HC Deb 21 October 1982 vol 29 cc559-63


Lords amendment:No. 45, insert the following new clause— E.—(1) The following section shall be inserted after section 21 of the Child Care Act 1980 "Use of accommodation for restricting liberty. 21A.—(1) Subject to regulations under subsection (2)(a)below, a child in the care of a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless it appears—

  1. (a)that—
    1. (i)he has a history of absconding and is likely to abscond from any other description of accommodation; and
    2. (ii)if he absconds it is likely that his physical, mental or moral welfare will be at risk; or
  2. (b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
(2) The Secretary of State may by regulations—
  1. (a)specify—
    1. (i)exceptional cases where subsection (1) above is not to apply to children committed to the care of a local authority under section 23 of the Children and Young Persons Act 1969;
    2. (ii)a maximum period beyond which a child may not be kept in such accommodation without the authority of a juvenile court; and
    3. (iii)a maximum period for which a juvenile court may authorise a child to be kept in such accommodation;
  2. (b)empower a juvenile court from time to time to authorise a child to be kept in such accommodation for such further period as the regulations may specify; and
  3. (c)provide that the power conferred by virtue of paragraph (b) above shall be exercisable on the application of the local authority in whose care the child is.
(3) It shall be the duty of a juvenile court before which a child is brought by virtue of this section to determine whether the criteria for keeping a child in accommodation provided for the purpose of restricting liberty are satisfied in his case; and if a court determines that the criteria are satisfied, it shall make an order authorising the child to be kept in such accommodation and specifying the maximum period for which he may be so kept. (4) On any adjournment of a hearing under subsection (3) above a justice of the peace or a juvenile court may make an interim order permitting the keeping of the child to whom the hearing relates during the period of the adjournment in accommodation provided for the purpose of restricting liberty. (5) An appeal shall lie to the Crown Court from a decision of a juvenile court under this section. (6) A juvenile court shall not exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless either—
  1. (a)he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
  2. (b)having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply .".
(2) In the Legal Aid Act 1974
  1. (a)in section 28(3)(a) and (6), after "1969" there shall be inserted "or under section 21A of the Child Care Act 1980"; and
  2. (b)at the end of section 29(1)(d)there shall be inserted "or (e)where a child is brought before a juvenile court under section 21A of the Child Care Act 1980 and is not (but wishes to be) legally represented before that court."."

Read a Second time.

The Under-Secretary of State for Health and Social Security (Mr. Tony Newton)

I beg to move, as an amendment to the Lords amendment, in subsection 21A(4) leave out 'a justice of the peace or'.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

With this it will be convenient to take Lords amendments Nos. 46, 250, 251 and 2.

Mr. Newton

The Government amendment and the other Lords amendments, apart from Lords amendment No. 45, are all technical or tidying up amendments.

I hesitate to say that Lords amendment No. 45 is one of the better amendments passed in the other place. That would imply a knowledge of the other 290 that I do not possess. But it is a good amendment. It embodies two sensible reforms and reflects a response to the views expressed by hon. Members and noble Lords and Ladies. That shows the working of Parliament at something approaching its best.

The history is complex, and I shall confine myself to explaining the main purposes of the amendment. The first is to define in law the criteria on the basis of which young people would be admitted to secure accommodation. The criteria are tight. They are an improvement on the previous legal position and, indeed, the position at earlier stages of the Bill.

I make one important qualification. Alongside the criteria set out in the amendment we have included the power for the Secretary of State by regulation to prescribe a qualification to enable children remanded to care to be kept in secure accommodation in certain circumstances.

The second purpose of the amendment is a completely new provision for the judicial review of the placement of children in secure accommodation. It is achieved by giving the Secretary of State the power to make regulations specifying exceptional cases, a maximum period during which young people can be confined in secure accommodation without the formal authority of a juvenile court and a maximum period for which a juvenile court may authorise a young person being kept in secure accommodation. The provision also provides for appeals from decisions of the juvenile court to the Crown court and for legal aid to be granted to young people involved in the process.

I hope that the House will consider the proposals satisfactory. They move us a long way towards more stringent safeguards on young people being put into secure accommodation and on the way in which the process of their being kept there is sanctioned.

Anxiety was expressed in another place about the fact that on judicial review the Secretary of State's regulation-making power was permissive rather than mandatory. That is no more than for reasons of convention. I give the House a categorical assurance that the Secretary of State intends to use these powers and that he will propose to the House that the regulations should be made as soon as possible.

7. 30 pm

Mr. Kilroy-Silk

I am pleased to hear the Minister's categorical assurance, but can he be a little more specific about when he expects to be able to bring the regulations before Parliament?

Mr. Newton

I can be a little more specific, although probably not quite as specific as the hon. Gentleman would like. There are two problems. The first is that we are still in the consultative phase on what the regulations should contain. Secondly, as the hon. Gentleman knows, we have already committed ourselves to a broader review and reform of the community homes regulations as a whole, and that may take a little time.

I hope that we shall be able to disentangle the making of these regulations from the wider issue of the community homes regulations and that that will enable us to proceed with considerable speed. Provided that the consultation process can be concluded reasonably quickly and we are able to disentangle these regulations from the wider issue, I hope that we shall be in a position by the latter part of next spring to bring forward the regulations in which the hon. Gentleman is interested.

Dr. Summerskill

The Opposition warmly welcome these important and significant amendments that were introduced mainly by Opposition Members in the other place. The amendments have done a great deal to lessen the damaging effects of a residential care order on a child. As the Minister acknowledged, it is important that there should be proper safeguards in respect of young children who are enclosed within the child care system. At present, children in care, many of whom have not committed a criminal offence, can be there for indefinite periods at the discretion of the care authority and with no judicial review.

I understand that this legislation is definitely no longer in breach of article 5.4 of the European Convention on Human Rights. There was some question that it might have been. It is reassuring to know that as a result of these amendments it is not.

I am sure that the availability of a judicial review and the other safeguards in the amendments will ensure that greater thought and consideration will be given before care orders are implemented and imposed. That is what we have wanted throughout the passage of the Bill.

Mr. Kilroy-Silk

Like my hon. Friend the Member for Halifax (Dr. Summerskill), I warmly welcome these amendments to one of the most important parts of the Bill.

The Minister rightly paid testimony to the work that has been done in Parliament on this issue, both in this House and in the other place. It is a great testimony to the effectiveness of parliamentarians of all parties as well as to outside organisations such as NACRO and the Children's Legal Centre, both of which have been extremely active in lobbying Members of both Houses, briefing them and drafting the amendments. These amendments are in response to those tabled by the Opposition which were drafted by the Children's Legal Centre, and in response to amendments along similar lines proposed by the parliamentary penal affairs group.

Two reports published in the last 18 months have proposed that such statutory criteria should be laid down and that a system of judicial review of the detention of young people in secure accommodation should be introduced. The parliamentary penal affairs groups report "Young Offenders: A Strategy for the Future" published in 1981 and, more recently, the report of the Children's Legal Centre entitled "Locked Up in Care" have been profoundly influential in affecting our arguments and attitudes. I also hope that they have convinced the Government that what has been proposed by the Opposition and the parliamentary penal affairs group is necessary and desirable.

Both reports express concern that secure units are currently being used for younger and less delinquent children that was the case several years ago. They both point out that the recidivist rate of young people in residential establishments is high and, most important, that such establishments seem to make younger and less delinquent children a more likely to reoffend than would have been expected from their offending records.

The Government have also acknowledged that their failure up to now to provide a judicial review of the detention of children in secure accommodation probably placed us in breach of the European Convention on Human Rights. Even today, we are still in breach of that convention and we shall continue to be so until the Minister's assurance of the regulations coming before us in late spring is realised.

This amendment was brought forward in response to Opposition amendments based on the Children's Legal Centre recommendations. It is reassuring that the Minister has gone further and given a categorical assurance that the regulations will be introduced in the late spring. He is on notice from now until then to ensure that the consultations are carried out with great speed and efficiency. There is no good reason why the regulations cannot be before us next spring. We are talking about 2,000 children a year being locked up in prison-like conditions without any proper judicial control, review or supervision. That has always been an offence to our criminal justice system and to our local authority system of care and welfare of young people.

We are now taking an important step to put that right. The Minister can be assured that we shall be watching him closely to ensure that he follows this through to the bitter end.

Mr. Newton

With the leave of the House, Mr. Deputy Speaker, I should make it quite clear to the hon. Gentleman that my categorical assurance related to the making of regulations. If he reads what I said about the date in Hansard,he will find that it was slightly less categorical, but we shall do what we can to meet the tentative target that I have set.

To avoid any misunderstanding, I should point out that these amendments have no relationship with residential care orders. They are concerned only with the placement of children in secure: accommodation. I am happy to join the hon. Member for Ormskirk (Mr. Kilroy-Silk) in his tribute to the many people who have played a part in bringing us to where we are today. Not least, I pay tribute to the hon. Gentleman for the work that he has done.

In fairness to my officials, I must resist the suggestion that the DHSS has been dragged along, kicking and screaming, by this process.

Mr. Kilroy-Silk

They are an admirable bunch.

Mr. Newton

I agree with that.

Mr. Kilroy-Silk

It has been the Ministers.

Mr. Newton

I do not think Ministers have been the problem, because I have not been dragged kicking and screaming—

Mr. Kilroy-Silk

The hon. Gentleman is all right.

Mr. Newton

We can all agree that we have been mutually helpful to one another. I merely place on record the fact that the first suggestion of a judicial review was contained in a DHSS report on children in care produced in February 1981.

At any rate, we can all be pleased with what will be passed into law, and I am grateful to everyone who has played a part.

Question put and agreed to.

Lords amendment, as amended, agreed to.

Lords amendment No. 46 agreed to.

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