HC Deb 18 July 1991 vol 195 cc538-43
The Solicitor-General

I beg to move amendment No. 20, in page 6, line 16, at end insert— '( ) The Lord Chancellor or in relation to Scotland the Lord Advocate may by order provide that, in such circumstances as may be specified by the order, this section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

  1. (a) a written agreement (whether or not enforceable) provides for the making, or securing, by an absent parent of the child of periodical payments to or for the benefit of the child; and
  2. (b) the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.'.

Mr. Deputy Speaker

With this, it will be convenient to consider Government amendments Nos. 93, 94, 45, 46, 95 and 96.

The Solicitor-General

These amendments relate to the collection and enforcement powers of the Child Support Agency. They will allow us the alternatives of continuing to make child maintenance agreements effective either through the courts, as consent orders, or through the new agency's collection and enforcement powers. They will also allow the agency, when resources are available, to collect and enforce any other form of child maintenance or spousal maintenance where the agency is collecting related child maintenance.

Once the agency is up and running, it may be wise for it to take on these wider and more comprehensive duties. The amendment provides us with the power to choose how far and how fast we should go. I commend the amendment to the House.

Amendment agreed to.

The Minister for Social Security and Disabled People (Mr. Nicholas Scott)

I beg to move amendment No. 100, in page 6, line 41, leave out from 'him' to end of line 45 and insert '; or—

  • (b) no such allowance is paid but he is disabled,'.

Mr. Deputy Speaker

With this, it will be convenient to consider the following: Amendment No. 98, in page 6, line 45, at end insert— '(d) he is registered as disabled in a register maintained under Schedule 2, paragraph 3(1) of Schedule 2 to the Children Act 1989.'. Government amendment No. 101.

Amendment No. 99, in clause 50, page 34, line 42, at end insert— '"registered as disabled" has the same meaning as in the Children Act 1989.'.

Mr. Scott

All these amendments seek to address the same problem. I hope that I can persuade the hon. Member for Eccles (Miss Lestor) that there is so little between us that she can accept the Government's approach.

Government amendments Nos. 100 and 101 seek to expand the possible range of cases where courts can consider top-up awards of maintenance for the extra costs of caring for a disabled child. Following very careful consideration of all the views expressed on the most appropriate way of continuing to provide access to extra maintenance for a disabled child, the Government have provided in this clause for courts to be able to consider top-up awards.

When the amendment was discussed in Committee, my right hon. and learned Friend the Solicitor-General explained that the Government believed that this was the best way to protect the interests of the child. The services of the Child Support Agency and the standard formula would be available, as for other children, for ordinary expenses, but the courts would be able to consider applications for extra maintenance, looking at the circumstances of each case and making awards tailored to those circumstances.

Our original path in seeking to achieve that aim was to choose payment of the disability living allowance for the child, or the registration of the child as blind, as the two definitions of cases where courts would be able to make these awards. We did that because we believed initially that it provided a clear and easily understood criterion that would make it clear both to parents and to courts who could apply.

Representations were made to us and there 'were discussions about it in Committee. Amendments were also tabled by the hon. Member for Eccles. It was said that this was too narrow a definition to deal with the generality of children with disabilities of one sort or another. I was particularly concerned about two groups: children under the age of five who would be unable to qualify for the mobility component of the disabilty living allowance and those who are deaf or who cannot speak. We believe that our previous approach would have excluded some children who are genuinely disabled to whom the courts currently can consider making the extra maintenance award. We should have been narrowing rather than expanding the present provision.

We are looking at circumstances in which the courts should be able to consider whether and how much maintenance the absent parent should pay because the child is disabled. The courts can consider this issue, alongside others, when making maintenance awards. The payment of the disability living allowance provides a convenient signpost, but because its role is different it is possible that some cases in addition to the registered blind—some of which I have already mentioned—should be brought within the definition. It will be possible, therefore, to apply to the courts to consider top-up awards for any child for whom the disability living allowance is paid, or who is blind, deaf, without speech or substantially and permanently handicappped.

I hope that I can persuade the hon. Member for Eccles that this aproach is similar to the one that she adopted in her amendments, but I believe that our approach is better, for one reason. Our amendments focus directly on the children and provide that there is no hurdle that a parent has to overcome. The Children Act 1989, which the hon. Lady understandably used as her vehicle, places a duty on local authorities to set up a register for their area. That is intended not as a qualifying stage for access to services but as a planning tool for local authorities, to help them to make decisions about the provision of services. Parents can choose absolutely freely whether or not their child should be registered. Some parents—no doubt for perfectly valid reasons—may choose not to do so. Our approach—to include these definitions in the amendments —is what is needed. Therefore, I hope the hon. Lady will feel able——

Miss Emma Nicholson

Do the words "mental disorder" cover mental handicap and psychiatric concerns? Is it a portmanteau phrase covering both? I should hate to see a mentally handicapped child not specifically identified in the Bill

Mr. Scott

I understand my hon. Friend's concern. I reassure her that it is the compendium definition.

I hope that I have convinced the House that we have listened carefully to the representations that have been made to us and that we have responded to them with sympathy and in the most practical manner.

6 pm

Miss Lestor

I welcome the Government's recognition of the need for consistency in the definition of disabled children. With the explanations that the Minister has given, there is now consistency between the Child Support Bill and the Children Act 1989. The difficulty that we want to discuss is that the Bill does not meet all the requirements of the Children Act because children with disabilities will not be treated in the same way as all other children. Representations about that have been made by the Spastics Society, Barnardos and hon. Members concerned, including my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris).

I accept that the Government's amendments are slightly better than mine because I understand that many parents may not wish to put their disabled child on a register for disabled people. There was never any real logic behind concentrating on the receipt of disabled living allowance or being registered blind as a passport to the courts for the top-up of the costs of disability. Therefore, by incorporating the much broader definition of disability, children not in receipt of benefits will be included. It was made clear in Committee that that is particularly relevant for deaf children. However, it is a double-edged sword. I welcome the inclusion of a broader definition, but only if it does not mean that more disabled children and their families will be forced to use the courts to gain an appropriate level of maintenance.

The Minister is right to say that I have looked constantly at the Children Act because it has provided a springboard when considering children. Even with the concession that has been made, the Child Support Bill contradicts the principle of the Children Act which is that children should be treated as children first, whatever their circumstances or disabilities. By pushing disabled children into the courts for top-up benefits we are not treating all children alike. The Children Act also stated that, because delays in the courts are likely to prejudice the welfare of the child, that should be avoided. I fear that delays prejudicial to the welfare of children with disabilities will inevitably arise under the proposed maintenance arrangements. Therefore, although I have said that I welcome the definition and the concession, it is now more important than ever that the courts are reformed—I accept that that is not part of this Bill, but the plea for family courts has been made over and over again—or that child support officers should be given discretionary powers to deal with costs related to disability. It would still be possible to incorporate an element to cover a proportion of disability costs in the formula.

If the new system is to work, the Child Support Agency must be given powers beyond those already suggested in the Bill. To ensure the welfare of the child we must use fully the discretionary powers in new clause 5 to which I referred earlier. The child support officers should have discretionary powers to assess the extra costs of disability for maintenance purposes.

Unless those suggestions are taken on board, even with the changes that the Government have announced, the pressure on the courts is unlikely to be reduced and children with disabilities will still be subjected to an unreliable and unjust system that contradicts the principle in the Children Act that all children should be treated the same.

Miss Emma Nicholson

Like other members of the Committee that considered this Bill, I have received letters from Barnardos and other organisations that look after handicapped children and have done so for 100 years or more. I have read the letters carefully and studied the points made. Like other hon. Members, I was concerned that somehow the particular needs of disabled children had not been identified clearly enough in the Bill.

However, I am comfortable with the Minister's initial proposals. I say "initial" because I feel confident that he will take care to scrutinise the workings of what I believe will be the new Act since his service and work for the disabled community throughout the United Kingdom has been outstanding. I have considerable knowledge of that since I am involved with a number of organisations for disabled children and I know of the exceptionally high regard in which he is held.

Despite the known concern and knowledge of the hon. Member for Eccles (Miss Lestor), I should have been worried had we gone down the route of the disabled register. I urge hon. Members on both sides of the House to forget the validity of the registers in the eyes of disabled people. People who are disadvantaged do not wish to be identified as such and I believe sincerely that asking people with a disability to identify themselves and put their names down, thus opening themselves up to self-denigration and external physical harassment, is not a humanitarian way to behave. In my constituency there is a tragic case of parents with a Tay Sachs child and two young men were arrested for physical harassment of those parents. Therefore, identification of disability sometimes attracts a wretched and non-humanitarian response.

I accept that, because we do not have that complete identification, there may be some gaps. That is why the new proposals will need careful scrutiny. I know also that occasionally there will be delays in courts of law. However, I feel confident that the Bill has been thought through carefully and that the essence of care for children is its hallmark. I am confident that my hon. Friend the Minister's amendments will stand the test of time. I know that my hon. Friend will look at them and monitor them throughout and alter them by regulation if that should prove necessary.

Rev. Martin Smyth (Belfast, South)

I welcome amendment No. 101. I share a little of the concern about delays in tribunals or courts which was expressed by the hon. Member for Eccles (Miss Lestor). I know that the Minister will keep that in mind. Perhaps he will nudge the Law Officer into moving towards reform of the court system so that we can have the family courts for which some of us have been asking for some time.

The Minister knows of my concern in these matters. Do the words "mental disorder" and the definition that he gave include autistic children?

Mr. Scott

I shall respond to the interventions from the hon. Member for Eccles (Miss Lestor), my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) and the hon. Member for Belfast, South (Rev. Martin Smyth). I cannot accept that by going down the route that we have chosen and enabling disabled children to have standard maintenance as well as maintenance related to their disability we will be disadvantaging them or their families. The top-up for which the court will be responsible will take total account of the expenses related to the disability and, in a way, will provide an off-the-peg service in meeting those needs. I do not believe that it would be appropriate for an administrative body to apply the discretion that is needed and which most of the voluntary organisations want. I accept that Barnardos and Mencap have argued for including the cost of disability within the maintenance requirement, but the Childrens Society, Gingerbread, the Law Society, the National Council of One-Parent Families, the Social Security Advisory Committee, the Spastics Society and Step Family argue that it should not be included in the formula but that other provision should be made. I believe that the best approach is to provide for the formula to be operated by the Child Support Agency and for the courts then to be able to use their discretion. Having been relieved of the general duty to make orders regarding maintenance, the courts will, I believe, be able swiftly and efficiently to cope with the duty that we are now placing on them.

Amendment agreed to.

Amendments made: No. 101, in page 6, line 48, at end insert— '( ) For the purposes of subsection (7), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.'.

No. 21, in page 7, line 4, leave out subsection (9).—[Mr. Scott.]

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