Grand Committee Report of 6 June 1995

Official Report of the Committee on the Children (Scotland) Bill
First Sitting
Tuesday, 6 June, 1995
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees: Before I put the question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage since it is the first Committee of the Whole House to be taken off the Floor. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. But the House has agreed on the recommendation of the Procedure Committee that there shall be no Divisions in this Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should also explain what will happen if there is a Division in the Chamber while we are sitting. This Committee will adjourn as soon as the Division bells are rung and will then resume after 10 minutes.
Baroness Faithfull: Do we have to turn the microphones on?
The Deputy Chairman of Committees: No.
Baroness Faithfull: They are not necessary. Thank you.
Lord Henderson of Brompton: I asked if it was possible for Members of the Committee to speak sitting instead of standing if they find difficulty in standing. That is accorded in the Committee of the Whole House for those who are in a wheelchair and I ask that it should be extended to this Committee.
The Deputy Chairman of Committees: I am sure the Committee would like to give the same facility to the noble Lord, Lord Henderson. I think though that if we can adhere throughout to the procedures in every other respect as they are in the Chamber, we will find that that is the best way forward.
On Question, Title postponed.
Clause 1 [Parental responsibilities]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 1:
Page 1, line 18, at end insert:
("( ) if the child is living with him, to promote the maintenance of personal relations and direct contact on a regular basis between the child and the parent with whom he does not live; and").
The noble Earl said: The purpose of this amendment is to ensure that both parents understand that they have a duty to their child to act co-operatively at all times. The amendment requires the residential parent to enable and facilitate contact by the non-residential parent. The philosophical basis of this amendment is that it is better for the child to know both his parents than to lose contact with one of them. Continuing contact allows the developing child to identify and understand his inherited nature.
While I accept that there will be some parents who cannot bring themselves to separate the bitterness of their own failed relationship from their continuing task of parenting their children, I believe that it would be very useful to have this positive guidance in the Bill.
Regrettably, studies have shown that 50 per cent of non-residential parents lose contact with their children within two years of separation. In the context of shared parenting this statistic shows how much there is a need for clearly stated principles in the Bill.
I should like to speak to Amendments Nos. 2 and 10. I believe that it follows that if a residential parent has the responsibility and duty to promote contact with the non-residential parent, there must also be a right to expect that the other parent will take up his responsibility and opportunity of contact. Furthermore, the intention of Amendment No. 10 is to plug the gap created by changes made to residence orders during the Report stage in another place.
The Bill is not clear about the position of a parent who has his child living with him periodically. The Bill allows such a parent to acquire a residence order which covers his responsibilities when the child is living with him. The Bill leaves unanswered the question of whether such a parent with periodic residential contact needs also to apply for a contact order to enable contact with the child while he is living with the other parent. The condition relating to contact orders—that is, that that parent does not have the child living with him—seems to prevent a parent with periodic residential contact from applying for a contact order. As we are trying to encourage continuing relationships between estranged parents and their children, I believe these amendments will resolve the problem. I beg to move.
The Earl of Balfour: I am concerned about the amendment because there is so often such appalling friction between the two parents when they have got divorced. I have a great deal of sympathy with Amendment No. 10, but I think the first two amendments create more difficulties than cures.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): In another place the Parliamentary Under-Secretary of State, Lord James Douglas-Hamilton, agreed to consider the points raised in Amendments Nos. 1 and 2 when similar amendments were tabled there. However, following that consideration we have concluded that it is not necessary to provide a specific responsibility for the parent who has the child living with him or her to facilitate contact with the parent who does not have the child living with her or him; nor do we see that there is a need for a corresponding right.

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Our concern in particular is how such amendments would impact on the rest of the Bill and, more importantly, what precise effects they would have on all of the parties concerned. Our conclusion has been that the amendments made to Clause 11 in another place are sufficient as they stand to allow the courts to regulate the sharing of the residence arrangements of children to such an extent as to make unnecessary the amendments which the noble Earl has moved to facilitate contact. Nothing is between us on the desirability of such contact being maintained; the question is simply whether we need to include this provision, and our conclusion is that it is unnecessary.
As regards Amendment No.10, I am grateful to the noble Earl for raising this point, but it should be quite clear that when a child is staying with his parents alternately or periodically, he or she normally should have contact with the parent with whom he or she is not living at that time. It is therefore right that the court should be able to make an order regulating that contact in circumstances of alternating or periodic changes. I hope nevertheless to give the noble Earl this assurance: it is not necessary to spell that out in the Bill. Our view is that the provisions in Clause 11 regarding residence are sufficient; nor is it necessary to require the parent with whom the child is staying to allow the other parent to have his contact. If a court made an order regulating residence and/or contact, anyone who obstructed that order from being implemented would indeed be in contempt of court and serious consequences could flow from that. With that brief explanation I hope I have persuaded the noble Earl that, while there is merit in what he wishes to achieve, these amendments are not necessary.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, I wonder whether we are now in the state in this Bill where we are dealing with philosophy instead of practicability. There is a great philosophy that every child is entitled to two parents. I take the view that some children are entitled to have one parent if the other parent is being a bad parent. In this context I wonder whether the phrase,
"to promote the maintenance of personal relations and direct contact on a regular basis between the child and the parent with whom he does not live".
in fact imposes a social obligation on the partner. Let us forget about people being married, because people do not very often get married these days. Let us take the partner, the father and the mother of the child. Is there an obligation on the mother who has been deserted by the father, perhaps the father of three or more children, who has been away for five years and who has contributed nothing to the household? Is there now a duty imposed by the Bill on the mother, who has taken over the burden of looking after the children, to persuade the children to contact the father? These are very personal issues. Should it not be left to the children in their own due time to make contact with their parents?
Lord Fraser of Carmyllie: The noble Lord raises a number of matters which are philosophical in their nature and which go to the core of Part I of the Bill. In Clauses 1 and 2 we set out what are parental responsibilities and
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parental rights. At the centre of this set of amendments is the order that the court might be making under Clause 11. It is not difficult to envisage circumstances, with which I am sure the noble Lord is familiar, where one parent has simply disappeared, has been an abusive parent, or the like. That parent would not be encouraged and would not be allowed by the court to have contact with the child or indeed the residence of the child.
I sought to explain that within Clause 11 I considered there to be a sufficiently wide range of options to enable the court to make an order that would allow residence to alternate and that during that period there should be the sort of contact the noble Earl wishes to achieve.
The Earl of Mar and Kellie: I am grateful to the Minister for his reply, which I will study tomorrow in Hansard. I hold to the philosophy that it is important for all children to know their parents. This does not mean that I believe that it should be necessarily on a regular basis, but contact should be contact which can be described as regular, albeit perhaps on an annual basis. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Parental rights]:
[Amendment No. 2 not moved.]
Baroness Faithful1 Baroness Faithful1 moved Amendment No. 2A:
Page 2, line 24, at end insert:
("( ) to have access to identifying information about the child's genetic parents.").
The noble Baroness said: This amendment is to provide access to parents of children who were adopted. The parents of children conceived by donor insemination would be able to obtain information about the children's origins to help in the diagnosis and treatment of medical conditions.
I realise that this is an extremely difficult amendment. I move it based on personal experience. On three occasions when dealing with children who were adopted or the result of artificial insemination, when the child reached the age of 10 the doctor from the Radcliffe Infirmary telephoned me and said he wanted to know the medical history of the parents of the child. Fortunately, I had the medical history and it was a help to him because the child had developed some peculiar disease.
Secondly, I took part in the proceedings on the Human Fertilisation and Embryology Act 1990. I am in some difficulty here because I wanted to check with the committee under the Human Fertilisation and Embryology Act 1990 whether this was a wise recommendation or not, but unfortunately the noble Lord, Lord Walton, is out of the country at the moment and the vice-chairman of the committee, Mrs. Deech, was unable to see me. I shall, therefore, be withdrawing the amendment with a view to bringing it forth at the next stage.
It is right for a child to know its origins, and it is right that the parents of that child should know its origins. But if you have a child who is the result of artificial insemination, will you get any donors to give sperm if they think that their name and their medical history will be made public and made available? On the other hand,

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a Dr. MacWhinney has carried out research in Scotland. She says that in Denmark and Sweden the name and the history is given to the adopters so that they know what is the medical background of the child. I just ask myself whether this would be so in England.
I would like to make a suggestion which was also put forward by Family Care in Edinburgh and was supported by Dr. Scarth, the psychiatrist of the Royal Hospital for Sick Children in Edinburgh. I would like to suggest that this should be discussed as between the Association of Scottish Directors of Social Services, the voluntary organisations and the Adoption Society in Edinburgh and, if I may respectfully suggest, the Scottish Home Department, so that we can come to some agreed policy. There is no doubt about it that this should be further discussed in view of the fact that embryology will develop even further and that it certainly is right that children should know their medical background in case of something developing at a later stage.
3.45 p.m.
Lady Saltoun of Abernethy: As I did not see the amendment until this morning, I have not been able to do any research into the matter. I rather think that an amendment of this kind was moved during the passage of the Human Fertilisation and Embryology Bill but was unsuccessful.
I think you would certainly be up against serious trouble if you wanted the name of the donor parent to be disclosed, but I would have thought that there could be no objection to medical history, but without the name being disclosed. That surely would meet the case.
Lord Macaulay of Bragar: I find this a very distressing area of life with regard to the genetic parents and so on. I just wonder whether we are creating artificial children. I use that phrase advisedly in that we have access to the child's genetic parents who are not the child's natural parents. How far does this go on?
I am not against what the noble Baroness said in principle and I can see that at some time children will want to know who their parents are. But I just wonder how far we can go in this direction without creating some substantial degree of artificiality in society.
Lady Saltoun of Abernethy: I think the whole thing is perfectly frightful, but it is happening and I think that we are not going to stop it happening. Therefore, we must be prepared to mitigate the worst side effects.
Lord Fraser of Carmyllie: I have some sympathy with my noble friend's concerns. The Government—indeed your Lordships' House—will be well aware of the conflicting opinions that have been expressed in earlier statutes and earlier debates both for and against the disclosure of "identifying information" in the case of these children. It was indeed a subject of considerable debate during the passage of the Human Fertilisation and Embryology Act 1990. My noble friend may recall that regulation-making powers are inserted into the Act to enable necessary regulations to be made to allow for the provision of information to such young people when they reach the age of 18. The UK health departments intend to launch a consultation exercise in due course to gauge
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public opinion on that matter.
However, I hope that my noble friend will not return to this at a later stage of the Bill, because I very much doubt whether it would be appropriate for the Children (Scotland) Bill to deal with the issue of disclosure of information about a child's genetic parents, given that such regulation-making powers exist on a United Kingdom basis in the Human Fertilisation and Embryology Act 1990.
I also have a specific concern that the words "identifying information" which appear in her amendment could lead to doubt about what is meant. It could mean anything from blood group or genetic information, which I think she is most concerned with, to a name, contact information or address. That is a particular difficulty, but I note with interest that my noble friend intends to withdraw her amendment.
The Earl of Balfour: Before my noble and learned friend sits down, he did say "aged 18". As, unfortunately, sometimes people seem to get married as young as 16, if this matter to be considered at the next stage of the Bill, I wonder whether the age should not be slightly reduced?
Lord Fraser of Carmyllie: When I was referring to the age of 18, it was in the context of providing regulations which gave that information to young people, and I take it—but I had better check this and write to the noble Earl if I am wrong—that that is what is provided in the 1990 Act. I was not indicating what I would consider to be an appropriate age should such provisions he included in this Bill.
Baroness Faithfull: I hear what my noble and learned friend the Minister says, and I have great sympathy with him. I am grateful to other noble Lords who have spoken. I shall consider the matter further and at the moment beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 3:
After Clause 3 insert the following new clause:
Protection of children from violence.
(" .—(1) In any proceedings (whether criminal or civil) against a person for striking a child, it shall not be a defence for the person to establish that he struck the child in the purported exercise of any parental right if he struck the child—

(a) with a stick, belt or other object of whatever description; or

(b) in such a way as to cause, or to risk causing—

(i) injury; or

(ii) pain or discomfort lasting more than a very short time.

(2) Any person who has care and control of a child but who does not have parental responsibilities or rights in relation to the child shall have no greater right than has a parent to administer corporal punishment to the child.
(3) In section 12 of the Children and Young Persons (Scotland) Act 1937 the following are hereby repealed—

(a) in subsection (1) the words "assaults," and "assaulted";

(b) subsection (7).").

The noble Lord said: With the leave of the Committee, I shall speak from a sedentary position as I find it very difficult to stand for any length of time.
This amendment has all-party support, as can be seen from the list of noble Lords who have put their names to the amendment. I apologise for the absence of the noble Baroness, Lady David, who spoke on this matter on Second Reading, but she is out of the country at the moment. I am quite sure that she is whole-heartedly behind the amendment to which she has put her name.
I very much hope that we shall reach a conclusion on the amendment at this stage. However, if it is necessary to table an amendment on this subject at Report, because this is an all-party issue I hope that it can be treated as a free vote—that is, a vote on which there are no Whips. That is an important matter. When this matter was raised in the other place, unfortunately the voting was on a Whipped basis. I think that it is very important that we should be able to register the opinions of this Committee without the usual "benefit", if that is the right word, of the Whips. There are precedents for this, I think, even in this particular instance of protecting a child from violence. Therefore I hope that all parties will agree this proposal, if and when we come to vote on the amendment.
The amendment is in exactly the same form as the amendment attached to the report of the Scottish Law Commissioners, and to that extent I feel greatly protected, because I have the expertise of their draftsmanship. I will come back to draftsmanship at a later stage. I merely wish to say that this is not my draft and I gratefully adopt the draft of the Scottish Law Commission.
What is the purpose of the amendment? Before coming to the purpose, I should say that the need for the amendment is illustrated by a report which I have not seen myself, although the conclusions have been sent to me. It is a report of a recent, and I think unique, study of physical violence to children in the United Kingdom. It is a study, which is fairly broadly based, of more than 400 families and it is funded by the Department of Health. The report found that one in six mothers reported using what is defined as "severe" physical punishment on their children, and that a quarter of seven-year-olds have been "severely" punished physically. The large majority—that is 88 per cent.—of all "severe" punishments involved hitting children. The guidelines defined punishment as "severe" if it involved,"
"intention or potential to cause injury or psychological damage, use of implements, repeated actions over a long period of time."
The research is based on interviews with mothers and other parents, but mostly mothers, and shows beyond reasonable doubt that a substantial majority of children in the United Kingdom are still suffering abusive forms of physical punishment. They are the kind of abusive forms of physical punishment which this new clause seeks to discourage.
I would say incidentally that there is also good evidence that violence of this kind breeds violence and that children who were frequently aggressive with their siblings were four times as likely as those who were rarely aggressive to their siblings to have been severely punished themselves. I think that statement of the need
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for the amendment is absolutely clear and the onus against the amendment lies clearly with those who disagree with severe physical punishment of children.
I would say also that there is a clear change of opinion, not merely in this country but throughout the world, and indeed in the European Union, that severe punishment of children is no longer considered to be necessary in schools. We have a minor exception in this country. Private schools as opposed to state schools can administer corporal punishment with the consent of the parents of the children concerned, but that is a very minor exception. In the home as well as the school it is now considered, I think, not necessary and it can be extremely damaging for physical punishment to be used by parents or schoolmasters.
That is the main need for the amendment. I come to the purpose of the amendment, which is very positive. Here again I am indebted to the Scottish Law Commissioners, because I can read from their report what the purpose of their amendment which I have adopted is. The Scottish Law Commissioners' own explanatory notes state:
"Subsection 1. This subsection clarifies and limits the extent of the parental right of chastisement".
I would say that "parental" is an important word.
"This is done by drawing a distinction between an ordinary safe smack on the one hand, and canings, belting or beatings with objects of various sorts, and any blows which cause or risk causing, injury or prolonged pain or discomfort, on the other. Many other forms of punishment not referred to in this clause are already covered by Section 12 of the Children and Young Persons (Scotland) Act 1937, which outlaws ill-treatment of children generally.
Subsection 2: This subsection makes it clear that those, without parental responsibilities or parental rights, having care or control of a child, have no greater right than a parent has to administer corporal punishment to a child.
Subsection 3: This subsection removes from the statute book a provision which is unnecessary and which appears to condone ill-treatment of children".
In this new climate of opinion, I am happy to say that Scotland has been at the forefront of reform in children's law for the last 30 years. Following the Kilbrandon Report, which is within the recollection of many, I am sure, the introduction and development of the children's hearing system has been an admired innovation. The 1990s have seen the United Nations convention and other international instruments as well as the kind of weighty research evidence I mentioned earlier, leading to a reappraisal of what is acceptable in the modern day and age of punishment for children.
As I said, Scotland has an opportunity in the Bill to be responsive to these trends and to continue to demonstrate an innovative approach. The clear welfare orientation of Scottish children's law, I gather, would minimise the risk of any such provision working against the interests of children. Scotland being in the lead in this sphere of action, I hope it continues to be so and takes the advice of the Scottish Law Commission, set out in the amendment.
In the other place, the Minister, Lord James Douglas-Hamilton, made a number of technical objections. I thought it right, in view of those objections, which have not so far been examined in public, to write to the secretary of the Scottish Law Commission to ask

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if the commissioners would kindly let me know the basis of their recommendations and also, of course, what their response was to the criticisms of their recommendations adduced by Lord James Douglas-Hamilton.
The Scottish Law Commission was extremely co-operative and did exactly what I wished. The commissioners wrote a letter which could be shown to anyone, and very sensibly sent it to the Minister, the noble and learned Lord, Lord Fraser of Carmyllie. As the noble and learned Lord has the letter and as Lord James Douglas-Hamilton also has it, it is unnecessary for me to go into any detail in Committee about the technicalities of the proposal. It concerns things like the concept of evil intent and the meaning of assault and reasonable punishment. These things can, of course, he examined later in Committee if necessary but I thought I would provide an opportunity for the noble and learned Lord to give his opinion on the letter if he so wishes.
The letter from the Scottish Law Commissioners is not wedded to this particular form of amendment. If there is another route by which the result can be achieved, they would be happy to consider it. In other words, instead of using the concept of defence they would use the concept of justification; though I believe that if you go down that route there are some difficulties. In any case, in their letter they have shown flexibility and I would hope that the letter of the Law Commission, of which the noble and learned Lord has a copy, will satisfy the Government that we can proceed on a constructive basis with this amendment which has been drafted by the Law Commissioners themselves. I beg to move.
Baroness Faithfull: I rise to support the noble Lord, Lord Henderson and to make three points. He has already made the first point that children who have been physically maltreated, or beaten through malpractices on the parent's part, pass that on when they are grown up so that it passes from generation to generation, and may become either worse or better with each generation. Therefore I support the noble Lord in that respect.
My second point is this. Where you are caring for children, whether your own or other people's, the vulnerable children among them suffer greatly when physically chastised. I believe that we do not realise that for a sturdy little person a whack does not really go too deep. However, for a vulnerable child it goes very deep and lasts a long time. It is not possible to distinguish between the vulnerable and the robust. Therefore, I support the amendment because I believe great damage can be caused to vulnerable children, particularly those in care.
My third point is that this amendment makes it clear both to the community and the people at large, as well as those who have care of children, exactly what the legal position is. For those three reasons I support the noble Lord, Lord Henderson.
The Earl of Mar and Kellie: I also rise to support the amendment proposed by the noble Lord, Lord Henderson. In common with the two Members who have spoken, I continue to believe that the public are keen to receive guidance from the legislation. The clear
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message that smacking with an open hand is acceptable but that hitting, beating or causing long-term pain is not will be welcomed in Scotland.
Lord Macaulay of Bragar: I find this a very confusing amendment if I may say so with the greatest of respect to the Members of the Committee who have put their names to it. We seem to be indulging in negative law rather than positive law. The law in Scotland is that you are not entitled to assault anybody and we have had at least two cases within the past two years where the courts have disagreed, but it is all a question of degree and circumstance. If a parent assaults a child, the parent is guilty of assault, pure and simple.
The courts have to interpret the law. The amendment in its present form is negative because it sets out what is not to be the offence. It does not set out what is an offence. It is an offence to assault your child, whether he is one, 10 or 18.
The amendment contains the phrase,
"the purported exercise of any parental right".
I do not know what the word "purported" means. You are either a parent or you are not, and you have a right to look after your children.
There is one aspect of the amendment I do not really understand. I have discussed it during the course of the day. I was told in one of the briefings—I cannot remember from where it came—that the proposal did not stop a parent smacking a child. If that is right, I am sure the noble and learned Lord the Minister, in his time as Lord Advocate, will know very well that parents who shake a child of six months, or slap a child of six months, kill the child. Therefore if the objective is to create some degree of distinction between using a weapon on a child—a stick, a belt or other object of whatever description—and smacking a child, the provisions do not achieve that objective. Asking the courts in Scotland to interpret this amendment in the course of hearing evidence about assault would place a heavy burden on them.
Another matter troubles me. Perhaps the noble Lord, Lord Henderson of Brompton, can advise your Lordships whether I am right in saying that this amendment does not excuse a smack. I think it was said on Second Reading—I am sure that the Minister agrees—that there is no such a beast as a safe smack. If you hit a child, you hit a child. How do you regulate the quality of a smack? Whatever the Scottish Law Commission may say about there being a safe smack, I do not accept it.
Lord Henderson of Brompton: May I interrupt the noble Lord for one moment? I would agree with his view that a smack is a smack. There is no question about that, but it is very much better to have a limitation such as the Law Commission is proposing and to allow only a smack and not the use of something that assists a smack such as an implement of some sort or another. The reason I make this distinction is, in the first place, that if you impose a rule that all smacking of any sort, whatever degree of danger it may import, shall be prohibited, it is exceedingly difficult to enforce; secondly, it would be exceedingly difficult to

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distinguish between what the noble Lord calls a "slap leading to death" and a slap that is almost equal to a stroke.
Lord Macaulay of Bragar: I thank the noble Lord for that exhortation. However, I took up the words that he used. I hope I am not doing him any disservice. He used the words "a safe smack" which is used in the Scottish Law Commission report. Speaking as a parent, I just do not believe there is such a thing. You do not hit children—pure and simple. I do not think the amendment really takes us anywhere.
Turning to the issue of assault, you either assault your child or you do not assault your child in the law of Scotland. We have a very open approach to assault in Scotland. We are not hidebound by statute like the English and Welsh. They get themselves into terrible confusion about actual bodily harm and grievous bodily harm. We have quite a simple system: you either assault somebody and hurt them or you do not. No problem. I do not know the Government's view of the amendment, but, for example, how is a judge to interpret the words of subsection (1)(b) which states:
"in such a way as to cause, or to risk causing

(i) injury; or

(ii) pain or discomfort lasting more than a very short time.

Let us imagine an eight year old child coming into court; children sometimes have no concept of time, and a belt across the face is a belt across the face. Will the judge say, "Well, tell me, Jimmy, how long did you feel the pain? How long did you feel the discomfort?" A child will not be able to answer that. I think that the amendment as it stands leads to confusion and will never be properly interpreted in the courts. At the moment, as I have said, we have two conflicting views. The mens rea is the guilty intent to cause injury to the child. I can see no reason why the law of Scotland should be interfered with by an amendment such as this, no matter how well meaning. I certainly would not support the amendment in its present form.
4.15 p.m.
The Earl of Balfour: I should like to illustrate the other side of the problem: the odd child who really puts his life at risk. I heard rather an interesting case only a short time ago of a child of eight or nine years of age who started to unscrew a 13-amp wall plug—for fun! And the child had done it twice before. The mother happened to be stirring something with a wooden spoon and in desperation struck the child jolly hard with the spoon. You have to take action occasionally to stop this sort of thing. What are you going to do with a child who is determined to dash across the road in front of a car? If you hit a child with a rolled up newspaper it does not do any harm but it very often stops the child. One really must be able to do that. We have to be very careful what we put into law. I very much support what the noble Lord, Lord Macaulay, said.
Lord Fraser of Carmyllie: The noble Earl, Lord Mar and Kellie, indicated that it was desirable to clarity the law in Scotland. I do not believe, for the reasons that
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have been given, that that would be the effect. We want to start clearly at the beginning by appreciating what the new clause, even if it were to be adopted, would not do. What it would not do is to make it unlawful for a parent in any circumstances to take his or her hand to the child. My noble friend Lady Faithfull gave the example, saying that there might be some sturdy young body in respect of whom a smack would do little or no harm, but on the other hand there might be a more vulnerable child on whom it might have a longer-lasting effect. The new clause does not identify any such distinction between the subjective character or nature of the child.
As we made clear in another place, the Government have some sympathy with the intention behind the new clause. There is nothing between Members of the Committee concerning the view that no violence to children should be justifiable under the guise of punishment, but I am concerned that there are dangers in seeking to amend the existing law in the way proposed. The law as it stands, as the noble Lord, Lord Macaulay, indicated, offers the law of assault. I believe that both statutory law and common law offer sufficient protection to children from assaults by parents, teachers or others who have charge of children.
The new clause would place unnecessary constraints on the power of the courts to take all the circumstances of each case into consideration. This has proved to be a key factor in recent case history. There are many things a court must take into account in determining if punishment is reasonable: for example, the age, the sex, known disabilities or weaknesses, as well as the nature and the context of the punishment, the manner and the method of its execution, its duration and its physical and mental effects. The proposals in the new clause would limit the court to only two—whether an implement was used and whether there was injury, pain or discomfort lasting more than a short time. I fear that this might force a court to come to the decision that it did not feel justified in all the circumstances of the case. It might lead to a court finding against a parent who administered a light tap with some inoffensive implement, while someone giving a much more severe blow with the hand might escape censure.
As was made clear in another place, there is also some difficulty in relating the new clause to the existing law. As the noble Lord, Lord Henderson, rightly indicated, the new clause is based on one of the draft clauses attached to the Scottish Law Commission's report on family law. It would appear from that report and from the letter of 25th May of the Scottish Law Commission, to which the noble Lord referred, that the Scottish Law Commission takes the view that when a parent administers corporal punishment to a child, this constitutes a crime of assault but there may be a defence to it if the punishment can be established as reasonable. The new clause therefore seeks to restrict that defence by indicating that it is not to be available in certain circumstances. However, with respect to the Scottish Law Commission, this seems to us the wrong approach. Where a parent administers corporal punishment to a child, the law—I would suspect that this would be in accordance with the commonsense of most people—does not regard the parent as committing a crime at all.

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That is because the law does not regard a parent as having the necessary 'dole' in Scots law, or evil intent, to commit an assault. Reasonable punishment is not therefore simply a defence; it does not amount to an assault at all. It is only where the punishment becomes excessive that it becomes "assault".
In the Scottish case of Gray v. Hawthorne, which was reported in 1964 in our justiciary cases at page 69, it was said that only if there has been an excessive punishment over what could be regarded as an exercise of disciplinary powers can it be held to be an assault. In other words, the question in all such cases is whether there has been dole on the part of the accused—that is, the evil intent which is necessary to constitute a crime by the law of Scotland. With respect of the Scottish Law Commission, I certainly understand that to be a correct statement of the law.
I turn now to other deficiencies in the new clause. The courts would have some difficulties in interpreting subsection (1)(b), under which a parent would have no defence if the child was struck:
"in such a way as to cause, or to risk causing …
(ii) pain or discomfort lasting more than a very short time".
I entirely agree with the noble Lord, Lord Macaulay. The concept of "a very short time" seems hard to tease out in this context, and I believe that in the courts it would give rise to real uncertainty. Would the length of the punishment depend at all on the seriousness of the misdemeanour? More importantly, since the test would arise where there was no injury, it is extremely hard to see how anyone could ever tell whether the pain lasted more than a very short time, or whether there had been that risk. An element of subjectivity is involved which would make such a provision difficult for prosecutors and courts to apply.
Beyond that, there are other points which concern me. In subsection (1)(a), the phrase an "object of whatever description" is used. That would cover things which would lead to quite unreasonable worries on the part of parents that they might have committed an offence by, for example, slapping a child while the parent had a duster in their hand. The provisions might also cover a slap with a gloved hand. If, in another place, the concern was to avoid giving a confusing message to parents, what really concerns me is that far from clarifying that confusion, this new clause would, unfortunately, simply add to it. Again, what is meant by "injury" in subsection (1)(b)(i)? Does it mean only physical injury, and, if so, would it include a bruise?
Finally, I am not entirely clear what the effect of subsection (2) is intended to be. On that basis, I certainly cannot reach a view that it does anything to clarify the law.
It is my concerns in general about the confusion that the amendment would add to the law, rather than the clarification that it would provide, that cause me to suggest, either now or at a later stage, that it should he opposed. I appreciate that the noble Lord may wish to return to the matter at another stage, but I hope that what I have said fully sets out the attitude of the Government to the proposal.
The Earl of Kintore: The Minister popped up far more quickly than I thought he would. May I say to the noble Baroness, Lady Faithfull, that not all beaters then beat their children? I was well deservedly beaten as a schoolboy, but I have not beaten my children, and as they are now 17 and 19, I think that I am unlikely to start.
The Minister mentioned subsection (2) of the new clause. The noble Lord, Lord Henderson of Brompton, and, I think, the noble Lord, Lord Macaulay, in his Second Reading speech, suggested that all sorts of nastiness went on at Scottish private schools. I just happened to ring up my son's old housemaster last night to find out what happened at Gordonstoun. I was told that Gordonstoun no longer carries out corporal punishment, and has not for many years, and expressed an opinion that corporal punishment does not exist in any of the Scottish independent schools.
Lady Saltoun of Abernethy: In many ways I do not see the point of this clause because I think that the only people whom it will affect are the people who already know the law and keep it. Those who are in need of this clause will not pay any attention to it anyway any more than they do to the law as it stands.
Lord Henderson of Brompton: I am very grateful to those who have spoken and in particular to the noble Baroness, Lady Faithfull, and the noble Earl, Lord Mar and Kellie, who have supported the amendment.
I have to say that I find it very surprising that a body of such authority as the Scottish Law Commission should be opposed in such root and branch fashion by the noble and learned Lord, Lord Fraser of Carmyllie, and indeed, by the noble Lord, Lord Macaulay of Bragar. I, of course, fully respect what they both had to say and one must take into account their authoritative opinions which run counter to those of the Scottish Law Commission. I shall fully take into account what they said and bear in mind the objections of other noble Lords who have spoken today when I consider what I should do with the amendment and whether I should proceed with it at Report stage.
Amendment, by leave, withdrawn.
Clause 4 [Acquisition of parental rights and responsibilities by natural father]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No.4:
Page 4, line 6, after ("State") insert—
("( ) executed by both parties before a notary public;").
The noble Lord said: Clause 4 has a side title:
"Acquisition of parental rights and responsibilities by natural father".
The clause provides that where a child's father has no parental responsibilities or parental rights in relation to him, the father and mother, whatever age they may be, may by agreement provide that, as from the date of the agreement, the father shall have the parental responsibilities and parental rights, and so on. It provides that no agreement under subsection (1) shall have effect unless in a form prescribed by the Secretary of State or registered in the Books of Council and Session.
The amendment seeks to provide that parties who have conceived a child should, if they are making a legal agreement with all the legal consequences that flow from it, have the right to take legal advice before they sign it.
The amendment is not put down lightly and I think we also discussed this matter at Second Reading. If the father admits that the mother was under 16, then he is admitting committing a criminal offence. That is not covered by the Bill as it presently stands. I think the noble Lord and learned Lord the Minister had notice of this at Second Reading as to what the consequence would be where a father acknowledged the parenthood of a child conceived by a young lady under 16 years of age and what the consequences might be for him in the criminal courts.
One of the problems is that young relationships like that are all right at the time the child is born, but then the mother may very well split up with the father and then complain that the husband had sexual relations with her when she was under 16. Putting a form of agreement into the Books of Council and Session would be an admission by the father that he had fathered the child while the mother was under 16.
The purpose of the amendment is to give people the opportunity to take proper legal advice as to how the life is going to go on. The Bill seems to perhaps envisage the problem at the bottom of page 3. It says,
"the father and mother, whatever age they may be",
which obviously anticipates, perhaps in keeping with modern times, that the age of 16 for conception and giving birth to children is perhaps unrealistic. I may sound an old fuddy-duddy, but there you are. The Bill refers to,
"the father and mother, whatever age they may be".
The purpose of the amendment is to make sure that people have proper legal advice before they enter into a binding agreement which might have severe social and personal consequences. I beg to move.
Lord Fraser of Carmyllie: For the reasons that the nobel Lord has advanced, I have some sympathy with what he proposes. I agree that where parents are about to undertake parental responsibilities and rights agreements, they should give due thought and consideration before doing so. It is therefore correct that that should not just be a casual act, but that the process should involve a formal step.
I believe that that is, in fact, achieved within the existing provisions of Clause 4. In addition, it is our intention, in producing the guidance notes which will accompany the agreement forms, to make it clear to such parents that they are taking a substantial step which will involve a change in their status, and on which they may wish to seek legal advice before committing themselves.
However, although I agree with the nobel Lord's desire to ensure that there is a formal step, I am not convinced that this is the appropriate way to achieve it. It would involve the parties in additional effort and cost. The noble Lord might respond by saying "and so it
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should", if such a change of status is going to be accomplished. But I am more concerned that there may still be parts of Scotland where a notary public might not immediately be available. Having to register in the books of the Court of Session is just the sort of formal step that should make people appreciate what is going on. First of all, they would have to find out what the books of the Court of Session were before they went any further.
Although this may not happen all that often, I am also concerned about how the provisions would work if one party was located in Scotland and the other in England. It may be only a temporary separation, but it might be a difficult arrangement to achieve if they both had to appear before the one notary public.
I therefore remain of the view that the existing provisions are sufficient. We are trying to strike a balance between the desirability of having that formal step, and keeping the process as straightforward as possible. I believe that we have more or less achieved the right balance and, for the reasons I have explained, I do not think it desirable to make the amendment that the noble Lord wants.
Lord Macaulay of Bragar: I am reminded by the Minister of an old Irish tale. When the judge said to the counsel, "Has your client never heard of the doctrine of res ipsa loquitur?" he said, "They talk about nothing else in Ballybunnion every night!". I am sure that in the provinces of Scotland they talk about nothing else but the books of the Court of Session, and say, "Well, we had better get the bairn registered now rightaway"! But that is perhaps a frivolous note.
We are not concerned here only with the rights of the individuals. There is, of course, a consequence for the child. The child is now identified in the register as being the child of the two parties, and that is quite important. There is nothing in this part of the Bill. The more I read the Bill, the more I see bits and pieces that indicate perhaps we should approach it very carefully.
There is no protection for the child. The mother and father of whatever age may agree that they are the father and mother of the child. It may be covered by Clause 11, but the child is then forever registered either in a form described by the Secretary of State, whatever that might be, or in the books of the Court of Session as being the child of the two parents, whether he or she is in fact the child.
I am not being frivolous. This is important from the point of view of the child. I wonder whether the Minister might look again at the clause and consider what the consequences are that flow to the child from the parental agreement, or alleged parental agreement. I would be grateful for that. I have not given notice of this matter because it has just occurred to me as I speak. However, it might be worthwhile having a look at it.
Also, with the phrase, "whatever age they may be", we have to be satisfied that when people enter into agreements with such consequences as accepting parental responsibilities and identifying the child as theirs, they are capable of giving that agreement. To that extent, I think that Clause 4 perhaps needs to be looked at again. That is why I come back to base, so to speak.

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I moved the amendment to make sure that people know what they are doing when they register the child. Whether they knew what they were doing when they conceived the child in another matter, but the child is the effective result of the relationship. I would have thought that perhaps it might be of some importance to take the clause back and look at it again. We shall return to it on Report.
In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 [Views of children]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 5:
Page 4, line 36, leave out ("age and").
The noble Lord said: I speak also to Amendments Nos. 6, 11 and 12. The effect of these amendments is to take the age of the child out of the consideration of his maturity and understanding, the view being taken that the reference to a child's age as a criterion of the ability to form a view is neither here nor there and that there should be a broader approach to the understanding of the child. That may be another matter the Government wish to examine. I beg to move the amendment.
Lord Fraser of Carmyllie: Noble Lords will doubtless be aware that the Scottish Law Commission, whom on this occasion I pray in aid, considered carefully the best form of words to use and decided to follow the United Nations Convention on the Rights of the Child in recommending the form, "the child's age and maturity." While I appreciate that noble Lord's desire to stress the importance of understanding, I consider that "understanding" is implied in "maturity" and that it is more appropriate to stick to the wording in the United Nations convention. Besides, this wording is also used in Part II of the Bill. Indeed, I notice that the noble Lord, Lord Macaulay, himself uses that wording in Amendment No. 25. I am sure that he will wish to be as consistent as I wish to be.
Lord Macaulay of Bragar: I certainly do not wish to be inconsistent. There is a level of consistency in this. It is all very well taking the age of 12 out of the clause because it is a judgment that has to be made of the child itself. The other clauses deal with the actual age of the child in a different context; we will come to that matter in due course. In the meantime I am grateful to the Minister for his explanation. I am glad to know that the Government are paying attention to the United Nations Convention on the Rights of the Child. We look forward to seeing it brought into the law of the United Kingdom. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved]
Clause 6 agreed to.
Clause 7 [Appointment of guardians]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 7:
Page 5, line 5, after ("parent") insert:
("( ) accepted in writing by the guardian;").
The noble Lord said: This amendment and Amendments Nos. 8 and 9 relate to the question of guardianship. I do not know what view the Government are taking, but it seems to myself and others that there should be a more positive acceptance of the post of guardian rather than leaving it up in the air, so to speak. For example, and I believe this came up at Second Reading, Clause 7(3) states:
"An appointment as guardian shall not take effect until accepted, either expressly or impliedly by acts which are not consistent with any other intention".
I believe the point was made on Second Reading that it was the wrong way round; that the appointment of guardian "shall take effect when any act which either expressly or impliedly confirms their taking the post", or words to that effect. I do not know what consideration the Government have given to that but certainly where there is a serious matter in the life of the child it should be properly controlled within the legal system. For those reasons the amendments have been tabled so that the Government can consider whether there is some force in what we are saying, because the whole import of this Bill is to protect the children.
The guardian is one of the most important persons in a child's life in the event of the parent's death, as in Clause 7(1). It is important that the child's rights should be protected by making sure that everything is done within a legal context because, once again, the child has no protection. The parent can appoint a guardian but, again, the child has no rights. I may be misreading the Bill, but these amendments have been put forward so that the Government can perhaps have a look at the matter again before Report stage, to see whether the clause can he tightened up from a legal point of view to ensure that children are not exposed to the whims of their parent, or indeed their guardian, as the case may be, or a combination of both. I beg to move.
The Earl of Balfour: Perhaps I could raise one other question on Clause 7. Let us suppose that a guardian has been appointed mutually between the parents and, say, the father gets killed. Does mother then have to share the guardianship of her two children with the guardian regardless of whether or not she likes that person? That is just one of the points which concern me a little.
Lord Fraser of Carmyllie: The short answer to the noble Earl is, yes, that would be the state of affairs.
So far as the particular amendment is concerned, the Scottish Law Commission proposal on which Clause 7 is based is that there should be a certain degree of flexibility available to the person who is appointed as guardian. That person may accept the office in writing, and is recognised in the amendments and in the existing clause. However, the appointee might also make it clear by his or her actions that he or she accepted the role; for instance, by caring for the child after the death of the parent who made the appointment.
The law in Scotland currently provides that no person is obliged to accept the office of guardian, and that position is retained in this Bill. The SLC recommendation was widely accepted when they sought views on it. They felt it necessary for the person who is appointed to show that he or she has accepted the office

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of guardian, and the provision in Clause 7 allows for that while not placing an undue burden on the guardian elect.
As for the child having to give his or her consent in writing, I am afraid that Amendment No. 9 would present some fairly obvious technical problems. First, I assume that the amendment should refer to line 17 rather than line 18. More importantly, I remind the Committee that taking the views of the child into account is covered by subsection (6) of this clause. It may be a rather elaborate subsection to read, with its reference back to Clause 6, but that is what it allows for and that was recommended by the Scottish Law Commission. Could I also say to the noble Lord that as the SLC noted, any child who objects to the appointment of the guardian can apply to a court for the termination of the appointment, and indeed can apply for the appointment of a guardian of his or her choice.
Having considered the matter, I see no reason to amend the Scottish Law Commission's proposals, which received widespread support. I hope that the noble Lord will be satisfied with that explanation.
4.45 p.m.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. I think we will find working our way through the Bill fairly pedestrian because I note that Clause 7(2) states:
"A guardian of a child may appoint a person to take his place as guardian in the event of the guardian's death; but such appointment shall be of no effect unless in writing and signed by the person making it".
What happens if the person making it is dying and cannot write? I raise that question in passing. However, subject to the explanation that the Minister has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Clause 7 agreed to.
Clauses 8 to 10 agreed to.
Clause 11 [Court orders relating to parental responsibilities etc.]:
[Amendments Nos. 10 to 13 not moved.]
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 14:
Page 9, line 29, at end insert—
("(7A) In implementing subsection (7) above, the court shall appoint suitably qualified, trained and experienced persons—

(a) to establish if the child wishes to express his views;

(b) if so, to ascertain those views;

(c) to assess the maturity of the child and his level of understanding of the matters under consideration; and

(d) to provide the court, in the light of these enquiries, with an assessment of the best interests of the child in respect of the order.

(7B) A person appointed by the court under subsection (7A) shall not act or be regarded as acting as the legal representative of the child.").
The noble Lady said: This amendment is intended to give effect to the principle of participation for children
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in the decision-making set out in the Bill by providing a procedure by which courts may obtain the views of children.
There are presently no regulated mechanisms for ascertaining children's views within the court system. The likelihood of the child's views being sought and the method employed to ascertain the child's views will be an arbitrary reflection of individual judicial decisions. There is, therefore, a need to regularise and equalise the child's access to the right to express his view.
An essential preliminary to ascertaining the child's views must be an assessment of the child's understanding of the situation affected by the decision to be taken and an assessment of the child's capacity to form an opinion on the issues involved. That needs to be undertaken by an individual with the appropriate training and expertise. The training currently received by those involved in the legal profession or the judiciary is not intended to prepare them for such a task. While it might be possible to adjust the training received by lawyers, sheriffs and judges to take account of the demands of listening to children, it is unlikely to be appropriate or practicable for those individuals to be involved in the process in the court.
If it is to be achieved adequately, the process of ascertaining the children's views will involve more than a one-off interview. The legal representatives of the two parties in the case and the sheriff or judge are all part of the adversarial process of decision-making. Their first interest must be the satisfactory resolution of the dispute between the parties.
While it may be possible for those individuals to step outside the adversarial role when they are involved in talking to children, it is unlikely that children and young people will find it easy to achieve a similar shift in perception. For the child or young person to have a sense of the significance of his or her views, and the confidence to express them, it is of the greatest importance that the process of ascertaining views should be undertaken by an individual independent of the adversarial process.
There are particular difficulties inherent in ascertaining the views of children in matrimonial cases—and a lot of these cases will be matrimonial cases. There are difficulties in separating the accurate views of the child from the views of the parents. An understanding of the range of responses to parental separation which children experience is essential to any informed understanding of the expression of children's views in this situation. I beg to move.
The Earl of Mar and Kellie: I rise to support my noble kinsman's amendment. I believe that the delicate task set by the Bill (of ensuring that the child's view, where practical, is obtained and made available to the court) demands that an independent person be appointed. This person would need to have special ability in relating to children and would be skilled in enabling a child to develop and establish a view on his or her own future but without influencing the child's decision. This would be an advanced form of mediation, rather than counselling or advice, and would undoubtedly require more than one interview.

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I am particularly keen to go along with the noble and learned Lord, Lord Hope, the Lord President of the Court of Session, when he expressed the view at Second Reading that the procedure should be decided upon before enactment, as otherwise it would take some years of trial and error before the best practice evolved of rules of court.
Baroness Faithful: Perhaps I may ask two questions. Who is to be this person, the suitably qualified and trained experienced person? Is it to take the form of a guardian ad litem? Secondly, would not the requirements in paragraphs (a) to (d) be fulfilled by the social worker dealing with the case with the family?
Lord Fraser of Carmyllie: I am somewhat reluctant to essay an answer in circumstances where the amendment is not moved by the Government but is moved by my noble friend Lady Saltoun. But it does go to the centre of some of the difficulties in this area.
Taking the views of children is a very important theme which runs throughout the Bill. Indeed, there are some who might consider that this is the most important innovation that it introduces into the law. One has only to look, for example, to Clause 6 or to Clause 16, to appreciate how importantly that approach is developed.
The procedure as to how the child's views are obtained are just as much a matter of court procedure and practice as if the child was giving evidence in court. I understand that the Sheriff Court Rules Council has already been considering how best to achieve this. I understand that work on the preparation of one of the necessary rules of court has already begun. As noble Lords will be aware, it is the normal practice to leave the details of such issues to be carried through into practice via the rules of court. Expertise is available in the Sheriff Court Rules Council whose membership includes practitioners experienced in family law and lay members as well as the judiciary and which is well versed in the preparation of provisions which relate to procedure. In preparing such rules of court the views of independent parties and experts are sought through both formal and informal consultation.
I understand that, so far, the consultation that has been undertaken suggests that the existing flexibility of the rules is valuable and there appears to be no one method of taking a child's views that is appropriate in all situations, taking account of the age of the child and the circumstances of each case. It is not difficult to envisage that if a child was still in its carrycot, under the age of one, it really would not matter how suitably qualified or trained or experienced a person might be—the obtaining of the views of the child would be impossible. It may be in other circumstances—and, possibly inadvertently, the noble Lord, Lord Macaulay, did not move his Amendment No. 13—one way in which you might obtain the views of the child would not be by having a suitably trained person but by having a curator ad litem. What comes through to me is that there is such a wide variety of circumstances that it is difficult to see that there is any one answer.
If I move away from the carrycot to the boy who is 15 years and six months, I would guess that he is pretty capable of expressing his views without the intervention
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of a third party. In those particular circumstances, the best way to do it would be to have the young lad speak to the sheriff or the judge and express his own opinions.
In all the circumstances I take the view that we should leave these matters to the rules of court. I do not pretend that it will be a particularly easy task. Like the noble Earl, I noted what the Lord President of the Court of Session said in his maiden speech on Second Reading of the Bill. Given what I said about the importance of carrying this through into practice by the rules of court, I can give an absolute assurance that the Lord President will be intimately involved in any discussions about how the views of such children are best obtained in particular cases.
Lord Macaulay of Bragar: Before the Minister sits down, can I take complete responsibility for not moving Amendment No. 13. However, in view of what the Minister has said, I hope that the Government will take the content of the proposed amendment into account before the Report stage.
Lord Fraser of Carmyllie: I have already taken it into account. I would not like to see a curator ad litem appointed in each and every case; I think that that could be wholly inappropriate. The noble Lord will appreciate that such a power to appoint a curator ad litem is already vested in the court. I would suggest, consistent with what I have just said, that if there is a case where the court considers it appropriate to appoint a curator ad litem it can already do so.
Lady Saltoun of Abernethy: I am grateful to the noble and learned Lord for his reply, but I must here apologise for not being able to answer the two questions of the noble Baroness, Lady Faithfull. The fact is that the amendment is one which the noble Baroness, Lady Carnegy of Lour, had hoped to move. Unfortunately, she is not very well and is not able to attend. I said that I would move the amendment for her. That is why I do not have the answers. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 [Restrictions on decrees for divorce, separation or annulment affecting children]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 15:
Page 10, line 15, after "whether") insert(":

(i) if this has not already been done, to refer the parties to the action to a specified family mediation service or parent education programme, or

(ii)").

The noble Earl said: The purpose of Amendment No. 15 is to put the use of family mediation services and parent education programmes on a stronger footing within the legislation. At Second Reading the noble Earl, Lord Lindsay, indicated that he would look sympathetically on suggestions to further the use of mediation, recognising that mutually acceptable decisions made by separating parents are more desirable than those imposed by a third party, which is usually a court.
At present the rules of court allow referral to mediation but the emphasis is rather late in proceedings when attitudes may have hardened. As they are reacting to the rules of court, sheriffs have interpreted the use of this facility widely. In the sheriffdoms where referral to mediation is used widely, there has become a trend whereby solicitors arrange mediation sessions in anticipation of a formal referral. The benefits of early referral are two-fold. Parents are made aware of their continuing responsibilities to their children within the context of their own failed relationship, and, secondly, in the non-adversarial atmosphere of mediation sessions a mutually acceptable decision about the family's future is more likely to evolve.
The recent passage to the statute book of the Civil Evidence (Family Mediation) (Scotland) Act ensures that disclosures made in mediation sessions will not be admissible as evidence, which renders this opportunity to resolve the arrangements more likely. I hope that the Minister will see the merit of the inclusion of family mediation in the legislation, particularly at an earlier stage than currently mentioned in the rules of court. I beg to move.
Lord Fraser of Carmyllie: We have considered carefully whether some reference in the Bill to mediation is necessary because I understand and strongly support much of the mediation work already being undertaken in Scotland and consider that the present arrangement, whereby courts can refer cases involving children to mediation under the rules of court, to be working successfully.
If it is necessary to extend this provision, it can also be done through the rules of court. I think the noble Earl will appreciate that where new rules of court are formulated, that follows—as I have already indicated—upon extensive consultation with the relevant interests wherever possible.
Perhaps I may give this indication to the noble Lord that, as things stand at the moment, such changes can be achieved through the rules of court, but it is likely that the rules of court will make provision for referral to mediation at all stages of a family action, so that may indeed include making such reference at an earlier stage than is possible at the moment as well as a later one.
I do not think there is any significant disagreement between us over this matter and I hope the noble Earl will be reassured that what he effectively wishes to achieve can be done by the rules of court.
The Earl of Mar and Kellie: I am indeed heartened by what the noble and learned Lord has said. I am particularly grateful for his supporting words about mediation. I persist in the view, of course, that the earlier couples get to mediation then probably the better, but I also take the Minister's point that the rules of court probably allow that anyway.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
5 p.m.
Clause 13 [Awards of damages to children]:
The Earl of Balfour The Earl of Balfour moved Amendment No. 16:
Page 10. line 40, leave out ("person") and insert ("child").
The noble Earl said: In this amendment I am suggesting to your Lordships that on this occasion we should use the word "child" rather than "person", because the clause is definitely dealing with people who are not adults. I beg to move.
Lord Fraser of Carmyllie: After that short but powerful speech I rise to indicate that the noble Earl will have the first of his customary triumphs on the drafting of a Bill. However, before the noble Earl decides it is time to embark on a lap of honour, I fear I can only extend agreement to the first six of his proposals to leave out "person" and insert "child". I am prepared to accept Amendments Nos. 16 to 21, but I do not accept that in the context of his Amendment No. 22 it would indeed be appropriate to substitute for the word "person" the word "child".
On Question, amendment agreed to.
The Earl of Balfour: With the leave of the Committee, I shall move Amendments Nos. 17 to 21:
Page 10, line 42, leave out ("person") and insert ("child").
Page 10, line 46, leave out ("person") and insert ("child").
Page 11, line 1, leave out ("person") and insert ("child").
Page 11, line 3, leave out ("person") and insert ("child").
Page 11, line 4, leave out ("person") and insert ("child").
On Question, amendments agreed to.
[Amendment No. 22 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [Jurisdiction and choice of law in relation to certain matters]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 23:
Page 11, line 16, leave out ("(5)") and insert ("(4)").
The noble and learned Lord said: This amendment corrects a printing error which was pointed out to us by the noble Earl, Lord Balfour, and the noble Lord, Lord Macaulay. I am grateful to both of them and would wish to express my gratitude and appreciation for the attention paid to the detail of the Bill.
Lord Macaulay of Bragar: In answer to the Minister's observations, neither myself nor the noble Earl have any intention of doing a lap of honour on this occasion:
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15 agreed to.
Clause 16 [Welfare of child and consideration of his views]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 24:
Page 13, line 10, at end insert (", and they or it shall have regard to the general principle that any delay in determining matters relating to a child is likely to prejudice the welfare of the child").
The noble Lord said: This amendment is perhaps a bit

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semantic in its form, but it re-emphasises the philosophy behind the Bill by seeking to add at the end of Clause 16(1) that there shall always be regard paid to,
"the general principle that any delay in determining matters relating to a child is likely to prejudice the welfare of the child".
One would hope that that is always in the mind of people who are dealing with the welfare of children, but I do not think it does any harm to restate it in the statute. I beg to move.
Lord Fraser of Carmyllie: I can agree with the general sentiment of the proposed amendment, but I do not accept that we need to spell it out in primary legislation. The clause already makes it quite clear that the welfare of the child throughout his childhood should be the paramount consideration of the hearing or the court. I think we can safely assume that courts and hearings will realise the importance of their own behaviour in relation to the child's welfare and will conduct their business accordingly.
In my view this is another amendment which raises issues which would best be left for guidance or rules. I would approach the matter in this way. It could be argued that this single provision would not achieve much because it is very difficult to see how, in its broad terms, it would be enforceable. I believe that it would be very much more effective if we were to find in the rules of court that detailed timetables were set out providing that such matters had to be dealt with in so many days or in some circumstances perhaps even in so many hours. It could be argued equally that other matters of this type, relating, for example, to the conduct of business and the type of accommodation which should be used, might require specific mention in primary legislation. I should have thought that all those matters are best left to the courts or the hearings. With that brief explanation, I hope that the noble Lord is now satisfied.
Lord Macaulay of Bragar: I thank the Minister for that very full explanation. In light of what he has said, which no doubt others who are involved in these matters will also read with great care in the Official Report, I hope that the Government will bring forward some amendments at an early stage before Report stage so that they may be considered by those who deal with such matters on a day-to-day basis. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move AmendmentNo. 25:
Page 13, line 10, at end insert—
("() Where under or by virtue of this Part of this Act, a local authority decide any matter with respect to a child, the welfare of that child throughout his childhood shall be their paramount consideration.
() In making any such decision a local authority shall have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of his age and maturity: and without prejudice to the generality of this subsection a child of 12 years of age or more shall be presumed to be of sufficient age and maturity to form a view.").
The noble Lord said: I do not think that I need to say much about this amendment except that I may have
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scored an own goal. I believe that the Minister has already pointed out the slight contradictions. I should like to have another look at this particular amendment and, unless the noble Earl, Lord Mar and Kellie, wishes to speak to it, I shall seek leave to withdraw it and reconsider its form.
Baroness Faithfull: I should like to put a question on Amendment No. 25. It is laid down that, as far as possible and practicable, one should try to keep children with their families, and that one should do all that one can in terms of preventive work to maintain the family however difficult the child may be. That being the case, should we not apply the word "paramountcy" to the children—
The Deputy Chairman of Committees: May I ask the noble Baroness whether she wishes to move this amendment? It has not been moved.
Baroness Faithfull: I beg your pardon, I thought it had been moved.
Lord Macaulay of Bragar: With the leave of Committee, perhaps I could formally move the amendment. I do not know whether that is possible within the rules. Obviously this is a matter that should be debated by someone who has views on it, so that it can properly be taken up at Report stage. If it is incompetent, then it is incompetent. I beg to move.
Baroness Faithfull: I am grateful to the noble Lord, Lord Macaulay, for allowing me to speak on this amendment.
As I said earlier, one thing that social workers really seek to do is to keep children with their families as far as possible and as far as practicable. That means doing a great deal of preventative work with the families in the community.
That being the case, I believe that the word "paramountcy" should apply to the children in the community who need help from the social services departments in order to meet their needs, to help them to stay with their families, and to protect and to promote family life and the welfare of the child within the family and within the community.
Therefore, I hope it would be possible to apply paramountcy to those outside care, outside residential accommodation, as well as those with their families.
Lord Fraser of Carmyllie: As this debate has opened up briefly, might I respond to it and try to set in context both Clause 16 and Clause 17, to which the amendment relates.
Clause 16 sets out the basic ground rules for the way in which courts and hearings should deal with children who come before them. The importance of taking the children's views into account and regarding the welfare of the child throughout his or her childhood has paramount consideration and that is made abundantly clear. The clause deals with these formal sittings of the courts or the hearings in some detail, but what Clause 16 does not do is to consider the more general role that might be played by the local authorities and the social workers who are employed by them. That is not because the matter is unimportant, but because that issue is

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covered in respect of children looked after by local authorities within the terms of Clause 17. If the noble Lady cares to look, the beginning of Clause 17 says that,
"Where a child is looked after by a local authority they shall, in such manner as the Secretary of State may prescribe—

(a) safeguard and promote his welfare (which shall, in the exercise of their duty to him, be their paramount concern)".

There is a Government amendment to extend the definition of children "looked after" by local authorities, and so Clause 17, including the requirement for the local authority to regard the child's welfare as its paramount concern, will reach all the appropriate children. The amendment proposed to Clause 16 seems altogether too general and could lead to some confusion.
I hope that the approach proposed in the Bill—placing in Clause 17 a specific duty on local authorities in relation to the children whom they look after—is a more appropriate way to deal with the situation. Indeed, I believe it entirely meets the concerns of the noble Baroness.
Baroness Faithfull: I thank the Minister for his reply, but I should like to state that I cannot speak for Scotland, only to what is happening in England. I think that it is generally agreed that in England there is concern that because we have had so many difficult cases before the courts very often social workers are concentrating, and local authorities have felt themselves needing to concentrate, on children in care who have suffered difficulties as a result of, perhaps, the staff in a children's home, and so on. I want to emphasis the need to prevent these children from coming into care and also to prevent them having to be in residential care. In some cases that has to be, but unless the social services, the social workers and the directors of social work realise that it is of paramount importance that the children in the community should be cared for, we shall have some real difficulties. I thank the Minister and will consider what he said.
Lord Macaulay of Bragar: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 26:
Page 13, line 11, leave out ("the circumstances mentioned in subsection (4) below") and insert ("making a decision or determination under or by virtue of this Part of this Act").
The noble Lord said: This is one of a series of amendments, Amendments Nos. 26 to 31, all relating to Clause 16. Having heard what the Minister has said, I should like to have another look at them. Unless the noble Earl, Lord Mar and Kellie, wishes to move them, I do not intend to do so.
[Amendment No. 26 not moved.]
[Amendments Nos. 27 to 31 not moved.]
Clause 16 agreed to.
Clause 17 [Duty of local authority to child looked after by them]:
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 32:
Page 14. line 10, leave out ("looked after") and insert ("cared for").
The noble Lady said: This group of amendments falls basically into two halves. The first half comprises Amendment No. 32 and the consequential amendments to it, which are Nos. 34, 35, 38, 40, 81, 83, 84, 88, 91 and 92. and the other half comprises Amendment No. 70 and those amendments consequential upon it, Amendments Nos. 71, 72, 74 to 80 and 82.
The point of Amendment No. 32 is that it would restore the requirement on local authorities to provide the care and good parenting which has been the position in the distinctive system operating in Scotland since 1948. The amendment would replace the lesser duty implied by the words "looked after" which have been hastily imported from the Children Act 1989.
There is currently a deficit in the Bill with regard to children defined as being in need of care, both in the provisions of Clause 22(1)(a), (b) and (c) which relate to voluntary care with the agreement of the child's parents or carer, and in Clause 48(2)(c), which relates to compulsory care through the children's hearings system. The amendment would actually serve to provide such children with the care which they require rather than the lesser status and duty implied by the term "looked after child".
The Government stated that the term "looked after" was a generic term to cover voluntary care, respite care, compulsory care and the care of 16 and 17 year-olds in regard to whom a duty to provide care and accommodation did not previously exist. I do not know why they preferred "looked after" to "cared for". I think there was a feeling that a stigma attached to having been "in care". If so, the same stigma will very soon attach itself to being "looked after", and what an awkward mouthful "a looked after child" is compared with "a child in care".
It can clearly be argued that even in the cases of respite care and 16 and 17 year-olds who request and are readmitted to a children's unit, those forms of accommodation will only be offered where it is felt that the child or young person concerned requires an element of care, whether due to a parent's inability to offer such care or because the young person concerned is deemed too immature or unable for other reasons to survive on his or her own in the community.
Local authorities will welcome the positive parenting role and responsibilities which are implied in the concept of caring. In comparison, the term "looked after" clearly implies a lesser duty, albeit that that was not the Government's stated intention. The word "care" itself has synonyms such as nurture, foster, like, love, nurse, protect, tend, watch over, all of which terms appropriately describe the needs of children who do not live with their own parents. To "look after" implies more tasks such as chaperoning, guarding, keeping an eye on, minding, supervising, watching over. When local authorities set out the duties and training for residential care staff, it will be extremely important that those staff are clear that they will be expected to care for, and not simply look after, the children for whom

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they have responsibility. I am afraid that too often in the past looking after is all they have got, and sometimes not very much of that. Primary legislation should therefore be set out in such a way as to leave no room for doubt on the matter.
The effect of Amendment No. 70 and consequent amendments is that the inherent deficit in the Bill as it stands will be corrected; namely, a child or young person described in Clause 32(1)(a), (b) and (c) as in need of care and accommodation should not simply be provided with accommodation without the element of care also required. A study of the clause as it stands shows up the dissonance between a child in need of care, as defined in Clause 22(1) (a), (b) and (c), who is simply offered accommodation by a local authority. A baby cannot simply be placed in bed and breakfast accommodation. Surely, it is accepted that such a child, like all other children defined by the clause, requires a care element in addition to any accommodation provided by the local authority. Hence the proposed term "care and accommodation" neatly clarifies those two important elements.
Clause 17(6) would also more appropriately define a child cared for by a local authority as a child for whom it is providing care and accommodation. I beg to move.
The Earl of Mar and Kellie: I support Amendment No. 32 and the others. The term "looked after" sounds a little too casual; it does not really describe what is taking place. Most parents would agree that they care for their children and that looking after them is part of meeting their day to day needs. A child minder also looks after a child for a brief period. I hope that the more serious terminology of the amendment can be adopted.
Baroness Faithfull: I too support the amendment. A number of single parent mothers feel that they must get out. However, they find that they cannot leave because there is no one to look after the child. Often, they bring in a young child as a child sitter while they are out. There was a very serious case a little while ago where a mother actually said to the court, "I arranged for the child to be looked after" when the child was really being looked after by another child and therefore not being cared for. I strongly support the amendment.
The Earl of Balfour: I wonder whether this is the right thing to do. A parent cares for his or her children. Anyone else can really only look after them. They will not necessarily care for them with that love and affection which the word "care" brings to mind. I have thought a great deal about this amendment. I prefer the drafting of the Bill: it is rather safer if it goes to a court.
Lord Fraser of Carmyllie: Before replying to the specific amendments, it may be useful if I set out the background to the terminology used throughout Part II of the Bill—but, first, the essential features of the new terminology. In setting out duties of local authorities towards children, Clause 17, as has been pointed out, uses the term "looked after". This is indeed a collective term which embraces children who are accommodated under Clause 22, children who are subject to a supervision requirement determined by a children's hearing, and children who are subject to a warrant or order under Part II of the Bill. The changes in
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terminology are aimed at clarifying responsibilities and rights in relation to children and removing uncertainties, not least for children and their parents, surrounding use of the expressions "care" and, in particular, "in care". Incidentally, I should say that the word "care" is not absent from the Bill; indeed, it is applied to children in the care of their parents. We think that this is right and in keeping with the policy conveyed in Part I about parental responsibilities and rights. In our view, this reinforces the need for us to reconsider the statutory definitions to be included in the part of the Bill which we are now considering, Part II, which brings in the duties and powers of public authorities towards certain children.
The words "in care" feature prominently in the Social Work (Scotland) Act 1968. That Act, as I readily acknowledge, was a milestone in the development of children's legislation in Scotland, and it has served us well. It not only established social work departments as major components of Scottish local government but also introduced the children's hearings system. But it was also a product of its time. Twenty-seven years on, the social work departments have developed a considerable degree of expertise and the children's hearings system is held in high regard, but there is a growing awareness of the responsibilities and rights of parents, and also of the rights of children. It is therefore appropriate that the Bill should not only reflect the needs and expectations of the times but also build on the experiences of the past.
For both these reasons, the use of the term "in care" has been the subject of extended consideration. Some noble Lords will be aware that in this respect we are not breaking new ground. Ten years ago the Government published a Department of Health report entitled Review of Child Care Law, which concluded that the use of the term "care" in services designed to support families was,
"seen to be stigmatising, associated with poor or inadequate parents, and with a lack of participation by parents in their child's care".
That report went on to argue for a service which provided a greater partnership with parents wherever possible and a more generously voluntary form of care. That review, indeed, led to the Children Act 1989.
More recently, our White Paper Scotland's Children highlighted the need for local authorities to discuss with parents at the outset the nature and the duration of the support needed for a child and for a clearer understanding of the extent to which local authorities may make decisions concerning the care of the child on the parents' behalf.
Against this background the "in care" terminology sits uneasily. As we see it, it has contributed to uncertainties about where responsibilities and rights lie in relation to children. Rightly or wrongly, the words are seen as stigmatising the parents' ability or willingness to care for their child and as such can only inhibit parents from seeking support. The words "in care" have also been perceived as giving a particular package of powers to the local authority. This runs counter to our aim of providing a more flexible provision, determined by the individual child's needs and the responsibilities and rights of their parents.
Nevertheless, I recognise the concerns behind the amendments; they are understandable. It has been

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suggested that this change in terminology implies that local authorities may somehow take less care of young people, and I hope that I can reassure the noble Lady on that point. The necessary responsibilities which a local authority has to a child who is accommodated or looked after by it are no less than it has under existing legislation; indeed, they are, if anything, greater.
The new terminology is backed by two themes of major importance enunciated in Clause 17: that the welfare of the child is paramount, and that the views of the child should, so far as is practicable, be taken in matters affecting him or her. The translation of these two themes into practice is bound to depend on a caring approach to the needs of a child in social work practice.
This is an approach which has already been emphasised—for example in the Skinner report. Another Kind of Home,—and which we will emphasise in the guidance which follows upon the Bill. Our aim will be to build upon best practice and, indeed, to develop it further. The essential difference which we wish to convey in the Bill is that the local authorities' responsibilities are to be determined by the ability and the willingness of each child's parents to meet their own responsibilities. This seems entirely appropriate.
I hope that the effect of this terminology will be to promote a greater public and professional awareness of the important role which parents should continue to play in caring for their child, even where that child is living away from home.
I have taken a moment or two longer in responding to these amendments than I have in replying to other groups of amendments in order to set out our thinking. I am aware that in Scotland there has been an extended debate among professional people who have been worried about the matter and the noble Earl, Lord Balfour, has similarly indicated that he has reflected long and hard on whether the term "looked after" was indeed appropriate. I am particularly concerned about the stigmatisation argument, and it is for that reason that, like him, having thought long and hard as to whether a more appropriate synonym might be used, I have come to the conclusion that this change is indeed a desirable one. But it is in no way to be taken as an indication that the responsibility for the attitudes that local authorities have to children should be in any way diminished.
5.30 p.m.
Baroness Faithfull: I thank the Minister for that reply. But let us suppose that a woman arranges for a babysitter, agreed 12 or 14, to look after a child and she then goes out. The child either has a bad cough or is ill; the child does not really know what to do. The case then comes before the court. Would not the court say that she did arrange for the child to be looked after, but the child was not cared for?
Lord Fraser of Carmyllie: The term "looked after" is here used, as I have been seeking to explain, in particular context of what are the responsibilities of local authorities in Scotland. It is set out in Clause 17(1):
"Where a child is looked after by a local authority".
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What I have been seeking to set out is the range of rights and responsibilities that a local authority may have in a variety of circumstances. The type of case to which the noble Baroness has referred would not, I think arise in any sense under this provision. I am not sure what the comparable provision is in England, but in Scotland it would come under the 1937 Act—neglecting a child—and I do not think it would matter at all whether she said that the child was being "looked after" or not. Objectively, the court would look to see whether the child had been neglected, and conviction or acquittal would follow on a proper consideration of all the circumstances relating to the looking after of the child.
Lord Northbourne: Before the Minister sits down, perhaps I may illustrate another possible difficulty. If, as I understand it, this category of children would include children who are in what I would call the care of the local authority—that is to say living in a children's home or in a foster home under the responsibility of the local authority—but are in fact living at home with one or more parents, are they then not being looked after by those parents?
Lord Fraser of Carmyllie: They are being cared for by their parents, as I indicated, in terms of Part I. We want to focus very clearly on what are the rights and responsibilities of parents. What I hope we would achieve by this is that those parents should not think, if we were to continue with the existing terminology, that they could shrug their shoulders and ignore their responsibilities towards their children. What I sought to demonstrate by my quotation was that we want to encourage as best we can a greater sense of partnership between the parents of the child and those who have responsibilities within the local authorities, and not bring about a situation where the parents effectively abdicate their responsibilities.
I consider it desirable, particularly in that context, that we should use the words "looked after", because if a stigma is attached to "in care" at the moment it would be even worse if it were in a sense to be extended to cover those children who were not even in residential homes, but were still living with their parents.
Lord Northbourne: Would there not then be a confusion of responsibility if the child is being looked after by its parents and by the local authority? Who actually is in charge?
Lord Fraser of Carmyllie: With respect, I do not think there is. If the noble Lord would like to look to Part I of the Bill he will see that it is there very clearly spelled out what are the rights and responsibilities of parents. Now that we have reached Part II it does seem desirable that we should adjust the terminology to make it clear that the responsibilities of local authorities are rather different.
Baroness Faithfull: I am sorry to pursue this. I think that perhaps things must be different in Scotland from in England. Perhaps that is where the problem lies and perhaps I ought not to be speaking. To me, "looked after" means that you have seen that the child is looked after, but you need not really care for it. Perhaps in Scotland "looked after" means "cared for". Speaking from experience as a director of social services in England, if a parent or a person running a children's

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home gave me the excuse "Well, I looked after them", I would not necessarily understand that to mean, "I cared for them".
Lord Fraser of Carmyllie: I do not want to continue this indefinitely, but I must explain that the "looked after" expression covers, in statutory form, a wide range of responsibilities vested in a local authority. Knowing the noble Baroness's concern about this, I do not think she could object to the definition to be found in Clause 17, which states:
"Where a child is looked after by a local authority they shall … safeguard and promote his welfare",
and that that duty to that child shall be "their paramount concern", so there really is no diminution at all in the extent of the "care", if that is the word that the noble Baroness would prefer. Indeed, if anything—looking at some of the aftercare provisions—the Bill provides a useful extension to the powers and responsibilities of local authorities.
Lady Saltoun of Abernethy: Who cares for a child who is lost and abandoned, as in Clause 22(1)(b)? Such children are looked after only then.
Lord Fraser of Carmyllie: The noble Lady anticipates my argument in terms of the later government amendment because she will see that we are proposing to adjust that which would allow for a far clearer arrangement for the child. Perhaps I may return to this at a later stage because there is a government amendment that covers the matter of a child being lost and abandoned.
Lady Saltoun of Abernethy: I still think that the aim should be that where a local authority has charge of a child, it should be "care" that it is given, not just "looking after", and that that is something that one wants to write into the Bill. As I have said already, I do not really accept this business about stigma because the stigma will still be there. It will merely attach itself again to the new phrase.
However, that is as may be. I should like to read what the noble and learned Lord has said and to consider it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Balfour The Earl of Balfour moved Amendment No. 33:
Page 14, line 15, after ("parents") insert ("or relations").
The noble Earl said: While I realise that there seems to be adequate provision for the parents being brought into having responsibility for care and everything else, I feel that the local authority should also take into consideration any case where a relation might also be brought in perhaps with the idea of taking on responsibility for the children. This is basically a probing amendment-I am sure that it would be defective otherwise—merely to raise the question of bringing in the relations. I beg to move.
Lord Macaulay of Bragar: Before the Minister replies, I should like to raise one minor matter that arises from the previous debate. When talking about "parents", are we talking about genetic parents or "parents" as defined in the Bill?
Lord Fraser of Carmyllie: We will not go back to that. The provisions mean "parents" as defined in the first part of the Bill.
Turning to the amendment, of course I agree that relations can play an important part in bringing up children, especially where the parents are unable, for good reasons or bad, to provide that succour and support. The amendment seeks to ensure that that is recognised within the clause. However, as we discussed in a previous group of amendments, Clause 17 deals specifically with children looked after by a local authority. The main purpose of subsection (1) (b) is to ensure that when looking after a child a local authority should make use of the services which ordinary parents might be expected to use in looking after their own children. I cannot envisage circumstances where granny, as it were, might make use of services which mother and father might not consider to be appropriate services. In fact, I find it difficult to think of any example at all.
I hope with that explanation the noble Earl will appreciate that adding relatives in this context would not necessarily be helpful.
The Earl of Balfour: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 34 and 35 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 36:
Page 14, line 44, leave out subsection (5).
The noble Lord said: There are two amendments to be addressed, Amendments Nos. 36 and 37. If Amendment No. 36 is approved, subsection (5) of Clause 17 disappears, but I am assuming that that will not happen.
There is an important issue of principle about the rights of children. Clause 17(5) states:
"If, for the purpose of protecting members of the public from serious harm (whether or not physical harm) a local authority consider it necessary to exercise, in a manner which (but for this paragraph) would not be consistent with their duties under this section, their powers with respect to a child whom they are looking after, they may do so".
I must say that that would not qualify for the first prize in the plain English competition for this year. It takes a bit of understanding of what it is all about. What I think it is all about—I may be wrong and no doubt the Minister will correct me if I am—is that if a child in Scotland is seen to be such a menace to the public that the local authority will then disregard the duties put upon them in the Bill to look after children and to do something with them (I am not quite sure what they can do) then in fact this clause seems to be superfluous.
In Clauses 64 and 69 the local authority has complete power to determine the children's hearing, and the local authority has powers to put unruly children away, if I may use the broad sense of the word. The powers are already there and I do not understand why this clause has been introduced.
Furthermore, quite apart form anything else, it is an arbitrary power that is given to the local authority without any reference to the right of the child. If I read

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Clause 17(5) correctly, a local authority can ignore its duties towards the care of the child, whether it is being cared for or looked after being neither here nor there. To use a colloquialism, they can "just bung them away somewhere". I do not understand why that is there.
Certainly, since the Minister at an earlier stage talked about the children's rights and the UN convention, the clause would seem to override completely the whole of the UN Convention on the Rights of the Child to be offered an opportunity to express his or her view as to what should happen to them.
Many things would have to be determined. First, someone would have to determine as a matter of fact that the public had to be protected from this particular individual. I do not know what the phrase "whether or not physical harm" means—I suppose it might mean threats of some kind or physical harm—and the child involved should have the opportunity to be represented to speak against being put away by the local authority on whom the duty to look after children is being imposed by the Bill. It may be of some interest to know where the child fits into this decision in Clause 17(5). I shall note with interest the Minister's answer. I beg to move.
5.45 p.m.
The Earl of Mar and Kellie: I support Amendment No. 37. I accept that some children do exceed the bounds of acceptability and must briefly be dealt with in a manner which gives priority to other concerns. By retaining the minimum of "a primary consideration", I believe that we can ensure that a child is detained for the minimum period necessary while he comes round to a more reasonable point of view and is likely to behave more acceptably in future. In no way must the suspension of the paramountcy be on a determinate sentence basis. It must be determined by the child's own actions and his social worker's understanding of his progress.
The paramountcy of a child is of course central to the Bill and should only be suspended in extreme circumstances. There must not be any "throw away the key" mentality involved. I believe this to be a useful amendment.
Lord Fraser of Carmyllie: I am thrown into some confusion because I had understood that Amendments Nos. 36 and 37 were to be grouped with Amendments Nos. 29, 30 and 31. I appreciate that the noble Lord may move them at a later stage if he wants to, but I had certainly understood that they went together. As I see it, they make something of a coherent package.
The noble Lord's concern is to understand how we propose in future to deal with a situation where children in Scotland show a degree of anti-social behaviour such as potentially to present a serious threat to members of the public. As he well knows, for more than 20 years we have operated a system of children's panels where as much attention has been paid to the needs of the children as to the deeds of the children. We have the foresight and wisdom of Lord Kilbrandon to thank for that unique system of juvenile justice. I am sure it can
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continue to address the needs of children and young people throughout the 1990s and beyond as it did in the 1970s. For the record, I remain firmly committed to it.
I can well understand the concern which gave rise to the amendments, but I am not convinced that Amendments Nos. 36 and 37 are desirable. I believe there is a limit to the amount by which we should qualify or temper our approach. The Bill is clear. In general, the welfare of children is paramount. That is a very high standard and we think it right and proper. It is entirely appropriate that we should be concerned about safeguarding and protecting the wellbeing of young people and about promoting their welfare. But if those young people threaten members of society with serious harm we also need to consider how to deal with that situation. We are very keen to ensure that the needs of all children are properly addressed.
For children who offend we are developing a range of measures in Scotland including, not far from the noble Earl's home, innovative community-based projects where even persistent young offenders will be obliged to face up to the consequences of their actions with the aim of changing their behaviour and without resort to the traditional route of taking them possibly into secure accommodation. I make the point simply to emphasise that I am in complete sympathy with noble Lords who feel that the needs of the children must be addressed, even where they exhibit anti-social behaviour or other behavioural difficulties.
I hope I can reassure noble Lords that while we have to balance that set of difficulties against the paramountcy of the needs of the child, we are not departing from that principle of paramountcy where there are circumstances where other action may be necessary. It does not mean that because you must
"have regard for the purpose of protecting members of the public from serious harm",
that as soon as you satisfy that test, or come within that context, any consideration of the paramountcy of the welfare and the needs of the child flies off. I hope I have explained how we seek to continue to achieve that balance.
Baroness Faithfull: I wonder whether I might take this opportunity to congratulate the noble and learned Lord on the fact that Scotland is concentrating on community projects rather than on residential projects. I know that some children have to go to residential care, but the community projects are so much better.
I have lately visited various projects in the community involving children who have done considerable damage to people's cars. They have stolen them and then gone joyriding in them. That has been a great sorrow and a great trouble to the neighbourhood. Nevertheless the local authority has set up community projects. It has built a garage. It has supplied men and insisted that the children attend from 9 a.m. until 6 p.m. and at the weekends, repairing cars. I do have to say that this was giving primary consideration to the children and to the parents. The children themselves were asked what their opinions were, whether they wished to go to residential care or whether they would stay in the community and subscribe to the projects offered to them. They chose

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the latter, and there has not been a single case of re-offending. I congratulate Scotland on its views on project-based social work.
Lord Fraser of Carmyllie: I respond with gratitude to my noble friend. I trust that I am not investing too much hope in some of the projects that we are developing; we certainly want to approach them with all vigour and enthusiasm. If the outcome of all that is that fewer children have to be taken away from their home and held in secure accommodation, I think she will recognise that we will consider that to be a very considerable advance.
Lord Macaulay of Bragar: I am sure that those of us who live north of the Border are always grateful to receive plaudits from south of the Border, and I would endorse what the noble and learned Lord has said. As the Minister has made quite clear, we have a system— the children's hearing system—set up by the late Lord Kilbrandon, which is looked upon with world-wide regard. The Minister probably attends more of these things than I do, but people come from all over the world to see how the children's system is working. We are very proud of it, but that does not mean to say it is perfect.
With this amendment we are seeking to deal with "a little monster" in society, a person who slashes car tyres, who breaks car windows and who is out of control. What is the paramount consideration? I do not know where the word "paramount" comes from. I think it is an Americanism, but it is a horrible word. It does not mean anything, but anyway it is in the Bill. Where does paramountcy go in achieving the balance between society and the individual?
The problem with Clause 17(5) is that it does not tell the local authority what to do with the person. It says "You have all these duties under the Act but if this person is a little monster or a menace in the eyes of the local authority, do something with him". But it does not say what the local authority is to do with him. If I were advising a local authority on someone who had slashed all the car tyres down the street, what advice would I give to the local authority on disposal? There is nothing in the Bill; no guidelines are given except perhaps in subsection (7); but it does not seem to meet the problem. The local authority is just being landed on the one hand with looking at the paramountcy of the child's welfare, and then when the child gets out of control it is told "Just dump him".
That is not even provided for in Clauses 64 and 69. Clause 64 specifies that the children's hearing can arrange for secure accommodation. Clause 69 states that the Secretary of State can do so. While I agree with the Minister that a balance must be kept within society and that young people cannot get away with it all the time, on the other hand the local authorities have to have some guidelines set out for them as to where such young people can go. I am not sure whether these provisions ignore those of Clauses 64 and 69.
Lord Fraser of Carmyllie: Perhaps the noble Lord might like to look at the inter-relationship of Clauses 16 and 17 again. The aim is not to leave the local authority
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abandoned and unclear about what it should do next. It is to give it a signpost as to what it should do next. In the circumstances set out in subsection (5), it is anticipated that the local authority will go to the children's hearing to see what would be the most appropriate disposal for that child. So we are not leaving local authorities without a clear view of what they should do. It would not be for them to take that decision anyway. As the noble Lord, Lord Macaulay, said when accepting the compliment from the noble Baroness, Lady Faithfull, it would be for our unique system of children's hearings to reach a decision.
Lord Macaulay of Bragar: Before the Minister sits down, the point I was making was: might it not be better to include in Clause 17 (5) a reference back to Clauses 64 and 69 so that local authorities know where to go? As the clause stands at the moment, they do not know where to go. Perhaps this is a matter that can be considered between now and Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 and 38 not moved]
The Deputy Chairman of Committees: If Amendment No. 39 is agreed to, I cannot call Amendments Nos. 40 and 41.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 39:
Page 15, line 2, leave out from ("child") to end of line 11 and insert—

("(a) for whom they are providing accommodation under section 22 of this Act;

(b) who is subject to a supervision requirement and in respect of whom they are the relevant local authority ("relevant local authority" having the meaning given by section 65(3) of this Act);

(c) who is subject to an order made, or authorisation or warrant granted, by virtue of Chapter 2, 3 or 4 of this Part of this Act, being an order, authorisation or warrant in accordance with which they have responsibilities as respects the child; or

(d) who is subject to an order in accordance with which, by virtue of regulations made under section 29(1) of this Act, they have such responsibilities.").

The noble and learned Lord said: This amendment is essentially of a minor and technical nature, intended to offer yet further helpful clarification of the definition of a child who is looked after by a local authority. This is part and parcel of the new terminology which we have discussed and I hope that noble Lords who have been concerned about this particular piece of phraseology are encouraged by how clearly it is now expounded upon for them.
The Earl of Balfour: This is certainly helpful to me. I know that I have raised a few questions on that point, but I am happy to accept the amendment.
On Question, amendment agreed to.
[Amendments Nos. 40 and 41 not moved]
Clause 17, as amended, agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 42:
After Clause 17, insert the following new clause:
Local authorities to provide independent person to advise children
(" .—(1) Section 5B of the Social Work (Scotland) Act 1968 shall be amended as follows.
(2) After subsection (4) there shall be inserted the following subsections—
"(4A) The local authority shall ensure that any child looked after by a local authority shall have access to an independent person to provide advice and support and, if the child wishes, make representations on the child's behalf.
(4B) In subsection (4A) above, an independent person shall mean a person who is not employed by the local authority or the establishment providing care or foster care.
(4C) In this section, a child who is "looked after" by a local authority, is to a child for whom they are providing accommodation under section 22, or under any provision of Chapter 2 of Part II, of the Children (Scotland) Act 1995 or in respect of whom either they have been granted a parental responsibilities order or have rights and obligations under an order which, by virtue of regulations made under section 101 of the Children Act 1989, has effect as if it were a parental responsibilities order.".").
The noble Lord said: The purpose of this amendment is that it gives children in local authority care who wish to make a complaint the right to an independent advocate. Who the advocate would be is not specified, but that person could be drawn from a range of sources, for instance, from safeguarders or voluntary organisations representing children. The amendment is a specific request from young people who have been in care who wish to have someone they perceive as independent from the children's homes.
Perhaps I may make a few observations from an explanation that has been provided by some of those children. They want to know who cares. The Who Cares? organisation in Scotland represents, and is composed of, young people with experience of care. We sometimes forget that there is a big resource out there if we are willing to dig in and take the trouble to find out. They say:
"When you are living in a Children's Home, it is very difficult to make a complaint in confidence to a member of staff. Staff are bound by the procedures of the local authority and may have to report issues to their line managers."
If anything happened which was difficult, and made life in the institution rather difficult, anyone who had not passed up a complaint to their line manager would be in serious trouble. Therefore, you are asking the line manager to take a very serious step.
A young person living in a home might have a complaint about the way a decision about sanctions was arrived at, if he had pocket money withdrawn or had leave denied. If the person arriving at that decision was the head of the home, who would the young person complain to? The young person might get on very well with his or her key workers, but would feel inhibited from going to the key worker as he or she is accountable to the head of the home. In extreme cases abuse—physical, sexual or emotional—may be taking place within the residential setting. Who, then, does the young person go to, because that is a very serious matter to approach anyone with? If he approaches a member of staff, will he be believed? Who will deal with the complaint?
Many young people have frequently stated that they wish to have access to someone outside the social work department or, at the very least, someone who is
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independent of the particular children's unit, to act as an adviser and to be advocate in these situations I understand that the overall opinion of young people with experience of care is that access to independent advice can also act as a safety valve. Not all contacts with independent agencies will lead to formal complaints or advocacy being undertaken, but it may offer the young person another avenue to check out his rights, legally or as stated in policy, or to sound out information.
It must be within all our experiences that if, for some reason or another, we thought our parents in the past when we were much younger were overdoing something in whatever way—such as withholding pocket money—most of us had someone to go to, such as a grandmother or grandfather. There must be some person outside who is still part of the caring society that you are associated with, who can speak to those who have the authority to try to get to the bottom of a problem and perhaps come back and say, "I have done it. They know about it and they will take care"; or, "This was the reason they stopped your pocket money". It is quite important that young people should not feel isolated and not able to make any sort of complaint at all. I beg to move.
Lady Saltoun of Abernethy: I support the noble Lord, Lord Carmichael of Kelvingrove, in this amendment. I believe he and I were both at the same meeting when we heard some of the children—they were no longer children—from Who Cares? telling us of their experiences. In particular, if there was any kind of case of abuse, possibly with the manager involved, who would the child go to? He could not go to a junior member of staff to complain about the manager because the junior member of staff would have to pass it on to the manager. This is very important.
The Earl of Mar and Kellie: This is a very useful amendment which draws its inspiration from the reports of young people who grew up in care. They pointed out how awkward it can be to raise a complaint within the departmental structure. I believe it is necessary to have a system rather similar to that used in prisons and young offenders' institutions, by which I mean the appointment of a visiting committee type of organisation. Independent people with powers to investigate would help to solve difficulties, real or imagined, soon after they arose.
Lord Northbourne: I, too, support the amendment. It seems to me that if such a situation had existed in England over the past two or three decades, we might have avoided some of the distressing things which have gone on in some residential children's homes here.
There is another more positive aspect to the matter. I believe that if a child feels that somebody from outside cares about him or her, that can have a very important therapeutic value.
Baroness Faithfull: I agree with everything that has been said, but I am slightly puzzled about the role of a social worker who is allocated to a child. Every child should have a social worker who knows him or her and the family background. That social worker should, under all our rules of social work, be in constant touch with the child. I am afraid that that does not happen in many

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social departments, so I understand the need for this provision, but I rather deplore the fact that it is proposed that that role be taken away from the social worker who is responsible for the child and who should act as a parent to the child, visiting the home, taking the child out and getting to know him or her. I would not oppose the amendment, but I do feel slightly worried by it.
The Earl of Balfour: Would it be possible to bring in some sort of junior citizens' advice bureau which could help such children? With reference to Clauses 30 and 31, I feel that the same problem is faced by children being educated in this country whose parents are British citizens overseas or foreign people who send their children to this country to be educated. I am perhaps way ahead of your Lordships in terms of the Marshalled List, but I feel that such young people can sometimes be very lonely and desperately looking for help. They cannot go to the superiors where they are resident. They need to be able to go to somebody independent. From that point of view, I feel that the amendment deserves support—as does a child in the care of a local authority or any other child in the care of anybody else, including his or her own parents.
Lord Fraser of Carmyllie: This has been an interesting debate. A central feature has been that contributors have fixed particularly upon the circumstance where a child is in residential care and where there is a hierarchy of responsibility within the home, be it secure accommodation or elsewhere. Noble Lords have focused on the difficulties there may be in making a complaint because of the nature of the management.
However, what I need to point out immediately is that given the way in which the new clause is framed, it would go far wider than that. Indeed, in the context of the Bill it would mean that where children were still living at home, someone would nevertheless need to be appointed in this independent advisory capacity: if I may take up the noble Baroness's line, I would have very much hoped that in those circumstances in Scotland there would be a social worker who was well aware of his or her responsibilities towards that individual child.
There are many ways in which children in Scotland can get advice and support. The Scottish Child Law Centre has an advice side if it is legal advice which is sought, and Child Line Scotland is also well established. All local authorities should have properly established complaints procedures. Many local authorities in Scotland now have children's rights officers, whose job, as the title would suggest, is specifically to look after the interests of children.
Having said that, I can envisage circumstances where it would make good sense for an independent adviser to be appointed, perhaps for example, to mediate between a difficult child who has particular problems and the staff who have been assigned to look after that child. For staff who are having considerable difficulties in achieving a proper level of communication notwithstanding their best intentions, such an independent intervention might have constructive consequences.
Having accepted that there may be such circumstances, I suggest that the better way forward
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would be to establish it as a matter of good practice and include that within guidance rather than primary legislation. I am bound to resist the idea that in each and every circumstance where a child—if I go back to my terminology—is looked after, there should be a duty on the local authority to appoint such a person.
I hope that there is real scope for progressing the very laudable aim behind the amendment through good practice and good guidance. I certainly undertake to see that proper attention is given to such guidance and good practice.
Lord Carmichael of Kelvingrove: I am most grateful to the Minister. I believe that the visiting committee idea is too cumbersome for what we are trying to do. If all social workers were like the noble Baroness, Lady Faithfull, I would be only too happy to allow that, but the problem is that for someone living in a residential home the possibility is that the child or young person looks upon many social workers as part of the establishment of that home. Whether or not they are actually employed in the home, the young person will associate them too much and again be slightly scared unless the social worker has established a very good relationship. I am grateful to the Minister for the efforts he has made. I think he is showing great empathy towards the suggestion I am making. I hope we shall hear later the actual words he would suggest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Local authority plans for services for children]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 43:
Page 15, line 22, leave out ("relevant").
The noble Earl said: The aim of the amendment and indeed of Amendment No. 46, which I also wish to discuss as it is consequential, is to ensure that the published plans for children's services are extended beyond the local authority's own services and include services provided by voluntary organisations and health authorities.
As I am very concerned about the difficulties that exist when agencies attempt or, more to the point, fail to co-operate I believe that there should be a sound statutory basis for co-operative effort on the part of all agencies involved with services to children. Only in that way can we ensure that children and their families do not fall through the safety net into neglect or get the run-around from different agencies. While legislation cannot guarantee co-operative effort, it is a good start. I beg to move.
Lord Fraser of Carmyllie: As the noble Earl is aware, this clause is important in the way it relates to the plans that local authorities have to prepare for services for children. I wish to indicate at the outset that I am as keen as the noble Earl to see local authorities plan their services carefully and on a proper strategic basis. If that planning is to be successful, it will have to be very clearly focused. To remove our definition of relevant services—which this amendment would require—would run a very serious risk of allowing the

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plans to become so diverse and all-embracing as to be virtually incomprehensible.
Our experience with community care plans, for example, shows how easy it is to end up with a document which is very difficult to understand when dealing with the range of services provided by a number of agencies to meet the complex needs of individuals. Community care planning was new and lessons were learned as it developed. In the light of that experience, I am sure that the plans for services for children should be very tightly drawn around the local authority's services relating to social care and welfare, obviously having proper regard to the consultations which authorities are required to carry out with health boards, health service trusts, voluntary organisations, housing associations, and so on. All this is provided for in subsection (4).
We must meet the aims to ensure that plans are comprehensive and also to ensure that they are comprehensible. Removing the word "relevant", I fear, would make it too embracing and, while I entirely share the noble Earl's objective, to delete that word would make it even more difficult to achieve that strategic, comprehensive set of plans that we want to see across Scotland.
The Earl of Mar and Kellie: I thank the noble and learned Lord for that answer. I had interpreted "relevant" as meaning only their own plans and was obviously trying to incorporate a wider group of organisations. The inspiration of that is my own social work experience where I think that my colleagues and I spent a fair amount of time encouraging the housing department, social security and the health boards to do what we considered to be their job. Therefore, one of the themes which runs through some of the amendments is encouraging co-operation between agencies. However, I take the noble and learned Lord's point that if we were to remove the word "relevant" and tried to put every single service that was offered in an area into the document, we would never be finished. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 44:
Page 15, line 23, after ("the children") insert ("and their families").
The noble Earl said: The aim of Amendment No. 44 is to ensure that when local authorities are preparing their plans for children's services they always focus on children and their families, the family being the essential basic unit. In reality, we know that they will be doing that anyway. I believe that it should be on the face of the Bill so that it is clear that services are always to be provided for families as well as for those children whose families have regrettably disintegrated in any way. I beg to move.
Lord Fraser of Carmyllie: Again, I well understand the reasoning behind the noble Earl's amendment. There are indeed some services which would be provided to
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the family with the aim of helping the family look after the child. Strictly speaking, they would not be children's services; they would be covered within Clause 18(1) as drafted through the expression,
"services for or in respect of children in their area".
In other words, in my view, the clause as drafted covers the point that the noble Earl has raised. If we were to include services for families we would again be bringing in too many services which would not be of direct relevance, and with the very serious risk that we discussed in relation to the previous amendment of undermining the key purpose behind the planning arrangements.
The Earl of Mar and Kellie: Once again we seem to have reached a point where I wish to be explicit and the noble and learned Lord the Minister wishes to be implicit. Again, I take the point that one could have to make too wide a plan. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 45:
Page 15, line 23, at end insert (", with due regard to children's religious persuasions, racial origins, and cultural and linguistic backgrounds.").
The noble Earl said: The purpose of Amendment No. 45 is simply to ensure that the local authority's child service plans adequately consider the diversity of children's backgrounds in the planning of services. This matches a promised government amendment to Clause 20 which should ensure that service provision has due regard to this diversity. This is wholly appropriate in an increasingly multicultural Scotland, and the best way to tackle it is to plan for it. I beg to move.
Lord Fraser of Carmyllie: It is not only in Clause 20 that local authorities have to take into account race, religion and the like; it is also in Clause 17. I think I can shortly answer the noble Earl by saying that if they have a duty in relation to any child looked after by them in these respects, they will also accordingly have to plan for that. I do not disagree with him that between us is again whether it is necessary to be explicit about it and make specific mention of this in Clause 18. I do not consider that it is, but, as the noble Earl has already identified, there are other points where reference is made to these factors.
The Earl of Mar and Kellie: I look forward to the Minister's amendment on this point which we are coming to shortly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Burnham): If Amendment No. 46 is agreed to, I cannot call Amendment No. 47.
[Amendment No. 46 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 47:
Page 15, line 25. after ("authority") insert ("or by other providers, in particular by voluntary and private organisations, of services which the authority have power to provide").
The noble Earl said: Amendment No. 47 is aimed at ensuring that local authorities' plans for children's services are comprehensive and should include the services provided by all children's agencies, both statutory and voluntary, operating in their area. For example, there is the child protection work done over many years by the RSPCC. If all children's services are incorporated in one plan, it will be possible to take an overview. Only then can it be determined whether the provision is adequate in all respects. The other benefit is that the organisations will have to co-operate. I apologise for the fact that the amendment sounds distinctly like one which we discussed not that long ago. I beg to move.
Baroness Faithfull: I wonder whether I may ask my noble and learned friend for some information. The Bill says that we should co-operate with voluntary and private organisations. I regret to have to say that in some cases where there is a particularly difficult and emotionally disturbed child, a recommendation has been made by social services that that child should go to a special therapeutic community. For instance, I run a therapeutic community myself and we had a child who saw his father murder his mother. In such serious cases, one must provide particular therapeutic treatment for such a child, but my experience in England—not in Scotland—is that although this has been recommended, the city treasurer has said that it is far too expensive and therefore cannot be acceded to. Where would that fit into this amendment?
Lord Fraser of Carmyllie: I do not think it would but it is a very interesting and important point. It takes us back to the Local Government etc. (Scotland) Act 1994. The noble Baroness may recall that we had an interesting debate on the status of the chief social work officer. An important part of that Act was that we ensured the arrangement that in each of the new unitary authorities in Scotland there should be such a chief social work officer who would be in a position having duties and responsibilities that if the treasurer (as the noble Baroness described it—not a terminology I immediately understand but I know what she is driving at!) sought to exclude from provision a particular accommodation or whatever it might be because it was considered too expensive, the chief social work officer would be brought into play having the best interests of the child at heart.
This is dealing with the situation where you have planning for these children's services within a local authority area. In relation to an earlier amendment I said that our experience with community care planning showed how easy it was for plans, however well intentioned, to become lengthy, over complex and difficult to understand.
I agree that where the local authority is planning as part of its childcare provision to make use of services provided by the voluntary or independent sector, that should be shown in the childcare plan. Indeed, I would hope and expect that local authorities in Scotland would make use of both. However, it does not seem appropriate to require a local authority simply to include within the plan details of all the services which happen
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to be provided in the area, even if that authority (acting with the best of intentions) cannot see that there is any need to make use of them. That would seem to me an unnecessary complication, and it is only on that basis that I resist the amendment.
The Earl of Mar and Kellie: I thank the Minister. It appears to me that perhaps those other services should go on to what I shall choose to call a "supplementary list" and that they should merely be noted as existing rather than be fully described in the childcare service plans. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 48:
Page 15, line 37, at end insert—
("( ) The Secretary of State may, subject to subsection (4) below, issue directions as to the carrying out by a local authority of their functions under subsection (3) above.").
The noble and learned Lord said: As we have been discussing, Clause 18 makes important provisions requiring local authorities to prepare and publish plans for services for children. It is expected that the plans will be produced on very much the same basis as those dealing with community care services for adults—that is, a new plan every three years, subject to annual reviews and such modifications at that time as may be appropriate. That is not spelled out in the Bill. Indeed, it is the sort of detail which is best left for subordinate legislation, direction or guidance after due consultation with all the interests involved.
It is on that basis that we propose to introduce a new subsection (3)(a), which provides a useful safeguard in allowing the Secretary of State to issue directions should that prove necessary in the light of experience. I beg to move.
Lord Carmichael of Kelvingrove: In the proposed subsection it is suggested that the Secretary of State should have the power to make directions to local authorities or social workers. It worries me slightly that that may be a backdoor way of using many more private, not even voluntary, homes. I have been round many such homes. Some were extremely good. You felt that some had been done up especially for the visit—that is, if you had any nouse you felt that. Is it proposed under one of the powers given in this clause that the Minister and the Secretary of State, or whoever was acting for him, would be able to direct a social worker, in, say, one of the larger towns saying "No, you will not keep a social work hostel for people over a certain age; you will use some other local authority's hostel for that"? I just want to know why this provision is proposed.
We want flexibility, but the flexibility has to be very carefully looked at. After one or two of the things that we have been reading in the papers about private organisations doing certain types of social and health service work, we want to be very careful that we do not make any more mistakes and that, quite inadvertently, the Scottish Office is not spending money that could be better spent in other ways,
Lord Fraser of Carmyllie: I can assure the noble Lord that there is nothing sinister in what is proposed. The direction that would be given would be of a very limited nature—that is to say, it would relate to how frequently local authorities ought to be reviewing their plans and updating or modifying them. It would not be a direction that they must provide children's services in any particular form. It is to do with timing and the nature of the review.
On Question, amendment agreed to.
6.30 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 49:
Page 16, line 7, after ("persons") insert ("including children, young persons and persons with parental responsibility,").
The noble Lord said: This is a fairly minor amendment but it has some social significance. It deals with the persons who have to be consulted by the local authority, which are dealt with at the bottom of page 15, in Clause 18 (4) (a) and (b) and then on to page 16. The final bodies to be consulted are:
"(f) such other persons as the Secretary of State may direct."
The amendment was tabled because, in the context of this Bill, the children within the local community area are most important, and that is what the Bill is all about. It is, perhaps, an enabling or an explanatory amendment to indicate to the Secretary of State that he should certainly include—I am not sure about children, it depends how you define a child—but young persons and persons with parental responsibilities.
We go back to Clause 6 of the Bill, where the Government are encouraging people to enter into agreements on parental responsibility, whatever their age may be. It might be that, to reflect the provisions of Clause 6, something should be said. I may have the wrong clause, but it is the one where there was agreement about parental responsibility, whatever age the parties might be. It might be fair to indicate to the Secretary of State that he should include, if not children, then certainly young people, as proposed in the amendment. I beg to move.
Lord Fraser of Carmyllie: Subsection (4) sets out the various boards, trusts, voluntary organisations and individuals to be consulted by local authorities when they draw up these plans. Paragraph (f) makes it clear that they must also consult:
"such other persons as the Secretary of State may direct."
There is absolutely no qualification about who those people might be and so the Secretary of State would be free to define children, young persons, or persons with parental authority, in just the way that the noble Lord has suggested. It is, however, tempting to ask who else might be included within the consultative process and, if there are others, whether they should not also be shown on the face of the Bill. I would prefer to leave it in this broader way so that such individuals could indeed be consulted.
It is also worth nothing that the plans which local authorities will produce under this Clause 18 are of a strategic nature. It is likely that most individuals, even if they were service users, would have a relatively limited contribution to offer. It is perhaps more likely that
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representative organisations of such young people could undertake the task more effectively. They are, of course, included within paragraph (b)(i). I hope that, with that explanation, the noble Lord will agree that the point he is concerned about is adequately covered in the clause.
Lord Macaulay of Bragar: I am grateful for that reply. However, the clause is headed:
"Local authority plans for services for children".
and the only people who are not mentioned in the consultation process are children.
If we look at paragraph (c) we find that the principal reporter is consulted and at (d) the chairman of the children's panel for that area is consulted. I quite appreciate the point the Minister is making about achieving a consultative basis on a group basis, but there is no provision for consulting with children or their representatives—apart from the principal reporter, who will only be dealing with children when they have been up to no good or require the decision of the children's hearing, and the chairman of the children's panel.
So where do the children who do not get into trouble feature in this consultative stage? They seem to be missing out altogether, and the amendment is tabled so that the Secretary of State will at least bear in mind that it is children who this Bill is all about, and they should be consulted in one form or another.
Lord Fraser of Carmyllie: At one point the noble Lord added to his remarks "children or their representatives" and I rather agree with him that I suspect that if anyone is to be consulted, it is unlikely to be individual children. It is more likely to be some group representative of them. He says that there is no reference to children. It may not be expressly stated, but it relates to what I said about subsection (4)(b) (i). It is such voluntary organisations as appear to the authority to represent the interests of persons who use, or are likely to use, the relevant services, and in those circumstances one would hope that there were organisations representing children in the local authority area and, if there were, they should be consulted as subsection (4) makes clear.
Lord Macaulay of Bragar: I take on board what the Minister says, but I wonder why the subsection says "voluntary organisations" which are supposed to represent the interests of children. Should there not be a broader base than that? No doubt the Government may wish to take some time to think about that and see whether this can be expanded to include children who are not dependent on voluntary organisations, not dependent on the principal reporter and certainly not dependent on the chairman of the children's panel for the area. It may be a matter for consideration. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 50:
Page 16, line 7, at end insert—
("( ) The local authority shall take such steps as are reasonably practicable to ensure that those who might benefit from the relevant services receive the information relevant to them in a form which they can comprehend (including, in particular, appropriate languages

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and formats).").
The noble Earl said: Amendment No. 50 is concerned with communication between the local authority and the possible users of its services. Clearly, the local authority's child service plan will end up being a weighty tome and probably regrettably necessary. What I believe will also be required is a simplified easily-read booklet which should be freely available. That would probably be best described as a guide to services and should definitely be user friendly.
Just as the children's service plans have to be reviewed and updated regularly, so it will also be necessary to republish this proposed popular guide to children's service plans. I beg to move.
Lord Fraser of Carmyllie: If the noble Earl looks to the government Amendment No. 51, he will see that a local authority shall, within such period after coming into force, and so on, prepare and publish information about relevant services which are provided for or in respect of the children.
I very much see that what we seek to achieve under that new clause is essentially what he wishes to achieve under his Amendment No. 50. I suggest to him that where his amendment is inappropriate is that he wishes to amend Clause 18, which relates to the preparation of strategic plans. Some of that, as he doubtless knows from his own experience, might contain a considerable degree of turgid detail which would be of little value or interest to those who might use the services. I would suggest to him that what we propose in the amendment, which we shall shortly reach, is a better way forward.
The Earl of Mar and Kellie: I anticipated that I would have to make my mind up whether I was to not move Amendment No. 50 and let Amendment No. 51 run through. What I decided was that Amendment No. 50 was more weighted towards a readable version. It was for that reason that I decided to move the amendment. However, I accept the noble and learned Lord's answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18, as amended, agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 51:
After Clause 18, insert the following new clause:
Publication of information about services for children.
(" .—(1) A local authority shall, within such period after the coining into force of this section as the Secretary of State may direct, and thereafter from time to time, prepare and publish information—

(a) about relevant services which are provided by them for or in respect of children (including, without prejudice to that generality, services for or in respect of disabled children or children otherwise affected by disability) in their area or by any other local authority for those children; and

(b) where they consider it appropriate, about services which are provided by voluntary organisations and by other persons for those children, being services which the authority have power to provide and which, were they to do so, they would provide as relevant services.

(2) In subsection (1) above, "relevant services" has the same meaning as in section 18 of this Act").
The noble and learned Lord said: When the Bill was being discussed in another place, amendments were
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tabled requiring local authorities to publish information about their services. These were not considered to be satisfactorily drafted, but my honourable friend the Parliamentary Under-Secretary of State agreed with them in principle and we now have our response in the shape of this new clause.
It places a specific responsibility on local authorities to publish within such time as may be directed by the Secretary of State information about the range of services they provide in respect of children. Your Lordships will note that the new clause embraces all children, including those who are disabled or who are affected by disability. This then allows the deletion of subsection (4) from Clause 21. The new clause also allows for the publication of information about services provided by voluntary organisations when considered relevant by the local authority.
It is not difficult to imagine where it would be entirely appropriate for the authority to draw the attention of residents in their area to the availability of specialist services; for example, for children with special needs. We had originally considered that by preparing and publishing plans local authorities would make adequate information available about their range of child care services but there is no doubt that the new clause presents the requirement in a much clearer and more focused way and I hope the information will be presented in a readable fashion. I beg to move.
On Question, amendment agreed to.
Clause 19 agreed to.
Clause 20 [Promotion of welfare of children in need]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 52:
Page 16, line 25, at beginning insert:
("(A1) A local authority shall—

(a) safeguard and promote the welfare of children in their area; and

(b) so far as is consistent with that duty, promote the upbringing of such children by their families,

by providing a range and level of services appropriate to the children's needs.").
The noble Earl said: In speaking to Amendment No. 52 I would also like to speak to Amendment No. 53. The amendment springs from the concern that has evolved about the possible misuse of the category "child in need". There is a danger that local authorities will develop child service plans for this group of children and families which will leave them stigmatised. The local authority's plans may become disjointed with lack of a comprehensive range of services for children. The merit of the amendment is that it will ensure that the local authority focuses on providing a broad range of services to all families, not just an isolated group who, as I said before, may become resented.
For example, while it is current practice for disabled children to be integrated and schooled alongside their able-bodied counterparts, the Bill might lead a local authority to develop plans and services which actually militate against such good practice. Similarly, a local authority might misunderstand its duty to children and plan only for the tiny minority. I beg to move.
Lord Northbourne: Perhaps the Minister can tell me when replying whether there is any definition of the phrase "children in need" within the Bill and if not whether it is left to the judgment of the local authority or to a matter of opinion. In particular I wonder whether there is not a danger that the phrase will be used to restrict the category to children with special needs. Perhaps he can also tell me whether it would be likely to include children who are not in need at the time but who, unless something is done, are likely to become children in need.
Lord Fraser of Carmyllie: Perhaps I may respond first to that request. Yes, indeed, there is a definition of "in need". It is to be found in Clause 84. Of greater relevance is an amendment we have yet to reach, Amendment No. 201, a government amendment, which re-defines what "in need" means. I understand that that amendment has been welcomed by those who have an interest in ensuring that children in need are properly covered and that the extent of the definition is seen as being wide enough.
The amendments we are discussing now would require a local authority to safeguard and promote the welfare of children in their area. The qualification in the clause as originally drafted that the children should be in need has been lost Part II of the Bill is essentially about public intervention in the lives of children and their families. I believe that we need a suitable trigger. We do not want a local authority to have carte blanche to intervene when it is not necessary. Some assessment of need is surely appropriate and we cannot expect local authorities to promote the welfare of children where such action is not required, and, perhaps more importantly, where it is not desired by the child's family. The noble Earl seeks to keep families together and I agree that that is a desirable aim. The clause as drafted already reflects the need to take the child's and the parents' views into account where the local authority is making any decision. I have no doubt that if families wish to stay together, that will be arranged, if possible.
While I do not believe that it would be appropriate to move away from the concept that the children should be able to trigger access to the services, we have, as I have already indicated, extended our definition of "in need" in Clause 84. I hope that that will be of sufficient encouragement to the noble Earl.
The Earl of Mar and Kellie: I am grateful to the noble and learned Lord. As he will no doubt have guessed, in some respects this amendment is the first to protest against the description "child in need". We have been concerned that that sounds as though it has too narrow a focus, but this may be another of the semantic arguments in which we have already indulged this afternoon, so I do not wish to pursue it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
[Amendments Nos. 53 to 55 not moved.]
6.45 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 56:
Page 16, line 31, at end insert—
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("() In providing services under subsection (1) above, a local authority shall have regard so far as practicable to each child's religious persuasion, racial origin and cultural and linguistic background.")
The noble and learned Lord said: Amendment No. 55 (proposed by the noble Earl, Lord Mar and Kellie) and the Government's alternative amendment, Amendment No. 56, seek to achieve the same objective. The aim is to ensure that when local authorities are considering the provision of services to safeguard and promote the welfare of children in need, proper regard should be paid to children's backgrounds. We have already acknowledged elsewhere in the Bill the great relevance of a child's religious persuasion, racial origin and cultural and linguistic background.
The government amendment represents the preferred form of drafting and since it will achieve the result desired by the noble Earl, I invite him to withdraw his amendment in favour of the Government's. I beg to move.
The Earl of Mar and Kellie: I think that that has already happened. I congratulate the Minister on tabling such an excellent amendment.
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 57:
Page 16, line 31, at end insert—
("( ) Where it appears to a local authority that a child within their area is in need, the authority may assess his need for services for the purposes of this Act at the same time as any assessment of his needs is made under—

(a) the Chronically Sick and Disabled Persons Act 1970;

(b) the Education (Scotland) Act 1980;

(c) the Disabled Persons (Services, Consultation and Representation) Act 1986;

(d) section 21(3) of this Act; or

(e) any other enactment.").

The noble Earl said: The purpose of this amendment is to ensure that a comprehensive approach is taken when any child's needs are being assessed. Many potential users of services will not be aware of the full range of services available to them. It would therefore be useful if an assessment could focus on the full range of unmet needs and not just on the aspect which may have provoked the inquiry. That will have the merit of causing all the agencies to take a co-operative view of what is required and to begin planning their combined approach right from the start. I beg to move.
Lord Fraser of Carmyllie: I have no doubt about the good intention which lies behind Amendment No. 57. It seeks to promote arrangements for the assessment of children under various enactments which are as non-intrusive as possible by providing the means whereby assessments under different enactments may be carried out at the same time. I note that the enactments referred to in the amendment are concerned with persons with disabilities. It may therefore have been better to add the proposed new subsection to Clause 21. Even then, however, I think on balance that it would introduce into the Bill considerable detail which would in turn undermine our intention to keep this important clause as simple and as focused as possible.

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I would not want the noble Earl to feel that I am in any way in favour of multiple or repeated assessments where they can be avoided. I can therefore assure your Lordships that we shall bring the essential and important intention of the amendment into the guidance which we shall be preparing for local authorities. With that clear assurance, I hope that the noble Earl will feel able to withdraw Amendment No. 57.
The Earl of Mar and Kellie: I thank the Minister for that reply. He is quite right that multiple assessments must be avoided and that when an assessment is done it should be as comprehensive as possible. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 58:
Page 16, line 40, at end insert—
("( ) the services mentioned in that subsection shall include respite services, and the Secretary of State shall make regulations for such provisions; and
( ) for the purposes of this Part—
"respite services" are arrangements whereby children affected by disability or at risk of family breakdown are provided with a break from their primary carers for a short period.").
The noble Earl said: This is an important amendment which will assist a broad range of families. Respite care has been a useful development in recent years, enabling families to continue looking after their children and at the same time knowing that there will be a break coming up every so often.
The provision of respite services needs to be mentioned in the legislation because it does not match the concept of children in need of accommodation. The parents of a child who would benefit from respite services are, of course, able to provide accommodation.
I believe that local authorities are in a quandary about the statutory nature of respite care. The inclusion in the Bill of a subsection specifically dealing with it would wipe away those doubts. The consequence would be that the new social work authorities would be able to plan for respite care provision, confident that they were acting statutorily.
The rather varied levels of provision of respite care at present in Scotland could then be brought up to a higher and more beneficial standard. I beg to move.
Lord Northbourne: I should like to support the amendment because I believe that respite care can do an enormous amount to enable disabled children particularly and children in need to be able to live at home and to enable their parents to cope with them. This must be an important objective.
I should like to take the opportunity of the amendment to ask the Minister whether he really means "provision" throughout the Bill and in particular this clause. Surely it is the policy of Her Majesty's Government for local authorities to procure services as well as to provide them. I happen to be president of an organisation which provides respite care to severely damaged Down's Syndrome children. I believe it is extremely important that provision or procurement by the local authority should be included in the Bill.
Lord Fraser of Carmyllie: May I say to the noble Lord that it is a very good point and I entirely agree with him. I certainly do not intend to indicate in the way the Bill is drafted that the only organisation to provide the actual services is to be the local authority itself. In the way the Bill is drafted—and I will look at it again—I certainly intended that it should be conveyed that the local authority, in providing such services, might procure them, as he would describe it, from either the voluntary or the independent sector. He is absolutely right. It is very desirable that there should be that range of opportunity provided.
May I also say in relation to respite services that I acknowledge the great desirability of having such services and the very important part that they can play in keeping families together. It was in the light of a discussion on this very matter in another place that we considered very carefully whether it would be helpful to bring in a definition of the type brought forward in this amendment.
However, it is not only those respite services which can be of great assistance in keeping families together; so can other support services of various types, including support within the child's own home. We do not know what new and innovative services might be developed in the future. On balance, and I stress on balance, we believe that it would not be helpful to highlight one particular service in primary legislation in the way proposed by the amendment, nor would it be appropriate to require the Secretary of State to make regulations. What might be practicable in one area of Scotland might not work at all in another. Local authorities in our view would be best placed to develop services to meet local needs.
With the indication I have given of the desirability of such respite services, I hope the noble Lord will appreciate that we are going for very much the same objective but do not want to single out one range of services.
The Earl of Mar and Kellie: I thank the Minister for his reply. I agree with him that respite care is a very valuable contribution. It is certainly quite new, and I can say as a social work student from round about 1970 that that word did not exist then and nor did the concept. It is certainly a new idea, and a very useful one. I believe that local authorities have the go-ahead to develop respite services on what amounts to a statutory basis, so on that basis I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 59:
Page 16, line 40, at end insert—
("( ) Every local authority shall make such provision as they consider appropriate for the following services to be available with respect to children in need within their area while they are living with their families—

(a) advice, guidance and counselling;

(b) occupational, social, cultural or recreational activities;

(c) home help (which may include laundry facilities);

(d) facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service; and

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(e) assistance to enable the child concerned and his family to have a holiday.").

The noble Earl said: This amendment has the purpose of spelling out how the local authority shall go about its task of providing services to children. It goes so far as to state the range of ways that a local authority may help a family in their own home. The amendment provides a lead to local authorities by suggesting a practical minimum level of services which they should be maintaining. Some of the services are domestic; some are in the form of guidance; others have a "use of leisure" input, and the final subsection suggests a practical form of respite care. I beg to move.
Lord Fraser of Carmyllie: As I have already indicated, I readily accept that the types of services listed in this amendment would, in appropriate circumstances, be of great value and help to children in need. However, I again make the point that I doubt whether it is helpful to introduce quite this degree of specification. Specifying one particular type of service and not another could, I fear, give rise to the notion that one particular service is necessarily more important than another, or more seriously—I think that there are those who are concerned about the drafting of the legislation—that services which were not specifically mentioned could not then be provided. I am sure the noble Earl would not want that to happen.
We prefer the approach presently adopted by the Bill which enables local authorities to provide a range of services for children in need, and which offers a flexibility not only in terms of the child's current needs, but also in terms of his or her changing needs. With that further explanation, I hope that the noble Earl will feel able to withdraw the amendment.
The Earl of Mar and Kellie: I thank the Minister for his reply. These very detailed amendments stem from concern that the category of "child in need" is too narrow and that it is therefore necessary to spell it out in order to establish that "child in need" does not cover just a very small group of children, but relates in fact to many children. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 60:
Page 16, line 47, at end insert—
("( ) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area, and provide them and those who might benefit with information on available services.").
The noble Earl said: This amendment is concerned with the local authorities' efforts to find out the scale of need among children in their area. The amendment will have the beneficial effect of causing the various agencies to co-operate with one another and ultimately make joint plans. Finally, the amendment requires the local authority to publish information about its services in an easily read form. I beg to move.
Baroness Faithfull: I should like to seek information from the Minister. We are talking all the time about
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children in need. I wonder whether we are right in doing so throughout this clause. It seems to me that the needs of the whole community should be looked at—not only the needs of children in need, but the needs of the whole community partly to supply a service but partly to prevent children from becoming "children in need". I wonder whether one ought not to be recommending that the community be looked at and that services be started to meet the needs of the community. Then, one would hope, the children in need would be referred to whatever organisation there is.
For example, I do not believe that we should put all children in need together; they should be mixing with normal children. With a difficult child you might, arrange for him or her to join, for example, the Scouts or a club. We should perhaps be looking to the community to encapsulate the requirements of children in need. We should not start up organisations just for children in need; we should start them up for the community so that the children in need can attend alongside normal children.
I think that my question about this covers Amendments Nos. 60 and 61 and, therefore, the next amendment, but I should like some guidance from my noble and learned friend the Minister.
7 p.m.
Lord Fraser of Carmyllie: As I previously indicated to the Committee, the definition of a child in need is modified by Amendment No. 201. I offer the view to the Committee that that is now sufficiently wide. Initially there were some misgivings about the narrowness of the original definition, but while I understand my noble friend's desire to see children properly established and cared for within the community, I am bound to say that we have gone sufficiently far in the new definition that we have provided for in Clause 84. Amendment No. 201 is the one which amends it.
As regards this amendment, perhaps the noble Lord might reflect on the government amendment, Amendment No. 51, which I moved and allows for the provision of information for those children who have needs. In the light of the amendment that the Government have introduced, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Mar and Kellie: The noble Baroness, Lady Faithfull, was right in saying that preventive services were very important. As we have not yet reached Amendment No. 201 we are still having to deal with the old definition of children in need; hence the worries about the definition being too narrow as it stands at present. I suspect that when Amendment No. 201 is dealt with we will move into a broader and more desirable category. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Clause 20, as amended, agreed to.
The Deputy Chairman of Committees (Viscount St. Davids): If Amendment No. 62 is agreed to, I

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cannot call Amendment No. 63.
Clause 21 [Children affected by disability]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 62:
Page 17, line 4, leave out from ("effect") to ("and") in line 5 and insert—
("on any—

(i) disabled child who is within the authority's area, of his disability; and

(ii) child who is within that area and is affected adversely by the disability of any other person in his family, of that other person's disability;").

The noble and learned Lord said: I am pleased to have been able to have tabled Amendment No. 62 in response to an undertaking given in another place. We think it is right that when a local authority is providing services for children affected by disability in their families, the services should be designed so as to minimise the effect of the family's member's disability on the child adversely affected by it and to give that child the opportunity to lead a life which is as normal as possible. Amendment No. 62 would ensure that that happened.
Amendment No. 66 would also ensure that the same definition of disability applies to both children and adults for the purposes of this clause. I beg to move.
On Question, amendment agreed to.
[Amendment No. 63 not moved]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 64:
Page 17, line 5, after ("disabilities") insert ("or those of their family member,").
The noble Earl said: The aim of Amendment No. 64 is to put on the face of the Bill a duty on local authorities to take an active interest in, and give support to, those young people who are caring for other family members. These children are distinctly affected by the disability of others. For example, a 12 year-old boy may have many extra tasks placed on him at home because his mother is confined to a wheelchair. It is only reasonable that children who are patiently helping their immediate family members in this way should be recognised by the local authority and given every assistance. This could include access to respite services and day trips, which their disabled parent would have difficulty in organising and leading. I beg to move.
Lord Fraser of Carmyllie: In view of the amendment I have moved, Amendment No. 62, it may be that the noble Earl in a position to move Amendment No. 64 when he could not move Amendment No. 63. Nevertheless, as I understand it, what he is seeking to do with Amendment No. 64 is effectively embraced within what I have introduced by way of Amendment No. 62. On that basis, I hope he will withdraw it.
The Earl of Mar and Kellie: I beg leave to withdraw.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 65:
Page 17. line 8, leave out subsection (2) and insert—
("(2) For the purposes of this Act—
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(a) a child has a disability if he has a physical, mental, or sensory impairment which has a detrimental effect on his ability to carry out activities associated with the expected stage of children of a similar age without a disability;

(b) 'impairment' means any damage to or loss or absence of a physiological, psychological or anatomical function; and

(c) an adult has a disability if he has a physical, mental or sensory impairment which has a detrimental effect on his ability to carry out normal day to day activities, including the normal activities involved in caring for a child.")

The noble Earl said: In Amendment No. 65 I am aiming to update the terminology used in the Bill. The amendment gives a definition of a child who, according to the Bill, is chronically sick or disabled or suffers from mental disorder. The words in the amendment more accurately reflect current thinking about disability in children. It also has the merit of being more in line with the Disability Discrimination Bill.
In particular, the terminology of the Mental Health (Scotland) Act used in the Bill is fairly inappropriate when dealing with children. Few young children would be classed as mentally ill, although they might have emotional or behavioural problems. Furthermore, a clear diagnosis of a child's problem is often not made for several years. I beg to move.
The Earl of Balfour: I wonder whether I may put a question here. Some children suffer from tremendous activity which I am led to say can sometimes, particularly with homeopathic medicines, be helped quite considerably. They can, however, be the most awful problem children. In answering the question of the noble Earl, Lord Mar and Kellie, I wonder whether my noble and learned friend Lord Fraser of Carmyllie would consider these children who can have quite serious problems with this hyperactivity, as it is called. It is quite a well-known problem with children.
Lord Fraser of Carmyllie: It certainly is known that there are children with such problems. Here we are seeking to replace the definition of a disabled child in Clause 21(2) and provide instead an extended and new definition. It was considered briefly, I understand, in another place, but it was not thought to be necessary to bring in a more detailed definition as the definition already in the Bill seemed to cover the types of disabilities relevant to the clause.
I can appreciate the temptation to introduce particular types of conditions within the definition of disability, but going down that road carries the risk that some specific condition, perhaps of the type to which the noble Earl is referring, may be omitted, which would have the effect of putting the child with that condition outside the definition of a disabled child. I have no doubt that none of your Lordships would wish that to happen.
The definition already provided in the Bill has, as I see it, the twin advantages of being flexible and also of being familiar to local authorities in that it is drawn from the Disabled Persons (Services, Consultation and Representation) Act 1986. Before suggesting to the noble Earl that he should withdraw his amendment, I would repeat what I said in relation to Amendment No. 66, which would apply the definition in the Bill not only to a child but also to an adult.
Baroness Faithfull: Perhaps I may seek some information from my noble and learned friend. If we are in the future to have small unitary authorities, will there be the level of expertise necessary over a wide range in one area for children with disabilities? I am thinking particularly of blindness, glaucoma and other disabilities. I do hope that it is going to be possible, despite the small authorities, to have that specialist help and advice for assessment and treatment of those children.
Lord Fraser of Carmyllie: One would certainly be very concerned if there were to be children with these disabilities in any particular part of Scotland who, because they happened to live in a small unitary authority, would not be provided with the necessary specialist services. It may be that not each and every one of those new authorities will wish to provide the full range of specialist services but we certainly wish to ensure that and I believe there is no reason why they should not be provided in one form or another either by an adjoining local authority or by having resort to the independent or voluntary sector to provide them. After all, as the noble Baroness knows from her own experience, these specialist services are frequently provided throughout the United Kingdom not by the local authorities themselves but by their having access to either voluntary or other charitable organisations which can provide the services that are necessary.
The Earl of Mar and Kellie: The noble and learned Lord smiled at me when referring to small local authorities. Yes indeed there is a fair challenge for Clackmannanshire to provide these services and I believe it will be done by arrangement with others. May I also say to the noble Earl, Lord Balfour, that the problems of hyperactivity are definitely acute and that we have much more to learn about how hyperactivity is triggered off. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 66:
Page 17, line 8, leave out ("child") and insert ("person").
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 67:
Page 17, line 11. leave out subsection (3) and insert—
("(3) A local authority may, if the parent or guardian of the child agree—

(a) combine an assessment carried out under section 61 of the Education (Scotland) Act 1980; or

(b) include in the assessment an assessment of need for services which the local authority could provide in the exercise of any of its powers and duties under the Housing (Scotland) Act 1987.

(3A) If, while they are carrying out their duty under subsection (3) of this section, it appears to a local authority that there may be a need for the provision to any person to whom that subsection applies of any service under the National Health Service (Scotland) Act 1978 by the Health Board—

(a) in whose area he is ordinarily resident; or

(b) in whose area the services to be supplied by the local
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authority are, or are likely to be provided,

the local authority shall so notify that health Board and invite them to participate in a joint assessment of the person's needs.
(3B) Where a local authority are making an assessment under this section and it appears to them that the person concerned is a disabled person, they shall—

(a) proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and

(b) inform him that they will be doing so and of his rights under that Act.").

The noble Earl said: The purpose of this amendment is to clarify the purpose of the assessment procedure for children with disabilities and to promote a multi-disciplinary approach to the assessment of children with special needs. The amendment would allow the assessment of a disabled child to be co-ordinated with an educational assessment and also to consider the housing and health needs of the child.
At Committee stage, in another place, the Government opposed a similar amendment saying that it imported arrangements from community care assessments. In fact, the problem is that the Children (Scotland) Bill falls far short of the National Health Service and Community Care Act 1990 in creating a clear framework and purpose for assessments.
This amendment might appear to make things more complicated for statutory agencies, but it would certainly make things a lot simpler for parents and children. Parents who submitted evidence to the consortium campaigning on the Bill clearly stated that disabled children already had too many assessments, including those for health needs, housing needs, education needs, and for entitlement to various welfare benefits. Simply adding another assessment is not going to help families. What is needed is for the agencies to work together to deliver a co-ordinated package of care with one agency taking lead responsibility.
The amendment would create the possibility of a one-stop assessment which would look at the needs of the whole child rather than perpetuating separate assessments which are primarily for the needs of the service agencies.
The amendment also rectifies another omission from the Bill, which is the failure to connect the new assessment procedure with the existing assessment procedure for disabled children, introduced by Section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986. That section allows a disabled person, including a disabled child, to request an assessment of the person's needs under the Chronically Sick and Disabled Persons Act 1970. That is important because the 1970 Act created entitlements of great importance to many disabled children, including to help in the home, adaptations and holidays. Because that has not been linked with the new assessment procedure, it would be quite lawful for a social work department to carry out an assessment without considering those needs. Parents would be expected to know that they would have to request separate assessments under the Bill and under the 1986 Act. Not only is that unreasonable; it is different from the provision for adults. When an adult receives a

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community care assessment, the needs of the person under the Chronically Sick and Disabled Persons Act must be considered without formal request.
I hope that the failure to make the link with the 1986 Act can be rectified to ensure that disabled children receive services to which they are legally entitled. I beg to move.
7.15 p.m.
Lord Fraser of Carmyllie: In response to an earlier amendment which had a similar purpose behind it, I indicated that I had some sympathy with that essential intention; namely, the avoidance of unnecessary duplication of assessments.
However, I again doubt whether this is the way forward. What I would suggest is that the question of the avoidance of duplication of assessment should feature in the guidance that we shall be preparing following on the enactment of the Bill. The noble Earl certainly has my assurance that the desirability of what he argues for is effectively without question.
The Earl of Mar and Kellie: I thank the noble and learned Lord for that answer. I certainly thank him for the assurance that these aspects will be covered in guidance. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 68:
Page 17, line 18, leave out subsection (4).
The noble and learned Lord said: I spoke to Amendment No. 68 when speaking to Amendment No. 51. I beg to move.
On Question, amendment agreed to.
Clause 21, as amended, agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 69:
After Clause 21, insert the following new Clause:
Assessment of ability of carers to provide care for disabled children.
(" .—(1) Subject to subsection (2) below, in any case where—

(a) a local authority carry out under section 21(3) of this Act an assessment to determine the needs of a disabled child and

(b) a person (in this section referred to as the "carer") provides or intends to provide a substantial amount of care on a regular basis for that child,

the carer may request the local authority, before they make a decision as to the discharge of any duty they may have under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 or under section 20(1) of this Act as respects the child, to carry out an assessment of the carer's ability to continue to provide, or as the case may be to provide, care for that child; and if the carer makes such a request, the local authority shall carry out such an assessment arid shall have regard to the results of it in making any such decision.
(2) No request may be made under subsection (1) above by a person who provides or will provide the care in question—

(a) under or by virtue of a contract of employment or other contract; or

(b) as a volunteer for a voluntary organisation.

(3) Where an assessment of a carer's ability to continue to provide, or as the case may be to provide, care for a child is carried
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out under subsection (1) above, there shall, as respects the child, he no requirement under section 8 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (carer's ability to continue to provide care to be considered in any decision as respects provision of certain services for disabled persons) to have regard to that ability.
(4) In this section "person" means a natural person.").
The noble and learned Lord said: Your Lordships will be aware that the Carers (Recognition and Services) Bill contains a provision dealing with the assessment of the ability of carers in England and Wales to care for, or to continue to care for, children with disabilities. Because of certain differences in the legislation in Scotland, it was not thought appropriate for that important provision to be extended to Scotland in that Bill.
During the earlier stages of that Bill in another place the Government agreed to amend this Bill to provide a corresponding provision dealing with the assessment of carers of disabled children in Scotland. At that time we said that it was our intention to achieve the maximum consistency with the reform south of the Border on this issue. The amendment now tabled honours that commitment. I beg to move.
The Earl of Balfour: May I ask the noble and learned Lord to explain subsection (2) of his new clause? Is it to cover people such as nannies who are employed, or something like that? I feel that it is surprisingly restrictive.
Lady Saltoun of Abernethy: There are two things that worry me about the new clause. There is no word of support for the carers in caring. You may get a disabled mother caring for a child. There is no word about support in doing that. The other worry is that the carer must ask for an assessment.
I would be happier if the assessment were offered without having to be asked for, which no doubt will mean filling in forms by somebody who is already very busy overworked.
Finally, may I ask the noble and learned Lord a question? Subsection (4) of the new clause says:
"In this section 'person' means a natural person."
I am very ignorant but may I ask the noble and learned Lord what an unnatural person is because I would like to know?
Lord Fraser of Carmyllie: There are in law persons other than natural persons and there might, for example, be a partnership in Scotland which I think the noble Lady appreciates is a separate legal persona.
I respond to the noble Earl, Lord Balfour, by saying that no assessment of the carer will be made where the carer provides the care under, or by virtue of, a contract for employment or other contract or as a volunteer for a voluntary organisation. The type of person it is intended to cover is the sort of person I think he would appreciate. It is perhaps the parents or grandparents of the child.
The Earl of Balfour: Thank you.
Lady Saltoun of Abernethy: I commented that I did not see any word about the support for the carer and also I was not very happy that the carer had to ask for

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the assessment.
Lord Fraser of Carmyllie: I will look into the matter, but it seems to me that it would be quite difficult to ensure that everyone who might need assessing was already known to the local authority. It might be a virtually impossible task for them to identify without some request being made to them for such an assessment to be carried out.
I apologise to the noble Lady for not answering her question. All I can say about this provision is that we are not dealing here with issues of support. It is just the narrow point of providing assessment in the context of the Scottish provisions to mirror as best as can be achieved those provisions which' are found south of the Border in the Carers (Recognition and Services) Bill which I believe is about to complete its passage through both Houses.
On Question, amendment agreed to.
Clause 22 [Provision of accommodation for children, etc.]:
[Amendments Nos. 70 to 82 not moved.]
Clause 22 agreed to.
Clause 23 [Manner of provision of accommodation to child looked after by local authority]:
[Amendments Nos. 83 and 84 not moved.]
Clause 23 agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 85:
After Clause 23, insert the following new Clause:
Day care for pre-school and other children.
(" .—(1) Each local authority shall provide such day care for children in need within their area who—

(a) are aged five or under; and

(b) have not yet commenced attendance at a school,

as is appropriate, and they may provide such day care for children within their area who satisfy the conditions mentioned in paragraphs (a) and (b) but are not in need.
(2) A local authority may provide facilities (including training, advice, guidance and counselling) for those—

(a) caring for children in day care; or

(b) who at any time accompany such children while they are in day care.

(3) Each local authority shall provide for children in need within their area who are in attendance at a school such care—

(a) outside school hours; or

(b) during school holidays,

as is appropriate; and they may provide such care for children within their area who are in such attendance but are not in need.
(4) In this section—
"day care" means any form of care provided for children during the day, whether or not it is provided on a regular basis; and "school" has the meaning given by section 135(1) of the Education (Scotland) Act 1980.").
The noble and learned Lord said: I have tabled this new clause to provide a clear statutory authority relating to the provision of day care services for pre-school and other children and of facilities for those who care for them or accompany them in day care. Such services for children as well as services for adults are presently provided under Section 12 of the 1968 Act, but given
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the opportunity of the new legislation in relation to children only, and the proposed amendments as a consequence to remove references in Section 12 to services for children, we wish to make specific statutory provision in relation to day care services. I am sure this will be welcomed, and I commend it to the Committee. I beg to move.
Baroness Faithfull: Under Amendments Nos. 60 and 61 I made points which I had meant to make under Amendment No. 85. I am a little worried. I think Amendment No. 85 is a very good amendment, but should we not consider the community as a whole? If we just look at children in need we will stigmatise children in the community. I can understand perhaps if we had nurseries just for children in need, but should we not look at what are the needs of the community, first, so that we do not stigmatise the children in need, and, secondly, because if we then have the services applying to the whole community we are carrying out a preventative measure. Having made this point earlier, I apologise for repeating it.
Lord Fraser of Carmyllie: I understand what my noble friend is saying. This new clause allows that each local authority shall provide such day care for children in need who are aged five or under and have not yet started school and gives local authorities a power to provide day care for children who satisfy these conditions but are not in need. It is necessary to have some degree of restriction on the duty to provide day care. I recognise that my noble friend would like to see that duty extended on a broader basis, but I am sure that she appreciates that that is as far as I can take it at this time.
Baroness Faithfull: May I just pursue this point'? Am I inferring from what my noble and learned friend says that we are having the narrower interpretation because of lack of resources?
Lord Fraser of Carmyllie: No, what it says is that each local authority shall provide such day care for children in need within their area who are aged five or under and have not yet commenced attendance at school as appropriate; and they may provide such day care for children in their area who satisfy the conditions mentioned in (a) and (b) but are not in need. It is therefore somewhat wider, but it does not impose an absolute duty upon them.
Lord Macaulay of Bragar: Looking at the Bill as it stands and the amendment proposed by the noble and learned Lord, why do we ricochet between "may" and "shall"? I do not quite understand it. Clause 23(1) states:
"A local authority may provide accommodation for a child looked after by them".
Then Clause 23(2) reads:
"A local authority may arrange for a child whom they are looking after".
We then come to the amendment which states:
"Each local authority shall provide"
Subsection (2) of the amendment then states:
"A local authority may provide".
Subsection (3) then reads:
"Each local authority shall provide"

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However, at the end of subsection (3) of the amendment, we go back again to "may". We have the "may" and the "shall" difference. What does it all mean?
Lord Fraser of Carmyllie: Absolutely. It is not invariably a rule of construction, but in these circumstances a duty is imposed where the word "shall" is used, and where "may" is used that would empower the local authority to provide those services, and if it did so it would have the statutory authority of Parliament so to do.
Lord Macaulay of Bragar: Where the word "shall" appears it is an obligation upon the local authority to provide the service contained in Clause 23 of this Bill. May I ask who will pay for it?
Lord Fraser of Carmyllie: That is what I said. The noble Lord is sufficiently experienced to know that, as it
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goes through the statutes, "shall" can sometimes mean "may". It usually means "shall" but not invariably. Here there is a duty to provide the services referred to and it is probably because there are clearly questions of resources that that is not the broadest of duties imposed. If the noble Lord wishes to offer a guarantee to the people of Scotland that these are to he provided, I would be very interested to hear him say that.
On Question, amendment agreed to.
Clause 24, agreed to.
Lord Fraser of Carmyllie: This may be a convenient moment for the Committee to adjourn until tomorrow.
The Deputy Chairman of Committees: The Committee stands adjourned until tomorrow at 3.30 p.m.
The Committee adjourned at half-past seven o'clock.