For our column this month over at Lexis Nexis Jordans Family Law, we look at the government’s pledge to allow children to speak to judges during their cases. Nearly a decade on, this policy has still not been implemented.

The article follows Researching Reform’s Freedom Of Information request which exposes the government’s failure to act and quietly hide its decision from the public, the history of the policy itself which is hugely interesting, and we also highlight a certain government minister’s refusal to respond when we asked them for comment over on Twitter.

You can catch the article here. 

For our column over at legal publisher Jordans this month, we look at the way in which convicted paedophiles in non recent child abuse cases are sentenced. Concerns raised by politicians, charities and survivors about the sometimes shockingly lenient terms convicted paedophiles receive have prompted calls to review the law in this area.

In our article, we outline the background to sentencing in cases of recent and non recent child abuse, explore research and policy in this area and look at why sentences may seem completely inappropriate in the face of some of the most awful crimes imaginable.

You can check out our article on Jordans’ website, or read it below:

Sentencing Paedophiles In Non Recent Child Abuse Cases – Are Courts Too Lenient?

Type in the phrase “lenient sentences for child sexual offences” into a search engine like Google and the results for the UK alone are astounding.

From government ministers to child welfare charities, the concern expressed over unduly lenient sentences in recent child sexual abuse cases continues to mount. So much so, that in 2015, several paedophiles and rapists who initially escaped jail saw their sentences increased on appeal. And in that same year, an international report published by Net Clean found that 64% of organisations interviewed felt that laws around the world, including the UK, were not suitable for child sexual abuse crimes, either because they were outdated or limited regarding the need for international cooperation. Police forces and investigators taking part in the report also expressed concern that sentences for child sexual abuse were still far too lenient, despite the fact that sentencing levels for sex offences in the UK have increased.

This apparent disregard for the severity of child abuse as reflected by low level sentencing, has deeply affected survivors of non recent abuse who feel unsure about the kind of justice they can expect. The Sexual Offences Act 2003 makes it clear that offences like rape or penetration of a child under 13 or anyone older, carry the same maximum jail term, that of life imprisonment, but whilst concerns about leniency in the sentencing of offenders on child abuse charges exist in both recent and non recent child sexual abuse cases, are both types of abuse treated the same when it comes to sentencing in practice?

Unlike other areas of the law, there are no time limits set as to when child sexual offences can be prosecuted, which has allowed victims and survivors of non recent abuse to come forward. Delays in reporting were previously treated with suspicion, but after many years of campaigning and research, it is now understood that a postponement in reporting is not indicative of a false allegation. In fact, delays in making a complaint of child sexual abuse should not affect the way the Crown Prosecution Service (CPS) investigates these claims or enforces the law, at all. If enough evidence is gathered, the CPS should then consider prosecuting an individual if they feel it is in the public interest and there is a realistic prospect of conviction. This allows cases of non recent abuse to be examined and where possible lead to the securing of convictions for those guilty of child sexual abuse. In this way, cases of recent and non recent abuse are treated equally.

However, a question arises as to which piece of legislation will be used for prosecution purposes in non recent cases of child abuse, and here differences begin to set in. The starting position when an offender is sentenced is that he or she should be sentenced according to the law at the time the offence itself was committed, rather than the law in existence at the time of sentencing. This principle is also reinforced by Article 7 of the European Convention of Human Rights. As a result, individuals charged with historic sexual abuse offences are likely to be prosecuted under the Sexual Offences Act 1956, whilst any incident alleged to have occurred after 1 May 2004 will be prosecuted under the Sexual Offences Act 2003. If it is not possible to work out whether the abuse took place before or after 1 May 2004, then the old law will apply if it attracts a lesser maximum penalty. This is done to prevent the law from being retroactive, but it causes other difficulties, as we will see below.

As the courts must reconcile old legislation and sentencing guidelines with modern life, seeking justice in cases of non recent child sexual abuse becomes a more complicated matter. For example, the current sentencing guidelines for non recent child abuse tells us that an offender must be sentenced in accordance with the sentencing terms applicable at the date of

sentence, but the sentence will be limited to the maximum sentence available at the date of the commission of the offence. If the maximum sentence has since been reduced, the lower maximum will be applicable. This offers a possible reason as to why sentences for historic child sexual abuse may end up being lesser than those sentences for recent child sexual abuse.

Mitigating factors also play a role in reducing sentences in child sexual abuse, both recent and non recent, however there is an inherent unfairness when we look at one particular mitigating factor allowed in non recent child abuse cases not available for cases involving current or recent abuse. The sentencing guidelines for non recent abuse explain that where there is an absence of further offending over a long period of time, especially combined with evidence of good character, the court would be allowed to treat this as a mitigating factor.

Setting aside the difficulties in defining ‘good character’ in this context, this mitigating factor is hugely misleading and could be responsible for terrible miscarriages of justice. For instance, where a twenty year old has committed sexual offences against children for thirty years but stops due to a lowered libido, and stands trial when he is perhaps seventy years of age, those twenty years of non offending could potentially be taken into account and viewed as a mitigation of crimes which still spanned decades.

This mitigating factor then, could also offer some insight into why sentencing of non recent child abuse offenders could be relatively lower still than those being sentenced for recent child abuse, especially when combined with a judge’s ability to take into account the offender’s age at the time of trial, and if an elderly offender looks frail or unwell. The court may also take the view that it is not in the public interest to jail an elderly offender who no longer poses a threat to society at large. This view of course, does not take into account the need for justice sought by victims and survivors of abuse.

Other mitigating factors which apply to both recent and non recent child sexual abuse offences include the maturity of the offender at the time of the incident or incidents, any admissions the offender made around the time of the events, which were not properly investigated and an early guilty plea. These points if raised and accepted by the court could also reduce sentences in child sexual abuse cases.

Evidence has always been a problematic area in child sexual abuse cases, both recent and non recent. Child abuse usually happens behind closed doors, and by the time a child comes to the attention of child protection or medical professionals, if they ever do, signs of abuse may have long gone. These issues are aggravated in non recent cases of abuse, as evidence is even less likely to exist after long periods of time, and many children do not come forward until they have become adults as a result of the shame and sometimes deep trauma they experience. This affects a realistic prospect of conviction profoundly, especially where allegations simply come down to the victim’s word against the accused’s. Without robust evidence a victim of child abuse would at best secure a minimal sentence against their abuser, and at worst, be unable to mount a case at all. Less access to evidence then, could also reduce an offender’s sentence and explain why some sentences remain low despite the severity of the crimes outlined.

An even more disturbing trend in lenient sentencing of non recent child abuse cases has been highlighted by a recent case which featured two men, aged 59, both charged with non recent sexual offences against young girls. Here, the Court of Appeal interpreted S.236A of the Criminal Justice And Courts Act 2015 to mean that custodial sentences for historic child abuse allegations should be lowered, rather than include an additional period on licence. It has been argued that the Court of Appeal has misinterpreted Parliament’s intentions, but the ramifications of the judgment may be far-reaching and result in future sentences for non recent abuse set lower than they should be.

Whilst variations within non recent child abuse sentences can be understood through reasonable mitigation principles and a lack of evidence brought on by the passage of time, there are very real concerns about the way offenders of non recent abuse continue to be sentenced and which bolster the view that unmerited leniency has managed to find its way into the system. It is our duty to explore these gaps and try to develop the law so that it better serves survivors and victims of abuse.

A thank you to Cathy Fox, who invited us to write an article on this topic. You can follow her very informative blog here. 

This month for our column over at Jordans, we’ve rounded up some fresh ideas in Family Law. From mysterious Bills looking to alter the way marriages are registered, to a surprising source of support for the Voice of The Child at the Equalities and Human Rights Commission, the article looks at the different ways in which policy makers and key stakeholders are trying to innovate in 2016.

You can read the full article below:

New Ideas in Family

Despite a very busy few weeks in the run up to Brexit and its aftermath, child welfare concerns have remained in the spotlight. Here are the latest, Bills, ideas and updates in the sector which make for very interesting, and at times controversial, reading.

Bills

There has been a flurry of new Bills going through Parliament in the last month, focusing on marriage, child and family poverty, as well as Domestic Violence.

The Registration of Marriage Bill, has been put forward by a group of Conservative, Labour and Lib Dem politicians. There is no text for the Bill available yet, so it’s not clear what the Bill seeks to achieve, but it might potentially be connected to the Equal Civil Partnerships movement, which seeks to make civil marriages available to opposite sex couples (it is currently only available to same sex couples). The Bill had its first reading on 29th June, 2016, and will hold the next reading on 21st October.

The next piece of proposed legislation which focuses on family is the Child Poverty In The UK (Target For Reduction) Bill, which as the name suggests aims to establish targets for reducing child poverty and ensure the publication of reports to track target progress. This Bill also had its first reading on 29th June, 2016. It was proposed by Dan Jarvis MP, who has been in the news as he has made a bid for the Labour Leadership.  The Bill will have its second reading in 2017.

Following on is the Families with Children and Young People in Debt (Respite) Bill.  This proposed piece of law, put forward by Kelly Tolhurst MP, wants to establish a duty on lenders and creditors to provide periods of financial respite for families with children and young people in debt under certain circumstances and to place a duty on public authorities to provide access to related advice, guidance and support in this context. Its first reading, like all the Bills in this post, was held on 29th June. The next reading for this Bill will be held on 28th October, 2016.

Moving on to the equally concerning topic of Domestic Violence, the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill seeks to require the United Kingdom to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention -which a lot of countries are ratifying though the UK has yet to do so). The Bill was proposed by Dr Eilidh Whiteford, and will have its second reading on 16th December, 2016.

All of the above the proposals above have been made within Private Members’ Bills and whilst these Bills very rarely make law, with public support they can sometimes go on to be ratified and implemented.

New Ideas

New Head of The Equalities and Human Rights Commission, David Isaacs, has recently explained that he would like to ensure that any Bill of Rights passed in the UK should enhance children’s rights. David is very keen to ensure that children are heard in Family Cases, and their wishes and feelings amplified, saying:

“The [UN] convention on the rights of the child creates an obligation on the UK to provide the opportunity to children to be heard in judicial or administrative proceedings which affect them. It is very important that their views are heard and given due weight.”

From the UN to Westminster, where Shadow Minister Sarah Champion called on the government on 4th July to support her initiative for all primary school children to have statutory resilience and child protection lessons to prevent child abuse. The suggestion was not debated on this occasion, but Minister for Schools, Edward Timpson suggested that it would be placed under review with other initiatives relating to education.

On the same day, Maria Miller MP, Chair for the Women and Equalities Committee called on the government to put clear legislation in place to tackle online abuse of children and vulnerable adults, from bullying and intimidation, to harassment. She also suggested that appropriate police training and education for children on the dangers of online abuse be a part of the battle to stop this kind of abuse. It is a thought provoking debate worth reading, which touches on freedom of speech, child welfare, gender, ethnicity and the kind of language that could be used to adequately define the varied crimes that make up online abuse. 

And finally, the terrible story surrounding baby cremations last year which left a significant number of families unable to grieve the deaths of their children as ashes had been lost or misplaced by crematoriums around the country, reached another milestone with the publication of a consultation looking into the tragedy and a set of recommendations released this month. The proposals put forward by the government include:

• Introducing a statutory definition of ashes.
• Amending statutory cremation forms to make sure that applicants’ wishes in relation to recovered ashes are explicit and clearly recorded before a cremation takes place.
• Where parents choose a cremation following a pregnancy loss of a foetus of less than 24 weeks’ gestation, such cremations will be bought into the scope of the regulations, like all other cremations. (The government has no plans to alter parents’ current choices following a pre-24 week pregnancy loss, so parents will continue to be able to choose between cremation, burial and sensitive incineration or they can ask the hospital to make all arrangements on their behalf).
• Establishing a national cremation working group of experts to advise the government on a number of technical matters related to our proposed reforms, such as the detail of new regulations and forms, codes of practice and training for cremation authority staff, information for bereaved parents, and whether there should be an inspector of crematoria.

With the next two years being crucial not just for the UK as a whole as it separates itself from Europe, but for our children who will have to live with the changes as and when they happen, it is likely that more Bills will make their way through Parliament aiming to protect children from the effects of Brexit which may well include chronic poverty levels, as well as the erosion of child rights. Children are becoming the benchmark by which we measure society’s success. As a result, their welfare will continue to underline policy for some time to come.

For our column over at Jordans this month, we take a look at how domestic violence law and policy have changed in the last ten years, emerging research which shows that men are often invisible victims of abuse, the effect austerity measures have had on access to justice for victims and survivors of domestic violence and the ways in which campaigners and politicians are trying to fill the gap.

We’d love to hear your thoughts.

You can catch the article here. 

This month for our column over at Jordans we look at the government’s intention to look into making reporting of child abuse a legal duty. We explain what a duty to report might look like, the kind of language that might be used to outline that responsibility, who might be required to report, and the potential consequences of failing to report.

We also look to emerging research which has begun to give an interesting, if complex picture of how mandatory reporting has impacted child protection work and vulnerable children at risk of abuse.

Making the case both for and against compulsory reporting, we ask whether the real question is not should the government make it illegal to stay silent about child abuse, but rather can the child protection sector take on any more policy and legislation before significantly reforming itself?

You can catch our article here.

This month for our column over at Jordans we chose to write about the recent announcement, which went largely unnoticed by the media, that the nation’s Independent Inquiry Into Child Sexual Abuse would be investigating the harm caused by false allegations to all those involved.

In our piece we talk about the delicate process of exploring false allegations, the difficulty in defining exactly what a false allegation is and why sexual abuse victims must remain a priority for the Inquiry.

You can catch the article here.

For our column over at Jordan’s this month, we respond to the judiciary’s current consultation on lay advisers, set out a blueprint for a working handbook and offer suggestions for replacing the term McKenzie Friend.

The Handbook is divided into six chapters and covers, we hope, every area of non conventional legal assistance. We also suggest calling McKenzie Friends lay lawyers, a term which we feel embodies their working spirit whilst acknowledging their path into law.

You can check out the blueprint for the handbook and our thoughts on the consultation over at the Jordans website, including our recommendation that the judiciary look closely at solicitors offering dual services within the McKenzie sector.

Don’t be shy, come and share your thoughts on Twitter @JordansFamLaw and @Sobukira #familylaw

This month for our column over at Jordans we revisit the child welfare predictions we made in 2015 to see how they developed. From pioneering pilot schemes to legal aid, we made a series of forecasts about how they would evolve over those 12 months.

You can read our article to find out if we were right.

This month for our column over at Jordans, we identify 2016 as the turning point in child welfare. We also highlight the awkward relationship between government policy and children, and why this relationship is about to change.

To find out why this year will matter for the child welfare sector, and why children will alter the landscape of family law forever, check out our article here.

For our column over at Jordans this month, we chose to write about the government’s response to radicalism, in particular extreme Islam and the way it is trying to tackle this through child-focused measures.

From spying on toddlers, to taking children’s passports away from them we ask, is the government making a bad situation, much, much worse?

Catch our article in full, here.