WARDSHIP

HC Deb 02 May 1986 vol 96 cc1195-204

'(1) At any time after the commencement of any proceedings to which this section applies a Juvenile Court may transfer such proceedings to the High Court in wardship on the grounds that:—

1. (a) it is in the interests of the welfare of the child; or
2. (b) it is in the interest of justice; or
3. (c) it would be appropriate for the case to be dealt with under the wider powers of the High Court in wardship.

(2) This section applies to:—

1. (a) any proceedings under the Children and Young Persons Act 1969; or
2. (b) any proceedings under the Child Care Act 1980; or
3. (c) any proceedings under section 1 of this Act.

(3) The power under subsection (1) may be exercised before or at any stage during the hearing and upon the application of any party or the court's own motion.'.—[Ms. Harman.]

Brought up, and read the First time.

9.34 am

Ms. Harriet Harman (Peckham)

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

Mr. Speaker

With this it will be convenient to take the following amendments: No. 25, in page 5, line 3, leave out clause 5.

No. 26, in clause 5, page 5, line 5, leave out from 'Court' to end of line 15 and insert

'on the grounds that proceedings in relation to the same child are already continuing in the High Court.

(2) This section applies to—

1. (a) any of the proceedings mentioned in paragraph (a) to (e) of section 4(1) above;
2. (b) any proceedings under section 1 of this Act.'.

No. 28, in clause 5, page 5, line 23, leave out 'and who may re-transfer the proceedings to the Juvenile Court'.

Ms. Harman

Most of these amendments should have been dealt with in Committee. To get the Bill on the statute book, which we obviously want to do, we shall have to rush through these quite substantial amendments which come before us for the first time. Because of the Government's handling of the Bill, the Committee stage was wasted. In all courtesy to the hon. Member for Westbury (Mr. Walters), who introduced the Bill, the Government should have got their act together and revealed their hand earlier. If the Government had undertaken meaningful discussions with the hon. Member for Westbury, who has been entirely reasonable about the Bill from the outset, we could have had a lengthy and extremely useful Committee stage. Because the Government had not decided what they wanted to do, the Committee stage lasted less than half a day. So we are more or less having the Committee stage now.

The purpose of new clause 1, which deals with wardship, and the grouped amendments is to knock out clause 5 and insert a clause that would give any party to proceedings the right to apply to have a case heard in wardship. It is necessary to avoid the introduction of a further anomaly into child care legislation, arising with the right to transfer proceedings to the High Court. Currrently, many cases concerning children in care are dealt with in the High Court under the High Court's wardship jurisdiction. There are a number of reasons for that. The principal reason is the flexibility and wider powers that the court has in wardship. The most important point which the court has to consider is the best interests of the child, and in that respect it can make wide-ranging orders.

Clause 5 as it stands proposes that cases may be transferred to the High Court, but it does not specify that that should be done within the wardship jurisdiction. As the amended Bill stands, there is no indication how such cases should be dealt with. Therefore, the court will have no greater powers than a juvenile court. It is difficult to see why a case should go through the delaying process of transfer to the High Court if the court cannot exercise its wider jurisdiction and flexibility which makes wardship a useful proceeding.

Because of the decisions of the Judicial Committee of the Privy Council, from 1981 onwards, children and their relatives and friends have found it impossible to use the wardship jurisdiction where a child is in care unless the local authority concerned agrees. My proposed new clause would remedy the injustice faced by children, their families and other interested persons. If clause 5 were deleted and new clause 1 inserted, the power of transfer to the High Court—obviously it would be used only rarely—would be a useful addition.

We are talking about an important part of a very much wider mechanism in the spectrum of jurisdiction in child care law. The Government have handled the issue badly. It is wrong that we have to put all the measures in one clause dealing with one part of the whole spectrum of child care law. We should be considering all parts at the same time. We should be looking at all the jurisdictions of all the different courts with a view to instituting a family court with wide jurisdiction which takes over the duties of all the other courts that now exercise jurisdiction over family and matrimonial matters.

I hope that the new clause will bring about an improvement. I am disappointed that we have had to deal with it in such an unsatisfactory and piecemeal way. The blame lies at the Government's door. It is not too late for the Government to make a commitment to comprehensive legislation on child care. The child care law review imposed strict consultation timetables. Many organisations felt that the time limits were too short and had to abandon their other valuable work to prepare their comments to assist the Government. They were happy to do so because they felt that swift action would result. They are bitterly disappointed that there still appears to be no commitment that child care law will be completely and comprehensively redrawn, let alone any commitment on the time for action on a family court.

Mr. Dennis Walters (Westbury)

Like the hon. Member for Peckham (Ms. Harman), I very much hope that the Government will make a commitment to introduce comprehensive legislation in the next Session—or if not then, as soon as practicable. I fully sympathise with the aims of the new clause. It is precisely the type of proposal that I should have liked to be contained in clause 5 of my original Bill. However, I recognised that its provisions represented a considerable change which was unlikely to be accepted by the Government at that time. My clause 5 was not nearly as far-reaching as new clause 1, but it was made abundantly clear to me that the Government were not in a position to accept it. I therefore agreed with the Minister that clause 5 should be dropped. Although I applaud the new clause, I realise that it has little chance of success.

Mr. Ian Mikardo (Bow and Poplar)

This group of amendments includes amendment No. 25, which proposes to leave out clause 5. My hon. Friend the Member for Barking (Ms. Richardson) and I tabled that amendment, not knowing that our hon. Friend the Member for Peckham (Ms. Harman) and the Under-Secretary of State for Health and Social Security—the hon. Member for Wycombe (Mr. Whitney)—intended, independently, to table the same amendment at the same time. The House will recognise that this amendment is a ship with a pretty formidable if somewhat variegated crew.

The Under-Secretary of State has tabled also two new clauses and no fewer than 14 amendments. I am bound to say a word of support about the comments of my hon. Friend the Member for Peckham. That is no way for the Government to treat a private Member's Bill. The Government are virtually hijacking the Bill, taking it out of the hands of the hon. Member for Westbury (Mr. Walters), and turning it into a Government Bill. That is grossly unfair to the hon. Gentleman. He was excited about winning, I think for the first time, a high place in the ballot. He was rightly congratulated. The hon. Gentleman obviously put a lot of thought and work into the legislation. But it has now, for all practical purposes, been snatched from his hands.

9.45 am

If the Government really wanted a Government Bill on child care, they should have introduced such a Bill, preferably one that fulfilled the promises that have been made for a long time. We see no signs that there will be a comprehensive Bill to clear up all the judicial problems and provide for family courts. We all know that, in the long run, family courts are the only sensible permanent solution. Over the years, the Government have been constantly ducking and putting off implementing that solution. I do not blame the Under-Secretary of State, because many of his predecessors did nothing. I feel for the hon. Member for Westbury. I believe that his feelings about his colleague the Under-Secretary of State are not all that friendly, because this takeover of his Bill is an act of daylight robbery.

I am always anxious, in dealing with the complex and often delicate and sensitive cases covered by the legislation, that in the interests of the child—it is the child about whom we care most—a decision should be made at the moment it is needed. All too often, that is a moment when the decision is urgently needed.

That point was put forcibly on Second Reading by the hon. Member for Surrey, South-West (Mrs. Bottomley). I hope that she will not mind my saying that she put the House and the Committee in her debt by bringing her many years of practical and professional experience to bear on our deliberations. She said: in child care cases, of all cases, a speedy decision is vital."—[Official Report, 31 January 1986; Vol. 90, c. 1212.] I am sure that no hon. Member would dissent from that judgment which was strongly reinforced by some authoritative bodies whose views were quoted in Committee by my hon. Friend the Member for Peckham. She quoted from a document from the Law Society, which stated: The Bill's provisions will almost inevitably lead to additional delay in decisions being taken about the future of children in local authority care, with consequent distress for both the children and families involved. My hon. Friend added:

That is also the view of the Association of Metropolitan Authorities and of the Legal Action Group."—[Official Report, Standing Committee C, 17 March 1986; c. 8.] Clause 5 and certain other clauses shunt a decision about a child care case—often an urgent decision—into the High Court. I am not a lawyer, but I know enough about the law to be able to say that it often takes a long time to get a case into the High Court. Once the case has got there, it often takes a long time to get it out again—that is to say, to get a finding.

The Minister expressed some anxiety about that in Standing Committee. In columns 18 and 19 of the report he said:

I have some experience of the courts and can tell my hon. Friends that it often takes much longer to go to the High Court than to go back to a magistrates court for appropriate consideration to be given to a problem."—[Official Report, Standing Committee C, 19 March 1986; c. 18–19.] There is also the matter of the cost of actions in the High Court. Who will pay for High Court hearings which are often long and always expensive? There is no provision in the Bill as drafted for legal aid. There is no point in legislating for parents or for anyone else to have statutory rights that they cannot afford to exercise. That merely creates frustration. I know I must not anticipate the debate on new clause 2—you would be angry with me, Mr. Speaker, if I tried to do that—and I must not anticipate the conclusion the House may come to on that clause. Perhaps I could say in half a sentence that even if it is carried, it provides legal aid only in the juvenile court, which is not very costly, but not in the High Court, which can cost an arm and a leg. For those reasons I attach great importance to amendment No. 25 and I hope the House will support it.

Ms. Jo Richardson (Barking)

In response to my hon. Friend the Member for Peckham (Ms. Harman), the hon. Member for Westbury (Mr. Walters) said that he had some sympathy with what she said. I did not take part in the Second Reading debate and I was not on the Committee, but the thought that immediately came to my mind was: in that case, why did he not support her? The hon. Gentleman immediately supplied the answer, when he said that he thought my hon. Friend's new clause was too far-reaching, that his was a more modest approach, and that the new clause to replace clause 5 was a considerable change. It is time that we thought about having such a change, so that we get the proper restructuring. That is the purpose of my hon. Friend's new clause. Clause 5 seeks to provide that care proceedings can be transferred to the High Court in certain circumstances. We all know that, but it does not provide any additional powers to deal with them, as the High Court would do in wardship.

Until we get a comprehensive restructuring of the court system that creates a unified family court able to allocate cases to the requisite level of the judiciary, according to the complexity and sensitivity of the case, this provision would create additional difficulties, delay and confusion, and, far from satisfying the intention of the sponsor of the Bill—to move forward a little more slowly—the Bill might make things much more complicated than they were before. I have read the Second Reading debate and the report of the Committee stage. Various references are made to family courts and to the Finer report. I came to the House in 1974 and my early years here seemed to be studded with references and campaigns about Finer because that report came out in the first few years of the Labour Government. It caused a great deal of discussion and its findings were a challenge to the concept of courts dealing with matrimonial problems.

Clause 5 attempts to fit judicial court cases into High Court procedures, but it does not provide the advantage of High Court's additonal powers of wardship. It is not clear, if the case were referred to the High Court, whether High Court procedures like the service of affidavits, directions, hearings, discovery and so on, would be followed. Perhaps the hon. Gentleman could clarify that, because I could not find any clarification in the Standing Committee report. It is something that we ought to know about. It is not clear on what grounds a court could decide that a case is of unusual difficulty or late, or whether the High Court could refuse to hear a case that it did not consider to be of unusual difficulty. That means there could be considerable delay and uncertainly for the child. As my hon. Friend the Member for Bow and Poplar (Mr. Mikardo) has said, we are all discussing the Bill with the child in mind.

Mr. Clement Freud (Cambridgeshire, North-East)

Would the hon. Lady accept that, as a result of the inevitable delays that occur when a case goes to High Court, the situation of the child could easily change? For that reason, the Opposition have urged the Government not to tinker with Bills like this which would include family court procedures.

Ms. Richardson

The hon. Gentleman has made a valid and cogent point. As I was saying, it is the child that we must bear in mind and any change in the procedures brought in by Parliament must be seen in that context. Any changes would have an effect on a lot of children and we must take that into account. Any party to a court hearing that wished to delay the proceedings could raise arguments in the High Court about the venue and the jurisdiction as well as about the nature of the evidence and the difficult points of law.

I have put down two amendments to clause 5 which for convenience have been linked to the new clause that we are discussing. They are an alternative to deleting clause 5, although I thoroughly support the aims of my hon. Friend the Member for Peckham and follow her along that way. Perhaps I can briefly explain the purpose of amendments 26 and 28 which I have tabled. Clause 26 proposes to

leave out from 'Court' to end of line 15 and insert 'on the grounds that proceedings in relation to the same child are already continuing in the High Court. (2) This section applies to—

1. (a) any of the proceedings mentioned in paragraph (a) to (e) of section 4(1) above;
2. (b) any proceedings under section 1 of this Act.".

The amendment seeks to remove the ability to transfer care cases on the grounds that the case is of unusual difficulty or length or because a difficult question of law arises. I have had briefings from a number of different organisations, as I am sure other hon. Members will have had. It seems that people who are expert in these matters feel strongly that the powers to transfer cases on these grounds alone would create unnecessary delays in dealing with decisions affecting a child's future, although the clause provides no additional powers to the High Court to deal more effectively with them. Although people seem unconvinced that the clause as drafted would be of any benefit, I gather there would be less objection to the transfer of cases if this amendment, as an alternative and as a second bite at the cherry, were carried.

Amendment No. 28, in clause 5, page 5, line 23, delete the words: and who may re-transfer the proceedings to the Juvenile Court", is an alternative way of dealing with the matter, and improves the Bill. It appears to be unrealistic to allow a case to be retransferred in that way, as it would only add to the delay in reaching a decision on the child's future, in a way that appears to be simply for the convenience of the court. Again, we come back to the point about whose interests are to be the prime interests in the consideration of such cases. Obviously, it is the child's interests, not the court's.

Each transfer appears to offer no additional powers to deal with the case. Delay in juvenile proceedings was identified as a serious problem, as hon. Members know, by the Select Committee on Social Services in its second report in 1984. It said so categorically. It seems that the provisions of the Bill would serve to increase rather than reduce delays in care proceedings and to use the Committee's words, "the evils attendant on" such delays do not appear to have been recognised.

I hope that new clause 1 will be accepted, along with the deletion of clause 5. However, if that does not happen, I hope that consideration will be given to the two amendments to which I have referred, which would at least effect some improvement.

10 am

The Parliamentary Under-Secretary of State for Health and Social Security (Mr. Ray Whitney)

I should like to speak in support of amendment No. 25, which stands in my name and the names of some Opposition Members. As the hon. Member for Bow and Poplar (Mr. Mikardo) said, that is an intriguing combination.

I have no wish to prolong unnecessarily the discussion on this part of the proceedings, or, indeed, the Bill as a whole. However, it is right that I should respond to some of the points that have been made, particularly by Opposition Members.

The hon. Member for Peckham (Ms. Harman) made the charge that the Government's position has been inconsistent throughout the handling of the Bill. That is totally unjustified. The Government's position has been made clear from Second Reading and throughout the Committee. In Committee, the hon. Lady and I shared the same view about the vital part of the Bill of my hon. Friend the Member for Westbury (Mr. Walters), which concerns the proceedings and role that the magistrates play. However, while she and I voted in a particular direction on the Bill, none of her colleagues was present in Committee. That is one of the reasons why we are now tabling amendments, which we would have wished to avoid in handling such a Bill.

We welcome the interest that the hon. Member for Bow and Poplar has taken in the proceedings. That is an innovation. He claimed that we have hijacked my hon. Friend's Bill in an unacceptable way, but I find that difficult to accept. It is true that my hon. Friend was forbearing enough—or perhaps farsighted enough—to accept a significant change in clauses 1 and 2 of the original Bill. That was because we had fundamental misgivings about his proposals. The implication of the remarks made by the hon. Member for Bow and Poplar was that he wished we had gone along with proposals that were resisted by so many people in the professions concerned in the handling of child cases.

Ms. Harman

Why did the Minister not bring forward his amendment to delete clause 5 in Committee? Then there could have been a proper discussion. Nothing has happened since the Committee to change the situation. If the Minister had proposed the amendment that he has now tabled, we could have had a proper discussion in Committee. That is why I am suggesting that his strategy has been so shameful.

Mr. Whitney

I see no difficulties about having a discussion now. It flows from other discussions with my hon. Friend the Member for Westbury.

I do not wish to delay the House any longer than necessary, but I need to make one other point, which seems to have escaped the hon. Member for Peckham, about the Government's intentions. As the House knows extremely well, at the end of last year we launched our consultative document on the review and reform of child care law—a truly massive exercise, as the House understands. Therefore, we feel some nervousness and have some misgivings about legislation such as this. However, we do not use the piecemeal argument, saying, "If it goes in the right direction, let us have it."

The House will be aware that yesterday, in response to a parliamentary question, my right hon. Friend the Secretary of State made it clear that the Government, having absorbed about 200 responses to the working party report on the review of child care law, will now draw up their own proposals for child care law and day care. The Government intend to publish them in the autumn as a basis for legislation. It will be introduced as soon as parliamentary time can be found.

Mr. Ivan Lawrence (Burton)

Will my hon. Friend give an undertaking that such legislation will be forthcoming within the lifetime of this Parliament?

Mr. Whitney

That brings in several other issues on which I am not at liberty to comment now. However, I hope that the House will accept that it is a major step forward that the Government have given an undertaking to introduce that legislation. The rate of that response is, in no small measure, a reaction to the pressures generated by my hon. Friend the Member for Westbury and the importance of the discussions that he has prompted as a result of his Bill. The proposals for a major piece of legislation, absorbing those responses to the report, will be published in the autumn.

Mr. Roger Sims (Chislehurst)

What the Minister has just said about a family law review is welcome. Hand in hand with that goes the question of family courts, to which reference has been made. How long do we have to wait before we have the Government's proposals? We have had suggestions that they are coming for a year or more. Now we hear that they will come out in a week or two. Can we have any assurance that we will see those proposals?

Mr. Whitney

At this stage, I can say only that my hon. Friend's reference to a week or two is probably near the mark. I wish that I could say more than that at this stage, but I think that my hon. Friend is in the correct target area.

I hope that we can agree on the proposal to delete clause 5. The purpose of the clause is well understood by all hon. Members present. It introduced a novel procedure, because it would require proceedings to be transferred from what is essentially a criminal court exercising a summary procedure to a civil court with a formal and much more elaborate procedure. While it would be possible to resolve that procedural problem, a great deal would be required by way of rules to achieve that.

The serious disadvantage in what is proposed is that it would inevitably cause delay in dealing with child care cases beyond that which is now experienced, and which gives cause for concern. We are all worried about the delay to which the hon. Member for Cambridgeshire, North-East (Mr. Freud) referred. Delay would be inevitable in most cases because, until the case was ready for hearing, or even part heard, the parties would not know whether the case was one of unusual difficulty or length, or would give rise to an unusual or difficult question of law. The court would be able to transfer a case on its own motion only where the matter was part heard. Only then would it be possessed of the necessary information.

When the decision had been made to transfer, it would be necessary for the magistrates court to give notice to the High Court, on receipt of which the proper officer of the High Court would give notice to the parties, and after the defendants had acknowledged service of that notice, an appointment for directions would have to be arranged.

Mr. Freud

The Minister has described the litany of procedure. What will be done to monitor the changing circumstances of the child? I expect that cases could change radically between the beginning and end of legal proceedings if the High Court was invoked, because there are many stages in the legal process. A child is not a static human being.

Mr. Whitney

I entirely accept that point. That is why we wish to delete the clause. That issue will be addressed when we introduce our child care law reforms. There will be difficulties in the transfer of such cases, and I hope that, in view of our consultations and the responses that we have received, which include an examination of delay and changing circumstances, when we produce our legislative proposals we can deal satisfactorily with the inevitable problems.

The transfer of cases to the High Court could increase demands upon High Court judges and would be an unjustified burden upon the legal aid fund, without any of the offsetting savings which we hope will be made in the package that should emerge from our child care law reforms.

Ms Harman

Should not the overriding criteria be the best interests of the child and the best judicial forum for assessing the interests of the child, not the requirements of the legal aid fund? Even if the Minister believes that clause 1 is unlikely to survive and, therefore, the transfer mentioned in clause 5 would not apply, would it not be useful to apply the transfer to the procedures set out in clause 4(1), paragraphs (a) to (f)?

Mr. Whitney

I wish that the hon. Lady would make her point only once. Of course, children are important, as is the reduction of child abuse cases to the fewest possible. I understand and, to a large extent, sympathise with the high-and-mighty attitude that money should be no object. However, having accepted that we are struggling to find a set of arrangements, be they legal or administrative, to reduce to the absolute minimum—to eliminate completely is not for this world—cases of child abuse, there is a duty on any Government to take account of resources. I hope that the hon. Lady, having played her card once, will rest on that trick.

Mr. Freud

It is absurd for the Minister to accuse the hon. Lady of repeating herself and doing so four times over. It is unhelpful to our proceedings.

Mr. Whitney

Perhaps I am practising for "Just a Minute"—

Mr. Freud

The Minister would be good at that.

Mr. Whitney

Yes, I think I might be better than some.

I am happy to agree with the Opposition that clause 5 should be deleted from the Bill. I do not recommend the House to accept new clause 1, mostly on grounds of principle but partly on grounds of resources. The objectives that will be set out in our review of child care law will improve care proceedings in juvenile courts so that recourse to wardship is reduced, while acknowledging that it would be available in exceptional cases. Although I shall be accused of repetition, I must say that new clause I would add considerably to costs and to delays in court proceedings, which the House would abhor. I urge the House to accept amendment No. 25.

10.15 am

Question put, That the clause be read a Second time:—

The House divided: Ayes 14, Noes 22.

Division No. 168]	[10.15 am
AYES
Cook, Frank (Stockton North)	Raynsford, Nick
Dixon, Donald	Richardson, Ms Jo
Dubs, Alfred	Roberts, Ernest (Hackney N)
Freud, Clement	Wigley, Dafydd
Hamilton, W. W. (Fife Central)	Williams, Rt Hon A.
Harman, Ms Harriet
Lawrence, Ivan	Tellers for the Ayes:
Miller, Dr M. S. (E Kilbride)	Mrs. Gwyneth Dunwoody and
Pavitt, Laurie	Mr. Ian Mikardo.

NOES
Amess, David	Greenway, Harry
Braine, Rt Hon Sir Bernard	Hamilton, Hon A. (Epsom)
du Cann, Rt Hon Sir Edward	Hargreaves, Kenneth
Garel-Jones, Tristan	Hirst, Michael
Gow, Ian	Lennox-Boyd, Hon Mark

Newton, Tony	Walters, Dennis
Rhys Williams, Sir Brandon	Whitney, Raymond
Sims, Roger	Wilkinson, John
Spicer, Jim (Dorset W)	Wood, Timothy
Squire, Robin
Temple-Morris, Peter	Tellers for the Noes:
Thorne, Neil (llford S)	Mr. Peter Lilley and
Townsend, Cyril D. (B'heath)	Mrs. Virginia Bottomley.

Question accordingly negatived.