HC Deb 11 May 1983 vol 42 cc847-55
The Under-Secretary of State for Health and Social Security (Mr. Tony Newton)

I beg to move amendment No. 10, in page 34, leave out lines 33 to 41 and insert— `12B. — (1) A local authority may not terminate arrangements for access to a child to whom this Part of this Act applies by its parent, guardian or custodian, or refuse to make such arrangements unless they have first given the parent, guardian or custodian notice of termination or refusal in a form prescribed by order made by the Secretary of State. (1A) A notice under this section shall contain a statement that the parent, guardian or custodian has a right to apply to a court for an order under section 12C below. (1B) A notice terminating access shall state that access will be terminated as from the date of service of the notice. (1C) A local authority are not to be taken to terminate access for the purposes of this section in a case where they propose to substitute new arrangements for access for existing arrangements. (1D) A local authority are not to be taken to refuse to make arrangements for access for the purposes of this section in a case where they postpone access for such reasonable period as appears to them to be necessary to enable them to consider what arrangement for access (if any) are to be made.'.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

With this it will be convenient to take Government amendments Nos. 2 and 29.

Mr. Newton

It may be helpful if at the outset I explain to the House that the two amendments with which this amendment is linked refer to the position in Scotland, whereas amendment No. 10 refers only to the position in England and Wales. Although they are in some respects parallel amendments, and amendment No. 29 follows on something that was done in Committee, it may be for the convenience of the House if my hon. Friend the Under-Secretary of State for Scotland with responsibility for health and social work also explains to the House the Scottish provisions. Therefore, I shall address myself primarily to amendment No. 10 and give some background to the amendments, which amend a fairly limited but important point concerning the access rights of parents to children who are in local authority care.

The broader background is a change that was introduced in the Bill in Committee, to which this is now a further amendment, which responded in a sensible and practical way to the widespread concern that has, as I sure the House will be aware, been expressed in recent months, and perhaps over a longer period than that. The worry is about the possible position of parents when their children are in local authority care and when the local authority therefore has responsibility for taking decisions concerning those children. I refer to the position when it may feel constrained to decide at some stage that the natural parents are to have no further access to the child.

I acknowledge, as I think that everyone concerned about this matter would, that there may be circumstances in which local authorities are necessarily driven to take such a decision. Nevertheless, it is an important decision and one that clearly implies the permanent disruption of the original family. Even where it is believed by the local authority or others that this is in the long-term interests of the child in question, it is not a decision that should be taken lightly or without careful consideration.

Over the recent past, and more particularly in the course of the past year and the early part of this year, and against this background, there has understandably been considerable pressure from bodies such as the children's legal centre and the family rights group and from other concerned bodies and individuals that the present relatively untrammelled rights of local authorities to take such decisions should be rather more closely restricted by the law and governed by the possibility of judicial review by the courts.

In response to that, the hon. Member for Ormskirk (Mr. Kilroy-Silk), who has taken a close interest in these matters, although he is clearly not able to be here tonight, first introduced private Member's Bills, and subsequently tabled a new clause to this Bill, virtually incorporating one of his private Member's Bills, which would ensure that virtually all, or most, local authority decisions about access to children in care would be subject to possible right of appeal to the courts.

My hon. and learned Friend the Minister and I, in considering these problems, came fairly rapidly to the conclusion that it was right — I would argue almost unanswerably right—to do something to strengthen the rights of parents in this regard. That is what we have done in the Bill. We also felt that at a time when the House of Commons Select Committee on Social Services had set its hand to an important study on child care issues, it would be wrong to go to the full extent argued from some quarters in granting rights of appeal on almost all access decisions. It would also be wrong to go too far in altering the balance within the existing law between the rights, duties and responsibilities of parents and the rights, duties and responsibilities of local authorities, and the rights and the interests of children without more careful consideration, study and, above all, without waiting for the report of the Select Committee. We did not feel it right to go quite as far as was being urged and as many people still feel it would be right, in due course, to go.

At the moment, amendment No. 10 introduces a relatively limited but practical move, which we do not necessarily see as the last word on the matter, but which we see as the appropriate step to take at a time when so much wider thought about child care issues is going on. We introduced a new clause giving parents the right of appeal to the courts in certain circumstances—not where the local authority makes any restrictive decision about access but where the local authority decides to terminate access — in other words, where some final act is proposed to cut off the link between the child and the parents. That has been widely welcomed even by those who wish that we had gone further. It is recognised that it is a significant practical step that represents an important improvement in the rights of parents.

Mr. Stephen Dorrell (Loughborough)

Does my hon. Friend accept that the matter to which the amendment is addressed has been a consistent long-term concern of many who are involved with child care issues? I am sure that my hon. Friend has had a number of cases brought to his attention as a constituency Member of Parliament, as I have had as the Member of Parliament for Loughborough. The concern that has been expressed about the rights of parents to appeal against the final denial of access to children in care has been to some extent answered by the Government's attitude to the amendment. At the moment of final break between the natural parents and the child there is inevitably great emotional upset within the family. The parents, almost inevitably, regard the local authority as a party to that dispute, and it is equally inevitable that the parents will not accept the local authority as the final arbiter on the issue. In those circumstances, it is important that a right of appeal should exist to the courts, which are seen as quite independent and apart from the dispute, and their impartiality is respected by most parents, even by those who are deeply emotionally involved in that difficult position.

8 pm

Mr. Newton

I am grateful to my hon. Friend who has stated the case clearly. From my correspondence with him in my role as a Minister and in his capacity as the hon. Member for Loughborough, I know that he does an excellent job for his constituents and I appreciate his involvement in these matters. I am glad that progress has been made in this direction.

Mr. Nigel Forman (Carshalton)

Will my hon. Friend enlighten the House as to some of the circumstances in which a local authority takes painful and drastic action of this type which is often misunderstood by parents? I have encountered such cases that have caused great anguish to the parents. It is not always easy for them to understand exactly the reasons why local authorities act as they do. I associate myself with my hon. Friend the Under-Secretary of State in saying such a provision is a necessary addition to the law. I welcome the provision, but I would appreciate further explanation.

Mr. Newton

My hon. Friend the Member for Carshalton (Mr. Forman) has given me the opportunity to expand at length on the unhappy circumstances that may lead to children being taken into care. It is done by means of several legal provisions. Depending on how they are counted, there are as many as a dozen ways. Children are taken into care because they have committed or are thought to have committed a criminal offence or where parents may be dead or have abandoned the child. In those circumstances, the issue of parental access would not arise.

Many examples exist, varying from temporary family difficulties to mental handicaps or other disabilities on the part of the parents, which may have led either voluntarily in the first instance, or by a care order, to a child being taken into care.

Just as the circumstances by which children are taken into care are wide ranging, so are the circumstances in which local authorities may find themselves after that action has been taken. The problem is a matter for local authority social services departments, and their policies vary considerably. I trust that at best no local authority would come to such a decision until there was no possibility of the child being successfully reunited with its family to regain a stable future in the normal and natural family context. I would be wrong in attempting to elaborate at the Dispatch Box tonight on the circumstances that might lead a local authority to come to such a judgment.

I trust that my hon. Friend the Member for Carshalton, even if he does not agree with all the judgments that are made, accepts the general proposition that there may be circumstances in which it is in the child's interests for it to be taken into care. For example, a local authority might decide that adoption is the only practicable way to ensure the child a secure future. As part of that decision, it might decide that access by the natural parent should be ended. Such problems are spoken about as if the only factor is of hard-hearted local authorities telling parents with children in care that they cannot see their children again. That is a last resort. For the large majority of children in care who do not have any contact with their parents, the reason is that their parents no longer seek contact with them. It is not that some form of bureaucratic action is denying them access. In some respects, those are the children for whom sorrow should be felt.

Mr. Dorrell

My hon. Friend said that he did not regard this restricted acceptance of the principle espoused by the hon. Member for Ormskirk (Mr. Kilroy-Silk) as being the last word on the issue. Assuming that the Government are returned to office on 9 June, how does he expect that issue to develop, because many cases are not covered by the amendment and many parents would like to be informed of the Government's long-term attitude?

Mr. Newton

I am, again, grateful to my hon. Friend the Member for Loughborough. I do not wish to elaborate too much on what I said about this not necessarily being the last word. I stated my views on this subject in Committee and when giving oral evidence to the Social Services Committee on children in care. Its report must be considered in a wide and systematic way. I do not wish to predict whether further steps should be taken or what those steps should be. I said in Committee that the step that the Government are taking is right and important, and could conceivably be the only step that is needed. I do not rule out further steps in the light of the reports that are expected and the subsequent development of opinions. The Government restricted their proposals to cases where local authorities terminated the parents' access to children in care only because there was no halfway house between that and the position in which parents would have the right to appeal to the courts about every decision involving access to children in care, even if it was said that the parents could see their children only once a day for half an hour. That, theoretically, would be a restriction on access.

The Government came to the conclusion that there was no halfway house between the complete right of appeal to the courts about access and the more limited proposal that I have mentioned. Although some people wish the Government to go as far as having a right of appeal in every case of dispute, such a provision would involve a major change in the present balance of the law and the nature of the responsibility that has been placed on local authorities in contrast with those powers that have been given to the courts. The Government did not feel that it would be appropriate to make such a change hastily without widespread consultation and discussion. That type of thinking led the Government to make their proposal. Although the Government felt they could not make such a fundamental change — and I include my hon. and learned Friend the Minister for Health in what I say—the conclusion was reached that something had to be done to deal with those cases where access was being terminated altogether.

Whatever provisions become law, whatever the problems that concern parents, local authorities and other bodies, in the end, good social work practice and sensible, proper and humane procedures for dealing with the relationship between local authorities, which have the responsibility for the child in care and the parents, will be more important than any other factor in bringing about the improvements that are needed.

I do not believe that the law can regulate every last dot and comma of those relationships. Along with the legal rights that I have mentioned, we have inserted into the proposal an equally, or perhaps even more important, provision for what has been called a statutory code of practice governing access to children in care. We are incorporating into the Bill a statutory duty to be laid on the Secretary of State for Social Services to produce a code that will guide the work of local authorities when dealing with this issue. We shall work hard on that during the next few months. We shall, of course, consult the local authorities and consult widely among the other bodies involved. Ultimately that may prove to be even more important than the new legal right. In combination they are of greater significance than is sometimes appreciated, and are very important.

Having given the background to the proposal, I shall deal with the amendment. As a result of our deliberations in Committee, and in the continued examination of the Bill by Ministers and officials, it emerged that in providing the new right of appeal on the termination of access to parents we had not incorporated any provision to cover parents whose access is terminated, by act or by omission, before the law comes into effect. Amendment No. 10 seeks to remedy that and to meet the concern expressed about the position of parents, guardians or custodians whose access to the children may have been lost before commencement of the new access provisions.

As I have said, amendment No. 2 covers Scotland, while amendment No. 10 concerns England and Wales. The relevant subsections, subsections 17A and 12B, are now formulated so that there is no doubt that they clearly cover the position of parents who have no access, and may not have had access for some time, but who now wish at some point after commencement to see their children. Where a local authority is asked for access by a parent in that situation, the authority will consider whether it can offer access arrangements, and if it has to decide that the parents should have no access at all it will be required to issue a notice of refusal of access.

At that point, by the issue of a notice of refusal, the parent will gain the right to apply to the court for an access order under the other provisions. It is clear why such changes have been necessary. One cannot speak of termination of access in cases where there has been no access, but the two additional subsections in the Scottish measure and the provisions that I am dealing with covering England and Wales clarify what is meant by termination and refusal, so that there is no doubt that what is meant is a final decision to end access altogether, or to prohibit it altogether.

Those are the decisions that the clause, as amended, would give the parents the right to challenge in court.

8.15 pm
Mr. Dorrell

I am grateful to my hon. Friend for his patience. Perhaps he could say a little about the factors that the court will take into account when reaching this decision. Clearly, there are two different sets of circumstances. A parent may be refused access to his child for the first time or, alternatively, he may be seeking to regain access to a child that he has not seen for some time. Will the court apply the same criteria to both sets of circumstances? After all, they are very different. Will the statutory code drawn up by the Secretary of State apply equally to both sets of circumstances, even though the decision denying access to the parent may have been taken long before the code of practice was thought of? What criteria will the court use in reaching its decision?

Mr. Newton

The code will be primarily concerned with decisions about access that are taken from now on by local authorities and not least with how that decision-making process should be conducted within the authority, how far councillors should be involved, how the subject should be communicated to the parents and what rights of discussion and representation parents should have, long before they may wish to go to court.

Clearly, no one would want the parents to be forced to go to court simply to obtain a debate with the local authority. I am not saying that that happens, but then one would not want that to happen. Therefore, part of our thinking is that, given that there is no doubt some difference of practice between local authorities, we should raise the practice of all to the practice of the best and should include any new thoughts that arise from the wide-ranging consultations that we hope will take place this year.

I was asked about the factors that the court would take into account. I am not a lawyer, but I hesitate to ask my hon. and learned Friend the Minister for Health to bring his legal expertise to bear, or—[Interruption]—to call upon the equally readily available legal expertise of the hon. Member for Pontypridd (Mr. John). I think that I am right in saying that we have a solicitor on the one side of the Chamber and a barrister on the other. The mind boggles at their expertise and the dazzling debate that might follow.

Mr. Brynmor John (Pontypridd)

No contest.

Mr. Newton

I shall not ask the hon. Gentleman to elaborate on that remark, because I might be asked to arbitrate between my hon. and learned Friend and the hon. Gentleman or to guess who would emerge the winner. When it comes to solicitors versus banisters, the ordinary mortal does best to stay out of the argument. Therefore, I shall return hastily from that possible legal thicket to the question asked by my hon. Friend the Member for Loughborough about the factors that the court might take into account. I would not want to lay down what the court should take into account. but it would have to consider all the circumstances. The law generally requires—there are some rather strange differences in the provisions governing different parts of the law relating to child care —that the welfare and interests of the child are to be the paramount consideration. That is easier to put in terms than to define precisely, but the court will consider the matter with that primarily in mind.

It may be asked whether the amendment will not widen the intention of the original clause by introducing, in effect, a right to challenge refusal as well as termination of access. It will widen the original clause to include parents whose access has never been formally terminated by issue of a termination notice. It will also give them the right to be given formal notice of their position, and, if they are to be allowed no access at all in future, to challenge that decision. We believe that it would be wrong to exclude parents in that position and that the new clause should cover—as we hope that it now will do—all those parents who are deprived of any access. The original clause appeared to be defective in that respect, and when that was brought to our notice we readily agreed to put it right.

I hope that the House will agree as readily tonight to the broad purpose of which the amendment forms part, to give this new right to the parents of children in care who may have their access to their children terminated, and at the same time that the amendment is sensible and useful and strengthens still further the proposal we have already made to the House.

The Under-Secretary of State for Scotland (Mr. John MacKay)

It gives me great pleasure to take part, even at this late stage, in the debate on this important Bill. Unfortunately, I was on a coincident Committee dealing with mental health legislation in Scotland at the same time as this Bill passed through Committee. I am delighted to hear that Opposition Members missed me. Unfortunately, I could not be there because the Mental Health (Amendment) (Scotland) Bill required my attention. I am delighted to say that the Bill completed its remaining stages last evening. I should like to thank my hon. Friends the Minister for Health and the Under-Secretary of State for Health and Social Security for looking after the Scottish interest and my hon. and learned Friend the Solicitor-General for Scotland, who came in to add some of the legal words of wisdom which were necessary to keep the Committee on the right lines about Scottish law. With regard to the contest or battle between banisters and solicitors in England, the sending in of the Solicitor-General for Scotland, an advocate, to do the adjudication was a sensible move by the Government and the Scottish Office.

The new sections 17A to 17E in the Social Work (Scotland) Act 1968, inserted in Committee, will give parents whose parental rights have been assumed and whose access to their children has been terminated by the local authority a right to ask the sheriff to decide whether this is reasonable. The purpose of amendment No. 2 is to ensure that those whose access has been terminated in the past can also exercise this right, but also to ensure that such cases are not taken to court in circumstances where access is not actually refused or terminated. It is similar to, and has the same effect as, the amendment moved by my hon. Friend the Under-Secretary of State for Health and Social Security. In essence, it extends the right of recourse to a sheriff to a parent who is refused access. This means that, where a parent has had access terminated in the past and applies now for access, the local authority will have to give formal notice if it proposes to refuse to allow access.

There is, however, concern, as my hon. Friend has already mentioned with regard to England and Wales, that this may bring about court hearings in circumstances where a decision on access has not been made. 'The amendment therefore provides that a local authority should not be seen as terminating access where it is simply altering the arrangements and should not be seen as refusing to make arrangements for access where it is simply declining to allow access during a reasonable period when decisions are being taken on what access, if any, is appropriate.

Amendment No. 29 relates to the period for which the operation of an access order can be suspended by an emergency order made under the new section 17C. It reduces the period from 28 clays to seven days and simply parallels an amendment of the hon. Member for Ormskirk (Mr. Kilroy-Silk), which was accepted in Committee, to the English legislation.

Since the position on access to children in care in Scotland is similar to that in England, perhaps I may mention some of the differences that may be of interest. The new provision deals only with the situation where a local authority has assumed parental rights by means of a resolution under section 16 of the 1968 Act. This is the only Scottish child care provision which removes the title of a parent or guardian to sue for access in the courts. Supervision requirements from a children's hearing, unlike care orders in England, do not impinge formally on the parental rights and duties of the natural parent. There is, therefore, no need to make provision for other circumstances.

Equally, there is no need to specify further the court having jurisdiction, since this will be the sheriff court in Scotland. Similarly, there is no need for special provision on the rights of appeal, since under the normal provisions in Scotland a decision by the sheriff will be subject to review by the sheriff principal or in certain cases by the Court of Session. Emergency orders dealing with access, which are provided for both in the English and in the Scottish new clauses, will be dealt with by the sheriff rather than by a justice of the peace. Other than in the very special case of place of safety orders, justices of the peace do not normally have a role in Scottish child care law and arrangements can be made for a sheriff to consider the case in the short time scale required.

The provisions relating to voluntary organisations are framed rather differently. Section 16(1)(b) of the 1968 Act provides that a local authority may resolve to transfer parental rights and duties to a voluntary organisation having the care of the child. Where such a voluntary organisation subsequently terminates access to the child, the voluntary organisation must notify the parent or guardian properly as provided in new section 17A(1). That parent or guardian will then have recourse to the sheriff if required. There is no need to make specific application of the legal aid legislation for the purposes of the amendments in Scotland. The new provisions will fall within the Scottish legal aid scheme.

I am sure that these explanations of the differences between Scotland and England have helped the House to realise why we need these amendments paralleling the English amendments in this part of the Bill. Access to children in care and the rights of parents and guardians are important matters. I commend the two amendments, together with my hon. Friends' amendment to the English legislation, to the House.

Amendment agreed to.

Amendments made: No. 2, in page 10, leave out lines 34 to 43 and insert— '17A.—(l) A local authority or voluntary organisation may not terminate arrangements for access to a child who is the subject of a resolution under section 16 of this Act by his parent or guardian or refuse to make such arrangements unless they have first given the parent or guardian notice of termination or refusal in a form prescribed by order made by the Secretary of State. (1A) A notice under this section shall contain a statement that the parent or guardian has a right to apply to the sheriff for an order under section 17B of this Act. (1B) A notice terminating access shall state that access will be terminated as from the date of service of the notice. (1C) A local authority or voluntary organisation are not to be taken to terminate arrangements for access for the purposes of this section in a case where they propose to substitute new arrangements for access for existing arrangements. (1D) A local authority or voluntary organisation are not to be taken to refuse to make arrangements for access for the purposes of this section in a case where they postpone access for such reasonable period as appears to them to be necessary to enable them to consider what arrangements for access (if any) are to be made.'

No. 29, in page 11, line 36, leave out '28' and insert '7'.—[Mr. John MacKay.]

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