HC Deb 05 July 1963 vol 680 cc745-63

  1. (1) Where a local authority have, in accordance with either—
    1. (a) section 3 (3) of the Children Act 1948, allowed any person to take over the care of a child in respect of whom a resolution under section 2 of that Act is in force; or
    2. (b) section 13 of the Children Act 1948, boarded out with any person a child who is in their care under section 1 of the said Act or who has, by an order of any court under the Children and Young Persons Act 1933, or the Matrimonial Proceedings (Children) Act 1958, been committed to the care of the authority as a fit person,
    and the authority have by notice in writing required that person to return the child to the authority at a time specified in the notice (which, if that person has been allowed to take over the care of the child for a fixed period, shall not be earlier than the end of that period) then if that person fails to return the child the following provisions of this section shall apply:—
    1. (i) the child may be recovered without warrant in any part of Great Britain and brought back to the authority;
    2. (ii) the person failing to comply with the terms of the notice or any other person harbouring or concealing the child or preventing him from returning as required by the notice, shall be liable on summary conviction to a fine not exceeding twenty pounds or to imprisonment for a term not exceeding two months or to both.
  2. (2) In this section"child" has the same meaning as in the Children Act 1948.—[Mr. Charles A. Howell.]

Brought up, and read the First time.

Mr. Charles A. Howell

I beg to move, That the Clause be read a Second time.

Mr. Deputy-Speaker

The Amendment to page 25, line 19, to leave out Clause 48, can be discussed with this new Clause.

Mr. Howell

This Clause is designed to look after the interests of the child. As many hon. Members who have had letters from the Association of Municipal Corporations will know, this meets with the approval of the Association. I must make absolutely clear that I have no connection whatever with the Association. I am not a vice-president and have never attended a meeting, I put this Clause on the Notice Paper from an altruistic motive. It has the support of the Association and of my hon. Friend the Member for Leicester, North-West (Sir B. Janner). The Association gave evidence to the Ingleby Committee saying: Attention is drawn to the anomalous position of children in the care of a local authority under the Children Act, 1948, who are allowed home with their parents on trial or are boarded out with foster parents. At the present time, there would appear to be no legal method other than habeas corpus to recover such children if the placement proves unsatisfactory. Before going further, I must declare an interest. The case I wish to describe is from Birmingham. I should make clear that I choose a Birmingham case only because I represent a Birmingham constituency and it would not be fair to describe a case arising in some other constituency. A child in Birmingham was placed with foster parents. The local authority, the city council, came to the conclusion that the placing was not in the best interests of the child concerned. Despite the fact that the local authority was what the legal people call in loco parentis, it appears that the council found it almost impossible to obtain the return of the child to its authority. The city council tried to recover the child from the foster parents, but they objected. The council had no option but to go to court.

The council went to the High Court to obtain a writ of habeas corpus. The town clerk, who is a learned gentleman and has a legal department behind him, gave the advice that that was the only way in which to obtain the return of the child. The application was made at the beginning of August, 1960, and it was heard by a judge in chambers towards the end of that month. Apparently, the foster parent took some legal advice, and incidentally, obtained it through legal aid. She made application to the Chancery Division for the child to be made a ward of court. The hearing of the habeas corpus action then had to be abandoned, or at least adjourned, while the Chancery Court was deciding whether to make the child a ward of court.

In view of the time which had elapsed after the hearing, the council made application in Chancery for the child to be de-warded. The application was made on 16th November that year and was successful. The foster mother appealed and the appeal was dismissed. Immediately the city council made application for restoration of the habeas corpus proceedings which had been adjourned in the High Court. That application was heard in the following February, when the court issued a writ requiring the foster mother to hand the child over to officers of the council. During the whole of this period of months the child was subject to living in conditions which the local authority considered detrimental to it. It appears that a council has to go through mammoth procedure to bring a child back into its custody when it considers that that is absolutely necessary.

I do not want to see any child made the subject of buffeting about through legal processes. Obviously the local authority must have some responsibility if it is legally the temporary parent of the child. It allocates the child to foster parents. Usually the phrase"farmed out" is used. My experience has been that in many cases foster parents are better than the natural parents. I am only too happy to make that clear.

It is obvious that with good foster parents and a good home the local authority would not need any particular legislation to achieve what it wants to do. In this House we often talk about making legislation, not to curtail the activities of good employers or good parents, but the activities of bad ones. It is not enough to say that the bad ones are so rare as to make the legislation unnecessary. In my opinion, the welfare of even one child is sufficient to say that the Bill should have a Clause giving a local authority the right to retrieve a child where the circumstances in the opinion of the authority require it.

Incidentally, I am advised that under Section 85 of the Children and Young Persons Act, 1933, if the child runs away from foster parents or is taken from a person to whose care the child has been committed, the child may then be apprehended without warrant in any part of Great Britain. I do not want to labour this matter, but I hope that this new Clause will receive the approval of the Home Secretary.

12 noon

Sir Barnett Janner (Leicester, North-West)

I wish to support the Clause. The Association of Municipal Corporations, a very important body, representing many people in the country, has no personal interest in the matter. But I feel sure that my hon. Friend the Member for Birmingham, Perry Barr (Mr. Charles A. Howell) would agree that what the Association suggests would be what it considered in the interests of the community and, in this case, in the interests of children.

This Clause is an attempt to follow a line which we are all endeavouring to pursue, as the Home Secretary would doubtless agree. It is to ensure that the child is the primary concern of the community and that if a child should be placed in a position, because of its home circumstances or because of other circumstances, where it requires proper care, the correct attention may be given to it. When a child is put into the care of a person by a local authority, or when it is returned to its own home, a responsibility has been accepted by the local authority, and therefore the authority should be able, in the event of a mistaken decision having been made, to remedy that state of affairs without there being any injury to the child. That is all that this new Clause is designed to achieve.

My hon. Friend gave a suitable and ample illustration of the damage which could be caused by delay when an individual who has care of a child desires to retain that control, although he or she may not be a fit person to do so. I speak from many years' experience and as someone closely connected with juvenile courts. I belong to a group in the community whose members are deeply concerned with home life and the welfare of children. They have shown by their management of home life that young children may be kept out of any kind of criminal mischief and certainly not many children from such homes come within the provisions to which we are now referring.

I have the greatest sympathy with the desire of parents to retain their children at home, and I believe that in the vast majority of cases the home is the right place for a child. But here we are concerned not with the average child but with the children whose home life, or lack of it, has resulted in the need for a social interest to be taken in their welfare, and their care has been placed in the hands of other people. It is absurd if, after a child has been placed under the control of someone by a local authority, and the authority is of opinion that it should resume its control over the welfare of that child, the law should prevent the authority from so doing.

We know that there are possibilities arising from delay in the operation of the law—the case quoted by my hon. Friend was an indication—which may result in a child being sadly and badly affected. That, of course, does not happen in every case. But it could happen. I hope that the Minister will agree to accept the Motion, taking account of the fact that similar provisions exist in respect of other legislation relating to young persons and to children. I hope that the right hon. Gentleman appreciates that it is an anomaly that a local authority, having made a mistaken decision about the suitability of someone to look after a child, cannot put the matter right. I hope that the Minister will readily agree to what is obviously a necessary alteration to the law.

Mr. Hannan

I support the Motion. I have received representations from my own local authority in Glasgow, which is apprehensive about the existence of a loophole in the law enabling a child to escape or be taken from the jurisdiction of the Scottish courts. Clause 48(1) of this Bill authorises the bringing back of children who have escaped, been taken away or were absent after having been sent to a remand home, reception centre, approved school, or committed to the care of a fit person. The Glasgow Corporation considers that there should be inserted in this Clause a provision to enable the bringing back of children who have left or been taken out of the jurisdiction of Scottish courts after such committal, under Sections 5 and 10 of the Matrimonial Proceedings (Children) Act, 1958.

The perturbation felt by the Glasgow authority arises from an experience, not connected with this legislation, in a case where, by a trick exercised by a relative of the mother, a child was taken from a corporation hostel and brought to London. The mother had been convicted of running a brothel. Her children were placed under the care of the local authority. But, by means of a trick, they were brought, one by one, to London and out of the jurisdiction of the Scottish courts. Having learned of this, the Glasgow authority communicated with the London County Council and the whereabouts of the children were ascertained. But, to the dismay of the Glasgow authority and the unhappiness of the London authority, the London County Council, even though it desired to do so, could not restore the children to the control of the Glasgow authority. The London authority had no case against the mother.

In 1956 I had the honour of introducing legislation which became the Children and Young Persons Act, 1956. The Long Title of that Measure was An Act to extend the provisions of the Children and Young Persons Act, 1953 that is the Act relating to England and Wales— and the Children and Young Persons (Scotland) Act, 1937, with respect to escapes from the care of fit parsons, from approved schools and from remand homes or special reception centres. The doubt felt by the Glasgow authority, and by me, is whether this Act, which was designed to cover circumstances to which I have referred, will also cover the point raised by my hon. Friend.

In the interests of safety, I support the Clause. I should be grateful if this point could be covered. There are two cases. The first is that of children who are committed by a court to the care of a fit person. The second case is that of children who are taken under the care of the local authority, not necessarily by a court order. Where the local authority sends the child to foster parents and discovers that the circumstances are not as it thought at one time, the difficulty described by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Charles A. Howell) arises.

One can understand that children committed under a court order may be more easily recoverable, because the authority of the court is behind the local authority. As I understand it, the doubt is whether the local authority, as the person standing in loco parent is, sending the child out to foster parents, can as with a court order get the child back. The Clause is moved to resolve this doubt. If it covers this point, I hope that it will be accepted.

Mr. Leslie Hale (Oldham, West)

I want briefly to express some hesitation about the Clause. I do so with some reluctance, because my hon. Friend the Member for Birmingham, Perry Barr (Mr. Charles A. Howell) moved it with conspicuous fairness and ability. The one basic conception of the law of the guardianship of infants which distinguishes our law and which is, as hon. Members on both sides will agree, one of the finest conceptions in our law is that the welfare of the infant is to be the dominant test and the determining factor.

I heard what my hon. Friend the Member for Perry Barr said. I agree almost entirely with what he said, except perhaps his encomiums upon the collective wisdom of local authorities in these matters. I know that they are doing great work. They have often to rely on the advice of their children's officer. The complexity and abundance of duties of a member of any large authority are now such that few of them would claim to have an intimate personal knowledge of each individual case that comes before them on 60 or 70 pages of minutes. In the end, it is a question for the children's officer, and the members of the local authority are there to supervise the children's officer and see that he behaves.

Sir B. Janner

In pursuit of my hon. Friend's argument, would he also say that he is against committing any child to the care of a local authority? If my hon. Friend's argument is correct, the local authority is not fit to have a child in the first instance because there is no possibility of it looking after the child.

Mr. Hale

I utterly fail to understand the relevance of that interruption to any word I have spoken. I do not regard this as a laughing matter. I merely said that the statement of my hon. Friend the Member for Perry Barr that one had the right to assume that the local authority would take the right decision goes much further than any Act of Parlia- ment has ever gone before. I think that it goes much further than I want any Act of Parliament to go.

What are the circumstances we are discussing? We are discussing the case in which a local authority has selected a foster parent. According to my hon. Friend the Member for Leicester, North-West (Sir B. Janner), who has just made a somewhat irrelevant interjection, that selection must have been of superb quality in the first instance. My hon. Friend the Member for Perry Barr said—I agree—that those who act as foster parents often do not do it for money; they do it out of a desire to serve and for love.

In the Clause we are not dealing only with delinquent children. I am not sure what will happen to the Amendment in the name of the hon. Member for Plymouth, Devonport (Miss Vickers). We are not dealing with maladjusted children. We are dealing with the children of maladjusted parents. We are dealing often with children who have never had a home before. Children are committed to the home of foster parents. They develop an affection for the foster parents. The foster parents develop an affection for the children.

12.15 p.m.

The local authority may, for perfectly good and sufficient reasons, as it thinks, serve a notice to terminate the maintenance. The immediate effect of that when the notice operates is that the foster parents will cease to receive any payment for the maintenance of the child. If they wish to retain the child after that, there is at least a prima facie reason to think that they have some affection for the child, that there is a desire to serve, that it might be a good home, that they might be the people with whom the child would desire to remain. Perhaps they are the first real parents the child has known.

I do not dispute for one moment the case made by my hon. Friend the Member for Perry Barr. There may be other cases where provision should be made for the enforcement of the order. I suggest that at least the foster parents should have a right to be heard. The law on this matter is difficult. There is no question but that one can apply to the court for an order varying the guardianship. The real question is whether there are adequate powers to enforce it.

I myself have taken part in cases in which certain organisations—I do not want to mention reputable charitable organisations—were appealing for the restitution of children. This was in the days before the Adoption Act, when there could not be a formal legal adoption, when people who had tentatively adopted children might be the subject of this procedure, because until 1926 there was no form of legal adoption of children in this country. I have taken part in cases in which foster parents were broken-heartedly fighting to retain children for whom they had developed a very real affection.

The Clause says that in these circumstances a notice is sent and then somebody is sent to pick up the child, where-ever it may be, and take it back to the care of the local authority, tearing up all the bonds it has formed in the foster home. The child is taken away. It is removed without any further hearing. Though these provisions may be necessary in some cases, I suggest to the Home Secretary that they would be undesirable without some provision to allow the foster parents to appeal to the court and say,"We have had this child in our custody. We love the child. We do not want to have it torn away from us, from the home that it has come to know, without considering the interests of the child". Subject to that, I have little objection to the Clause.

Mr. Brooke

I feel sure that the hon. Member for Glasgow, Maryhill (Mr. Hannan) would far rather have a reply from my hon. Friend the Under-Secretary of State for Scotland than from myself, and that my hon. Friend would give the hon. Gentleman a much better and more convincing reply than I could. Therefore, I will not deal with that aspect and perhaps my hon. Friend will be able to catch your eye, Mr. Deputy-Speaker, after I have sat down.

On the main point, if I do not advise the House to accept the Clause it will not be because I am entirely without sympathy for what the hon. Member for Birmingham, Perry Barr (Mr. Charles A. Howell) has said. We must keep this in perspective. This was, in a sense, the theme of the speech of the hon. Member for Oldham, West (Mr. Hale). We must be sure that all points of view are properly regarded. We must strike a balance.

The point which I think did not come out wholly clearly from any of the speeches which have been made is that the Birmingham case is, as far as anybody is aware, unique. It occurred three years ago. There has been no similar case anywhere, at any rate in England and Wales, since then and there is no record of any previous case. The fact that in the end the Birmingham Corporation was able to recover the child suggests that, even though in that particular and difficult case the proceedings were protracted, it is possible in the end for a local authority to recover a child.

I would certainly judge from my knowledge that, as the Birmingham case is now well known to local authorities throughout the country, and will be better known as the result of this debate, the likelihood is that in future local authorities will be able, by the Birmingham method if not by any other method, to recover a child in similar circumstances.

We must bear in mind the need for more foster parents. Over the years thousands and thousands of children have been successfully and happily boarded out with, in the main, good foster parents. In this way children have found the affection and home ties which they lacked from their own parents.

I should be very reluctant, as, I think, would be all hon. Members, to do anything that was liable to scare off foster parents. I do not like the idea of having to tell someone whom one is hoping to induce to become a foster parent,"If you do not comply at once with a notice from the local authority you will be liable to go to prison for two months", for that would be implicit in the Clause.

While I have every sympathy with the Birmingham Corporation over that unique case, the House should hesitate before complicating the Statute Book with provisions to deal with one case which occurred in the past and which has so far not recurred, particularly when I cannot help thinking that the new Clause would reflect a wrong attitude towards foster parents as a body. In the main, they are very good, they co-operate with the local authority and, in the main, there has been no difficulty except in this one, unique case concerning the return of a child where the local authority thought that the foster parents were unsuitable.

I hope that the hon. Member for Perry Barr will not think me hostile towards him. I simply say that I do not believe that his proposed new Clause would be the right way to deal with a situation which may never recur again in the Birmingham form. We would be wiser to leave the law as it stands and to include in the Bill Clause 48, which he wishes to replace by his new Clause. I hope, with these remarks, that the hon. Member will agree to withdraw his new Clause.

Sir B. Janner

Would the right hon. Gentleman say what inquiries he has made about the difficulties that have occurred apart from this case in Birmingham? While I appreciate that that was an exceptional case—indeed, we have said it was—what is the position in respect of other applications or notices which have been given? Has he conducted any inquiries to reveal the answer to this question? What length of time has elapsed and has the return of a child been impeded because of obstruction?

Mr. Brooke

I can but say that this is the only case known to us. If there were any other cases I cannot help thinking that the local authority associations or an individual local authority would have taken steps to bring it to our attention, particularly after the new Clause we are discussing appeared on the Notice Paper. I can, I think say with confidence that serious trouble has not arisen except in this unique Birmingham case of 1960.

Mr. Victor Yates (Birmingham, Ladywood)

Although the right hon. Gentleman keeps saying that the Birmingham case was unique, I hope that he appreciates that the welfare of the child is of paramount importance. Not only Birmingham but many local authorities believe that the type of case which is said to be unique should never recur. It could recur, despite the remarks of the Home Secretary.

My hon. Friend the Member for Oldham, West (Mr. Hale) pointed out that foster parents should have the right to be heard, and I am sure that all hon. Members would agree with that view. We think that, as a body, they do a fine job, but as has been shown by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Charles A. Howell), in the unique case in his area it was six months before the child could be recovered.

In that case the original application was made early in August, 1960, but not until the following 11th February was the child recovered by the corporation. There was no doubt, we have been informed by the Birmingham town clerk, that when the boy was returned to care he was emotionally disturbed. One of the most disturbing features of that case was the delay which occurred before it was possible for the corporation to recover the child, particularly since the reports received in the intervening period made it clear that it was not in the boy's interest that he should remain in the foster parents' home and that he was becoming emotionally upset.

While the Home Secretary might find it difficult to add the new Clause to the Bill, what steps can be taken to reduce this most regrettable sort of delay when a local authority or children's committee knows that a child is being emotionally disturbed? I do not care if only one child may be affected. We must remember that it is a life and we should do our utmost to see that even only one life should not be emotionally disturbed. Whatever may be said about our desire to encourage foster parents to continue their good work, it is wrong that the law should make it so difficult for a child to be recovered when, as in the Birmingham case, it is well known by the authority concerned that he is being emotionally disturbed.

In view of the Birmingham experience and the period of six months which elapsed before recovery could be achieved, something should be done to make it possible for a child to be recovered more speedily if it is thought that danger may arise.

The Under-Secretary of State for Scotland (Mr. R. Brooman-White)

The hon. Member for Glasgow, Maryhill (Mr. Hannan) was good enough to inform me before the debate about his concern in the matter which he raised. Despite what my right hon. Friend said, I am unable on this specific and narrow point concerning committal under the Matrimonial Proceedings Act to give a very satisfactory answer today.

There are three groups of cases. The first occurs when a child has been committed into care. In that case there are adequate legal powers under Section 89 of the Children and Young Persons (Scotland) Act, 1937. There was a loop-hole in that Act concerning the possibility of a child crossing the Border. This was covered by a private Member's Act which the hon. Member for Glasgow, Maryhill introduced in 1956. That enables recovery to be made across the border.

The second group of cases are dealt with by the new Clause. The arguments on this score have already been deployed by my right hon. Friend. There has been one case, in Clydebank, analogous to the Birmingham case.

Then there is the specific point which was raised by the Glasgow Corporation concerning children dealt with under the Matrimonial Proceedings Act. A case where a child might—I am not aware of it ever having happened—run away and cross the border is not covered under the 1956 Act which was introduced by the hon. Member for Glasgow, Maryhill. I am advised that this narrow point raises an extremely intricate Scottish and English legal matter. Investigations into this point are being made and they are still proceeding.

There is no easy answer to this question. All I can say now is that the Glasgow point is being pursued and that we hope to be able to find an answer in the near future.

12.30 p.m.

Mr. MacColl

There is here a very delicate balance between whether or not to legislate, and until the right hon. Gentleman the Home Secretary spoke I would have said that we should legislate. However, he made the strong point that, as far as he knew, no other case than the Birmingham case has been known. I agree that it is unwise to distort the law for the sake of one hard case, though I was surprised to hear that that was the only case, because my hon. Friend the Member for Birmingham, Perry Barr (Mr. Charles A. Howell) told us that it was the Association of Municipal Corporations that had prompted him to table his new Clause.

We therefore have the right hon. Gentleman saying that the local authority associations have not raised this point or produced any other cases while, at the same time, the A.M.C. has invited its friends in the House to promote this new Clause. That makes me a little hesitant about taking the matter to a Division.

My hon. Friend the Member for Oldham, West (Mr. Hale) spoke very movingly about the agony caused to foster parents and child by being separated when a great affection has grown up between them, but separation is inherent in the whole principle of boarding out. The dilemma of boarding out is that it is a temporary arrangement, though it may last a long time. It is not adoption, but is essentially a temporary arrangement under which the foster parents' rights in the child are limited, and subject to the rights of the natural parent and those of the children's authority. Foster parents must, therefore, always recognise that unless an adoption order is made, there is always the risk of losing the child.

As the Home Secretary said, a tremendously preponderating majority of foster parents co-operate with the children's authority and return the children when required, but is it not necessary to do something about what must be the bad minority who do not co-operate? However much my hon. Friend the Member for Oldham, West (Mr. Hale) may feel about it, those people are a bad minority, because they take the child on one basis and then try to change the basis. By disobeying the law, they seek rights over the child to which they have no legal claim. Therefore, it is questionable whether that kind of approach should be encouraged.

We must frankly face the fact that although boarding out works very well in a great many cases, the history of child care, ever since the days of Oliver Twist, shows that most of the bad cases have been boarding-out cases. There was, for instance, the tragic case which led to the setting up of the Curtis Committee. That was a case where boarding out went wrong. It is all very well for us in this House to take, perhaps, a rather optimistic view, thinking in terms of the happy foster parent mentioned by my hon. Friend the Member for Perry Barr, who is a better parent than the natural parent, and of the happy relationship of family life that grows up.

Fortunately, that represents the great number of cases but, on the dark side of the picture, we have foster parents who are not good to the children, do not understand them, or are cruel to them, or get themselves into such a distorted emotional relationship with them that the children do not get a balanced outlook on life. It is on the children's authority that responsibility has been placed. It is true that the authority may make mistakes, but it is responsible for the child's welfare, and it should be able to obtain that possession of the child which is its legal right.

My hon. Friend said that the rights of the foster parent should be deployed before an impartial body, but a foster parent has a clear power to apply for the revocation of a"fit person" order and the making of a new one. That would raise the whole issue of rights and wrongs of the state of the home, it would be possible for the probation officer to report, independently of the authority, and the problem could then be dealt within a judicial way. That right is available to the foster parent and that is the proper way to treat this kind of case—not having the child virtually kidnapped and the door locked on the children's committee.

We should, therefore, remember that in"fit person" cases there are remedies, but in the case of a child in care and boarded out there are not those remedies. The powers under Section 1 of the Children Act are very limited indeed, and the natural parent has the right at any time to take the child from the foster parent. The rights of foster parents over children are limited, and were there any evidence that there had been cases other than the Birmingham case I would be extremely reluctant to advise my hon. Friends to let this new Clause go.

If my hon. Friend the Member for Perry Barr feels that he should take it to a Division, I would support him, because I think that in principle this Clause is right. However, if, in view of the lack of evidence, he does not want to press the matter, he will be acting with discretion. I leave it there.

Mr. Charles A. Howell

I have heard the right hon. Gentleman the Home Secretary reject many proposals, but his rejection of mine just now was the nicest. He merely said that he could not whole heartedly approve of the new Clause, so he could not recommend it. He did not really reject it, but said that he did not think that it was quite the right way to tackle the problem. I take comfort from that; it shows that he is in doubt, and as this Measure started in another place it may yet be possible for second thoughts to prevail. I assure the right hon. Gentleman that I do not want to make a party issue of this question or press it to a Division—I am concerned only with the children.

The Home Secretary said that the Birmingham case was unique, but in what way did he mean that it was unique? It may be unique in that the local authority started habeas corpus proceedings and then found itself frustrated by the foster parent getting legal aid to get the child made a ward in the Chancery Court. That held up the habeas corpus proceedings, and the local authority had to use all its power and finance to have the child de-warded and then go through the whole procedure of habeas corpus.

If he means that the Birmingham case is the only one of that kind, he is probably right, but he surely does not think that it is the only case in which a local authority has found it impossible, or difficult, to got a child back. It may well be that the individual foster parent has not been able to convince the local legal aid committee—because I do not think that the Birmingham case would have gone to the Chancery Division if the foster parent had not been granted legal aid, and I take some comfort in the thought that legal aid committees may use the Birmingham case as a criterion for refusing aid to a foster parent who wants to fight a local authority.

It is an Englishman's prerogative to be on the side of the under-dog, to be on the side of the individual ratepayer fighting the local authority big machine, but that is not the case here. My concern is for the emotional condition of the child, and I am sure that it is wrong for the local authority machine to have to work for six months before a child's destiny is determined.

It would be wrong for me even to try to quote legal authorities. I have no legal training whatever, but I had cause to look this up in the Library some months ago and I found that the local authority has the right and the power to delegate its own power. I found that in the same case in the Queen's Bench Division, where it is laid down that a local authority has the power and right to delegate its powers, the authority also has the right to retrieve the powers which it has delegated.

The Birmingham Corporation can delegate some of the powers with which it is invested to its children's committee and if the committee did not carry out what the council thought it should do the council is entitled to withdraw the delegated powers. It is entitled to make a decision of its own and then delegate the powers back to the committee. It is remarkable that if a local authority can do that, a local authority, acting in loco parent is for a child whom it has handed over to foster parents, should no longer have that power when it finds that the foster parents are not suitable.

The Home Secretary stressed too much that this was a unique case. It has been quoted to me many times that in this House we are not entitled to interpret the law. Our job is to make it. If there is even a hypothetical case which makes it necessary to put something in the law, it is our duty to make some provision in the Bill. We are legislating for the future, not for the past, but we take into account our experience in the past so that we may be guided for the future.

I was surprised at the right hon. Gentleman's view that he would hate to tell foster parents that they could be put in prison for two months. Surely it is obligatory upon a children's committee or upon whoever is delegated the powers of appointing foster parents to tell them what their duties are and what will happen if they fail to carry them out. It should be obligatory upon a children's officer to interview foster parents and say,"You will be expected to do this and that. If you fail the child will be retrieved and under a properly constituted order you will be transgressing the law and will be subject on conviction to two months imprisonment."

Mr. John Harvey (Walthamstow, East)

Is the hon. Member not missing the one factor involved? One of the things which must worry us, as he himself said, is finding a larger number of foster parents who will give a child not only a home but the love and affection which children who find themselves in these circumstances so greatly need. If we encompass all this with regulations and threats, are we going to obtain that kind of foster parent and provide that sort of home background? This is what concerns a great many of us. I can see what the hon. Member is trying to get at, but we are concerned that at the other end regulations of this sort may frighten prospective foster parents away.

Mr. Howell

I do not think that I have missed the point. I would be the most disappointed man in the House if anyone thought that my motive was other than the protection of the child. I do not think that the new Clause would exclude one decent foster parent. I do not believe that people always study the law before they decide to become foster parents, and I know foster parents and people who have adopted children after becoming foster parents. In nine cases out of ten they do it because they cannot have children of their own and are imbued with parental love. The only alternative for them is to become foster parents or to adopt a child.

I think that I said in my opening speech that I knew many foster parents who are better than the natural parents, but there is the odd one out. Surely we have the right to say that if a local authority delegates its powers to foster parents and the foster parents turn out to be inadequate the local authority should have the right to take the child back. I am sure that the hon. Member is not trying to persuade me otherwise.

12.45 p.m.

Mr. Harvey

I am certainly not, but I am concerned whether, in trying to keep the odd one out, which the hon. Member has conceded to be his argument, we frighten away by the threat of this sort of legislation a great many good foster parents who might be worried that after the love which they had developed for the child it might be taken away, not because they have been bad foster parents but for some other administrative reasons. They could be frightened away by the very restrictive and punitive addition to the legislation which the hon. Member suggests.

Mr. Howell

I still think that it is the hon. Member who has missed the point and not I. I do not think that a genuine, sincere foster parent, or even a sincere person who wants to become a foster parent, will be deterred from doing so by being told,"If you turn out to be a bad parent, we will take the child away". The person will say,"That cannot happen to me. I love children far too much". Surely the hon. Member is not trying to persuade me that we should allow bad foster parents to come in lest we should lose a few good ones. I know that I shall be liable to be hanged if I commit murder, but I do not intend to commit murder if I can avoid it. This proposal cannot apply to the good foster parents or to the person who is thinking of becoming one.

I do not intend to pursue this matter to a Division because this is a case in which we should not try to hold up hon. Members as either being in favour of foster parents or in favour of children. This is too important and too human a situation. I take comfort from what the Home Secretary said about this not being the right way. I pray to God that he or someone will find the right way to protect the child from a person who has turned out to be an unsuitable foster parent so that the child's welfare can be protected against the foster parents and the machine of the municipality. Having said that, I beg to ask leave to withdraw the Motion.

Motion, and Clause, by leave with' drawn.