CHILD ASSESSMENT ORDERS

HC Deb 23 October 1989 vol 158 cc598-614

' .—(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

1. (a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
2. (b) an assessment of the state of the child's health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
3. (c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.

(2) In this Act "a child assessment order" means an order under this section.

(3) A court may treat an application under this section as an application for an emergency protection order.

(4) No court shall make a child assessment order if it is satisfied—

1. (a) that there are grounds for making an emergency protection order with respect to the child; and
2. (b) that it ought to make such an order rather than a child assessment order.

(5) A child assessment order shall—

1. (a) specify the date by which the assessment is to begin; and
2. (b) have effect for such period, not exceeding 14 days beginning with that date, as may be specified in the Order.

(6) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—

1. (a) to produce him to such person as may be named in the order, and
2. (b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.

(7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.

(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.

(9) The child may only be kept away from home—

1. (a) in accordance with directions specified in the order;
2. (b) if it necessary for the purposes of the assessment; and
3. (c) for such period or periods as may be specified in the order.

(10) Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.

(11) Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—

1. (a) the child's parents;
2. (b) any person who is not a parent of his but who has parental responsibility for him;
3. (c) any other person with whom the child is living;
4. (d) any person in whose favour a contact order is in force with respect to the child;
5. (e) any person who is allowed to have contact with the child by virtue of an order under section 31; and
6. (f) the child,

before the hearing of the application.

(12) Rules of court may make provision as to the circumstances in which—

1. (a) any of the persons mentioned in subsection (11); or
2. (b)such other person as may be specified in the rules,

may apply to the court for a child assessment order to be varied or discharged.

(13) In this section "authorised person" means a person who is an authorised person for the purposes of section 28.'. —[Mr. Mellor.]

Brought up, and read the First time.

Mr. Mellor

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

Madam Deputy Speaker

With this it will be convenient to discuss Government new clause 5, amendment No. 1, in clause 36, page 34, line 8 at end insert— '(aa) in the case of an application made by, or on behalf of a local authority, the court is satisfied that there has been an unreasonable failure to comply with a statutory notice served under section Child production notice.'. Government amendment No. 116, amendment No. 2, in clause 41, page 39, line 47, after 'order' insert 'or notice under section (Child production notice).'. Government amendments Nos. 376, 396 and 159.

Mr. Mellor

This group of amendments brings us back to the heart of the Bill or at least to what the many members of the public who have been following our proceedings will consider to be the heart. It is certainly the heart of the Bill when we consider the care with which hon. Members on both sides of the House have approached these issues throughout the Bill's passage.

As I explained in Standing Committee, the difficulty is to know whether the emergency protection order is adequate or whether we require an additional order—a child assessment order—to run in parallel with it. Further refinements of the emergency protection order will be proposed tonight to provide for the circumstances within which a failure to produce a child is coupled with a genuine and immediate fear for the child—leading to the granting of an emergency protection order. There are other circumstances in which there might be serious cause for concern about the welfare of a child. There may be a repeated failure to produce a child and perhaps it cannot be asserted that the matter is quite so urgent that there is an immediate need to intervene to take the child away. It is at the heart of our concerns that the emergency protection order is used only in those very serious circumstances, so the issue is whether there should be a lesser order requiring the production of a child and one which allows for the assessment of the child.

I listened with great care to what was said in Standing Committee. I want to thank all the hon. Members who took part in our debate in Committee. I am also grateful for the tentative discussions involving certain Members which have taken place subsequently—as late as this week. I want also to thank various groups concerned with this issue which have contributed to our discussions. It has been a significant development in this debate that the Association of Directors of Social Services and the National Society for the Prevention of Cruelty to Children have discussed the issue and are committed jointly to the need for a child assessment order.

New clause 13 represents the best attempt that the Government can make to take on board the various views and produce an easy-to-use, readily explicable proposi-tion, which has the proper safeguards that one would expect when any intrusion into the rights of parents over their children is considered. I do not believe that the child assessment order, as we have it, is an unnecessary intrusion. By reducing the period from 28 days to seven days, we have shown a marked concern that the order should not be excessive. I know that there is concern that the child should not be removed from the parents for that period.

The period for which a child is removed is entirely dependent on the court; it is not something that the local authority will determine. For the most part, the assessment will take place without a requirement to take the child away, save for the period of an afternoon or two afternoons for an assessment to be made. However, there may be rare occasions when an overnight stay is required. Just because the duration of the order could be seven days, no one should presume that the seven-day period is likely.

The court is likely to he prepared to give an order only when it is clear that all reasonable attempts have been made to secure voluntary co-operation. Rules of court will require the applicant to explain what steps he has taken to secure an assessment of the child. Court proceedings will be on notice and a guardian ad litem will usually be appointed to represent the child and help the court to decide at a full hearing whether an assessment order is needed.

9 pm

New clause 13(8) provides specifically that if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment. That point was impressed on me by my hon. Friend the Member for Billericay (Mrs. Gorman). I thought carefully about her comments and was driven to agree that there is an irresistible logic to that argument, having regard to other developments in the law and in the statutes. Not only is such a provision incorporated in new clause 13, but there will be similar amendments in respect of subsequent emergency protection orders and interim orders in the Bill.

Applications for a child assessment order will be heard inter partes, not ex parte, as for most EPO applications. The parents, the child and certain other persons will be given notice of the application, which is of considerable importance.

In some circumstances, the court may take the view that those making the application have underestimated the gravity of the case. It will then be open to the court, if it so wills, to make an emergency protection order instead of a child assessment order. Emergencies and non-emergencies are not self-defining categories—so if, having heard the evidence, the court believes that an emergency protection order is needed, it can so move.

Mr. Vaz

How can the Minister justify a period of seven days for an assessment when his own Department's guidelines suggest that an assessment will take three months?

Mr. Mellor

Because a three-month order would be regarded as manifestly excessive. We have made serious and genuine attempts, which I believe have been appreciated by right hon. and hon. Members on both sides of the House, to deal wherever possible with sensible propositions. There is genuine anxiety lest child assessment orders be used as an oppressive instrument. After careful consideration, I reached the conclusion that a sensible assessment could be made within seven days in almost every case. If necessary, further action could then be taken.

Mr. Vaz

indicated dissent.

Mr. Mellor

The hon. Gentleman screws up his face, but I fear that he would do so about any element of the provision. I am sorry about that, because it would be good if everyone could agree, but a powerful group has now been marshalled behind the child assessment order. As I said on Second Reading, it has always been difficult for the House to consider this subject, particularly in the light of several celebrated cases in which people who abused a child repeatedly failed to produce the child and the social workers failed to intervene until it was too late.

We should make it as easy as possible for the right decision to be made. The social worker might conclude that, notwithstanding the failure to produce the child, there is no evidence that an emergency protection order is needed. I believe that the existence on the statute book of the child assessment order will make it much easier, in circumstances of genuine concern and of a failure to produce the child for assessment—when there is a real reason for that application being made—to ensure that the child is protected. One must always remember that in such circumstances the child should always be given the benefit of the doubt. This has not been one of the easiest decisions to make in the Bill—it has been genuinely difficult. It is right that we have hesitated until the last moment and considered all the voices. I commend the child assessment order to the House.

Mr. Hinchliffe

The Minister said that the assessment process could be carried out in one or two afternoons. What sort of assessment does he have in mind?

Mr. Mellor

I am not saying that that is typical of the way in which the process will be undertaken. If the fear is that the child has been subject to serious physical abuse, a single medical examination should be able to establish that fact. By the same token, if there is sexual abuse, one or two medical examinations would satisfy that point. I appreciate that, when one is dealing with more difficult emotional traumas, it is more difficult to make an assessment. Those are the circumstances that were envisaged when it was said that assessment could take longer. It is absolutely clear that one could not ask for a three-month order. I do not seek to do that. A seven-day order is an appropriate way of recognising that there is a need for the order, but it must be tightly circumscribed. On that basis, I commend new clause 13 to the House.

Mr. Bell

I am grateful for the Minister's comments and for his clarification of new clause 13. We have moved from the concept in the 1970s, which was elaborated in the pages of The Times at that time. It stated: from birth till death it is now the privilege of the parental state to take major decisions—objective, unemotional. The state weighs up what is best for the child. I am glad to say that we have moved from the concept that the state knows what is better for the future of a child. It is not right for the state to interpose itself in the role of parents. Over many years Parliament and Ministers of every ilk have seen parental power ebbing away. That has led us to this Bill and to the assessment order.

The Minister was right to say that in Committee we regarded the assessment order as a new power or weapon in the armoury of social services. We discovered that the more we looked at the emergency protection order the more we had also to look at the cases of Jasmine Beckford and Kimberley Carlile and find some way of covering a situation that was potentially dangerous to a child but yet did not have the aspect of danger. Over the past few days and weeks I have found myself arguing that this order is proper. It is remarkable that I was criticised for being critical of social workers. I now defend social workers. They should have this weapon in their armoury.

I am grateful to the Minister for pointing out that the court will state the time for which a child should be taken from its parents—it will not be incorporated in the statute. In Committee the Minister gave a categoric assurance that an assessment order will be made by a proper court rather than by a magistrate sitting at home in his pyjamas. Proceedings will be inter partes, and notice will be given to parents, who will be able to have their own lawyers present if necessary. My concern about the seven days' notice was that a seven-day assessment order might immediately be converted into an interim court order.

Mr. Mellor

indicated dissent.

Mr. Bell

I am glad to see the Minister indicate from a sedentary position that that will not be the case. I would certainly welcome any enlightenment on that point. It will eventually be a matter for magistrates, but we would not wish to see any short cut to an interim care order.

Mr. Mellor

I am glad that the hon. Gentleman raised that point. Looking back at some of the points that I made earlier, with advantage I could have said that in a certain case in which there is obviously continued cause for concern but no time to do a proper assessment within the seven days it will be possible to apply for such an order. I would regard that as very exceptional. The existence of the child assessment order will make it less likely that an authority would apply ab initio for an interim care order that is, of course, of longer duration—eight weeks, I think I am right in saying.

Mr. Bell

I am grateful for that clarification.

New clause 13(8) states: Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment. I am not about to refer to Cleveland—I am certainly resisting every temptation to do so.

In one case a 14-year-old boy was taken in for an examination. He did not want to be examined and said that there was no reason why he should be. He did not want doctors poking around. He was embarrassed and humiliated by the whole experience. The child assessment order and the provisions tabled by the hon. Member for Billericay (Mrs. Gorman) will assist people in that situation. People who have nothing to hide who do not wish to go through such an examination will not be obliged to go through with it. It is of great interest and significance to our parliamentary procedures that Back Benchers such as the hon. Member for Billericay—and, indeed, the Minister of State—can take on board the points made in Committee and then come to the House to change legislation. I am grateful for that. From my personal experience, I know that that provision is a useful addendum to the new clause.

I was especially interested when I read the report of the Association of Directors of Social Services. I am aware that in the beginning the association was hostile to an assessment order in addition to the emergency protection order. However, the association has considered the position carefully and has come forward with a document referring to a multi-disciplinary assessment in non-emergency situations". We hear much of the difficulties and burdens on social workers and the Bill, and especially the new clause, seek to get away from the idea of single responsibility. I do not want any social worker to have the enormous responsibility of deciding whether a child should be taken from his or her home. I do not want social workers, on scanty evidence or information, to have the entire responsibility for a Kimberley Carlile or Jasmine Beckford case. If the assessment order leads to a multi-disciplinary assessment in non-emergency situations", I support and favour it.

The hon. Member for Chislehurst (Mr. Sims) may well seek to speak in this debate—I see that he has his notes ready.

I was also impressed by an article written by Jim Harding, the NSPCC child care director who was a member of the Kimberley Carlile inquiry. He has stated that the benefits of having a child assessment order are fourfold. He listed those benefits with great care, stating: Firstly, parental responsibility is retained by the parents". The move to retaining parental responsibility throughout the period of assessment is to be welcomed. It is a moving away from the concept of a "parental state". He then stated: Secondly, the child can be seen by the family doctor in a familiar environment. My hon. Friend the Member for Aberdeen, South (Mr. Doran) has already referred to an experience that he had when he was eight years old and to other experiences encountered later as a solicitor when taking children into court. He explained how the hostile environment can affect those children, and how it affected him as a child and left him traumatised for many years. As a result of the assessment order, as Mr. Harding of the NSPCC has said: the child can be seen by the family doctor in a familiar environment. We must all be looking not to traumatise and alienate those children who may be subject to an assessment.

The assessment is not necessarily limited to child sexual abuse. It can involve all kinds of abuse and neglect. Mr. Harding also stated: Thirdly, parents are much more likely to co-operate willingly with this type of order and the social work relationship with the family will not be damaged. I support that coherent and cogent point. Finally, Mr. Harding stated: Lastly…the child can be protected in serious, but not emergency, situations. The assessment order therefore has the support of the NSPCC and the Association of Directors of Social Services. Similar points have been put to me by other single issue pressure groups. The original 14-day period has also been subject to some criticism because of fear that it may be linked to a 14-day taking away of the child. I welcome the fact that that will not be the case. Other points have been made about the wideness of the power, saying that it might be wider than the powers of the emergency protection order. I am satisfied that, on balance, in the circumstances, we need this order.

The order adds to the armoury of the social services, but is a welcome adjustment. It seeks to protect children who may be at risk and of whom we have no knowledge. It may abolish the idea that, with hindsight, we could have known better. This provision will prevent such situations from arising. In a sense, we are acting with hindsight in protecting children, whoever they may be and in whatever situation. We are giving them some extra protection which I am sure they will feel is most welcome.

9.15 pm

Mr. Sims

The new clause has the full support of the NSPCC, and I welcome it for myself and on its behalf. I take this opportunity to express my thanks for the personal contribution of my hon. and learned Friend the Minister and his officials in resolving the problems that were presented by differing professional views on how this dilemma should be solved.

Social workers have faced a dilemma. Often they have feared that all is not well in a home. They were denied access to a child, but had insufficient information to apply for an order to allow them to go to the house and, probably, take that child away. It is understandable that magistrates may have been reluctant to give such powers unless ample evidence was produced.

The new clause provides additional powers for social workers for which I have pleaded for some time in the House and outside. I am pleased by the new clause, which is a reasonable compromise between the differing professional views on how the matter should be handled. Naturally I have particular interest in the NSPCC. It is admirable that that society and the Association of Directors of Social Services, which orginally held differing views, were able to work together and to produce the particular formula.

As the Minister has said, it will obviously be easier for social workers faced with the dilemma I have outlined to apply for a child assessment order rather than an emergency protection order. Another aspect that has not been considered is that cases are often brought to the attention of the NSPCC or local authority social workers by friends, neighbours or relatives who are concerned about what is happening in a particular household. There may not be anything definite that they can put their fingers on, but a variety of incidents or simply not seeing a child around the place may cause concern. Up to now, however, anyone in that position knew that if they reported the matter to the appropriate authorities that might result in the child being taken from the home. It is understandable that people were therefore reluctant to give that information. Now that they know that the result of reporting their concern to the NSPCC or the social worker will be that arrangements will be made for the child to be assessed, at relative leisure, it is far more likely that such cases will come to light. Surely that must be good.

We cannot be sure that as a result of the new clause there will be no more cases such as Maria Colwell, Doreen Mason or the sad procession of such cases in between. The new power for social workers, however, must at least make such cases less likely. For that, we should all be grateful.

Mr. Vaz

The Minister is absolutely right when he says that we are dealing with the heart of the Bill. He is absolutely right when he says that the emergency orders and the non-emergency orders that social workers will need to take out to deal with concerns expressed about children lie at the heart of the Bill. I am afraid, however, that the Minister's introduction of the child assessment order has resulted in a hole appearing in the heart of the Bill.

I remind the Minister of his words on Second Reading when he told the House of the need to be clear about the law and said: Of course, of itself, legislation cannot stop such tragedies, but we hope that a clear legal framework will help to make more likely clear-eyed judgments by key people involved in child welfare, whether they are in social services departments, health authorities, the police, education or the courts."—[Official Report, 27 April 1989; Vol. 151 c. 1108.] There was a direct plea by the Minister for support for his Bill, which at that stage did not include a child assessment order, and that Parliament should be absolutely certain that because of the background of the legislation—the Kimberley Carlile and Doreen Mason cases, the events of Cleveland and the concerns of the Social Services committees and other organisations—this Bill, which we all hail as an historic Bill and which will codify the law of child care, should be clear. We did not want anybody to be under any misapprehension about any of the clauses. We wanted social workers, who deal with major problems and decisions at grass roots, to be clear about what Parliament intended.

We discussed at length in Committee the emergency protection order which is to be the subject of a further debate tonight. It is right that the House should know the background to the child assessment order. It was during the debate on the emergency protection order that the Committee was adjourned and the Minister, in the spirit in which he has approached this consensus Bill, agreed to allow both Opposition and Conservative Members to meet officials of his Department to discuss the circumstances surrounding the possibility of the introduction of a child assessment notice.

The Minister told the Committee that agreement had been reached between the National Society for the Prevention of Cruelty to Children and the Association of Directors of Social Services which enabled him to come before the Committee and say clearly that at last there was a framework for a non-emergency order. So it was that we adjourned the Committee to discuss the matter with his officials.

One of the first things that the officials said to Opposition Members was that they knew that the Department of Health's own guidelines suggested that where a child was to be assessed the proper period for assessment should be three months. At that stage it was proposed that there should be a 28-day non-emergency child assessment order. At that stage, hon. Members from both sides of the House revealed that they were unhappy with this. They wondered how it was possible to have a non-emergency order which was longer than the emergency protection order. Whatever the Minister says, and although he is absolutely right when he says that the legal responsibility and parental rights rest with the parents under a child assessment order, it can still be up to the court to remove the child from the home for that period.

During the summer recess the Minister wrote to hon. Members to tell them that the period had been reduced to 14 days. Last week two meetings were held with the Minister and his officials to discuss the matter. I do not raise these points to criticise the Minister. I am delighted that he allowed us to meet his officials. Although he said that two organisations—the ADSS and the NSPCC—are in favour of the proposals, many organisations are against them. They are the organisations that have to deal with the legislation at grass roots level: British Agencies for Adoption and Fostering, British Association of Social Workers, Children's Legal Centre, National Children's Bureau, Association of Metropolitan Authorities and the Family Rights Group. These respected organisations say clearly that this is the wrong course for the Minister and Parliament to take.

We met the Minister to discuss this issue in the cathedral room of the Department of Health. He was open in the discussions, and I raised with him my first concern that this non-emergency order of 14 days was going to be longer than the emergency order of eight days. I asked him what further periods of reduction he would consider and the time limit of seven days was mentioned. It was mentioned because it was one day shorter than the emergency protection order. The Minister may have felt that if the period was shortened we would support the principle of the child assessment order.

A day later we met officials in the Versailles room of the Department of Health. We discussed with them our concerns and raised again our worry that the child assessment order proposals would cause greater harm to children because it would place social workers in a confusing position.

I and all Opposition Members accept that the state needs to intervene only in exceptional circumstances and that the background of Cleveland showed that the place of safety order, with its 28-day limit, was wholly inappropriate. It lasted too long and many social workers used the place of safety order in the first instance without considering alternatives.

However, the Minister's suggestion of an order that will allow the court to remove the child from the parental home for seven days for assessment falls down because it is impossible to obtain an assessment of this sort in seven days. I am not arguing for a longer period of three months; I believe that this order will cause massive confusion. Faced with the prospect of taking out an emergency order, social workers will fall back on the new child assessment order because they believe that it will make them the subject of fewer attacks than they have suffered over the Cleveland case and others.

I should like to place on record my faith in social workers and social services departments. Not every social worker is perfect, but we cannot support the sorts of attacks on their characters and professionalism that we have heard recently.

There is no evidence, no research and no inquiry to support the Minister's view that there should be a child assessment order. The order will mean that for seven days the whole family could be involved in an assessment. That in turn could mean that children and parents against whom no evidence has been found could be made to attend an assessment centre and undergo therapy with psychiatrists or psychologists.

If the Minister wants an order that will provide him with this assessment he should look to the interim care order or the interim supervision order as better means of proceeding in cases of this sort. We understand the need that the Minister feels to demonstrate that the Government want to find a halfway house between the emergency order and no order at all. That is why the Opposition's new clause 5 suggests the child production notice. We believe that it will meet the worries of Conservative Members and of those outside this Chamber who will have to administer the new law.

The child production notice will allow a social services department, and social workers through the department, to serve a notice on parents requiring them to produce a child before a doctor or a health visitor in cases in which child abuse is feared. If the parents decide that they do not want to comply with the notice and if they refuse access to the social services department, it is open to the department to apply for an emergency protection order if it is concerned that the family may move away or that it is being denied information. That option is always open to it.

New clause 5 makes it clear that, in the notice served on parents, they should be told that if they refuse access to a child the department may take out an emergency protection order. That covers the amendment that the Minister proposes to make to clause 38, which will allow the social services department to seek an emergency protection order on the ground of refusal of access. This sort of notice served in clear terms will give parents and others the idea that the social services department is worried.

This notice can also fit into the proposals on child assessment. That should be an essential first step. During the recess the Minister wrote to hon. Members and said that the idea of a notice was attractive and would be included in the rules of court. We offer him the notice as an alternative to a course of action that will lead to confusion.

I have experience of these matters. I am concerned because at the crucial time when the social worker has to make a decision and seeks legal advice from the borough solicitor or other legal advisers, those advisers should he clear about the steps that ought to be taken. The assessment order will not do that.

9.30 pm

We are legislating for a new code of practice for child care law and it is not right for us to proceed in such a way. I accept what the Minister says: that he has made efforts to find a suitable conclusion to all the inquiries that he has undertaken. However, we should not proceed knowing that it is unlikely that the legislation will not be amended for many years. We should not proceed in such a hurry over such a serious matter. People outside who follow the proceedings will wonder at the bingo-style operation of some of the negotiations. What started with 28 days goes down to 14 and down to seven. If Report were next week by that time it could have gone down to three days. All this will involve parents and children being involved before the courts.

I agree on many issues with my hon. Friend the Member for Middlesbrough (Mr. Bell). He wants to avoid trauma for the child. However, taking out a child assessment order and going before the court, because it is an on-notice application, will cause great trauma. Taking the child away from the home and subjecting him to examinations by psychiatrists and psychologists and using two-way mirrors during discussions with other family members during therapy sessions will also cause great trauma.

The bingo-style approach is not appropriate for child care matters. We must be very careful about what we do and even at this late stage I urge the Minister not to go down the road that he has chosen. I believe that there will be an increase in child abuse if we approve this child assessment order simply because social workers will prefer not to go for the emergency order but will opt for the on-notice order.

Mr. Bell

Will my hon. Friend give way?

Mr. Vaz

No. I am approaching the end of my speech.

Social workers will rightly condemn the House and the members of the Committee for not acceding to a reasonable request, and the judgment of history will be harsh.

Mrs. Teresa Gorman (Billericay)

I thank the Minister for taking on board the fact that children, even young children, should be allowed to decide whether to undergo psychiatric and physical examinations. The hon. Member for Middlesbrough (Mr. Bell) said that he did not want to raise again the matter of Cleveland, but it was an important aspect of what went on in Cleveland that young children were subjected to physical examinations without any opportunity to protest. Sometimes those examinations were more of an abuse than that for which the children had been taken into care in the first place. The Minister has adopted an important point. I compliment the children's legal centre which has worked closely with those of us who were on the Committee in order to construct these necessary points and have them put into the Bill.

I should like the Minister to assure us that children who are taken in under assessment orders will not be compelled to undergo psychiatric or any other kind of examination. The hon. Member for Leicester, East (Mr. Vaz) has said that children taken in under such orders may well be subject to psychiatric investigations. I want the Minister's assurance that such investigations will not be carried out against the child's will if the child is capable of making the decision. I believe that even quite young children are capable of making such decisions.

The import of the point that my hon. Friend the Minister took on board when he agreed that young children should not be forced, against their will, to undergo these examinations is that earlier legislation was based on the concept of children as chattels or the property of parents, and property about which magistrates could make orders, almost as if the child had no will of his own and no opinion in the matter. That was a crucial criticism of earlier legislation. It is paramount that this new legislation embodies the principle that, although they may he small physically, the rights of children should be no less than those of adults. A prisoner may not be subjected to forcible examination of this kind against his will. People in rape cases, prostitutes and all sorts of people who are taken in may not be subjected to examination against their will. This Bill will apply those rights to children, and that is an enormous advance.

Mr. Hinchliffe

The hon. Member for Chislehurst (Mr. Sims) said that he thought that the issue had been resolved. The Minister has said that the Association of Directors of Social Services and the National Society for the Prevention of Cruelty to Children had agreed on the form of words for the assessment order. However, I do not believe that the issue is anywhere near resolved and I am worried by what is on offer in the Bill.

I agree with those who said that in Committee we were reasonable with each other and tried for a consensus. I pay tribute to the Minister for his efforts. It is not in his nature, as it is not in mine, to be quite so reasonable. I also pay tribute to his civil servants, who went out of their way to be helpful to us Back-Bench Members. However, I shall now put the boot in and make some important points that need to be made.

This weekend, I looked at some of the comments made in Committee. I noticed one hon. Member—I shall not say who it was—reading his entire speech from the Committee Hansard. In Committee, I made a point by which I still stand. It is that I am attracted by some form of assessment order, but I have distinct reservations about the 28 days that was originally proposed in Committee. I spelt out a more simple form of assessment, along the lines of a straightforward medical assessment that could take place within a couple of hours or even less, in the company of the parents. What I had in mind was what my hon. Friend the Member for Leicester, East (Mr. Vaz) has put forward as his child production notice.

We have been discussing this order for some time. When we first spoke of the matter in Committee, the period was 28 days. It implied a full assessment that would involve, as could happen within 28 days, social, psychological, psychiatric, educational and medical assessment and possibly other aspects that could be included, as is the norm when the child is fully assessed, before he is placed on a care order, when he has been through the courts and been made the subject of an order.

While the order recognised a gap in the law, it went completely overboard, and the Minister accepted that and withdrew the 28-day period. It went beyond what was required, and no one was prepared to support it in Committee. The Minister expressed concern and said that he had a relatively open mind, and I commend him for it. He asked for a steer from the Committee and said: it is too long a period and … perhaps we are really thinking of an assessment that can be transformed into another form of order if there is a real basis for anxiety."—[Official Report, Standing Committee B: 25 May 1989, c. 317.] The Minister has moved along the lines that he predicted, but I wish that he had looked at it in more detail and taken on board some of the comments made by my hon. Friend the Member for Leicester, East, and which I will raise because of my anxiety about what will happen if the order goes through as is suggested.

Many of us said in Committee that there should be some form of child production notice, along the lines of a brief, straightforward statutory notice that would not involve going through the rigmarole of the courts system, with huge clumps of procedure, would not have implications that would impinge on the rights of parents and children, and would not mean their being dragged through proceedings. They would be asked to go along to a doctor or health visitor to have that child assessed simply in a way that would be acceptable to many parents if the alternative were to be taken through the courts.

I have a number of objections to the child assessment order. It clearly duplicates what is available in existing law, which already provides for assessments for children on a place of safety order. I accept that currently that is a 28-day order, but I know that for police place-of-safety orders there is a shorter time scale. I am talking about full assessment, not brief medical assessments—although, more often than not, they might be all that is required. There are assessments with interim care orders, and there are informal assessments, where no order is required, while a child is in voluntary care or, with the parents' consent, when the child is in his own home. Whether educational, medical, psychological or whatever, those assessments take place.

While it may be impracticable within an eight-day emergency protection order to undertake the thorough assessment processes possible on full place-of-safety orders, it would be possible to obtain assessments of certain aspects of a child's case under the provisions already contained in the Bill, and without the necessity for a child assessment order. If just a simple medical assessment is not appropriate, but certain evidence is required, that can be obtained under the emergency protection order within the eight-day period. Under clause 39(4)(b), the emergency protection order empowers a court to require medical or psychiatric examination of a child. Therefore, any such assessment can take place during the time that the child is detained.

The Minister has reduced the time scale for the child assessment order from 28 days to 14 days, and he is now proposing that it be further reduced to seven days. He has been reasonable and has attempted to achieve consensus, but he is expecting the impossible if he wants the child assessment order to encompass a full and comprehensive assessment. He has defeated the object of the originally intended assessment because it is impractical within the time scale allowed by the amendment. It is not possible to expect social, psychological, psychiatric, medical, educational and other assessments to be carried out in any detail within the amendments time scale. Therefore, the objections raised to the 28-day period have led to the order being reduced to a complete misnomer because such a full assessment cannot happen in the proposed time scale.

On the issue of civil liberties, I want to raise the question of the implications of the principle of what is essentially an evidence-seeking order. There are lawyers and others in this Chamber who have a great deal more experience of the law than I have. I wish to know whether such an order has a place in British justice. The child assessment order allows for the removal of the child from home for seven days on much less serious grounds than those for an emergency protection order which allows detention for eight days. I find it worrying that children can be removed from home and detained for an equivalent period for assessment purposes.

I recall our debates about the implications of the 1969 Act and the questions that arose about civil liberties in the way that children were treated on the basis that they were in need of care. Questions were raised because people were given harsher sentences because they were deemed in need of care than they would have been if they had been deemed criminals. I am worried about the implications for civil liberties of an evidence-seeking order, especially when taken in conjunction with an emergency protection order.

I was interested to note that the British Association of Social Workers has indicated its opposition to the measure. I fear that the child assessment order will cause immense confusion among social workers, because it will not facilitate the use of many existing models of assessment; it will not be possible to make a proper assessment of the kind envisaged in the amendment with a seven-day time scale. While we must recognise that the order will be made on the direction of the court, we must also recognise that it will usually be made because a social worker has recommended it in the report that he has given the court. If the social workers are confused, the courts will inevitably be confused as well.

9.45 pm

The distinction between the child assessment and emergency protection orders is very unclear, particularly as it will he possible to obtain an assessment within the period of the emergency protection order. The new clause does not make it clear in what circumstances either course would be chosen.

My concern about many parts of the Bill is underpinned by doubt about whether the Government have given any thought to the resourcing implications. If the child assessment order takes off—and is understood —what facilities will enable us to meet demands which, I suspect, will far exceed the supply of assessment processes? Assessment is a complicated process and, if done properly, an expensive one. The impracticality of the seven-day time scale leaves the whole matter open to question, as does the issue of available resources for domiciliary, day and residential assessment.

The training of social workers is a matter which we shall probably not have a chance to address in detail, but will they be trained sufficiently to understand when they should use which order? I have been a practising social worker for 20 years and am fairly highly qualified, but I am not sure how I would apply the legislation. Goodness knows how someone who has just come into the job would manage.

The reduction in the time scale has completely undermined the assessment purpose of the order. All that the Government can reasonably do, in my view, is drop the order and bring in something along the lines of the child production notice. Gaining access to a child is crucial—we all accept that, although we have different ways of resolving the issue—but we need a measure that is far less cumbersome and more easily understood, and that will enable social workers to obtain what they want at that stage. They will want a medical assessment showing knowledge on the part of a doctor of a child's physical state—whether it has been assaulted, for instance, and whether it has bruises. Skeletal service may be involved, as may other medical matters; the question of sexual assault may arise.

My hon. Friend the Member for Leicester, East knows my reasons for disliking the term "child production", which has numerous connotations of which he is aware from our personal discussions; nor do I believe that an assessment notice would be appropriate. Assessment now seems to be the order of the day, and one of our difficulties is that people have not fully understood what is meant by assessment.

My understanding of assessment ranges from a full comprehensive assessment to the simple medical assessment that the Minister mentioned when I asked him what could be achieved in one afternoon. That is what is needed, as such an assessment enables a social worker to make an initial diagnosis and decide what to do next. It might be that the child ends up under an emergency protection order, and it might be that a more comprehensive assessment could be undertaken during that eight-day period, during a subsequent interim care order or at the start of the care order, but I do not think that it should be done on the lines of the assessment order proposed by the Minister.

In doing his best to be reasonable and conciliatory the Minister has made assessment orders effectively inoperable. He has disappeared into his own reasonableness, which is most unfortunate because he has tried, as members of the Committee have tried. I appeal to the Minister to take on board our objections and concerns. They are sincere and there is no party political malice. We want to get the Act right. I have been involved in social work for a long time and I am concerned that what is on offer here will cause immense confusion and will not resolve the problems that we want resolved.

Mr. Tom Clarke

I am delighted to follow the tone of the speech by my hon. Friend the Member for Wakefield (Mr. Hinchliffe) and the many logical points that he made. I was particularly pleased with his comments about the Minister of State. I think it was the late Harry Cowans who said to me when I arrived in this place, "When they put you on a Committee, you will usually find two Ministers. One of them will be Mr. Nice and the other will be Mr. Nasty." On the basis of a few off-the-cuff remarks, I would not dream of saying that the Solicitor-General would qualify as Mr. Nasty, but on the evidence so far the Minister for Health has well and truly established himself as the Mr. Nice of the Committee. That is what my hon. Friend the Member for Wakefield was saying.

The comments of my hon. Friend the Member for Leicester, East (Mr. Vaz) were extremely important. He addressed new clause 5, which the Opposition would have found very logical in practice. There are also a number of questions which the Minister would want to answer. Perhaps the distinction between assessment orders and emergency protection orders is not as clear as we would wish, and perhaps they should be clarified, if not in this debate, perhaps later.

As I said, many of the remarks by my hon. Friend the Member for Leicester, East were attractive, but does that give us the right to challenge new clause 13? In my view, it does not because, as my hon. Friends acknowledge, this was one of the most difficult issues that the Minister and the Committee had to address. We appreciate the fact that the Minister involved the voluntary organisations and professional bodies before reaching a conclusion. I have to acknowledge that, most unusually, he also involved the Opposition.

I am not saying that we find that the assessment orders as outlined in new clause 13 represent absolute perfection, but if, on one hand, the NSPCC and the ADSS support the Minister and, on the other hand, a number of distinguished organisations, including the Family Rights Group, disagree, we are entitled to make one demand of the Minister to which he will feel he should respond.

In all of our discussions, including the discussions last week, which my hon. Friend the Member for Leicester, East mentioned, nobody—including the Ministers' officials and advisers—was arrogant enough to say that he was absolutely certain that we had got it right, especially on the assessment orders. Nobody could predict whether social workers would rush to use the assessment order, or whether only a few would seek application to see how the order worked.

However, we are entitled to ask the Minister for the closest possible monitoring of how the order will work and how new clause 13 will work in practice. We ask for that monitoring; and we have another request. It is important that the monitoring should take place in the spirit of our exchanges this evening. I feel that Parliament would want an early opportunity to find out what that monitoring would mean and how it would work in practice. Only with that experience of an extremely delicate matter—and we acknowledge its delicacy—would the House be absolutely confident in reaching its final conclusion.

Mr. Mellor

I am grateful to the House for this debate. Even those who have felt unable to agree with new clause 13 have, nevertheless, been at pains to point out their recognition of the strenuous efforts made to try to resolve the matter to the satisfaction of all and I am grateful for that. I am especially grateful for the courtesy of the hon. Member for Monklands, West (Mr. Clarke) and I was most touched by his remarks.

The hon. Member for Leicester, East (Mr. Vaz) knows only too well that we considered carefully his child production notice and I am grateful to him not only for his having given us the benefit of his experience, which I recognise to be considerable, in stating with great clarity why he did not like our proposal, but for going to a great deal of trouble to put forward a proposal that he considered worthy of consideration. I want to assure him that we considered the matter carefully, as he knows from discussions with my officials.

There are several reasons why I felt unable to agree to the child production notice. First, it would involve an action that we have aspired to remove from the law on children, which is the ability of a local authority, or any other body, to take substantial control of the situation by administrative action, rather than by court order. All of us wanted to give the court control over these issues. Obtaining a child production notice, serving it and placing a requirement on parents on the judgment and say-so of the local authority alone would be going back on our action at an earlier stage of the Bill to remove the right of local authorities to take by administrative action any form of parental control over the child.

Secondly, I could not put out of my mind the fact that new clause 5 provides only for production of the child. Taken literally, that could mean merely showing the child briefly and fully clothed to a doctor or nurse, but refusing any further contact, examination or assessment and that would seem to fall short of what is required.

I appreciate that one is between Scylla and Charybdis. The Scylla is that we are being too draconian and the Charybdis is that we are passing into law an order that will be ineffective. I take some comfort from the fact that both the hon. Member for Leicester, East and his hon. Friend the Member for Wakefield (Mr. Hinchliffe), who opposed the new clause 13, were in favour of a production order that, as they envisaged it, would allow for one medical examination. If that could be effective, I cannot help but feel that a seven-day order could be effective. If that seems too draconian, I must point out that seven days would be unlikely to be seven consecutive days in which a child was taken away from parents, so it would be far less draconian than the alternative to which the hon. Gentlemen were driven back in their arguments, which is the eight-week interim care order. That has the effect of taking over parental control of the child. I was grateful to the hon. Member for Middlesbrough (Mr. Bell) because he proved, as he often proves with his commonsense views on this issue, that it was worth pursuing this idea. I do not believe that the hon. Member for Middlesbrough would have spoken in favour of the order if we had not made the changes that we have. While we may not have been able to take everyone with us on the issue, we have progressed a good way along the road.

My hon. Friend the Member for Billericay (Mrs. Gorman) should be aware that, under subsection (8) of the new clause, any child with full understanding may refuse a medical examination——

It being Ten o'clock, the debate stood adjourned.

Ordered, That, at this day's sitting, the Children Bill [Lords] may be proceeded with, though opposed, until any hour.—[Mr. Fallon.]

Question again proposed, That the clause be read a Second time.

Mr. Mellor

As I was saying, subsection (8) effectively provides what my hon. Friend the Member for Billericay asked for. In relation to my hon. Friend's additional point about a child of whatever age protesting and not wanting to be subjected to an examination, even if it were deemed that it was not a child with full understanding of the process, I do not believe that any medical practitioner would carry out a medical examination if a child resisted it. I believe that that would be in line with what we know about medical ethics.

While I appreciate that there cannot, alas, be full agreement, I suspect that there was a more substantial measure of agreement in this debate than many might have thought possible when we introduced the proposal. I believe that that agreement has vindicated our approach. I will consider the comments made by the hon. Member for Monklands, West about monitoring. I will discuss with the Association of Directors of Social Services ways in which we can keep tabs on what is happening with a view to having an early look at the effectiveness or otherwise of the proposal. I will write to the hon. Gentleman about that.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Mr. Vaz

On a point of order, Mr. Speaker. When will the House have an opportunity to vote on new clause 5?

Mr. Speaker

I do not think that it would be appropriate to vote on new clause 5 because new clause 13 has been agreed to. In any event, it would not fall for a vote until quite late on when we reach it on the Amendment Paper—probably, in terms of our progress, not until tomorrow.

Mr. Vaz

Further to that point of order, Mr. Speaker. Are your saying that we can vote on new clause 5 after new clause 4?

Mr. Speaker

No. On the contrary. It would not be appropriate in view of the fact that new clause 13 has been agreed to.