CUSTODY CARE ORDERS (Hansard, 16 July 2002)

§ Mr. Browne
I beg to move, That this House agrees with the Lords in the said amendment.

§ Madam Deputy Speaker
With this we may discuss Lords amendments Nos. 13 to 17.

§ Mr. Browne
All the amendments in this group relate to part 4 of the Bill—the provisions dealing with youth justice—and all effect minor refinements to those provisions.
205 Lords amendments Nos. 12 to 14 amend the provisions dealing with the new form of disposal for children under 14—the custody care order. The relevant provisions are found in clause 55. Within clause 55, new article 44B provides for the legal regime under which a child subject to a custody care order will be detained. It does that by applying certain provisions of the Children (Northern Ireland) Order 1995 to such children and by excluding the application of all other provisions. Children held under a custody care order will be held in accommodation provided within the care system. We therefore think it right to draw on the provisions contained in the Children (Northern Ireland) Order 1995 in shaping the legal regime under which children should be held.
It was brought to our attention, however, that we had inadvertently excluded the application of certain provisions of the 1995 order that apply to all children, whether looked after by an authority or not. We did that by referring exclusively to certain provisions, and, because reference was not made to other provisions, those would be deemed not to apply. It is a principle of statutory interpretation that if one expresses some provisions and excludes others, one is deemed not to have wanted the others to apply to that situation.
On any view, those provisions should not have been excluded. That is addressed by Lords amendment No. 13, which has the effect that those provisions of the 1995 order which apply to children being looked after by an authority, and which we consider should be applied to children who will be held under a custody care order, are applied. However, the key difference between Lords amendment No. 13 and the provision in the Bill is that the amendment is predicated on the basis that all the other general provisions of the 1995 order will apply unless specifically disapplied. As a result, important wider protections, such as those contained in article 3 of the order—which provides that when a court determines any question with regard to the upbringing of a child or the administration of his property, the child's welfare will be the paramount consideration—continue to apply.
I should also draw the attention of hon. Members to two specific points. First, the amended article now applies the provisions of article 45 of the 1995 order. That will mean that the case of a child being held under a custody care order must be reviewed by the authority holding the child, and that the authority must have a procedure for considering representations by or about the child. That will help to strengthen the process of managing a child's period in secure accommodation and thus deserves to be included in the clause.
Secondly, hon. Members may notice that the recast article—new article 44B—does not contain provision relating to the discharge, at any time, of a child in secure accommodation by the appropriate authority, with the consent of the Secretary of State. That provision is currently in new article 44B(4). Hon. Members will be reassured that there has been no change of substance here, merely one of drafting. By virtue of Lords amendments Nos. 12 and 14, the provision has simply been moved to a more logical position, in new article 44A(6) and new article 44F(3)(b), where it is associated with the definition of periods to be spent in secure accommodation. Again, the meaning and purpose of the provision has not changed.
206 Let me now deal with the remaining amendments in the group, which address youth conferences. Again, the amendments do not change the substance of what the House has agreed to.
New article 3B(1) provides that the Secretary of State may make rules governing the procedure of youth conferences. It is expected that the rules will be used to set time limits for the various stages of the conference process, and for the performance of the various functions of the conference co-ordinator. Because of the way in which they are drafted, however, they cannot be used to make provision about youth conference plans—in particular, to set a time limit within which the person monitoring compliance with a plan arising from a diversionary conference must submit his final report to the director.
As the director may, on the basis of the report on compliance, still instigate proceedings against the child if he believes that the plan has not been complied with to a significant extent, we think it right to set a time limit for this stage of the process. Without it, the child may have the threat of prosecution hanging over him for an indefinite period. Lords amendment No. 15 therefore empowers the Secretary of State to make rules establishing a time limit for submission of the report to the director.
As we intend to specify a time limit, it is not appropriate for the Bill to require the making of the report as soon as is reasonably practicable", as it does currently in new article 10D. Lords amendment No. 16 therefore seeks to delete those words from new article 10D.
New article 33C(1) provides that a child may be referred to a conference only if he lives in an area where the new system is in place. That will allow us to pilot the new arrangements and also, if necessary, to stagger the subsequent roll-out of the conferencing system.
The purpose of Lords amendment No. 17 is simply to clarify that this applies equally to both mandatory referrals to a conference, provided for in new article 33A(1), and discretionary referrals, provided for in new articles 33A(3) and 33A(4).

§ Mr. Blunt
What a treat is the opportunity to debate youth justice! Of course, we owe the privilege to the passing of amendments in another place, having failed so conspicuously—given the programming—to engage in substantive discussion of any youth justice provisions here.

§ Mr. Quentin Davies (Grantham and Stamford)
Disgraceful.

§ Mr. Blunt
It was indeed disgraceful. The only good thing to be said as we begin our very brief and, sadly, tangential discussions is that this is an appropriate time at which to welcome the hon. Member for Eastwood (Mr. Murphy) to the Government's Northern Ireland team. Unfortunately he is not present to hear this paean of praise, but I would like to tell him—he being a Whip—that things can only get better from our point of view, after the shocking way in which the first part of this process was managed.
It might not have been necessary to remedy the unintended results of the legislation if we had had a chance to consider here the matters put right by Lords 207 amendments Nos. 12 to 14, but I am happy to accept the Government's view. I merely want to draw their attention to my slight anxiety about the timetables that would be introduced by the Secretary of State under the powers that Lords amendment No. 15 would confer on him.
The arguments in favour of the amendment have focused on the establishment of a set time within which a child who was, as it were, at the wrong end of the provisions would wait for the identification of non-compliance and of the reasons for it. It is just possible that if the Secretary of State lays down a timetable that is too tight, and the bureaucracy that will inevitably surround youth conference orders bogs down the limited number of people who will administer the system—thus preventing them from meeting the timetable—we will inadvertently let off offenders who have not complied.
In other respects I welcome the proposals. I am concerned only about the ability of the timetable to be consistent with administrative resources.

§ Mrs. Calton
I welcome the amendments, which go a long way towards meeting the concerns of, in particular, the Liberal Democrats. We tabled a series of amendments on youth justice. I am especially pleased to note the amending of clause 55 in Lords amendment No. 13(3)(g).
The introduction of article 45 deals with many of the issues that concerned me. It ensures that there will be an opportunity for review; it requires the views of the child to be taken into account; it provides for a review of the suitability of accommodation; it informs the child of his rights; it ensures that he is kept informed; it ensures that arrangements are monitored; and, most important, it requires the establishment of a complaints and representation procedure to include the child and others with an interest in his welfare. I am also pleased to note that an independent person will take part in the representations and follow up discussions.
Lords amendment No. 14 responds to some of the worries about children under 14 being given youth custody orders for up to 30 days. In some cases that may take them to the age of 14. I am glad that the amendment will allow the sentence to be varied.
As the Minister said, Lords amendment No. 15 allows the Secretary of State to make procedural rules for youth conferences. I am pleased that the Minister concerned will have an opportunity to ensure that young people's needs are full met. I am also pleased that Lords amendment No. 16 tightens the requirement for a report on compliance with the youth conference plan, and will ensure that there is no drift in procedures.
I think that we are closer to recognising that although young offenders should be given a chance to reform and make restoration, and while it may occasionally be necessary to protect the public from them, they will often be in need themselves—in need of the protections afforded to children in the care system generally. Their human rights must be protected.

§ Mr. Browne
I am glad that the hon. Members for Reigate (Mr. Blunt) and for Cheadle (Mrs. Calton) welcome the proposals. As the hon. Member for Reigate probably knows, I share his regret that we could not 208 debate the provisions relating to this part of the Bill, but I am buoyed by the scrutiny that they received in the other place.
The hon. Gentleman made a limited but, I think, important point about the timetable, suggesting that if it were too tight it might not be met. He said that that might be detrimental to the young person involved, because if there was not enough time for administration that would be taken to constitute his failure to comply.
I think that the hon. Gentleman accepts that it would be unfair to allow the threat of prosecution to hang over a child for an unspecified period. The establishment of a timetable is more consistent with our intentions in regard to the various stages of the conference process. In setting limits, however, we will bear in mind the issues that the hon. Gentleman has mentioned. I will specifically ensure that as the programme is introduced progressively, with pilot schemes, we regularly take account of the inevitable tension caused by demands on administration, along with the need to ensure that young people are given enough time to carry out the requirements of an order.