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Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2009

My Lords, I am sure that the noble and learned Baroness, Lady Butler-Sloss, does not need to apologise for the detailed way in which she introduced her Motion and gave us a chance to have this debate. We should all be grateful for it because she has raised extremely important points. It will not surprise anyone to know that I am not a shop steward speaking on behalf of the family law Bar because I am not a family law practitioner. My interest in the subject, as the Minister’s advisers will know, is in the work that I did with them on the Forced Marriage (Civil Protection) Bill, which, thanks to them and Ministers, became fit for legislation and is now part of the law. The points that I want to raise are ones for which I am indebted to a very eminent and well qualified family law practitioner—namely, Khatun Sapnara, who helped very much in preparing the Forced Marriage (Civil Protection) Bill and has enormous experience dealing with domestic violence and forced marriage issues. I have skimmed the 106-page impact assessment, the 71-page consultation document and the statistics to support the Government’s analysis, so I think that I understand what I am about to say. However, I shall no doubt be proved wrong if I say something that is wrong. As I understand it, forced marriage cases are outside the graduated fees scheme, and so are effectively protected. That is excellent. Forced marriages are closely related to cases of abduction and those, too, remain outside the graduated fee scheme. That is also excellent. In the consultation, the Government asked whether forced marriage cases should brought within the scheme. The response from the Family Law Bar Association and the Family Justice Council was that it is far too early, following implementation of the Forced Marriage (Civil Protection) Act, to introduce this, coupled with the fact that the Government had committed themselves to proper legal funding of cases of that kind. All of what I have just said is most welcome. There is a problem that I do not think is dealt with in the detailed analysis that I have skimmed. As a result of the complex nature of forced marriage and the issues it raises, such as shame, honour, underreporting and so on, cases frequently arise in the context of private law proceedings and cases involving domestic violence. Those private law proceedings and cases involving domestic violence fall within the scheme. The problem is that the rates will not attract the experienced practitioner who is able to deal with the matter effectively. An experienced practitioner would be able to understand the interface with public law proceedings and abduction proceedings, where the facts of forced marriage—to put it broadly—may intersect. I shall give a couple of examples. Suppose a British Asian mother applies for a domestic violence injunction to protect herself and discloses that the father is also assaulting the daughter and planning to take her abroad for a forced marriage or that allegations of that kind are raised in the context of private law contact and residence proceedings. An experienced family law practitioner would be able to elicit the necessary disclosures and instructions in the first place and then go to the High Court seeking protection in the context of abduction proceedings or would know how to invite the court to initiate public law proceedings by directing the involvement of social services. The real problem—which is not addressed in the analysis that I have read, where statistics are incapable of being sufficiently refined to home in on this important problem—is that in all probability only very junior and inexperienced barristers would handle such work under this scheme, which simply does not pay enough for the kind of experienced practitioners who are needed. Private law cases, as the noble and learned Baroness, Lady Butler-Sloss, has just illustrated, can be very complex and lengthy, requiring witnesses, interpreters, findings of fact and skilled handling of an often very distressed lay client. That is the problem which I know concerns many in the Family Law Bar Association and the Family Justice Council and comes out of the practical experience of someone such as Khatun Sapnara. If that is the case, it is a serious problem for the small minority of very vulnerable people who need to be properly protected by a skilled and senior branch of the legal profession.