APPEALS

HC Deb 02 May 1986 vol 96 cc1204-12

'(1) In subsection (12) of section 2 of the Children and Young Persons Act 1969 (right of relevant infant to appeal against order made in care proceedings) after the words "the relevant infant" there shall be inserted the words "or, in a case where a parent or guardian of his was a party to the care proceedings by virtue of an order under section 32A of this Act, the parent or guardian" and for the word "him" there shall be substituted the words "the relevant infant".

(2) In section 16(8) of that Act (appeals by the supervised person against certain supervision orders and dismissal of application to discharge such orders) after the words "the supervised person" there shall be inserted the words "or, in a case where a parent or guardian of his was a party to the proceedings on an application under the preceding section by virtue of an order under section 32A of this Act, the parent or guardian".

(3) After subsection (4) of section 21 of that Act (variation and discharge of care orders) there shall be inserted— (4A) In a case where a parent or guardian is a party to the proceedings on an application under subsection (2) of this section by virtue of an order under section 32A of this Act, the parent or guardian may appeal to the Crown Court against the making of a supervision order or the refusal of the court to discharge the care order.".

(4) In section 22(4) of that Act (power of High Court, on application of person to whom interim order relates, to discharge order) after the word "relates" there shall be inserted the words ", or, in a case where the order was made in proceedings to which a parent or guardian was a party by virtue of an order under section 32A of this Act, of the parent or guardian,".'.—[Ms. Harman.]

Brought up, and read the First time.

Ms. Harman

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

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this it will be convenient to take the following: Government amendments Nos. 22 and 23.

Amendment No. 24, in clause 4, page 4, line 35, at end insert 'for a period of not less than three months ending not more than six weeks before the date of the application'. Government amendment No. 29.

Ms. Harman

New clause 2 deals with legal aid, and is necessary to ensure that people who are made party to care proceedings are entitled to apply for legal aid. Clearly, without legal aid for parents or anyone else who may be made a party to the proceedings, the right to participate in those proceedings is absolutely hollow unless they can afford to provide legal representation. Obviously, many people cannot get legal representation unless they receive legal aid.

A good illustration of why people need legal aid in care proceedings and why they cannot appear in court in person is given in new clause 5, which the Minister has tabled. The first sentence is absolutely incoherent, and should be submitted for a prize for legal gobbledegook. There is no way that people can begin to understand discussions about what is, perhaps, the most important feature of their lives—what is happening to their children—without legal representation.

The Minister made some backhanded remarks about a comment I made on legal aid when we discussed new clause 1. We are not simply making "money-no-object" points—we are talking about people's ability to enforce the legal rights which the House has seen fit to put on the statute book. The Government are always talking about law and order, but the law is absolutely meaningless and not worth the paper it is written on unless people can have representation to enforce those rights and to participate in proceedings which will profoundly affect their future.

At present there is a great problem with legal aid. Some firms are going out of business because of the restrictions being exercised on the legal aid system. Other firms, although still in business, are reducing the amount of legal aid work they will do in favour of increasing the amount of privately paid work. Therefore, the availability of legal representation for people on the legal aid scheme is being reduced seriously, and with it all the rights people could have enforced, had they had that legal representation.

There is also a problem facing law centres, and at present their future is in doubt. They are a further way by which people can obtain legal representation to enforce their rights and to be party to proceedings which will affect their future. Without them, some people could not participate meaningfully in court proceedings.

We have rather got used to the idea that the law centre movement is part of the legal scene, and is here to stay. However, there are only a few law centres, and there is by no means the comprehensive spread that there should be. Moreover, their future is in doubt because of a whole range of funding problems. It is highly regrettable that the Government have not seen fit to say that they will secure their future and extend their provision to other parts of the country.

Consequently, the new clause is important. It is not a question of money being no object. We are talking about basic justice and basic legal rights. The Minister raised the point about money when we discussed new clause 1, but it is more relevant to this new clause. However, let us see what the Government are prepared to find money for. It has been estimated that the attempt to abolish capital transfer tax and to return to some sort of voluntary estate duty will mean a saving for just one man—the Duke of Westminster—of about £600 million in tax on his estate. As the Government have just facilitated that, it ill behoves them to talk about being thrifty in the case of legal aid, which merely enables people to enforce their legal and basic rights.

10.30 am

I am not happy with Government amendments Nos. 22 and 23. Amendment No. 23 restricts those who could be parties to the proceedings to the parent or guardian. The Bill recognises that more people have a legitimate interest in being parties to a case than just the parent or guardian. In the Jasmine Beckford case, the foster parents could well have been a party to the case and could have considerably assisted the magistrates. The magistrates might not then have made the disastrous comments that were so heavily criticised by Louis Blom-Cooper and his inquiry team. The amendment means that foster parents or anyone else with a legitimate interest or involvement with the child could not be a party.

The Bill makes a considerable improvement to child care law in recognising the contribution that parties other than the parent or guardian can made to the proceedings. Obviously, the court has discretion and flexibility about who should be involved, so that those who do not have a legitimate involvement cannot be parties. I believe that it can be safely left to the court to exercise its discretion, using guidance on the criteria that should be taken into account.

I am not entirely happy with amendment No. 24, which stands in the name of my hon. Friend the Member for Barking (Ms. Richardson). It narrows the opportunity for foster parents to become involved in proceedings and to be made party to them. They could be made party to the proceedings only if they had cared for the child for a period of three months, ending not more than six weeks before the date of the application. I cannot quite remember the dates now, but in the Jasmine Beckford case I think that the foster parents had not been looking after the child six weeks before. Consequently, I think that the amendment is unduly restrictive. I understand that its aim is to be consistent with other child care law. Obviously, that is important as we have a tangled enough web as it is. Indeed, we need a comprehensive review of child care law. However, imposing an absolute limit might exclude some people who have a contribution to make. Therefore, I hope that new clause 2 will be accepted, but that amendments Nos. 22, 23 and 24 will be rejected.

Mr. Harry Greenway (Ealing, North)

I have considerable sympathy with the call for legal aid to be provided to parents faced with the problem of adoption proceedings for their children. All hon. Members will have had parents in their surgeries with similar problems. Members of Parliament and those who are not qualified in law find it difficult to give them helpful advice. Moreover, to my knowledge not as many lawyers are qualified in child care as in divorce law, commercial law, the law for fraud and so on. That is a counter-argument to that put forward by the hon. Member for Peckham (Ms. Harman).

Although I have general sympathy for the hon. Member for Peckham, I was unhappy about her approach when she said that the money could come from the changes made in the Budget. It was a little beneath her to talk of money coming from the estate of the Duke of Westminister. Although a flood of money has been released by the change in capital transfer tax, it was a one-off thing and does not support her argument.

The principle of legal aid for parents faced with adoption proceedings should stand or fall on its own. If the House feels that the principle is right, it should will the means. But I do not want to become involved in the rather cheap arguments that have been put forward. I have 23 years' experience of being a schoolmaster and seven years' experience as the head of a mixed school with more than 2,000 children. Parents who face adoption problems are often people with difficulties of their own. They are sometimes inadequate people, and they have a job to put a case together. That is not always true, but on the whole those people need to be able to talk their problems through with someone who is qualified and who is in a position to help them. I rather fancy that suitably qualified lawyers are the best people to do that.

Parents involved in adoption proceedings are in a sensitive and emotional state, and often understandably find it difficult to make an objective case for themselves. After all, it is essential to be objective in legal proceedings because ultimately the decision will have to be taken objectively in the interest of the child's welfare. If parents are struggling and fighting—some of them do when they are involved in these matters—they are often not in a position to be subjective. Parents have come to my surgery begging to be allowed to see their own children. I find that heart-breaking—I do not want to load the debate emotionally—and I feel that the House and individual Members have an obligation to lean over backwards to assist those who are in that difficult position.

I have found in my long experience that parents tend to lean on anyone who will listen and who may have some means of giving sensible and useful advice. These third parties may include schoolmasters, headmasters, social workers or vicars. A multitude of sympathetic people can be brought into these matters. However, unless the pesson on whom a parent leans can pinpoint the law, describe how it stands and describe how it can be called in aid in the individual case, the parent will not receive the right sort of assistance that he or she needs and deserves.

I know of a school in a fairly deprived area where 10 per cent. of children are said to be involved in adoption proceedings. The problem is considerable and needs to be faced by the House. The care and welfare of the child must come first and if parents can be assisted to ensure that that happens, the House should make that assistance available.

Mr. Mikardo

Like the hon. Member for Ealing, North (Mr. Greenway), parents have come to my surgery—not many—to complain that they have not been allowed to see their child. The last parent to complain to me on that ground had treated the child abominably before it had been taken from him. He subsequently treated the child abominably when he had a chance to see it. All these matters must be dealt with on a case-by-case basis and in a way that relates to the particular circumstances.

I wish to say through you, Mr. Deputy Speaker, to the Under-Secretary of State that if he wants us to have a pleasant and effective discussion of the Bill, which is what the rest of us want, he will have to treat the House with rather more courtesy and respect than he did in the course of his previous speech, in which he was disgustingly patronising to my hon. Friend the Member for Peckham (Ms. Harman). He insulted the intelligence of the House in the reason that he gave for not tabling amendments in Committee. He said, "I did not table the amendments in Committee because no Opposition Members were present in Committee and we could not discuss them". Amendments that come before a Committee have to be tabled at least 48 hours before the Committee meets. Unless the Minister has taken on the mantle of Isaiah, Nostradamus or Old Moore, of almanack fame, he cannot know 48 hours before a Committee meets how many Members will attend it. His explanation was nonsensical.

My hon. Friend the Member for Peckham was right. If the Minister wanted to change the Bill in the way in which the Government are now changing it, and if he could have obtained the agreement of his hon. Friend the Member for Westbury (Mr. Walters), the sponsor of the Bill, so to do, he should have tabled amendments for the Committee to consider. That would have enabled a proper discussion to take place because the Committee members would have had reasonable time to study the amendments and to take advice on them. Instead, we saw the amendments only yesterday, and that is treating the House cavalierly.

I applaud the attempt of my hon. Friend the Member for Peckham to secure legal aid for those who are involved in juvenile court proceedings, but if there is to be High Court involvement it is there, more than in the juvenile court, that legal aid will be required. If it is not to be granted, however, we are merely giving statutory rights to parents in the knowledge that they will not be able to take advantage of them through lack of resources. That will frustrate parents and embitter them. We shall appear to give them a gift, but it will be so tightly wrapped in an impregnable box that it will be of no value to them.

10.45 am

Amendment No. 24 stands in my name and the name of my hon. Friend the Member for Barking (Ms. Richardson). The subsection gives rights of evidence to any person with whom the child is or has been boarded out". That will be foster parents generally, and foster parents will know and understand the child if they have had it for a while, and recently. I did not table the amendment to make the Bill consistent with other legal provisions. It was an original thought and the amendment is designed to ensure that a foster parent who wants to give evidence shall be one who has reasonable knowledge of the child, and reasonably recent knowledge. As matters stand, someone could demand to give evidence who had had the child with them for a couple of days only two years ago. He or she could be entirely unacquainted with the present circumstances.

I accept that the figures which I have chosen— for a period of not less than three months ending not more than six weeks before the date of the application"— may not be the best ones. I admit at once that they were plucked out of the air. If there are better figures, or figures which would be supported by those with greater knowledge of these matters than I have, there will be an opportunity in another place, if the principle is accepted, of inserting them. It is not unfair to have some restriction because evidence of a child's condition and attitudes is not of much value unless it is recent and based on reasonable experience with the child. Even if the amendment is not accepted, I hope that the sponsor will be disposed to say that he is willing to think about it and perhaps to consider what might be done when the Bill goes to another place.

Mr. Sims

The hon. Member for Peckham (Ms. Harman) has complained that amendment No. 23 is too narrow. I suspect that my hon. Friend the Minister will complain that the original clause 4 was too wide. That is the problem that we face. In the proceedings which we are discussing, there will be many who could have an interest in and knowledge of the child and something to contribute to the court proceedings.

I am not a lawyer and my experience is limited to sitting as a magistrate in the juvenile courts. My understanding is that, once someone is made a party to the proceedings, he or she has legal status and the court is obliged to hear them. That person—this is what worried the Government—will be entitled to legal aid. As the hon. Member for Bow and Poplar (Mr. Mikardo) has said, the various categories that are set out in clause 4 are quite wide. They go wider than any person with whom the child is or has been boarded out". Subsection (3)(c) states: any other person appearing to the court to have a proper interest in the welfare of the child. That is an extremely wide provision.

If my hon. Friend the Under-Secretary of State is to ask the House to accept the far narrower definition of amendment No. 23, for the reasons that I anticipate he will give to us, may I ask him to look closely at the present position with regard to other persons appearing before the court in these proceedings. They do not necessarily have to be parties to the proceedings in a legal sense. However, there could be circumstances in which it would be highly desirable that people who do not fall within the normal legal categories should be heard by the magistrates court. For example, the lady next door, who is not a relative but who knows a good deal about what has been going on in that house for some years, perhaps ought to be heard by the court. That might also apply to the lady round the corner whom the child knows as "auntie" and with whom the child stays for much of the day while mummy is out at work. I realise the difficulty of giving to those people the status of parties to the proceedings in a legal sense, but the court would benefit from hearing what they have to say.

Ms. Harman

The hon. Gentleman is confusing the question of the court being able to hear evidence from somebody who lives next door and whether that person has sufficient concern, interest and involvement to be a party to the proceedings. Does he agree that he has slightly misled the House by saying that my view is that clause 4 has been drawn too wide? Will he accept that I do not think that it has been drawn too wide but that I think that it is too woolly? There should be a wide clause, but guidance should be given to the magistrates about how to exercise their discretion. The new clause has been tabled to include such a provision in the Bill. Will the hon. Gentleman accept that, although I believe that the Government's proposal is too narrow, I do not believe that clause 4 is too wide?

Mr. Sims

I apologise if I gave that impression. I said that the hon. Lady thought that it was too narrow and that my hon. Friend the Under-Secretary of State thought that it was too wide. I was seeking to say exactly what the hon. Lady has just said: that it is important that guidance should be given to the courts by means of rules, guidance, or circulars, to ensure that the interested parties, in the layman's expression, are able to appear in court.

My experience of sitting in these proceedings is that it might be an advantage to grant legal aid to people so that they may be represented by solicitors but that there are occasions when this might be a disadvantage and that it would be of help to the court to hear people informally and listen to the information that they are able to give to the court.

I understand why my hon. Friend the Under-Secretary of State will ask the House to accept amendment No. 23. However, I ask him to ensure that the courts are fully advised of the desirability in these proceedings of listening to anybody who, in the normal layman's expression, would have an interest in the outcome of the proceedings.

Mr. Whitney

Amendments Nos. 22, 23 and 29 would remove clause 4 on parties in care and related proceedings and substitute a new provision with three separate inserts in the legislation.

Subsection (1) adds to section 32A of the 1969 Act that a separate representation order in care proceedings carries with it party status for the parent or guardian. "Guardian" here means not legal guardian but the 1933 definition of

any person who in the opinion of the court has for the time being the charge of or control over the child". Subsection (2) adds a new section to the 1969 Act providing for grandparents in circumstances specified in rules of court to be made parties by leave of the court, which can be a single justice.

Subsection (3) provides legal aid for parents, guardians and grandparents where made parties.

These are the differences from clause 4, to which I shall draw attention.

First, the amendment relates to care and related proceedings under the 1969 Act but not to the Child Care Act 1980 proceedings when parents are already parties. Secondly, the amendment relates to parents and guardians only if a separate representation order has been made because there is a conflict of interest with the child. Thirdly, the amendment allows party status to grandparents but not to any relative, any person with whom the child is or has been boarded out and any other person appearing to have a proper interest in the welfare of the child. However, the extended definition of guardian will bring in those relatives who have the control and care of the child.

Mr. Mikardo

One person who might have something worthwhile to contribute but who seems to have been left out of the picture altogether is the child's teacher. Why has the teacher been left out?

Mr. Whitney

That would be a matter for the court. There could be cases in which a teacher could play a role, but the contribution of the teacher is not automatically provided for.

The amendment leaves for rules of court the criteria for giving party status to grandparents.

Amendment No. 29 is a technical amendment to clarify the rule-making power. As foreshadowed in Committee, I have discussed the clause with my hon. Friend and I hope he will support the amendments I have now tabled. I appreciate that he is disappointed we cannot go further at this stage. We shall, of course, come to this whole area again in our own legislative proposals. At this point we have been able to conclude only two of the more important possibilities in this Bill. The first of the two is parents and guardians in care proceedings where there is a separate representation order. This is wider than it seems, because in this context "guardian" includes any person who had charge or control immediately before care proceedings started, or has the charge or control of the child for the time being, in the judgment of the court. This seems to me an urgent improvement. I was also much impressed by my hon. Friend's arguments about the contribution which in some circumstances grandparents can make to obtaining the best outcome for the child. We endorse that point and recognise that grandparents can often play a major role in the child's life.

As for new clause 2, we accept that legal aid should be granted to parties to the proceedings. However, the way forward proposed in amendments Nos. 22, 23 and 29 is the better way forward. Therefore, I hope that the hon. Member for Peckham (Ms. Harman) will withdraw new clause 2 and accept our amendments.

Mrs. Virginia Bottomley (Surrey, South-West)

The suggestion, even the possibility, that teachers might become parties in care cases fills me with absolute horror. The suggestion by the hon. Member for Bow and Poplar (Mr. Mikardo) shows a misunderstanding of the complexity of our court proceedings. If one becomes a full party to the proceedings, it means that one can not only give evidence but cross-examine all the other witnesses. That highlights the misunderstanding about clause 4 and the need for people to give evidence.

Care proceedings are traumatic, emotional and difficult occasions. I feel very strongly that all those who have a contribution to make to a child's welfare and future should be able to give their opinion to the court and make representations, but that is a million miles away from granting full party standing to them. The idea that each and every one of them should have legal aid and be able to employ a lawyer—which would result in a wonderful job creation scheme for the legal profession, a matter about which my hon. and learned Friend the Member for Burton (Mr. Lawrence) may care to comment—fills me with horror. I agree with my hon. Friend the Member for Chislehurst (Mr. Sims), who often speaks in a similar vein and who has presided over many difficult care cases.

In the past, the standing of parents has been equivocal, to say the least. If the least that my hon. Friend the Member for Westbury (Mr. Walters) is able to achieve is to give formal standing to parents in care cases, it will be a great step forward. For the most part, the modifications to the Bill have been an improvement. I feel strongly that clause 4 is too wide. I said so on Second Reading, and I welcome the modification that has been made.

11 am

It is fair that grandparents should be given leave to be parties, although it would not be helpful or right for them automatically to have the full standing of parties. The review of child care law has been much discussed, and many hon. Members were pleased to hear the welcome news that there is to be concrete action and a timetable for legislation in at least the foreseeable future. It is better than anything that we have been able to hope for in the past. The review of child care law must make the distinction between the need of those who might want to make representations to feel that they are involved in the decision over the child and the need for them to have full party status.

Mr. Walters

The new clause is the result of discussions between me and some of my sponsors and the Government. I single out my hon. Friends the Members for Surrey, South-West (Mrs. Bottomley) and for Chislehurst (Mr. Sims) for their continuous and invaluable support throughout the discussions. I welcome the fact that the Government have been able to extend the right to be a party to parents and guardians and have accepted that, in appropriate circumstances, grandparents may become parties as well.

In my Bill I specified the circumstances in which grandparents might become parties—normally when they have an important contribution to make. I am a little concerned that the Government's proposals leave it entirely to the rules of court to do this. I would much appreciate a commitment from my hon. Friend the Minister that, when the Bill is enacted, the rules of court will not be framed in an unduly restrictive manner. If it is not possible for him to spell it out this morning, perhaps it can be made clear in another place.

I am delighted to have achieved this important improvement, and the flood of letters that I have received from grandparents all over the country recounting some sad and moving stories of the unhappy consequences of the present state of the law leaves me in no doubt about how welcome, right and beneficial this provision will be.

The new clause leaves unclear whether the definition of grandparent would extend to the grandparents through the father of an illegitimate child. By use of the word "relative" and its statutory definition in the Child Care Act 1980, my clause made it plain that the father and grandparents of an illegitimate child were also included. It is established that the reference to parents normally excludes the putative father. There is no definition of grandparents in any of the relevant statutes, and I hope that when the Bill goes to the other place this point will be clarified, and that the grandparents of the illegitimate child will also be included. In such cases, it is not infrequent that such grandparents are involved.

Whatever view is taken about the rights of the putative father, I can see no possible welfare grounds for distinguishing between the classes of grandparents. Therefore, I hope that this matter will be clarified in the other place.