CUSTODIANSHIP ORDERS (Hansard, 28 October 1975)

§ Mr. Andrew F. Bennett
I beg to move Amendment No. 164, in page 22, line 29, after 'child', insert: 'who is not in the care of a local authority'.

Mr. Deputy Speaker
With that amendment we may take the following amendments:
No. 165, in page 22, line 32, at end insert— '(d) Any person with whom the child in the care of a local authority has had his home for a period or periods before the making of the application which amount to at least three years and include the three months preceding the making of the application and who has previously obtained the permission of the local authority in whose care the child is. ' No. 166, in Clause 39, page 27, line I, leave out sub-section (2).
No. 167, in page 27, line 5, leave out from 'is' to end of line 7 and insert: 'may, if appropriate, remove the child from the applicant's custody in pursuance of its general duty to promote the welfare of the child under section 12 Children Act 1948, notwithstanding the provisions of subsection (1) of this section. '

§ Mr. Bennett
On an earlier amendment I referred to the problems which I believed existed in regard to the right at any rate to apply for adoption after five years. We come now to the same problem as regards custody, except that now the period is three years.
The major concern of people working in this area is to ensure that action should be taken only with the consent of the local authority. The aim of Amendments Nos. 164 and 165 is to ensure that applicants for custody orders must seek the consent of the local authority where a child is in the care of that authority. Alternatively, Amendments Nos. 166 and 167 provide a safeguard. If the local authority feels that the applicant for a custody order is unsuitable it can prevent the application from succeeding.
The major issues were thoroughly discussed in Committee. Most people are still unhappy about the time limits. They feel that this should not be a matter for the courts but should rather be one of consent. As a result of the existence of time limits the natural parents may act hurriedly, or the foster parents may suddenly make an application when, in the absence of time limits, good social work could be carried out and the desired objective achieved without upsetting anyone.
I press the Government to accept Amendments Nos. 164 and 165. If they are unable to do so they may find the second set of amendments acceptable.

§ Dr. Owen
My hon. Friend the Member for Stockport, North (Mr. Bennett) is nothing if not persistent. I respect his views.
The effect of these two amendments taken together would be to prevent a person who has looked after a child for over three years from applying for a custodianship order in respect of the child if he is in the care of a local authority, unless the local authority has first given its permission. The amendments were discussed in Committee and there was a vote.
I understand the general intention underlying the argument. However, I ask the House to resist Amendment No. 166. The effect of this amendment is to remove from the Bill the provision restricting the power of a local authority, pending a court decision, to remove a child from the home of an applicant for a custodianship order who has looked after the child for three years, where the child was in care before he began to live with the applicant and is still in care. Removal by the local authority in such circumstances requires the consent of the applicant or the leave of the court.
Here we are trying to find a balance between the rights of the person who is looking after the child and the local authority. My hon. Friend has always drawn a major distinction in respect of children who are in the care of a local authority. He is right in saying that that relationship is different from any other. But the logic of his argument is to give the local authority an overriding veto in these cases. Many people feel that that does not pay sufficient attention to the interests of the child. It is a balance of judgment. Such a conflict will rarely exist. Good child care practice would usually ensure that no such conflict arose between the local authority and the foster parents. It would be wrong for us to predict that conflict would arise frequently, although I can imagine circumstances in which a conflict would arise. In the event of a conflict the decision should be made by the court.
I ask the House to reject the amendments. I understand the motives behind them. The British Association of Social Workers feels strongly about this matter, but a large number of social workers 1476 believe that the original provision should stay within the legislation.