Official Report: Minutes of Evidence

The Chairperson (Mr Givan): Clause 9 addresses aggravation where a relevant child is involved. At our meeting last week, the Committee considered the text of the proposed amendment to amend the child cruelty offence in section 20 of the Children and Young Persons Act 1968 and noted that the Department had indicated that it would ensure that non-physical ill-treatment of a child by someone with parental responsibility for them is criminalised. It would also ensure that current references to an offence around unnecessary suffering or injury to a child explicitly state that this relates to the suffering or injury being of a physical or otherwise nature, again ensuring that non-physical behaviour is captured. This should enable matters such as isolation, humiliation and bullying to be captured. The Department stated that, assuming acceptance of the amendment being included by the Speaker, this would make clear that it is an offence.

The Committee indicated that it was generally content with the proposed amendment to the Children and Young Persons Act 1968 but that it had concerns about the ability of members to consider properly the Department's potential amendments to clauses 11 and 17 to ensure that non-physical abuse of 16- and 17-year-olds in a parent-child relationship is clearly provided for in legislation. A further discussion took place with departmental officials on clause 9, and they agreed to consult the Office of the Legislative Counsel regarding the wording of the clause to see whether it could be enhanced to take account of concerns raised by members and/or of further clarification being provided in the explanatory and financial memorandum.

The Department's response in respect of these issues outlines that the advice given to the Committee on the equivalent Scottish provisions to clause 9 was incorrect, and the Department has apologised for that error and set out the correct position, both in its letter and in a corrected version of its written response to the issues that have been raised in relation to the Bill. The Department also indicates that it does not change its view on the "sees, hears or is present" provision, and, in the light of the discussion last week, it is proposing to amend the explanatory note by removing the reference at clause 9(2)(a)(ii) and inserting text at the end of the part relating to subsection (2)(a)(ii) more generally as follows:

There is some correspondence, members, around clause 9 that was received from Barnardo's. Dr Veronica Holland is available for members by way of the StarLeaf facility, if further information or clarity is required on the clause. Veronica, you are welcome to the meeting. This session is being recorded by Hansard, and the report will be published in due course.

I seek members' views on, first of all, the explanatory note and the debate that we had about "wittingly" and "unwittingly". We touched on that in respect of clause 9 in closed session.

Mr Frew: Veronica, thank you for your attendance. We have been through the wringer on clause 9. Again, I welcome the commitments on an amendment to the explanatory note. We have seen the text, which I will read out for Hansard:

Again, I am not really content with the last sentence, but I think that the first sentence is the key one and explains it very well. I acknowledge that you are moving it from subsection 2(a)(ii) to make it an overarching, umbrella statement for the whole of clause 9(2), which I welcome and think is necessary. When will we see that in text in the explanatory note?

Dr Veronica Holland (Department of Justice): My understanding is that it will be when there next is a revision of the explanatory and financial memorandum. The next scheduled publishing of that will be after Consideration Stage, when we will have a revised version of the Bill. For Consideration Stage, the Bill will be as it was when it was introduced. The Department will endeavour to get that into the explanatory and financial memorandum at the earliest possible opportunity.

Mr Frew: OK. There is no uncertainty or cloudiness about this? It is definitely going in?

Dr Holland: There is absolutely no issue in relation to that. In the explanatory and financial memorandum more generally, any further revisions to the Bill as a whole will be reflected in the next revised versions. We have liaised with legislative counsel on the content of the suggested paragraph in the explanatory note, and they are content with that, so there is no issue with it.

Mr Frew: Again, the explanatory note is the next best thing. I am still not certain that we should not have it in the Bill, but I will reserve judgement on that at this time. I understand the reasons why you are not supportive of putting it in the Bill. Of course, the memorandum is the next best thing. I will leave it at that, Chair.

The Chairperson (Mr Givan): On that point, Paul, there will be an opportunity, in putting forward the Committee's position in the plenary debate, to seek a formal commitment from the Minister to agree the wording of what goes in the explanatory note. We can seek that on the record at that stage.

Miss Woods: Thank you, Veronica, for attending today. I have a number of questions on this, as you would expect. On clause 9, we have debated on a number of occasions information that has been given to us by the Department, and we have raised a number of issues about that. We were told that we could not have that text in the explanatory memorandum because it was not in the legislation. Is it the advice of the Office of the Legislative Counsel now that it can go in the memorandum, given that the legislation has not changed?

Dr Holland: Given that the explanatory and financial memorandum links to the provision as such, and given the desire on the Committee's behalf to have further clarification on that provision, there is not any issue with including that, given that it ties back to the nature of the provision more generally.

Miss Woods: When did it come to officials' attention that the advice given to the Committee, based on the understanding of the Scottish provisions, was incorrect? Was that from the Office of the Legislative Counsel, or was it from Scotland? When was there that realisation?

Dr Holland: At the outset, I should say that I apologise profusely to the Committee for that error. That error has rested with me; it was a misunderstanding on my part. At some point, my understanding of those provisions has changed. We had earlier correspondence with legislative counsel and what have you, which quite clearly set out the correct position with regard to the Scottish provisions. Following the Committee session, and looking at an unrelated matter in relation to the Scottish legislation, that came to my attention. My sincere apologies for that, especially given the lengthy discussions that we have had on these provisions to date.

Miss Woods: I appreciate that. I have read, with interest, the letter that the Committee has been given. It is surprising that there does not need to be an amendment to the legislation, given everything that we have discussed. I have a couple of questions about the letter. There would almost be a watering down of the child aggravator; it serves to weaken the impact of the child aggravator. The argument being put forward is that any additional provision in the legislation would serve to weaken the impact. I do not understand where that comes from. Have you any information around how an additional provision that was put in would serve to weaken it?

Dr Holland: Our concern on the additional provision is that it could be deemed to be quite broad. Our sense is that you could potentially have any behaviour where it is undertaken or relates to a family unit. Potentially, that could be encapsulated within this without, necessarily, due regard to the seriousness of it. That is where we are coming from with regard to that element of the letter. The other factor that we are taking into account is that the provisions in the Bill at the moment, which relate to the "hears or is present", as well as directing behaviour — we consider that also encapsulates those types of behaviours.

Miss Woods: I do not agree that it sufficiently captures it. I have outlined that in the last couple of weeks, so I do not need to go into it in detail. With regard to the Department's concern that it could be quite broad, where does that come from? Is that from conversations in Scotland? My understanding is that the Scottish child aggravator has not been over-utilised. There is actually room for it to be utilised more within court proceedings at the moment. Where does that assessment that it would serve to weaken the impact come from?

Dr Holland: It comes from looking at the drafting of the provision itself. We have not specifically discussed this issue with Scottish colleagues. With regard to the utilisation of the child aggravator, I do not have figures in front of me but, from recollection, I think their aggravator has been used in around 25% of cases to date. We got information from them at an earlier stage.

Miss Woods: There is no empirical or data evidence to show that the child aggravator, if it was put in in the same way as Scotland, would weaken the legislation?

Dr Holland: Not in empirical data, it is more in consideration of the nature of the provision. Obviously, I appreciate that Committee members may have a different view from the Department in relation to that.

Miss Woods: OK. I will leave it there, Chair. I think you know my feelings on clause 9.

The Chairperson (Mr Givan): We do, and I have a lot of sympathy for them as well.

Ms Dillon: I share the Department's concerns on this one, which is why I felt that we could do it within the explanatory note. My concern was around the directed behaviour at the child and making use of the child, and the understanding of that in the explanatory note. For me, the change in the explanatory note was the best way to do it. I still feel that it is the best way to do it, because what I feel needs to be captured is captured within the clause itself. However, the explanation in the explanatory note of what that means is not right. My view was that we had, more or less, settled on that last week, notwithstanding Rachel's views around the need for the amendment and to be in line with the Scottish legislation. We have had extensive discussions around this, and that is only right, because it is so important. The issue around children and what they see or do not see in relation to domestic abuse, and how that impacts them, is a major issue and we need to address it. This goes further than the Scottish legislation, and that can only be a positive thing. You would like to think that our Bill should go further than Scottish legislation. We should be learning from the good practices of other legislation and adding to it, not simply copying or having less. That would be the biggest concern: you certainly would not want to have less. I agree with what the Chair has said in getting those assurances on record, and we have that now. We have had assurances from the Department on several occasions. I do not think that it would reflect well on any Department to backtrack, given the number of assurances and the number of times that we have discussed this. It is on record. I would certainly be more than disappointed if it was not in the explanatory notes. At this stage, given the number of times and the number of members who have put it on record, and the fact that the Department officials have put it on record on a number of occasions as well, I am confident that it will be in there. It absolutely has to be.

Dr Holland: I advise members, if it provides reassurance up front, that it is something that I am sure that the Minister, in the next stage in the Assembly on the Floor of the House, will have no issue referring to in her speech, and that she will make it clear that she intends to make that amendment to the explanatory and financial memorandum as soon as possible, rather than members having to seek assurances from her.

Ms Dillon: That would be good, thank you.

The Chairperson (Mr Givan): Sinéad Bradley?

Ms S Bradley: Sorry, can you hear me now, Chair?

The Chairperson (Mr Givan): Yes, we can.

Ms S Bradley: We have exhausted the debate on this. Like Linda, I was reassured when there was a reference to the possibility of putting something in to change the explanatory and financial memorandum. I would like it noted that, although I do not think that my opinion was weighted heavily on anything that was given by the Department that may have been done so in error, I do feel obliged to retrace my thinking and see how much weight was placed on it. From what has been presented, I am still in the same place on that.

The Chairperson (Mr Givan): If there are no other members wishing to comment on this, it is my view that the Committee is in a position to say that it will be supporting clause 9 as drafted, on the condition that the explanatory note is going to be changed as outlined. Rachel?

Miss Woods: Chair, I am not content to support that position, for obvious reasons.

The Chairperson (Mr Givan): OK. Members, that is the end of the informal deliberations on that clause. There will be a formal vote on it when we get to that stage of proceedings. We will proceed from that element of the conversation and move on to clauses 11 and 17.

Members, this relates to the exception for responsibility for children and the exception regarding aggravation. The Department indicated last week that the child cruelty offence only applies to those under the age of 16. Having liaised with colleagues in the Department of Health, as well as colleagues in the police, the Department is not aware of similar child protection provisions that can be easily adjusted to explicitly deal with non-physical ill-treatment of those aged 16 and 17 in the context of a parent-child relationship. The Department is therefore considering reducing the age threshold for the parental responsibility exclusion from under age 18 to under age 16, by way of amendments to clauses 11 and 17, in order to ensure that non-physical abuse of 16- and 17-year-olds in a parent-child relationship is clearly provided for in legislation. In the absence of this, there is the possibility that it may not be possible to address the non-physical ill-treatment of those aged 16 and 17 in that context.

Concerns were expressed that, without having the views of key stakeholders and clearly understanding any implications or consequences of reducing the age threshold for the parental responsibility exclusion from under age 18 to under age 16, the Committee would not be in a position to consider this properly and form a view on it.

Departmental officials indicated that they could try to seek the views of the NSPCC and other stakeholders before today's meeting. The Department contacted the organisations, and those organisations responded directly to the Committee. The Department has highlighted that the organisations' view remains that children should be wholly captured within the domestic abuse offence, and the parental responsibility exclusion, per se, should not apply. They have not commented directly on the proposed reduction in relation to reducing the age threshold for the parental responsibility exclusion, assuming that the child cruelty offence amendment is made.

That is a recap on where we are. We are aware that the Department has been working with the Department of Health to provide a proposed amendment, which would be a new clause after clause 20. However, in providing that amendment, it identified the issue for 16- and 17-year-olds. Hence, the suggested amendments to clauses 11 and 17. That is why members indicated that we should try to get the views of stakeholders.

I have been aware of the work with the Department of Health to try to get an amendment. I have been sympathetic to that, and I have been supportive of the policy intent behind it. I believe that the amendment achieves that. However, I have not been able to satisfy myself that I have given proper deliberation to its consequences for 16- and 17-year-olds. The organisations that have responded have not dealt with it specifically either. They have reverted to their view about wanting the issue to be dealt with as a whole. That is a debate that we had a number of weeks ago. Those issues go into broader child protection legislation, as opposed to being addressed in this Bill. It creates an issue for me, because the Committee is being asked to support, or otherwise, amendments that we became aware of only a week ago. We have had a call for evidence, and we have taken opinions and so on, but we are not able to give that support, or otherwise. That is not so say that I do not support the amendments. My view is that the Committee has not been able to carry out its process properly to take a Committee position. I am at a halfway house. I can support the new clause 20 and that amendment, but I am not in a position to suggest that the Committee can support the other two amendments. I will facilitate members' discussion on that.

Ms Dillon: I agree with you about the concerns. It is not ideal. If we do not accept the amendments, what will be there in place of it? What will be there for the 16- and 17-year olds? We cannot leave that gap. I accept the position of the organisations that have responded, but, as you say, Chair, we discussed that a number of weeks ago, and our position in relation to it. Should we go back, look at it again and start from the beginning? I do not know. Other than that, if we do not support it, what will replace it? The worst outcome would be 16- and 17-year-olds not being included in some way. They have to be catered for and protected. The organisations have gone back to their original position, but they have not stated an opposition, or any great support, to this. They want the position that they want, and they might think that it will weaken that position if they say that they will accept this. I am of the same mind as you, Chair. I am not happy or content with it, but I am less happy to think that 16- and 17-year-olds are not going to be captured in some way.

The Chairperson (Mr Givan): Can I tease out something with Veronica? Part of my thinking on this relates to why I would support the amendment to introduce the new clause around child cruelty that has been worked up with the Department of Health. If we do not accept any of the amendments, we do not address the issue for those who are under the age of 16, and that would then create that gap for 17-year-olds and the whole way down. My own view has been to accept that the proposed amendment deals with those up to the age of 15. That still leaves the 16- and 17-year-olds with that potential gap.

Is my understanding correct, Veronica, that the new clause would strengthen the provisions of what the Bill is intending to do for those under the age of 16?

Dr Holland: Yes. The intention of that Health amendment in relation to section 20 is to deal with the non-physical ill treatment or injury to a child under the age of 16. As Linda and you pointed out, the issue is then in relation to the 16- and 17-year-olds.

I made that clear in discussions with the NSPCC and the Northern Ireland Commissioner for Children and Young People. We knew what their position was likely to be on this provision, and, as you said, they were keen for children to be brought within the ambit of the domestic abuse offence more generally and for the parental responsibility exclusion being removed. I asked them, appreciating their position, to give us a view on what happens if the child protection amendment were to be made, and what should be done with the parental exclusion responsibility, notwithstanding the fact that I knew that that was not their preferred approach. As Linda said, there has not been comment back on that explicitly. Equally, they have not objected to the suggestion of the reduction from 18 to 16 of that threshold, albeit that the focus has been very much on what is their preferred approach more generally.

The intention of that provision is very much to give added protections to those under the age of 16.

Miss Woods: I share those concerns. I do not fully understand the implications of the proposed amendment because we have had it for only a week and a bit. I recognise the difficulties of introducing an arbitrary distinction between legislative protections at 16. That is not ideal, and needs to be addressed.

The NSPCC raised the issue that abuse of children under the age of 16 would carry less of a penalty than abuse of children aged 16 and over because they would be treated under two different pieces of legislation. Whilst I understand that the Committee is probably not going to go back to have the parental responsibility argument, I would welcome that — not a problem. I would happily have it.

We are time-bound now, and judging by previous conversations, I do not think that the Committee is minded to go down that route and remove clauses11 and 17. Obviously, the children's lobby suggested that that would be an easier fix to all these problems. I have not seen any information or evidence on the potential consequences of removing clauses 11 and 17. The scope would just be huge, and I would need much more time and information to look at that.

Could there be a change, then, to section 20 of the Children and Young Persons Act to allow for maximum penalties, so that there is not that arbitrary distinction? Is that another curveball? The NSPCC, I think, said five years but it was 10, whereas our maximum penalty in this Bill is 14 years. That would remove that arbitrary distinction for abuse of a 15-year-old and a 16-year-old being treated as different things although they are the same.

Dr Holland: A change to the penalty would be an issue for Health legislation. That maximum penalty has been chosen when that legislation comes into force. It would not be feasible to have a different maximum penalty that would, obviously, equal what is in the Domestic Abuse Bill.

I appreciate that there is a disparity between the two. The approach more generally and the rationale behind that amendment is about wanting to ensure that, for children, the issue is dealt with through child protection rather than domestic abuse legislation. That seems to be a more appropriate route.

Miss Woods: So, just to confirm, changing the level of penalty in the Children and Young Persons Act cannot be done through this?

Dr Holland: We are amending that provision for the purposes of the domestic abuse element. It would, obviously, be a matter for Health. I imagine that the threshold and penalty associated with that offence has been chosen from the wider health perspective. It would be a matter for Health to look at that. I imagine, albeit that it is not something that we have discussed with it, that it would be reluctant to increase the penalty associated with that, given that that provision, obviously, has been in place for quite a number of years.

Miss Woods: We are changing the scope of the Children and Young Persons Act by adding in non-physical abuse, so surely the penalty that exists in the Children and Young Persons Act at 10 years is there only because the non-physical abuse is not yet covered. We are adding in provision for the non-physical abuse of children. Would that not necessitate a change in the penalty?

Dr Holland: The provision on the Health side of things is to deal with physical and non-physical. The view, at the time of the position that was adopted in England and Wales on that, was that it was to make it explicit that it dealt with non-physical ill treatment. However, it is, obviously, a wider provision; this makes it explicit that it is the non-physical ill treatment of a child as well.

Miss Woods: OK. I am still a bit confused about that, but I am happy for other members to come in.

The Chairperson (Mr Givan): No one else is indicating at this stage.

I do not want to go back over the previous debate, but I accept the Department's position that wholly addressing the abuse of children is dealt with by Department of Health legislation. However, in the context of this Bill, this addresses an issue that was brought to our attention as part of the evidence that we sought. People fed into that, and the Department responded and brought forward the amendment. My only concern is the knock-on effect of the amendment in requiring changes to clauses 11 and 17. I will support the other amendment, but, when it comes to those amendments, my view is that we, as a Committee, should note them.

We are under a duty to take positions on the clauses of the Bill, but we do not need to vote on the amendments, notwithstanding the issues that the Department wants to deal with. We can complete our Committee deliberation and reporting by noting the proposed amendments to clauses 11 and 17. We can also indicate that I would like to see what assessment the Department has made around the implications and ramifications of those proposed amendments. I need to see a lot of detailed work on that, which the Committee could consider, following our report having been completed and issued. I invite the Clerk to comment.

The Committee Clerk: If the Committee wants to just note the amendments, this is the time to do that. When we get to formal clause-by-clause consideration, we would have to put the Question, and you would have to agree it or not agree it. If you just want to note it, this is the time to do that; the Question will not then be put on that amendment.

The Chairperson (Mr Givan): Members, I am clear about what I am trying to do. I am happy to support the proposed new amendment for clause 20, which deals with the child cruelty issue. I accept that that creates a knock-on effect that the proposed amendments to clauses 11 and 17 are seeking to address. However, I have not had the same time to consider these proposed amendments that I have had to consider the issue around child cruelty being dealt with for those who are below the age of 16. It is a halfway step for me as to where I can get to. I feel, as Committee Chairman, that the Committee would be in a strong position to support the new clause but that we, as a Committee, have not had the same opportunity to work through the implications and deliberate around the proposed amendments to clauses 11 and 17. However, I remain persuadable as an individual MLA, and as a party representative, to support them if the Department tables them at Consideration Stage or Further Consideration Stage. I am withholding my position on the other two amendments. That is my position. I do not know whether I need to formally ask the Committee if it wants to take that position or whether others have a different view?

Ms Dillon: I, again, go back to my point that I am concerned about the implications of not doing it, but if we could get information on that, we then have an opportunity to look at that before Consideration Stage. Are there are any implications in not looking at it before that point?

The Chairperson (Mr Givan): The procedural issue for the Committee is that we have to formally agree the clauses today. We are not going to get further information to inform our formal consideration of it. When I say that the Committee can engage on it further, that will be outwith the formal role of the Committee and will not be part of the Committee report. If we were to park this issue in its entirety, it would not form the Committee's position.

Mr Frew: Chair, I would be happy enough for the report to state that we could not take a determination or judgement on it, given the timescale. That is a valid enough position, and it will be up to the Department whether it tables its amendments, surely? It is on it as to whether it supports an amendment or not. It may well be a good thing to have a Committee determination on it, but we were waiting for these for a while. There is nothing to stop the Committee saying that it just has not had the time to look at all the consequences.

The Chairperson (Mr Givan): Rachel?

Miss Woods: I am happy with that as well. Has the Health Committee been informed about this?

The Chairperson (Mr Givan): We have not engaged with it.

Miss Woods: Would this change to Health legislation not be a matter for the Health Committee to consider, as well? I do not know if that is how it works.

The Chairperson (Mr Givan): That would be outwith our role, so I cannot answer that, but this Committee has not engaged with the Health Committee.

I have no problem if the Committee's official position, when it comes to proposed new amendment at clause 20 and the consequential amendments at clauses 11 and 17, is that members did not have sufficient time to reach a considered position on it.

We asked repeatedly to see these amendments, but in the time frame and as a result of not having that information at an earlier opportunity, we as a Committee have not been able to carry out our functions in the way we would wish to have done. I have no problem with that.

I suppose I have indicated that, if the Department tables the amendment, I am clear that I will be voting for it when it comes to the issue of children under the age of 16 and the new clause, and the party will be voting for it.

There is the issue of how, officially, a Committee reaches its position and considers things and the processes that it follows by calling for evidence, taking that evidence, deliberating on it and considering all the potential knock-on implications. Obviously, in future-proofing this, if something goes wrong, they will look back at how a Committee carried out its work, and I think that there is a degree of vulnerability for the Committee in agreeing to the proposed amendments to clauses 11 and 17, in that context.

The Committee Clerk: Chair, if it is helpful, if the issue is the amendments to clauses 11 and 17, the Committee, if it wished to, could note the amendments and indicate that it did not have enough time, but we can include in the report that the Committee wishes the Department to provide further information on the implications of both those amendments, whether they are or are not done, and any other options to address that gap. We could highlight that the Committee has concerns about the gap. Following the report on the Bill, the Committee can consider any other information that the Department brings before Consideration Stage. You can consider that then, if you want, but it just will not be reflected in the Committee report, because by that point we will have completed Committee Stage.

Ms Dillon: I think that it is important that we find out what those implications could be. Equally, whether we support it or not, there could be implications that come back to bite us at a later stage. People could say, "You allowed this to happen, and now 16- and 17-year-olds are not covered. They have been left in limbo". I am concerned about that, but I am content to proceed in the manner in which the Committee Clerk outlined. I think that that is in line with what you were saying, Chair, which is that we note it and ask for further information in relation to what the implications are if we do not do it as well as if we do.

The Chairperson (Mr Givan): I want to bottom it out though, because the proposed amendments to clauses 11 and 17 are a consequence of new clause 20A.

Ms Dillon: We are supporting that.

The Chairperson (Mr Givan): That is what I want to know. Is the Committee able to take an agreed Committee position that we will support new clause 20A but that these knock-on amendments in respect of clauses 11 and 17 require us to note them and seek this further information and that the Committee can consider that outwith its reporting duties?

Ms S Bradley: Yes, I think that that is a fair way to go forward. I have not actually heard any voice of objection to this at Committee. I think that it is reasonable to say that we do not feel as informed as we could be. It may well be that, by the time that the Minister moves the amendments, we are able to support it in the Chamber. That would obviously not be within the constructs of a Committee, but it would be on record that there were no objections, if that is what comes to pass.

The Chairperson (Mr Givan): OK. Members, are we content to agree on a position of acceptance of new clause 20A and, as I outlined and the Committee Clerk elaborated on, to note that and seek this further information, which the Committee can consider outwith the normal process of our Committee report?

The Chairperson (Mr Givan): Committee Clerk, are you clear?

The Committee Clerk: Yes. Thank you, Chair. Am I right to assume that the Committee will want the Committee report to reflect that it wants the gap for 16- and 17-year-olds to be addressed properly and fully and, therefore, wants the Department to come back with further information?

The Chairperson (Mr Givan): OK. Members, that concludes our deliberations on the clauses of the Bill. The formal clause-by-clause consideration will take place later in the meeting, when it will be a yes, no or abstain scenario. We have debated all these things, and members have brought a huge amount of scrutiny and expertise to it. They have gone about their business incredibly diligently and with expertise. It is testament to how this Committee operates and the kind of rigour that is applied. I will say more about that at a more appropriate time. We will do the formal clause-by-clause scrutiny later in the meeting. Veronica, thank you for joining the meeting. Your explanations were much appreciated.