§ '(1) Where the Court has made
- (a) an emergency protection order; or
- (b) an interim care order; and it is satisfied that the child's welfare would be satisfactorily safeguarded or promoted if a person who is resident in the child's household were removed from that household the court may in addition:—
- (i) make an order (exclusion order) requiring that person to vacate the household; or
- (ii) accept an undertaking from that person that he shall vacate the household.
§ (2)For the purpose of the section the term exclusion order shall include the term undertaking.
§ (3) Where an exclusion order is made under this section the child shall not be removed from the household.
§ (4) Where the court makes an exclusion order under subsection (1)(a) it shall have effect for such period, not exceeding eight days, as may be specified in the Order.
§ (5) s. 39(2)—(6) shall apply to subsection (1)(a) as if it referred to exclusion orders.
§ (6) Where the court makes an exclusion order under subsection (1)(b) shall have effect for such periods as are specified in section 35(4)—(5) as if they referred to exclusion orders.
§ (7) A person who is subject to an exclusion order may apply to the court for the order to be discharged.
§ (8) Where the court makes an exclusion order the applicant may pay any reasonable expenses incurred by the person subject to the order in connection with this accommodation throughout the period the order is in office.
§ (9) Where the exclusion order is in force the applicant may make arrangements for the person who is the subject of the order to return to live in the same household as the child 1315 provided that the applicant is satisfied that the child's welfare can he satisfactorily safeguarded or promoted as a consequence.
§ (10) A power of arrest shall attach to all exclusion orders made under this section.
§ (11) A constable may arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of an exclusion order by reason of that person's entry into the child's household.
§ (12) Where a person is arrested under subsection (11) above—
- (a) he shall be brought before the court within the period of 24 hours beginning at the time of his arrest, and
- (b) the court before whom he is brought may remand him.
§ In reckoning for the purpose of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.
§ (13) Where the court does not exercise its power to remand under subsection (13)(b) nor its powers under any other enactment, it shall authorise the removal of the child from the household unless it is satisfied that the child's welfare can be satisfactorily safeguarded or promoted without its doing so.
§ (14) For the avoidance of doubt, section 63 of the Magistrates' Courts Act 1980 shall apply to any orders made under this section.'.—[Mr. Tom Clarke.]
§ Brought up, and read the First time.
§ Mr. Tom ClarkeI beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Sir Paul Dean)With this it will be convenient to discuss amendment (a), in line 4, leave out 'satisfactorily safeguarded or" amendment (b), in line 6, after 'household', insert
'and the welfare of any other child resident in that household would not be harmed.'and Government amendment No. 171.
§ Mr. ClarkeGiven the restricted timetable—I do not wish to reopen the debate on that issue—it was my intention to catch your eye, Mr. Deputy Speaker, to speak to this new clause, but apart from minor contributions later on I hope that we might have a short Third Reading debate. That would allow us to make some important points in the limited time available to us.
The issues raised in new clause 34 were not debated at any great length in Committee. It is therefore important to discuss them now, and, in particular, to discuss the report by the Law Commission that appeared after the committee had concluded its deliberations.
The new clause is important. It is widely recognised that the sudden removal of children from the home is usually a traumatic and distressing experience for them. The purpose of the new clause is to provide an alternative to such removal in child protection cases arising out of an emergency or during the course of care proceedings. It provides that the court may order the removal of an alleged abuser either through a compulsory order or by receipt of an undertaking. The new clause is drafted to reflect the ideas contained in the working paper published in August by the Law Commission on domestic violence and the occupation of the family home.
Throughout the passage of the Bill the Government have expressed sympathy for amendments tabled on the issue of the removal of alleged abusers. In both Houses the Government promised to consider tabling their own amendment, but no such amendment appeared. Subsequently, Government officials have said that no amendment could be considered until receipt of the report 1316 of the Law Commission containing its recommendations.
Several meetings have been held with the Minister about this matter and they have been extremely helpful. On 26 September a consortium of local government and voluntary organisations met him to discuss a number of issues relating to the Bill. The Minister said that he was not opposed in principle to compulsory ouster or exclusion orders. I recollect that he agreed to discuss with the Lord Chancellor how the proposals contained in the Law Commission's working paper could be incorporated in the Bill. This morning perhaps we shall hear whether those discussions were productive and about the Government's stance on those matters.
It is true that we are all looking for new remedies for a problem that was a great worry for the Committee. Hon. Members gave examples of the difficulties and heartache for children, for their parents, for their families and, in some cases, for their community when particular circumstances lead to the lengthy removal of children from their home.
The new clause has been drafted so that exclusion orders can be obtained as an addition to an emergency placement order or interim care order. The Law Commission did not think that that was necessary or fair for families and children unless there was a specific provision against the removal of children in such circumstances. However, in Committee on 25 May the Minister strongly expressed the view that removal of abusers should take place only within the context of an EPO. Given the express provision against removal of the child when an exclusion order has been made we can see arguments for exclusion orders to run concurrently with EPOs and ICOs so that provisions for medical direction and contact may also apply.
When this Bill is enacted and this matter is dealt with there may still be a case for even more research. It might not solve the problem to know that an alleged perpetrator has been abused, although it might help, but until we find out precisely what motivates adults to indulge in this sort of child abuse—alas, it is all too common—we shall not have resolved the problem. In addition to responding to the new clause, therefore, I hope that the Minister and his colleagues will feel it possible in due course to embark on even more public debate so that we can consider why such dreadful events take place, based on research that is available to us all.
§ Mr. Ronnie Fearn (Southport)I agree in general with the objective that lies behind the new clause whose aim is to avoid removing a child from the family home, so as to reduce the trauma that it suffers. The trauma suffered as a result of being taken away from home often has long-term effects on a child and adds to the guilt already felt.
At the same time, it is important to remember the balance that we are attempting to achieve. The forcible removal of an adult who has not yet been charged with an offence may have detrimental effects on a family. The child at the centre of the inquiry may suffer similar guilt feelings and feel just as traumatised if an adult leaves home as if he had been removed himself—the more so if the child feels responsible for any detrimental consequences to other members of the family.
It is important to remember that we are talking about mothers as well as fathers of children. We should also recall that often only one child is at risk—not the others in the family. It is possible with the right support to resolve 1317 some of these cases without removing the child or the suspected perpetrator. That should always be our aim, as I am sure the Minister agrees.
Much depends on the circumstances of the case. I am worried that the new clause may lead to an abuse of this power. The removal of an adult in some circumstances may be seen as a very easy option. I accept that the removal of an adult from the family home is often desirable and may well be the only solution, but there are also circumstances in which that will still have detrimental effects. So I suggest that an adult be removed only if that will promote the welfare of the child.
I hope that when the court assesses the effect on the child's welfare it will consider the context of the family setting. The phrase "satisfactorily safeguarded" is open to too many interpretations. The welfare of the child is paramount but it is sometimes inextricably linked with the welfare of others and it does no good to resolve one problem by creating another. When considering the return of the adult to the household the test does not need to be so stringent because one assumes that the welfare of the child has improved since the removal and that it will be that status which is to be safeguarded.
I hope that I have made it clear that in tabling this small amendment my objective is not to prevent the removal of an adult but to ensure that the court deliberates on the matter of care and to ensure that the power to be given to the courts is not capable of too much abuse even though the decision may be well intended. Those are my reasons for tabling amendment (a).
§ Mr. HinchliffeNew clause 34 is plain common sense. We spent much time on the issue in Committee and in view of the pressure of time in this debate I shall not delay the House for long. My main point is that under the present system of law the alleged victims of abuse are made to feel guilty. That is wrong. The trauma experienced by children and young persons has sometimes to be seen to be believed.
All hon. Members present in the Chamber were present in Committee when I spoke about the case of the girl whom I had to remove following allegations of sexual assault on her sister by the mother's boyfriend. That was a terrible situation and I never want to see anyone go through it again. I recognise that in that case I was removing the wrong person. However, the law as it stands and as, unfortunately, it will continue to stand under the Bill, means that the current situation will continue.
I take seriously the civil liberties question touched on by the hon. Member for Southport (Mr. Fearn). I have given a great deal of thought to that matter and I am worried about it, but I come down firmly on the side of the child or young person who is the alleged victim. I say that because such children are often not in a position to understand why they have been removed. They do not understand why they are made to feel so guilty about an apparent break-up of the family and it appears to them that they are being punished for something that they have not done.
When talking about an exclusion order or, as it is sometimes called, an ouster order, we are talking about the removal of an adult who is in a much better position, guilty 1318 or not guilty, to understand precisely the reason for the exercise of the power. I come down firmly on the side of defending the child in the home and not removing him to a foster home, a children's home or an assessment centre. I am in favour of leaving children in the home environment and removing the alleged perpetrator of the offence rather than the victim.
I know that there is a wide-ranging support for the new clause. One source of support of which perhaps the Minister is not aware is the Law Society. It has said that it is aware of the fact that exclusion or ouster orders are currently being considered by the Law Commission. The Law Society will be responding to the commission's working paper, but it realises that it may be several years before the deliberations are acted upon. The Law Society says:
We therefore take the view that some provision needs to be made in the Bill if only as a temporary measure.I urge the Minister to take the new clause on board. It is sound common sense and will make a great deal of difference to the treatment of many children who are victims of circumstances beyond their control.
§ Mr. MellorI do not think that there is much difference between us on this matter. It comes down to an important technical issue. As I said in Committee and in the various meetings that we have had since, the making of an emergency protection order does not mean that the local authority has to remove the child from the home. It is open to the authority, provided it does so using extreme care and proper professional judgment, to arrange to accept an agreement by the alleged abuser to go so that the child will not be further disrupted by having the link with the abuser broken. Even if that is the right thing to do it sometimes causes trauma to a child. A child should not also lose the link with brothers and sisters who may remain.
I think I said earlier that I am aware of cases in which adults have been abused and have said that being taken away from home seemed like a form of punishment for having been the victims of abuse. That is common ground and we have sought to make it a little easier for the alleged abuser to go by putting into the Bill a provision that local authorities could help with the expenses of that happening in the best interests of the child.
A narrow but difficult point arises out of new clause 34. The Law Commission has published a consultative document on domestic violence and the occupation of family homes. If people have the right of occupation it is not a trivial matter to terminate that right, as the hon. Member for Southport (Mr. Fearn) rightly said. I should feel more comfortable about proceeding on this once we have received the Law Commission's study and it has had a chance to take on board the points made during consultation. Our resolve to deal thoroughly with the matter is not weakened and we do not preclude considering it when the Law Commission has put forward its final thoughts.
Even without the new clause, the law is now stronger. As a professional who has been involved in this work, the hon. Member for Wakefield (Mr. Hinchliffe) knows that a child does not have to be removed simply because a protection order has been made. The abuser can go instead. We cannot add an ouster provision now, without first considering carefully the serious issues raised in the Law Commission's report, and I hope that the House will 1319 understand my reasons for not accepting the new clause. I shall he happy to arrange further discussions on the matter as progress is made.
Government amendment No. 171 is important. It picks up a point made by Lord Justice Butler-Sloss in the Cleveland inquiry report. She encouraged social services departments to consider the appropriateness of using their existing powers under section 1 of the Child Care Act 1980, which are designed to prevent the reception of a child into care. Under these powers and for a limited period, they may be able to defray the additional costs incurred by the suspected abuser leaving home on a temporary basis while initial assessment of the child is completed. The power is intended to help with alternative accommodation whether the suspected abuser leaves under voluntary arrangements agreed with the authority under an emergency protection order or an interim care order. Alternatively, it could be used in support of any action taken under existing legislation or a new statutory scheme introduced as a result of the Law Commission's work. The provision oils the machinery satisfactorily, as we await the outcome of the Law Commission's deliberations. I hope that the I-louse will agree to amendment No. 171 and that the hon. Member for Monklands, West (Mr. Clarke) will not press his new clause to a Division.
§ Mr. Tom ClarkeI beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.
§ Amendment made: No. 240.