ACCESS (Hansard, 2 May 1986)

HC Deb 02 May 1986 vol 96 cc1215-23 1215

§ '(1) The following subsections shall be substituted for sections 12A, l2B and 12C of the Child Care Act 1980.

§ (2) The Court, pending a final determination or on making a care order in any of the proceedings referred to in subsection (3) of this section may, on the application of a parent, guardian or relative of the child, make an order requiring the local authority to give access to the child to the parent, guardian or relative.

§ (3) The proceedings to which subsection (2) above applies are:

(a) an application for a care order or an interim care order under sections 1 and 2(10) of the Children and Young Persons Act 1969;
(b) an application under section 2(12) of the Children and Young Persons Act 1969 for the discharge of a care order;
(c) an appeal under section 2(12) of the Children and Young Persons Act 1969;
(d) an appeal under section 21(4) of the Children and Young Persons Act 1969;
(e) a complaint made by a local authority to the Juvenile Court under section 3(5) and (6) of the Child Care Act 1980;
(f) a complaint made under section 5(4) of the Child Care Act 1980 requesting the determination of a resolution made under section 3 of that Act;
(g) an appeal to the High Court under section 6 of the Child Care Act 1980;
(h) proceedings in the Magistrates' Court in relation to a child or young person on an information charging him with an offence; and
(i) an appeal to the Crown Court against an order made by a magistrates' court in relation to a child or young person found guilty of an offence.

§ (4) Where a child is in the care of a local authority under an enactment the parent, guardian or relative of that child may apply to the magistrates' court for an order requiring the local authority to give access to the child to the parent, guardian or relative.

§ (5) An application under subsection (4) shall be made by way of a complaint to an appropriate Juvenile Court.

§ (6) An access order shall be an order requiring the authority to allow the child's parent, guardian or relative access to the child subject to such conditions as the order may specify with regard to commencement, frequency, duration or place of access or to any other matter for which it appears to the court that provision ought to be made in connection with the requirement to allow access.

§ (7) A Juvenile Court is an appropriate Juvenile Court for the purposes of the Part of the Act if it has jurisdiction in the area of the authority who has the care of the child.

1216

§ (8) "Relative" in subsections (2) and (4) is a relative within the meaning of section 87 of the Child Care Act 1980.'.—[Ms. Harman.]

§ Brought up, and read the First time.

§ Ms. Harman
I beg to move, That the clause be read a Second time.
The new clause recognises the critical importance of access in rehabilitation. It is agreed that, wherever it is possible and safe to do so, a child should be returned to live with its parents and that the period spent in care should be as short as possible.
The contact that the child maintains with the parents while it is in care and the access allowed to the parents are critical to rehabilitation. If parents lose touch with the child because they do not have proper access, rehabilitation can be simply a paper exercise, because the bonds between parent and child may have been broken.
The new clause provides that a parent, guardian or relative may apply for any matter involving access to be decided by the courts. When making access orders, courts could impose specific conditions on the access.
Hon. Members may think that the clause is too wide, but it gives courts extensive powers to impose conditions when granting access. It says that courts may impose conditions on the frequency, duration or place of access and on any other matters. If a court were worried about the common law husband or boy friend of the mother, it could order that access should not take place in the presence of the man. It might also order that the child should not be taken on a visit to see that person.

§ Mrs. Virginia Bottomley
Does not the hon. Member see a contradiction between her view that the court should be given these powers on access and her vote against clause 1 in Committee? Clause 1 gave the courts small powers covering simply the return home. Decisions about access would be multiplied endlessly compared s with that initial decision.

§ Ms. Harman
There was wide agreement in the child care law review that access decisions should be made by the courts. The new clause is in line with the general spirit of the Bill and with the recommendations of the review.
At present, only parents may apply for access to children in care. The Bill recognises the importance of other relatives and people who are interested in the child's life, as does the new clause, which extends the range of people who may apply for access.
At present, courts can make orders for access only when it has been stopped by the local authority. No doubt hon. Members have met parents in their surgeries and know of cases where local authorities have not stopped access, but have imposed conditions that render access unsatisfactory. The new clause would allow parents to apply to a court and to say, "Although the local authority has not denied us access, the terms on which it has granted it are so unsatisfactory as to make it virtually impossible." The court could then agree with the conditions imposed by the local authority, scrap them, or impose new conditions.
The child care law review recommended that all disputes over access should be decided by the courts. We should prefer the forum in which access was decided to be an experienced, well-trained and consistent judiciary under a family court system. That would make the new clause a much more important step. I believe that it is important, but at present it is limited.
1217 The European Commission of Human Rights has recently found the Government to be in breach of the convention that protects family life in, I think, five cases where parents have been denied access to their children in local authority care. The new clause would open up the situation, but the orders and conditions that the courts could impose would prevent it from getting out of control.
A major anxiety about children in care and their families is that insufficient work is done to enable children to return home. They must be able to see and to keep in touch with their parents as much as possible. Therefore, it would be right to allow a parent or relative to challenge a local authority's decision. If a child is very young or is to be in care for some time, access is important in rehabilitation, but there may never be rehabilitation and it is also important to ensure that there is close scrutiny of the conditions under which parents are allowed to see their children.

§ Mr. Walters
The new clause, which would extend the rights of parents or relatives to apply for access orders, is outside the scope of anything in the Bill.
I have some sympathy with the aims of the new clause, but I cannot resist the observation, already tellingly made by my hon. Friend the Member for Surrey, South-West (Mrs. Bottomley), that it would considerably increase the involvement of magistrates courts in the management of children in care, and the hon. Member for Peckham (Ms. Harman) firmly and, in my view, regrettably resisted that move in relation to my proposals in clause 1.

§ Mr. Mikardo
Subsection (5) of the new clause places within the purview of the juvenile courts the decision on a matter on which decisions are not always easy. It induces me to make some observations about that subsection and about other references in the Bill to juvenile courts.
I have to be careful that nothing I say could be interpreted as being derogatory of juvenile courts. I have a daughter who is a magistrate and who sits in a juvenile court in the north of England and I would not want to say anything that might import tension into what has hitherto been a loving and relaxed family. I know that she and her colleagues spent a considerable time reading and attending seminars to prepare themselves for their role.
11.30 am
We must bear in mind that it is a long time since the children of lay magistrates were young and a long time since those magistrates had day-to-day contact with children. My daughter would be the first to admit that, notwithstanding the study involved, the qualifications of a lay magistrate to make difficult judgments on child care cases, including access cases, on average—there are exceptions—are well below the qualifications of a trained, professional certificated social worker. The judgment of such a social worker should not, therefore, be cast aside.

§ Ms. Harman
Does my hon. Friend agree that the greater involvement which would be provided to the courts under the new clause is realistic, because, by definition, the parents and the local authority would be on opposite sides? Therefore, the magistrate would have to choose between contending cases. Does my hon. Friend recognise that clause 1, as it was first brought before the House, provided that the parents and the local authority would be, 1218 by definition, on the same side and, therefore, the scrutiny would not be realistic? Does my hon. Friend recognise that that was one of the reasons why we opposed clause 1?

§ Mr. Mikardo
I understand that. I do not seek to make more of the argument than it justifies or to make too much of the position. I know that lay magistrates place importance on the opinions expressed to them by social workers. A magistrate should not be over-influenced by what may well be an understandable and human fellow feeling for a parent and lightly discard—I use that word carefully—the views of the professional officer who is trained for the job and has probably studied the child closely over a long period.
Notwithstanding the disclaimer of the hon. Member for Westbury (Mr. Walters)—I do not cast any doubt on his integrity—it is clear that the introduction of the Bill at this time was inspired, at least in part, by a small number of recent cases of gross abuse of a child by one or both of his parents—cases which have horrified us all. I refer particularly to the Jasmine Beckford case. To the overwhelming majority of people, and especially parents, such cases are not merely horrifying; they are incomprehensible. Normal people cannot understand a parent behaving in that incredible way. They find it hard to believe that such a monstrous thing could happen. Our strong reaction is to overlook the fact that these abnormal cases represent only a tiny fraction of the many thousands of child care cases that are handled every day of the week by social workers. No one hears about those cases because they are brought to a satisfactory conclusion.
I appreciated the remarks of the hon. Member for Surrey, South-West (Mrs. Bottomley) on Second Reading—she took a crack at me earlier—when she said: The history of child care law has, in my view, been too frequently an over-reaction to appalling incidents. She continued: It is very easy at a time of emotional strain and difficulty, especially when there is a great deal of press and public interest, to look for scapegoats."—[Official Report, 31 January 1986; Vol. 90, c. 1211.] She cited the Jasmine Beckford case. She was absolutely right. We must remember that, in the Jasmine Beckford case, it was the court, not the social worker, that made an error which in the end, unhappily, turned out to be fatal.

§ Mr. Walters
In the Jasmine Beckford case, the magistrates, having made the order, commented that they would like the child to be returned to the home as soon as practicable. In retrospect, that was a grave mistake and a great pity. The decision to return the child was entirely that of the social workers.

§ Mr. Mikardo
That is not as I read the case and as some pretty authoritative people have interpreted it. Many people think that the social services department of the borough council involved in that case was made a scapegoat in the way that the hon. Member for Surrey, South-West said.

§ Ms. Harman
Is my hon. Friend aware that the inquiry chaired by Louis Blom-Cooper felt that, although the social workers said in evidence that they had not placed undue weight on the remarks of the magistrates, the remarks of the magistrates had been critical in leading to the decision? In fact, the report stated that the magistrates should be publicly upbraided.

§ Mr. Lawrence
Rubbish.

1219

§ Ms. Harman
The hon. and learned Gentleman says, "Rubbish." I am simply bringing to the attention of my hon. Friend the Member for Bow and Poplar (Mr. Mikardo) something of which he is probably aware—that the Blom-Cooper inquiry felt that the error of the magistrates was significant and, combined with the error of the social workers, disastrous.

§ Mr. Mikardo
My hon. Friend should not be surprised that the hon. and learned Gentleman said, "Rubbish." Honourable and learned Gentlemen never agree with their learned friends about anything under the sun. Obviously, they do not like Mr. Blom-Cooper. However, we do not have to become involved in high-level legal quarrels.
I refer to the intervention of my hon. Friend and that of the hon. Member for Westbury. The least one can say is that responsibility in that case must be shared. The professional people were disciplined and their careers put in jeopardy. To that extent, they were made scapegoats for a decision that was not entirely theirs. That is the point which I took the hon. Member for Surrey, South-West to be making. She returned to the point, with good effect, in Standing Committee. She said: Having been a psychiatric social worker for 10 years, I feel strongly about the value of the profession, the importance of people's judgments, their skills, the need for further training and the respect which they should have from the public. I have felt incensed in many cases where things have gone wrong that the social worker was all too easily the scapegoat. The hon. Lady was strongly supported by the Under-Secretary of State for Health and Social Security—the hon. Member for Wycombe (Mr. Whitney)—who said: The implication—indeed, the practice—of what is now proposed would be to ask the magistrates to get involved in detail of child placement and in making provisions which would take this whole subject into a different area. I suggest that the experience we have would not necessarily lead to the conclusion that this would provide the better answers in child care that we are all seeking. Later in the sitting, the hon. Gentleman returned to the subject when he said: the local authority will … take the professional decisions on case management, such as the placement of the child. Because of its composition and procedure, the court is not an appropriate forum for reviewing such professional decisions. Later he stated: Our social services inspectorate, in consultation with the field agencies, will offer a more comprehensive and appropriate way of dealing with an issue than a bench of magistrates. That is putting it more forcefully than the hon. Member for Westbury (Mr. Walters) or I would.
The Under-Secretary of State was not finished with the point, because he said: I suggest that a careful examination of the cases which have gone wrong, whether the Jasmine Beckford case or others, does not lead me to the conclusion that to bring the magistrates back into the process at this stage … would improve the possibilities of achieving better management in child care cases. Rather, it would lead to delays. It would introduce another court element which inevitably would have a degree of confrontation about it."—[Official Report, Standing Committee C, 19 March 1986; c. 4, 6, 14–15.] We should bear this major consideration in mind not only in relation to the new clause, especially subsection (5), but throughout our deliberations.

§ Mr. Chris Smith
I support the new clause tabled by my hon. Friend the Member for Peckham (Ms. Harman) for two major reasons. First, we must all recognise, as my hon. Friends the Members for Peckham and for Bow and Poplar (Mr. Mikardo) have done, that the issue of access is crucial, not simply for the mere fact of access but 1220 because access is a preparation for any future change in the relationship between a parent or guardian and the child. If a person who may, in due course, again be given the care of the child does not have access for some months and if the change in care status happens cold, the chances that a successful relationship will develop and hold will be much fewer than if access were available. Access is important not simply for the well-being of the child and for the peace of mind of its relatives or parents but because it prepares people for what might happen later. That is an extremely important point.
11.45 am
Secondly, I am sympathetic to the new clause because it seeks to enable not only parents but other relatives to apply for access. Hon. Members have commented on the importance of grandparents. One example in my constituency immediately springs to mind because in the past week I have been attempting to assist those involved. A grandparent whose daughter died just before Christmas is developing an extremely close relationship with her daughter's child. The father has disappeared from the scene. The relationship that is developing, in the absence of parents, is mirrored by many similar relationships in Britain. In such circumstances, surely it is right that relatives other than parents should be able to apply for access.

§ Mrs. Virginia Bottomley
Is the hon. Gentleman aware that the legislation of my hon. Friend the Member for Westbury (Mr. Walters) has passed the stage where it was agreed that grandparents with the leave of the court would be parties and would, therefore, have the right to be heard? That is a substantial achievement.

§ Mr. Smith
I am, of course, aware of that fact. I was simply using the example of a case in my constituency to emphasise that not only parents but other relatives have an interest in the welfare of the child and in building up a good relationship with him. I am delighted about the improved status of grandparents which has been achieved by the hon. Member for Westbury (Mr. Walters). I would not wish to imply that I was not delighted about that.
I make one caveat about the new clause. I imply no criticism of my hon. Friend the Member for Peckham, because she has to work within the existing legal framework. It is difficult and daunting for many people to approach any sort of court in the present legal system to apply for access or to make any other request concerning their relationship with their child.
I should like to make one other point. I may be straying a little from the new clause but, Mr. Deputy Speaker, I hope that you will allow me to press the point. I hope that the efforts by my hon. Friend the Member for Torfaen (Mr. Abse) and other hon. Members to try to establish a completely different system for court consideration of such matters will have greater success than they appear to have had hitherto. The more we can do to make court and legal proceedings less daunting and less difficult for parents, grandparents and other relatives the better. Given the legal system under which we have to operate, this new clause is a sensible provision and will enlarge the scope for those involved in the welfare of children and enable them to seek access. I support the new clause.

§ Mr. Whitney
I agree with hon. Members who have spoken about the importance of access in child care cases. 1221 That is why in the Health and Social Services and Social Security Adjudications Act 1983, or SSASSA, as we call it in my trade, we introduced a new arrangement under which parents, guardians or custodians could appeal against termination or refusal of access to a child who was subject to a care order. In December 1983, we published a statutory code of practice under the provisions of that Act.
The work of the social services inspectorate is an important part of the DHSS operation. It has recently been concentrating on this area and has completed an inspection. We recognise the importance of access and are taking practical steps to ensure that it is improved. Our now much-trailered proposals on the reform of child care law will, as the hon. Member for Peckham (Ms. Harman) suggested, cover this area.
The hon. Lady's clause goes much further than the suggestions in our review document, where a total package is proposed. That package differs considerably from the scope of the present clause which has serious and unacceptable implications. For example, it would allow a wide range of relatives to apply for access. It would bring in a new procedure that would apply to voluntary care and was drafted in the expectation that an order would delineate in advance all the main parameters of the arrangements. It suffers from all the main disadvantages of the original clauses 1 and 2 of the Bill. My hon. Friends the Members for Westbury (Mr. Walters) and for Surrey, South-West (Mrs. Bottomley) have already said that it would necessitate the detailed involvement of the court. I hope that the hon. Lady will accept that we recognise this area as important.

§ Ms. Harman
Does not the Minister think that it is totally unsatisfactory that, when a number of new clauses are brought before the House and he acknowledges that they raise important points and will be dealt with when the legislation arising out of the child care law reivew comes before the House, he fails to give us a date for that? He recognises the importance of the issues but says that for technical reasons he will not at this time accept the new clause but will wait until some far distant time in the future. That is entirely unsatisfactory and unacceptable.

§ Mr. Whitney
I do not accept that. The hon. Lady normally accepts that one of the dangers in this area is piecemeal legislation. We do not object to what my hon. Friend's Bill seeks to achieve, but having set in train the process of the massive review of the child care legislation it would not make sense to pick and choose out of the whole corpus of review material. I shall be charged again with repetition by the hon. Member for Bow and Poplar (Mr. Mikardo). I said that these proposals will be published in the autumn as a basis for legislation, but because of the nature of parliamentary arrangements I cannot give a date for that legislation. I hope that the hon. Lady will find it in her heart to be generous enough to accept that that is a firm undertaking. As I have already said, the clause has serious drawbacks. However, we accept the importance of access and the importance of improving arrangements for it, and to the extent that those improvements can be widely agreed we look forward to making recommendations in our own Bill.

§ Ms. Richardson
This has been an interesting debate. As hon. Members were speaking I felt that we were all 1222 thinking of examples of relatives or constituents who had faced these problems. I certainly had that feeling when my hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) was speaking. This new clause reflects the recommendation of the child care law review and I am a bit surprised that its acceptance is being resisted when such an august body thought it worth pursuing. This was recommendation 193 and, although I have not read the whole of the review, the fact that it is recommendation 193 leads me to believe that a lot of thought must have gone into putting together so many recommendations. That distinguished body has looked at the subject seriously and the House ought to take its recommendations seriously.

§ Mr. Whitney
The hon. Lady spoke about recommendation 193. This a complex package that is being instituted, and there are serious dangers in taking little bits and pieces when it is a package that is at issue.

§ Ms. Richardson
That brings me to the point that was made many times in the debate. We are adding bits on because in a Bill of this sort we have no alternative. If we had a proper comprehensive Bill, which is what I hope we will eventually get, we would not have this problem and would not have to look around for what we see as gaps or tears in the fabric of the patchwork and then try to fill them in. I accept the Minister's point that recommendation 193 is only one recommendation, but I was trying to underline its importance and saying that that was why we sought to put the new clause into effect.

§ Mr. Alfred Dubs (Battersea)
I apologise to the House for not being in the Chamber during the early part of the debate.
This new clause seems to be moving in the right direction. For a number of years I served on a local authority social services committee, and I remember the difficulties that we faced when we considered precisely the terms of access in cases where children might be at risk and where the officers of the social services department were reluctant to expose the children to risk. We had difficult decisions to make and seldom went against an officer's decision, although occasionally we did. I always had serious misgivings about whether we were doing the right thing. In fairness, local authority social services departments get it right almost all of the time, but it is a tragedy when now and again they do not, because that is what hits the headlines.
I should like to give three examples, from constituency experience, of where the new clause would be relevant and appropriate, and where one parent or relative may have a real sense of injustice if the new clause is not put into effect. The first concerns a case where a child is in care, and where certain access conditions have been arranged, but they have been arranged in the knowledge that the parents are split up—that the marriage has broken down—and one of the parents does not have an adequate home. In this case, I have been approached by the father, who says that his access conditions have not been generous because, when the decision was made, he did not have an adequate home environment that the children could visit occasionally for the weekend. The father is anxious to improve his home to make it better than a bedsitter so that the children could go there. However, if the local authority is not sensitive to that and the father gets better accommodation, he has no guarantee that the limited 1223 access given to him on the basis of his bedsitter accommodation will be changed by the local authority to take account of the improved housing conditions.
12 noon
I know from my experience that the limited access that may result from housing conditions causes much distress to a separated parent. A separated parent may feel that, even if the housing conditions improve, he may not automatically get better access, which he would have obtained if he had had a proper flat when the decision was made. That is a distressing example. I hope that it does not happen too often.
The second example concerns other relatives who wish to have access. A grandmother who, I believe, was of Jamaican origin was very distressed that she was not allowed to have access to her grandchild, although the father had access. She felt shut out of a relationship that was traditional to her background and culture, and felt extremely upset that there was no way that she could challenge the decision. The father had access and the mother, who was the grandmother's daughter, was a longterm patient in hospital. The grandmother felt that her traditional family responsibilities could not be exercised. She wanted better opportunities to do so, but that was not possible.
I mentioned the third group of people—fathers—obliquely in my first example. I am not one who says that fathers alone have a sense of grievance about this, but on occasions fathers have complained bitterly to me that they have had only limited access to children in care following the breakdown of the marriage.
I cannot help thinking that the new clause would give a better opportunity to those three groups of people—those in housing difficulties, other relatives, and fathers who feel that their wish to have more access and establish a closer relationship with the child in care is frustrated because the local authority is not always sensitive to such pressure. I cannot help thinking that the Minister's arguments against the new clause, while I understand them, do not carry the weight that one would normally expect when a sensible suggestion is made. I do not fully understand why he took such a hard line against a modest but sensible proposal. After all, the courts would still have to consider the matter and could still take all the facts into account. It is not a matter of opening the door to unlimited access by people who might be thought to be not totally desirable by the social services department that has care of the child. It is a matter of the courts being a second line of appeal, as it were, for people who have a sense of grievance and injustice. I hope that the Minister will think again. The new clause is moving in the right direction.

§ Question put and negatived.