The issue of what was in his mind does not, as a practical matter, arise. However, it certainly arises in the drafting of the clause.
In reply to my interjection in his speech, my hon. Friend the Member for Stevenage also said that the accused cannot sit still and do nothing; he must raise the issue. That arises out of new clause 5. There is a difficulty there. He raises the issue by saying, "Not guilty." The court may very well say, as courts have said in cases of self-defence, that a mere plea of not guilty where the circumstances might conceivably give rise to a defence of self-defence is enough to place the burden upon the judge to sum up on the issue of self-defence as the law deals with that matter. Even a plea of not guilty might be said to raise the issue, but even if that is going too far the accused surely raises the issue if, in the course of an interview with the police, he says, "I believed that I had the consent of the mother," or, "I believed that the mother would have let me take the child away." The issue is raised, and he has no obligation under the new clause to give an account of himself.
It therefore seems to me that it will be difficult, unless the clause is altered, to convict any man who raises, even remotely, the possibility that he might have had the subjective belief. The burden is placed upon the prosecution to show that he could not and did not have that belief.
The importance of that is that there is no point in having this law at all if everybody who is charged under it is to go free because it is too difficult for the prosecution to establish guilt. It is only sensible to have a law which slightly relieves the burden upon the prosecution by placing some burden upon the allegedly wrong-doing parent to explain himself. That is why, as redrafted, I do not think that this provision makes much sense.
1293 Being constructive, may I suggest that before the Bill comes back to this House consideration should be given to some alteration in the drafting of the new clause? Off the top of my head, I suggest something on the following lines: "A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if that person has reasonable grounds for believing that the other person had consented or would have consented."
That insertion would ensure that circumstantial evidence could be taken into consideration, as my hon. Friend believes that it can be under the existing drafting, but I suggest that it cannot. The court could then reason as follows: "Those were the facts, and from those facts we conclude that the person in the dock must have had the belief." In those circumstances, there would be reasonable grounds for a person holding such a belief. My suggestion is not perfect, as it still does not completely get round my objection that, in the end, it will be difficult to open up the man's mind and find out, subjectively, what it contained at the time. My suggestion might not be terribly helpful for that reason. I might be wrong and there might be sufficient precedents in the law to support the most helpful suggestion as I can make. However, before the man's belief has been considered, there must be some provision in the statute which allows reasonable grounds for having that belief to be considered. Perhaps all of the authorities can give this matter closer attention before it comes back to the House. I fear that, if we leave it as it is, few people will be convicted.
§ Mr. Lyell
I am glad to follow my hon. and learned Friend the Member for Burton (Mr. Lawrence). If I may respectfully say so, he raised an important point towards the end of his speech when he drew the House's attention to the difference between belief and reasonable grounds for believing. Having said that, however, I must respectfully suggest that I fall on the other side of the divide on this matter and I should like to explain why.
We must remember that clause 1 is likely to bite on tens if not hundreds of thousands of cases. We are all only too well aware of the number of divorce cases in Britain, and the number that involve children. Because holidays abroad are fairly common for many families, many children might fall within the ambit of the Bill and in particular clause 1. It is important that we do not bring into divorce and custody proceedings unreasonable fears about the ambit of the criminal law. This important Bill tries to deal with a small minority of wicked cases that involve child abduction. It is not desirable that it should be introduced as a threat for the large number of honest but sad cases in which there are elements of dispute about families
§ Mr. Lawrence
Is not one of the main functions of the Bill to deter a would-be offender from taking a child outside the jurisdiction? Therefore, the fear and the threat is fundamental to the practicality of the Bill
§ Mr. Lyell
I entirely agree with my hon. and learned Friend but I am sure that he agrees that it is desperately important to get the balance right. I have conducted quite a large number of divorce cases in my professional life and anyone who has been so involved is familiar with the 1294 mounds of correspondence between solicitors and parents that can arise on whether children shall be allowed to be taken here, there or anywhere. There are unquestionably opportunities for genuine confusion and, sadly, divorce cases are all too often overlaid with such strong emotions, not to say spite in some cases, that people are inclined to rely in unsuitable circumstances on criminal law which is over-widely drawn. It is therefore important that we draw the law carefully
§ Mr. Bermingham
Does the hon. and learned Gentleman agree that if the clause is drawn too widely the evil he perceives could easily arise? Perhaps I can suggest the example of a matrimonial dispute proceeding on property matters. One parent takes the children abroad on holiday with the consent of the other parent but, during the holiday, the parent back in England says, "If you do not agree I want the children back tomorrow." The parent abroad says, "I want the children to finish their holidays." Because of the way in which the amendment is drafted, there arises a real possibility of the holiday, and the suggestion of immediate return, becoming a weapon in a different type of divorce situation
§ Mr. Lyell
I am grateful to the hon. Member for St. Helens, South (Mr. Bermingham) for that comment. His knowledge of such circumstances is probably greater than mine because he, as a solicitor, has to write the letters whereas I, as a barrister, have only the opportunity of reading them, except in the most contentious cases. The clause has probably got the balance right. I agree with the hon. Gentleman that we must not draw it too widely. Therefore, the test that the court should apply is whether there is an honest belief, and that is implied by the word "belief". I fear that we should be going too wide —although I listened with great respect to my hon. and learned Friend the Member for Burton — if we defined it as "reasonable ground for belief". We could have a parent who could be shown not to have reasonable grounds, but who had an honest belief. We would be reluctant to imprison, or at least risk the imprisonment of, that parent.
However, I am sure that other minds, away from the cut and thrust of the debate, are applying themselves carefully to these important points on which both my hon. and learned Friend and I have been addressing the House. Subject to the point that I raised with my hon. and learned Friend earlier about the detailed drafting of clause 1(5)(a) and (b) and the requirement that one should not simply have taken all reasonable steps but should have had an honest belief that there would be reasonable consent—this point is separate from the one with which we have been dealing—this amendment is a great improvement on the original subsection (5) and, therefore, it will have my support. However, it has it in the confident knowledge that there will be opportunity between now and the Bill completing its stages for these matters to be carefully considered
§ Mr. Robert Rhodes James (Cambridge)
For reasons that are clear to the House and which my hon. Friend the Minister generously expressed, I should be the last person to delay the passage of this Bill. It has been most ably piloted through the House by my hon. Friend the Member for Stevenage (Mr. Wood). I wish to add to the point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence). I am concerned about clause 1(5)(a). It could be a considerable weakness in what is meant to be, 1295 and always was intended to be, a major deterrent Bill. Will my hon. Friend the Minister give us an assurance that between now and when we next see the Bill after it has been to the other place the matter will be most carefully considered by the Minister and by my hon. Friend the Member for Stevenage?
§ Mr. Gale
I add my support to what has been said by my hon. Friend the Member for Cambridge (Mr. Rhodes James) and the latter remarks made by my hon. and learned Friend the Member for Burton (Mr. Lawrence). I am slightly bemused by the amount of learned knowledge in the Chamber. It is something of which I have no experience. Therefore, fortuitously, I am one who might in other circumstances have served as one of the 12 good men and true that were required to exercise some decision in such cases.
I share the concern and doubts that have been expressed about clause 1(5)(a) as proposed. My hon. and learned Friend the Member for Burton implied that this was done without considerable thought, but his suggestion is a sound one and I hope that it will be considered. Otherwise, there might be a great weakness in what otherwise is an excellent amendment and a good Bill.
My hon. Friend the Member for Stevenage (Mr. Wood) was good enough to introduce into this part of the Bill the subject, first introduced by the hon. Member for Battersea (Mr. Dubs) in Committee, of the manner of the issue of passports. While I accept that that may not properly be a matter for the Bill, I believe that it is properly a matter for concern. My hon. Friend the Member for Stevenage said that the passport office has no power to compel the surrender of a passport that has already been issued in the name of a child or that has been issued to a parent. That is another area of weakness. If it is not within the power of the Bill to consider, it should be within the power of the Foreign and Commonwealth Office to consider and perhaps review.
With that in mind, I should like to refer to the Adjournment debate mentioned by my hon. Friend the Member for Stevenage in Committee. It was initiated by my hon. Friend the Member for Stockport (Mr. Faye11) and took place shortly before Christmas. An undertaking was given that the Foreign Office would review the way in which passports were isued. I should like to think that in the light of the proposed legislation, the review will now take place as a matter of urgency.
We could be faced with a nonsense in that, having sought to protect a parent's, and indeed a child's, rights, it is still possible for another parent or another party to obtain a passport with that child's name upon it or in the child's name, and to take that child abroad. It would not be difficult to require on a passport application the written consent of both parents for the issue of a passport in a child's name or a passport that includes the name of the child so that there is no possibility of a passport having to be withdrawn without consent. Where a passport is renewed with consent, it would have to have the written consent of the person who has custody of the child. More than in any other area, a child could be placed at risk when he goes on holiday. Therefore, the regulations for the issue of British visitors' passports, which are commonly used for holidays, should be reviewed as a matter of urgency
§ Mr. Bermingham
I should not like to enter the argument about paragraphs (a) and (b), but I ask the 1296 Minister to look carefully at what is meant by paragraph (c). Its wording seems nebulous. It seems to vary depending on the order under which the child is held.
It seems that paragraph (c) does not deal with children who are the subject matter of a court order made in England or Wales or with people affected by section 7 of the Guardianship of Minors Act 1971 or the Guardianship Act 1973. Therefore, it excludes Welsh and English court orders. Paragraph (c) states:the other person has unreasonably refused to consentWill we place on the investigating authority the duty to ascertain the exact nature and meaning of the custody order under which the child is held? There may be a French custody order for a child who is normally resident in the United Kingdom, and the father might have sought to take the child out of the United Kingdom, thus committing an offence under the Bill, whose aims I support. All sorts of problems might arise.
What does paragraph (c) mean when it states:the other person has unreasonably refused to consent"?How can we not argue that under an English court order a parent has unreasonably refused consent? I accept that under an English court order one makes an application to the court and it says what is or is not unreasonable. However, one does not know what will happen under a foreign court order. One would therefore be asking a jury to consider whether the French, German or American court would or would not vary the order to grant what is proposed.
I seek not to be unhelpful, but I should like to be able to prevent or pre-empt such arguments in the courts after the passage of the Bill. Therefore, I wonder whether paragraph (c) could be examined during the final stages of the Bill. As now worded, it could give rise to considerable problems.
§ Mr. Mellor
Before coming to the heart of the amendment, I should like to deal with two points not relating precisely to the question of burden of proof that exercises our minds most of the time.
With regard to the point mentioned by the hon. Member for St. Helens, South (Mr. Bermingham), the aim of the wording is to take away from the accused parent the right to invoke the defence of an unreasonable refusal by the other parent in cases where there is an existing custody order, or where directions have been given under the legislation. Plainly, where a custody order is in force, as the hon. Gentleman recognises, serious matters such as taking a child out of the jurisdiction of the court have to be dealt with in accordance with the regulations. It would be wrong to allow a parent who has acted in breach of the provisions to avail himself of any allegation that the parent with custody had unreasonably refused his or her application. There is a form provided whereby that problem can be thrashed out.
My hon. Friend the Member for Thanet, North (Mr. Gale) mentioned passports. Difficult matters arise in this area. I understand why he said what he did and I know the difficulty. The British visitor's passport can be obtained very quickly and monitoring it raises great difficulties. My hon. Friend has raised an important point and I shall ensure that it will be considered with great care by my right hon. Friend the Minister of State, who now has responsibility for the passport office. He will write to my hon. Friend on the issues raised.
1297 I agree that there are distressing cases where it is apparent that in acting improperly, even if not unlawfully, a parent has had a child's name added to a passport in order to enable that parent to abduct the child. If we could do something to make that process more difficult, we should do so.
The central issue arising from the amendment is a difficult one and not one on which any of us should be dogmatic. Indeed, it is one upon which my own views have oscillated during the preparation of the Bill and in discussions that I have had with ministerial colleagues and others in deciding how I could best advise my hon. Friend the Member for Stevenage (Mr. Wood). It is most useful that we have had an opportunity to discuss the problem in detail this morning.
Plainly the temptation with a measure of this kind is to say, "The important thing is to stop child abduction, we have done it, and that is wonderful", without paying sufficient attention to the precise details. Only later we may realise that, although it has taken 128 years to effect the change, we now have in the measure something that may make more difficult the enforcement of the law. Legislative opportunities do not often arise and one would not want to have such things on the statute book for even a fraction of that long period.
As an essential prelude to answering some of the questions that have arisen on the amendment, I assure those hon. Members who are troubled about it that we shall consider the question again in the light of the comments made. If it appears that there are difficulties arising from the way the paragraph has been phrased and we decide that it should be altered, we shall take the opportunity to do so. It is not a matter on which any of us can say that the drafting has reached such a stage of perfection that no difficulties arise from it.
On the central issue as to where the burden of proof should lie, I confess that I have been persuaded by considerations very much along the lines advanced by my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell), who is also parliamentary private secretary to the Attorney-General and therefore understands the problems. I have allowed myself during the course of these discussions to be persuaded that my initial impulse, which was to place the burden of proof on the defendant throughout, was perhaps wrong
§ Mr. Lawrence
As one who is not the parliamentary private secretary to the Attorney-General, and who therefore must be taken to know less about these matters, I hesitate to ask my hon. Friend whether, in view of the conflict that arises among colleagues on these Benches who have considerable legal background, and the doubts that have been expressed by colleagues who do not have legal background but who are nevertheless intimately concerned with this issue, and the doubts that the Under-Secretary has himself expressed, when he says that there has been some vacillation between the two poles, it would not be appropriate to refer this aspect back for examination and decision in as short a time as possible to the Criminal Law Revision Committee. That must be the body best suited to reflect the views, thoughts and fears that have been expressed and perhaps reconsider the matter with rather more perfect care than could any other body
§ Mr. Mellor
I know that my hon. and learned Friend is anxious to be helpful and I can best answer him by explaining what we have done. It was not my intention in an infelicitous phrase to suggest that the onerous office that my hon. and learned Friend the Member for Mid-Bedfordshire holds gives him some insight denied to the rest of us. It was merely a way of saying that the advice of the Law Officers on matters of law is not to be lightly ignored and that I, in the course seeking how best to discharge my functions in the matter and in advising my hon. Friend the Member for Stevenage, had taken advice from the Solicitor-General on the pint. I do not think that I betray a confidence when I say that it is his firm view, as reflected by my hon. and learned Friend the Member for Mid-Bedfordshire, that in the circumstances of this situation, the burden of proof should lie on the prosecution.
It is important to understand that that is not an outlandish or unusual proposition. As the hon. Member for Blyth Valley (Mr. Ryman) made clear in Committee, when asking for the burden of proof to be moved back on to the prosecution from the defence, as provided in the original Bill, the fundamental common law rule is that it is for the prosecution to prove every material part of its case beyond reasonable doubt.
It is a relatively recent statutory accretion to the law that, usually to cover very technical cases, the burden is placed, on the balance of prababilities, on the defence in certain instances. In some important statutory offences, however, the burden of proof is placed on the prosecution on matters which, one could say, lie very much within the knowledge of the defendant.
For instance, in rape the prosecution must show that the defendant believed that the woman was not consenting or that he was reckless as to whether she was consenting. I should have thought that that was quintessentially a matter in his own mind. It is an important prt of the criminal process, as we know—none better than my hon. and learned Friend the Member for Burton who has featured in many celebrated cases at the Old Bailey—that the exercise of looking into the head of the accused and trying to reach a sensible conclusion as to what he did or did not think at the material time is inherent in the criminal process.
I should also pray in aid—because the way in which the Theft Act is drafted has affected the drafting of the amendment—that in a case of handling stolen goods the prosecution must show that the defendant knew or believed that the goods were stolen. That again is a matter touching upon his belief and knowledge that lies very much within his own mind but which the prosecution have to take on. It has to shoulder the burden of proof.
Why are we allowing ourselves to be moved from the proposition that the burden of proof should be on the defence to the more normal one that it should be on the prosecution? First, I must emphasise that this relates only to parents, who fall under clause 1. I do not want anyone to think that it affects the position of the mercenaries or other people with no connection with the child who became involved in taking the child out of the care of his parents. We have to recognise that the position of a parent taking his child, even though acting wrongfully, raises special issues about the extent to which the criminal law should intervene. We have to think particularly about the position of a parent who may have acted negligently and, in the minds of most people, wrongly, but who in his own 1299 mind was acting properly even though it was a decision that most other people would not have taken. We have to ask ourselves whether we should make it more difficult for him to be able, after what in any event was the shocking experience of being arrested, to exculpate himself.
I stress that I am talking about parents. My hon. Friend the Member for Stevenage has displayed great candour in his contributions to our debates. He has never hesitated to make it clear when there was a difficulty. He conceded in Committee that this provision would put at risk certain parents who might be no more than negligent in failing to obtain appropriate consent. He also conceded that it might expose to prosecution an individual who otherwise would have the advantage of one of the defences. My hon. Friend accepts that, as we all do, for one very good reason. The nature of the mischief at which the Bill is aimed is such that only by casting the net very wide can we be sure of catching all those cases which ought to be caught. It would be pointless to pass this measure unless it was a wide-ranging one and had within its ambit a range of activities which until now had not been so clearly caught.
To justify the arrangements that he proposed, my hon. Friend pointed out the requirement that the consent of the Director of Public Prosecutions needed to be obtained before proceeding under clause 1, to avoid the prospect of the criminal law being dragged into a dispute between an estranged husband and wife.
There are few more bitter encounters in court than those between a former husband and wife. It is deeply distressing. There is a willingness, which I find rather shocking, by two people who were once in love to use any weapon against each other, including their children. That is why it is thought that the consent of the DPP should be required. That would have the effect of preventing prosecution in unmeritorious cases and in cases where the facts were such that the defendant would unquestionably avail himself of the provisions of clause 1(5).
The judgment of my hon. and learned Friend the Solicitor-General—and increasingly I am coming to the same view—is that there will be a significant number of cases in which, notwithstanding that the defendant is entitled to be acquitted, he will be obliged to discharge the burden of proof imposed upon him by the Bill as it is drafted before he can be acquitted. We have to ask ourselves whether that is right or whether it would be appropriate to give the defendant that greater measure of protection which would arise if the prosecution was required to rebut the matters raised by him and relied upon by him in his defence.
If I thought that as a consequence of that a great many criminal parents would get away with it, I should stick to my original view. I should not dream of advising the House to take a different view. However, I have to say that my own opinion, strengthened not only by that of my hon. and learned Friend the Solicitor-General, but by consultations—and very properly, this being a technical criminal law matter — that we have had with Lord Justice Lawton, is that this step can safely be taken without letting unmeritorious people slip away. I think that that is very much the point with which my hon. and learned Friend the Member for Burton was dealing. I do not think that it would be proper formally to burden the Criminal Law Revision Committee with a reference that might in any event have the effect of not allowing the measure to become law this Session. However, it seemed right that, before dreaming of advising my hon. Friend that he might 1300 wish to bring forward such an amendment, my officials and I should have informal consultations with Lord Justice Lawton as to his view.
§ 1 pm
§ Mr. Bermingham
I have been thinking about what the Minister said with regard to the question of the consent of the Director of Public Prosecutions. I can see immediately that, in the sort of situation to which I referred in my intervention, there would be no prosecution in that case, because the director would say that it is not policy. However, the wording I have is that the director comes later in the process. The first stage is the policeman with his hand on the shoulder when the father returns to the country with the young children who have been the subject matter of some dispute in the case that I cited. Would the Minister be prepared to give that sort of scenario some thought so that it could be dealt with in the advice and guidelines given to police forces, so as not to create in this section a weapon in the hands of warring parents in divorce cases?
§ Mr. Mellor
The hon. Gentleman raises a point that is very much on all fours with the point that I was raising, and I am grateful to him. A difficult balance has to be struck here. We all know that the law is not satisfactory. We all know that the law has to be tightened up to make it easier to bring to book thoroughly irresponsible parents who are causing great misery to children as a result of their selfishness. We know that the only way in which we can do that is by casting the net more widely. However, we cannot be naive about this. We have to understand also that there may be a number of people who, while they may not be behaving with all logic, skill and insight, which it is often difficult to do in an emotional situation, but which a more detached person could do, have not in fact behaved in a way that most people would consider criminal. We have to ask ourselves how far they are to be brought within the criminal process, and how they are to be able to exculpate themselves with the minimum of difficulty and distress. There is something in what the hon. Gentleman says.
I wish to conclude on this point. We owe Lord Justice Lawton many debts of gratitude for the careful analysis that he gave of the principles underlying the question of the burden of proof, as to when it fell on the prosecution, and when it fell on the defence, in the case of Edwards, reported in 1975, which I know took up a great deal of his time, and which has every prospect of standing as one of the major judgments of recent years in the criminal law. Strengthened by the fact that this was a matter which he had particularly considered, we took his advice. While I am not holding him to the precise wording—and that is why one is not dogmatic about the precise way in which the words are set down on the page—it is our confident belief that the effect of subsection (5)(a) is that it will not be sufficient for the defendant to say, "By pleading not guilty, I have put everything in issue." The burden will lie on the prosecution in the normal way under clause 1(1), when it has the opportunity to bring its case, to prove that a person connected with a child under the age of 16 has comitted the offence by taking or sending the child out of the United Kingdom without the appropriate consent. It will not be sufficient for that defendant's counsel or solicitor then to to say that there is no case to answer because the prosecution has not been able to prove at that 1301 point that the defendant did not have the belief that the other person had consented, or would consent, or that he had not taken all reasonable steps. No. The burden would lie with the defence to raise that in evidence. It has an evidential burden on it, in its own case. It would then be for the prosecution, if so minded, to discredit that in cross-examination, or to apply for leave — which would undoubtedly be given—to call evidence in rebuttal.
I particularly wanted some reassurance about whether, by changing the burden of proof, one would make it easier for spurious and unmeritorious submissions of no case to answer to be made successfully. Once I was satisfied that we could make provision for the accused to be compelled —as I believe that subsection (5)(a) does—to lay an evidential foundation for a defence of belief, or for a defence that he took reasonable steps which, when laid, moved the probative burden of destroying it, with or without evidence, on to the prosecution, I was happy that no material mischief would be done.
This issue is one that divides allies. A formidable alliance was formed between my hon. and learned Friend the Member for Burton (Mr. Lawrence) and the hon. Member for Blyth Valley on the Juries (Disqualification) Bill. They are both very well known figures in the criminal courts, but they now find themselves on opposite sides of the argument on this issue. That shows how narrowly based the point is. That is why I am allowed, if not to vacillate—as my hon. and learned Friend the Member for Burton suggested—at least to oscillate between the two. However I do not think that I vacillated earlier. There is a crucial difference between vacillating and oscillating, which I hope is clear. However, I have oscillated to the view that, given the safeguard in subsection (5)(a) and the reassurance that it is thought to be effective by Lord Justice Lawton, we should bow to the views put to us so lucidly by my hon. and learned Friend the Solicitor-General and make the changes.
We shall look at the matter again, but I hope that I have said enough for those who have doubts to feel that they can, with confidence, accept the amendment. Of course, my hon. Friend the Member for Stevenage and the person to whom he entrusts care of the Bill in the other place will keep an open mind on how to handle the matter later. If further reassurance is needed, we are, of course, available to consider the issues. On that basis, I commend the amendment to the House
§ Mr. Wood
I endorse what my hon. Friend the Minister has said. It took a good deal of persuasion to convince me that the amendment had some merit as against the Bill's original wording. I equally take into consideration the concerns expressed so seriously by my hon. and learned Friend the Member for Burton (Mr. Lawrence). There is a strong case to be made for looking at what may be points of detail, but most significant detail, further, and for ensuring that at the end of the day the Bill rightly produces convictions for those who should be found guilty.
§ Amendment agreed to.
Amendment made: No. 3 in page 2, line 45, at end insert—
'(7) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority or voluntary organisation or who is committed
to a place of safety or who is the subject of custodianship proceedings or proceedings or an order relating to adoption.' —[Mr. Wood.]