Grand Committee Report of 7 June 1995

Official Report of the Committee on the Children (Scotland) Bill
Second Sitting
Wednesday, 7 June, 1995
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]
Clause 25 [After-care]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 86:
Page 19, line 16, leave out ("nineteen") and insert ("twenty-one").
The noble Earl said: This amendment to Clause 25 is one of the more important in the Bill. The aim of Amendment No. 86 is to guarantee and fund the provision of aftercare on a mandatory basis for ex-care young adults up to the age of 21. The experience to date of these generally vulnerable young people is that they arc effectively abandoned by the local authority. The Bill can be praised for extending the period of mandatory aftercare to age 19 from age 18 as previously. This still leaves a very young person to rely on his own resources at a time when studies show that the usual age for leaving home is around 22 years. The instability and contradictions of growing up in care and the disintegrating family life that preceded it are not a stable platform from which we can really expect ex-care young people to be able to accelerate to independence.
I do not want to encourage a culture of dependence but I do want to ensure that the children brought up by the local authority are subsequently treated realistically. The fact that ex-care children are found to be 70 times more likely to become homeless is the regrettable evidence which backs up this amendment.
I shall conclude with some remarks about cost. Although it was suggested by Lord James Douglas-Hamilton in another place that the cost of extending the duty to assist ex-care young adults up to age 21 might be £4.5 million, we now have three estimates to consider. The Child Care Law Review report said £965,000; the Association of Directors of Social Work has said £1.7 million, and Shelter has said £1.3 million. I beg to move.
Baroness Faithfull: I support the amendment. However, I cannot of course speak about Scotland; I can only speak on what we have experienced under the Children Act 1989 in England. During the passage of the Children Bill through the House of Lords I moved an amendment which very much resembles this amendment but unfortunately it was turned down and was not accepted. As a consequence, we have spent much more in England than we would have spent had the amendment been accepted. I say that because of the young people one sees sleeping on the streets. Research was done by the Salvation Army, the Church Army and the University of Surrey. They found that a great proportion of those children sleeping on the streets were
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children who had been in care. Some of them had gone home and could not settle and the parents would not have them and they left home. They had been in residential accommodation or perhaps in unhappy foster homes. As a consequence, they were sleeping rough and at the end of the day they were costing the country the most enormous amount of money. Finally, Centrepoint. had to set up particular accommodation for them with the approval of the Department of the Environment and that was very costly. It was costly to the health departments because so many of them were ill later and it was very costly because, without accommodation, they could not get a job and without a job they could not get accommodation. So the situation was an extraordinarily difficult one. I can only speak of the English experience, but the English experience leads me to think that it would be more cost effective to accept the amendment than to put it to be rejected.
Lord Macaulay of Bragar: I have some reservations about this. I take on board what the noble Baroness has just said. The use of the words "shall" and "may", which we discussed yesterday at some length, carries with it the fiscal implications which the Government might not be able to take on board and indeed the local authority might not be able to take on board.
At Second Reading we mentioned that there should be an availability for young people—indeed another amendment to be moved by the noble Earl, Lord Mar and Kellie, will suggest the age of 25—to have advice and guidance, but it should not be a compulsory matter for the local authority. I find it difficult to construe subsection (1) of Clause 25:
"A local authority shall, unless they are satisfied that his welfare does not require it, advise, guide and assist any person in their area over a school age",
and so on. How is the local authority to find out who needs the advice, guidance and assistance, unless that person comes to it?
I would like the Government to take another look at this and say that a local authority "may" provide that help to persons who seek it. I may be misreading this clause completely. I appreciate the reasoning behind the Bill, but I would not like to see local authorities, particularly since the re-organisation of local government in Scotland, which we have discussed at length on many other occasions, being saddled with this burden of seeking out people and asking whether they would like advice, guidance or assistance. It seems to be placing an unnecessary burden on the local authority. I do not know what the noble and learned Lord the Minister may say about that, but I shall listen with interest.
Baroness Faithfuil: In answer to the noble Lord, may I say that in the English debate on this subject, I asked for the word "shall", and the Lord Chancellor then gave in to me half way by saying "may" in the Bill. As a consequence, I regret to have to say that the treasurers said that this is only "may" and the social services departments then could not spend the money because it was only "may" and not "shall".
Secondly, from the point of view of seeking out, I can only say that the children know perfectly well where to go when they have been in care. They do know exactly

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where to go to ask for help. However, if the social services departments do not have the right and the finance to help them, then of course they cannot help them. I do not feel that they would not know where to go for help if they needed it.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): Like the noble Earl who moved the amendment, I am keenly aware of the importance of aftercare. Indeed, that is why there is such specific provision for it in the Bill. There is, however, little sense in investing time, money and staff resources in looking after young people and then failing to provide them with the necessary support when they move towards independent living.
We are committed to seeing improvements in the existing arrangements for young people leaving care, but to my mind the key point is that services—the advice, the guidance and assistance—should be improved and not simply extended to people who are slightly older. I hope that if we get the services right at the early stage, we will avoid some of the difficulties which exist at present.
There clearly is an issue of resources here and the indication we had from the noble Earl in moving his amendment was that there is quite a wide range of estimates of what the cost might be, but all three of them are significant sums for local authorities to take on. I should like to make it clear that it is not simply a question of resources which leads me to take my view. We want to improve the services but I do not want to bring about any diminution in the quality of the services that might be introduced.
There is indeed a difference, if I may say to the noble Baroness, between what we are proposing in this Bill and what is to be found within the Children Act 1989. That provides at present only a power of assistance up to the age of 21. This Bill for Scotland provides a duty of aftercare up to the age of 19 and then a power to provide services for those aged 19 to 21. In those respects, I think we go some significant way to meeting the point that the noble Baroness would make, and while she may want to go yet further, I am sure that she will view what we have introduced as an improvement on what is provided on this side of the Border.
It is important that the services and the support should be carefully tailored to meet the needs of the individuals involved. I hope that we will set young people off on the right track and have good supportive services available for those vulnerable age groups which require it. Putting it simply, more of the same is not enough; what I hope we shall achieve and bring about are real improvements in aftercare where they will do most good.
Finally, I should stress that the clause provides the power for the local authorities to continue assisting young care leavers until they are 21. I am sure that providing that flexibility rather than creating an indiscriminate duty is the right way forward, and I hope that with that explanation the noble Earl will feel that he can withdraw his amendment.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, would he reconsider the use of
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the word "shall" in the light of the observations of the noble Baroness, Lady Faithfull? Should it be "may" or should it be "shall", or even "maybe"?
Lord Fraser of Carmyllie: I am sure that Her Majesty's Treasury would be delighted if I were to delete the word "shall" and retreat to the use of the word "may", but I think it is important that when young people first leave care at up to the age of 19, the local authority should be under a duty to provide this assistance to them. As they become older, the provisions should be merely permissive, and the use of the word "may" is then more appropriate. Although there may be some who would like to go a little further, generally speaking, there is agreement that we have the balance about right.
The Earl of Mar and Kellie: Perhaps I may take issue with the noble and learned Lord. I am keen that such children—I suppose that I should not say "in care" but those who are growing up on a "looked-after" basis—should know that the local authority gives them the right to ask for services. I take the point that over the age of 19 someone who is vulnerable and needs services will be able to demand them by approaching the social work department in the same way as anybody older, but I would prefer such children to know that they have the right to approach the local authority rather than have to argue the case for services. However, I have listened to the Minister's argument, and 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. 87:
Page 19, line 16, leave out from ("at") to ("was") in line 17, and insert ("any time subsequent to his fifteenth birthday").
The noble Earl said: I want to establish in the Committee's mind the fact that the Bill puts a rather high starting point for eligibility for the mandatory provision of aftercare. I cannot grumble about the Bill's current provision of aftercare. What I hope can be achieved by this amendment is the inclusion of a larger but equally vulnerable group of ex-care adults who returned to their homes from care in the last school year. Many will have been in care because of school attendance problems. Their return home will usually have been made on a trial basis, with the hope that the child's increasing maturity will stand him in better stead, but there is no guarantee that the situation in the family home will have changed much from that appertaining before the child was received into care. There is the reasonable possibility that the family home may yet again disintegrate.
I believe that lowering the age of eligibility will have the beneficial effect of ensuring that fewer vulnerable young people are left outside the mandatory safety not. The costs of homelessness, mental ill health, destitution, unemployment, delinquency and possibly imprisonment far outweigh the increases in costs that this amendment may generate. I beg to move.
Lord Fraser of Carmyllie: I recognise that the provision as presently drafted will mean that a person seeking to be looked after by a local authority

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immediately before reaching school-leaving age would not be eligible, in terms of the definition, for aftercare. But there clearly has to be a cut-off point at some point. The noble Earl's amendment seeks to lower that cut-off point a little. Again, I am not so much concerned about the issue of resources in principle. Clearly, however, the amendment could increase the number who would be eligible and accordingly there is the prospect of a greater imposition of costs. What is more important is that if the amendment is accepted, someone could leave care at the age of 15 years and one week and get on fine, surviving satisfactorily back home all the way up to a week before his 19th birthday when he could then come back and demand or require those services of the local authority. The period is becoming too extended. It is right that we should have restricted it in the way that we have from the 16th birthday through to the 19th and that we should not extend it in this wider fashion. However, I recognise that this is an issue of cut-off points and that there will always be arguments about whether a cut-off point is too high or too low.
3.45 p.m.
The Earl of Mar and Kellie: I thank the Minister for his answer. I am a little worried about the fact that many children go home between the ages of 15 and 16. I would not like the situation to emerge whereby people were actually staying in care for a couple of extra months in order to qualify. I appreciate that a cut-off point will always create that problem. I am just wondering how we can avoid it. I am tempted to say that I do not mind the additional cost; that statement had better be taken as it is meant!
On the noble and learned Lord's analogy of the person who has lived successfully up to 18 years and 11 months and then his life disintegrates, I would argue that that is exactly why the social services department is there. It is there to help such a person, so we should not be too worried about that possibility. However, I accept that that example was given as analogy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 88 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 89:
Page 19, line 19, leave out from ("least") to ("years") in line 20, and insert ("twenty-one but is less than twenty-three".).
The noble Earl said: In moving Amendment No. 89, I should like to speak also to Amendment No. 90. These two amendments clearly seek to extend the ages to which the local authorities may, on request, provide ex-care young adults with advice, guidance and assistance. The Bill at present is quite generous in extending the right to help and interest up to the age of 21, but I believe that it should go further. Earlier I established that the normal age for leaving home proves to be 22 years. That does not mean that families normally lose all interest in their children as soon as they have flown the nest for the first time. My personal experience as a step-parent of five and grandparent of six confirms for me that the continuing and developing relationship with one's adult children is ongoing. Even
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the Government recognise that. Parents are required to support their children up to the age of 25 in their higher and further education.
It would be eminently reasonable to extend that interest to young adults who have endured the need to be received into care. What is more, they should know that they have a right to such interest and assistance and should not have to plead for it with the intake and assessment team.
I would finally say that the costs of the extended provision of advice, guidance and assistance to this older group by right will not be very large as the numbers will taper off with increasing age. However, this provision by right will be highly valued by the small group of still vulnerable young adults who I persist in believing are worth more than the money. I beg to move.
The Earl of Balfour: I wonder if I can ask a question at this stage. Do local authorities have facilities to assist adults in need of care? Although the Bill deals with children, Amendment No. 90 raises the age to 25. At that age the child has definitely become an adult. What is the relevant Act in that case? A reply would help me to understand the extension of age proposed by the noble Earl, Lord Mar and Kellie, in his amendment.
Lord Macaulay of Bragar: The amendment would, I believe, be greeted with some approval within the community. There is no compulsion on the local authority. We are now seeing the effects of the so-called policy of care in the community. As the noble Earl said, a person who requires care in the community may be aged 24 but possibly lacks the mental capacity to be able to look after himself or herself. I have not discussed the matter with the noble Earl, but the reasoning behind the amendment may be that we have to provide some kind of community shelter for people who have been pushed out into the community so that they have a safe haven to go to. They can say to the local authority, "Here is my position. Can you help me?" I wonder if that is perhaps the reasoning behind the proposal.
It is of course, ridiculous to describe someone aged 25 as a child, but we have to strike a balance. To that extent, and given that the amendment does not impose any mandatory duty on the local authority but merely makes a facility available, I support the amendment.
Lord Fraser of Carmyllie: I knew there was some advantage in this new arrangement for discussing matters in Committee. I can answer the noble Earl, Lord Balfour, by telling him that there are indeed powers given to local authorities in Scotland to provide assistance to those who are adults. Those broad powers and duties are to be found in Section 12 of the Social Work (Scotland) Act 1968.
As I said, it is almost inevitable that in our approach to aftercare there will be criticism that we arc not being generous enough or that there are cut-off points that arc too low. I reiterate that, in my view, the aftercare provisions we are introducing are considerably more generous than those provided under the 1968 Act. I believe that that is acknowledged. They are also more generous than those on this side of the Border including, as they do, a specific duty for local authorities to help

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young people until they become 19 years of age.
I do not believe that we need to take aftercare beyond a young person's 21st birthday. Of course, there may still be a need for continuing help and assistance, but that I see as coming through mainstream social work provision and not tied to the fact that a particular individual, now an adult, had at one time been in care while he was a child.
This is essentially a children's Bill, and while we certainly want to ensure that it deals adequately with an individual's transition to adulthood, we would not want to extend that transition indefinitely. So with that balance between the specific provisions in the Children Bill and the more general social work duty, I hope the noble Earl will accept again that the balance is about right.
Lady Saltoun of Abernethy: Does the noble and learned Lord not agree that he has been referring to aftercare'? But if care does not precede aftercare, if the children are not cared for children but are looked after children, the term "aftercare" does seem a bit of a contradiction in terms.
Lord Fraser of Carmyllie: I think I would understand that point better if "looked after" was a term that was going to be adopted to deal only with those children who have at some time in their childhood been looked after in the sense of being accommodated by the local authority during that period of childhood.
However, what I sought to explain yesterday was that the term "looked after" is a much broader term and embraces a wide range of different duties and obligations imposed upon the local authorities. It is to avoid confusion between this very specific type of care and the broader range of obligations that we have selected this terminology.
The Earl of Mar and Kellie: This is a children's Bill and we are dealing with children who will have been looked after by the local authority. I persist in being keen that children who are being looked after should know that the local authority will continue to be interested in them until approximately the same time in their lives as could be said of children who are fortunate enough to have remained at home.
I should have liked the provision to be extended to the age of 25 in order to establish that right, so that social workers could confidently say to the children they were involved with that the local authority was there for them until they were well into adulthood.
I do not think that would have imposed too much of a problem on the local authority, because it was, after all, a duty to provide advice, guidance and assistance on request, and I suppose I hoped that that would be happening anyway. I am thinking mainly about briefing the children as they leave care and return home and being able to reassure them that the local authority will not abandon them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 and 91 not moved.]
Clause 25 agreed to.
Clause 26 [Financial assistance towards expenses of education or training and removal of power to guarantee indentures etc.]:
[Amendment No. 92 not moved.]
Clause 26 agreed to.
Clauses 27 to 29 agreed to.
Clause 30 [Registration and inspection of certain residential grant-aided and independent schools etc.]:
4 p.m.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 93:
Page 22, line 17, leave out ("without his being") and insert ("only if he is").
The noble Earl said: The purpose of Amendment No. 93 is to bring all grant-aided and independent schools within the registration scheme. When we are considering comprehensive provisions for children in Scotland, I can see no reason why we should not have a licensing system for all schools. Attending any school, and a boarding school in particular, has a major impact in any child's life. One of the merits of having a licensing or registration scheme is that it would also act as a complaints system. A duty to investigate complaints would meet the need of parents who seem to be increasingly unhappy about the performance of the schools their children attend. 1 do not accept that the approach of caveat emptor—that is, if you do not like it, take your child away—is the best way of dealing with problems in the organisation of a school. The child is treated as the product in that scenario. The child who is removed from the school on that basis will subsequently be thought to have been at fault and thus stigmatised.
Secondly, independent schools should have nothing to fear from such a system. It will provide a guarantee of the maintenance of minimum standards which should be a plus factor in their advertising. Similarly the prospect of refusal of registration or subsequent de-registration would no doubt be helpful in focusing the minds of all managers of independent schools. At present, managers who might not qualify for registration can opt out because the scheme is a voluntary one.
This amendment would act as a sound quality assurance measure and would be welcomed by all parents considering independent school education for their children. I beg to move.
Lord Macaulay of Bragar: On this side we support the amendment. We are talking in terms of grant-aided and independent schools. It cannot be right that even if a parent or parents want to give their children away to a grant-aided or independent school, they should be entitled to diminish the rights of the child.
We are speaking at a time when the UN Convention on the Rights of the Child is very much to the fore of social thinking. The thinking about this particular clause seems to be that the parent can just throw away any responsibility for his child, put it in the hands of the headmaster or the headmistress and the child has no escape. If I interpret correctly what the noble Earl, Lord Mar and Kellie, was getting at, to use a colloquialism, there should be an open-handed approach to all

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children's rights in Scotland or indeed the United Kingdom, and they should not be locked away in a fortress where their rights are being denied to them and where they have no means of exercising their rights by complaining.
I have no doubt that the Government have received some representations from a person whose child was severely, or allegedly, severely abused at a Scottish public school, so called. I shall not go into the details of that, but if we are going to have an open society where children have rights, then there is no reason for anybody to close the door. The amendment moved by the noble Earl, Lord Mar and Kellie, has opened the door and no-one should have any reason to fear anyone coming through that door and allowing any child in any school to speak to them. I support the amendment.
The Earl of Balfour: I very much support what has been said on the amendment. I would appreciate some guidance to enable children at such schools to know to whom to appeal if they feel thoroughly unhappy about whatever it may be at the school: the bullying, the accommodation, if they feel they are being unfairly treated, and so on. They must be protected.
I have written to my noble and learned friend Lord Fraser voicing my concern about children being educated in this country whose parents hold down a job overseas or who may be foreign citizens. Those children can be very lonely. They must have somebody they can turn to within the local authority structure, for a want of a better word.
Baroness Faithful: I support Amendment No. 93 which, in England and Wales, is already enacted. It was enacted because of a very serious case that was brought before the courts. Therefore, I support the amendment.
Lord Fraser of Carmyllie: I have listened carefully to what has been said about the need to introduce compulsory registration under the Social Work (Scotland) Act 1968 for both grant-aided and independent schools which provide a measure of care. I agree that there will be circumstances where independent schools should be registered under the 1968 Act but this amendment takes that rather too far. The extent to which a school provides personal care and support would be irrelevant. The amendment would require all schools, I emphasise all schools, to be registered under both the 1968 Act and the Education (Scotland) Act 1980.
I am bound to say that it is very difficult to justify extending compulsory registration in the way proposed. It would place too heavy a burden on the schools. It would be over-bureaucratic and would carry serious resource implications for local authorities. For schools providing no social care and support the whole process would have no practical value at all. I believe that what we have in the Bill as drafted strikes the right balance. We require registration of residential grant-aided and independent schools, the whole or a substantial part of whose function is to provide personal care and support, and we allow the voluntary registration of other schools. With that explanation of why I consider that the amendment goes too far, I hope that the noble Earl will
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withdraw it.
A number of other observations were made. The noble Earl, Lord Balfour, is perhaps aware of the provision to which we shall shortly be coming in Clause 31. It has regard to the welfare of children and young persons in residential accommodation within a school. That is the more appropriate point at which his concerns can be registered.
Lord Macaulay of Bragar: Before the Minister sits down, does he make a distinction between a grant-aided school and an independent school for the purposes of the proposition which he has just advanced to the Committee?
Lord Fraser of Carmyllie: Not at all. What I have indicated is that this is a clear alternative as the drafting says,
"a grant-aided or independent school".
The difficulty here, as I am explaining, is that all schools, grant-aided and/or independent, whether or not they provided any degree of social care, would be required to register if this amendment were to be carried. I understand why it is desirable for some where that care is being provided, but that is not the effect of the amendment.
The Earl of Mar and Kellie: This is a children's Bill, and we are considering the fate of children who arc committed to something that a sociologist would describe as a total institution. For eight months of the year, the child is totally within the bounds of the private school. I reflect on my own prep school in Scotland where we rarely ever came out of the area within the walls, though I may say that they were not that close. However, it was a total institution. I wonder therefore how it can be said that such a school did not supply a social care. It certainly supplied education but it also supplied care because it was looking after us.
By not having a registration scheme, I fear that people may get the message that using an independent school means that the parent perhaps wants different standards for the child. One of the reasons why I wish to see a registration scheme is just to prove that that docs not happen.
Lord Fraser of Carmyllie: I draw the noble Earl's attention and also that of the noble Earl, Lord Balfour, sitting next to him, to this fact. Clause 31 relates to schools which have to be registered under the Education (Scotland) Act. If I advance towards Clause 31, this provision seeks to ensure that in that context the inspectors of schools will have a duty to have regard—first to ensuring that the authority, the managers in question, fulfil their duty to safeguard and promote the welfare of the child. If accepted, the provisions would mean that the noble Earl, as a prep school boy, would know that someone was promoting and having regard to his welfare. When Her Majesty's inspectors of schools tarry out their inspection under Section 66 of the 1980 Act, this provision would mean that they shall have a power to inspect the place to determine whether the welfare of that prep school boy is being adequately safeguarded and promoted there.
I do not disagree that it is desirable to have a degree

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of safeguarding and promotion of such welfare, but that seems to me the appropriate arrangement and not to provide for an unnecessary duality of registration and inspection.
The Earl of Mar and Kellie: I thank the noble and learned Lord for the distinction, and since we seem to be tangled up with the next amendment, I beg leave to withdraw this one.
Amendment, by leave, withdrawn.
Clause 30 agreed to.
Clause 31 [Welfare of children in accommodation provided for purposes of school attendance]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 94:
Page 23, line 40, leave out from ("accommodated") to end of line 43 and insert—
("() The local authority of the area where the accommodation is provided—

(a) shall take such steps as are reasonably practicable at annual intervals to enable them to determine whether the child's welfare is adequately safeguarded and promoted while he is accommodated by the school; and

(b) shall, where they are of the opinion that there has been a failure to comply with the duty to ensure a child's welfare is adequately safeguarded and promoted while he is accommodated by the school within their area, they shall notify the Secretary of State.

() Any person authorised by a local authority may, for the purpose of enabling the authority to discharge their duty under this section (provision of accommodation), enter at any reasonable time any school within their area which provides accommodation for any child.".).
The noble Earl said: As has already been mentioned, this amendment concerns itself with the inspection of residential accommodation provided for school attendance. The Bill amends Section 125 of the Education (Scotland) Act 1980, and says that the owners and operators of all schools providing accommodation,
"shall have the duty to safeguard and promote the welfare of the child or young person while he is so accommodated".
The Bill goes on to provide that there will be powers of inspection to ensure that this duty is being carried out. I understand that inspections are already taking place, but that on average those are being achieved on a quinquennial basis. As a lot of change can occur in a short time, inspection on a five-year basis is barely adequate.
The amendment lays down that the inspection shall be on an annual basis. The local authority will inspect the school each year. The local authority will have the power to report the school to the Secretary of State if the local authority believes there has been a failure to safeguard the child's welfare. The local authority would have the power to enter the school at any reasonable time to inspect the accommodation and to establish that the children's welfare is being satisfactorily, safeguarded.
The amendment would ensure that all children are subject to the same standards of care, irrespective of the type of education selected for them by their parents. I beg to move.
The Earl of Balfour: I feel that using the words "annual intervals" may be defeating a lot of the object that the noble Earl, Lord Mar and Kellie, has in mind. Perhaps I may draw your Lordships' attention to the bottom of page 22, where we have within the Bill the proposed new Section 67:
"A person duly authorised by a local authority may in the area of that authority, at all reasonable times, enter",
so he can inspect as and when required and not on an annual basis.
I also feel to a great extent that what the noble Earl is saying is covered within the proposed new Section 67 and also in the proposed new Section 125A under Clause 31 which deals with the accommodation side. I do not think the amendment is necessary.
4.15 p.m.
Lord Macaulay of Bragar: In the light of what the noble Earl has just said, if I may say, with respect, he missed out an important part of new Section 67(1), which is that:
"A person … may … at all reasonable times, enter, for a relevant purpose".
When we look at the definition of a relevant purpose on the next page in subsection (2) we go back to the question of the rights of the children. New Section 67(2)(a) states:
"the purpose of making such examinations into the state and management of the establishment or place, and the condition and treatment of the person in it, as the person so authorised thinks necessary".
Those words might, in a broad scale of events, cover what the noble Earl, Lord Mar and Kellie, raised—the question of access by children to people who enter for a relevant purpose. The interests of the children do not seem to be specifically covered by that definition of a relevant purpose. It may be that at Report stage we should look at the definition of "relevant purpose" and perhaps include any person who enters the premises at any time to receive complaints from any person within the establishment, including a child. I may be misreading it, but it is quite an important point.
As I have said repeatedly, the theme of the Bill is children. Sometimes the children disappear out of the scene altogether and it becomes an administrative convenience as opposed to looking after the rights of children. That may have consequences in years to come in the European sector.
Lady Saltoun of Abernethy: There is just one thing I want to say about these amendments. Sometimes you would think that we are talking not about children but about angels. All children are not little angels. Children go to school and find that they do not like the food. They find the accommodation is not anything like they have been accustomed to. I certainly did when I was at school, and I was educated in what nowadays would be considered to be slum conditions. But it did not do me any harm. And it does not do an awful lot of them any harm. You have to be very careful about encouraging children to grumble and complain and to continually think they are being unfairly treated and hard done by. I just want to make that point.
Lord Macaulay of Bragar: I doubt if any member of your Lordships Committee would claim to have been an angel when they were growing up.
Lord Fraser of Carmyllie: I reiterate what I said in relation to the previous amendment. We have two separate sets of arrangements here, some of them falling under the Social Work (Scotland) Act 1968 and some of them falling under the Education (Scotland) Act 1980. This amendment would alter the proposed Section 125A in Clause 31, amending the Education (Scotland) Act 1980.
There have been new arrangements applied in relation to the whole passage of this legislation. When the Standing Committee of another place met on 13 February in Edinburgh, I gave evidence, to it. I explained in response to a question from the hon. Member for Edinburgh Leith that I was anxious to avoid having unnecessarily bureaucratic arrangements for the inspection of schools to ensure that the welfare of residential pupils was being safeguarded and promoted. There is no doubt about the desirability of ensuring the promotion and safeguarding of that welfare, but we wish to avoid anything that is unnecessarily cumbersome and bureaucratic. I hope I can assure the Committee that Clause 31 as it stands will ensure that the new welfare duty is regularly and thoroughly inspected to ensure that it is being complied with.
It is envisaged that HM inspectors of schools would undertake the inspection of the welfare of residential pupils with input as appropriate from the social work services inspectorate at the Scottish Office. The two inspectorates co-operate now and they will continue to do so. Indeed, a number of your Lordships will possibly recollect that Her Majesty's inspectors were recently commended publicly for their speedy and positive response to certain welfare matters at the Camphill Rudolf Steiner school in Aberdeen, and that work was undertaken with considerable support from the social work services inspectorate at the Scottish Office. We envisage that inspections of welfare provisions for residential pupils would be led by Her Majesty's inspectors of schools, in close association with the social work services inspectorate.
But I do not feel that it is possible to lay down firm operational guidelines dictating precisely the role of each inspectorate. Much would depend on the circumstances at the individual schools and the background to particular inspections. Her Majesty's inspectors have a rota of general inspections of all schools and, as at present, welfare matters would be a specific and significant element of such general inspections. The Clause 31 provision will give this added focus. In addition, a welfare inspection may be considered appropriate should a school wish, for example, to expand its residential provision or to make some change which would have an impact on its optimum role.
An inspection may also be necessary should a school be the subject of a complaint to the Secretary of State as regards its welfare provision. I hope that the noble Earl, Lord Balfour, is reassured by that. Dependent on
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whether specific concerns are identified in the preparation for an inspection or during the actual welfare inspection of a school, a greater involvement by the social work services inspectors may be appropriate. What I can assure the Committee is that there will be close association in the planning and conduct of these welfare inspections.
I note that the noble Earl has a particular concern about the frequency of inspections to ensure compliance. We propose that a maximum interval between such welfare inspections should be five years, but within that period there would also be scope for additional inspections, should that be appropriate, for the reasons I just outlined. We consider this to be both a reasonable and manageable frequency when added to the other contacts which Her Majesty's inspectors have with these schools.
Having separated out the two sets of provisions and given those reassurances, I hope that the noble Earl will be satisfied that we share his real concern for the welfare of children. We hope that the arrangements for inspection that we now provide will adequately safeguard and promote them.
The Earl of Mar and Kellie: I thank the noble and learned Lord for his reply. I was suggesting that the social work department should have a power to report an incident to the Secretary of State. What I have learned is that at present anyone could lay a complaint to the Secretary of State if they so wished, and the complaint would be investigated by Her Majesty's inspectors. I am certainly grateful for that information. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clauses 32 and 33 agreed to.
Clause 34 [Short-term refuges for children at risk of harm]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 95:
Page 25, line 1, after ("child") insert ("seeking refuge").
The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 96 and 101. Amendment No. 95, which is in my name, and Amendment No. 101, which is in the name of the Minister, meet the same response to some extent. With the insertion of the words proposed the clause would read:
"(1) Where a child seeking refuge appears—
(a) to a local authority to be at risk of harm, they may at the child's request".
I accept that the Government have accepted that as being a reasonable way of looking at it.
The purpose is to make sure that the child can go physically to the local authority. At the moment it is open to interpret "at the child's request" that the child might have to go to see a solicitor, for example, whereas we know that the reality of life is that children do run away from home; that they arc put on to the streets. The Minister was talking about it earlier—or perhaps it was the noble Earl, Lord Mar and Kellie. People have

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nowhere to go. The reasoning behind inserting the words "seeking refuge" is to ensure that any child can go to a local authority at any time, without having to go to anyone else, and can walk through the front door of a local authority building and say "I have just been abused by my father" or "I have just been struck by my mother" or whatever the case may be, and the local authority will then look after that child without going through any formalities.
On that basis, and with thanks to the Minister for accepting the "at the child's request" part, I hope that the amendment might find some favour with the Government if the point is appreciated, as I am sure that it is.
The Earl of Lindsay: In responding to Amendment No. 95 which was moved by the noble Lord, Lord Macaulay, I shall speak also to government Amendments Nos. 96 and 101. At the outset, I assure the noble Lord that any child can indeed go directly and physically to a local authority and does not have to go through or via any other party.
The amendments seek to make it quite clear that refuge can be offered to a child only when the child so seeks it. There is no question of children being offered refuge as a fast track into residential accommodation, or as a way of enabling a local authority to look after a child. Refuge is very specifically a short-term provision which is made available to a child to help him or her over a period of particular problems or difficulties when the child would otherwise be at risk of harm. The initiative for seeking refuge must, therefore, lie with the child and the provisions make that clear. Government Amendment No. 96 has the same effect as Amendment No. 95 and I therefore invite the noble Lord to withdraw his amendment in the interests of consistency of terminology. In due course I shall move Amendments Nos. 96 and 101.
Lord Macaulay of Bragar: I am grateful for that reply and in the circumstances, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 96:
Page 25, line 2, after ("may") insert ("at the child's request").
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 97:
Page 25, line 3, at end insert ("both").
The noble Earl said: With the permission of the Committee it might be helpful if I could speak also to Amendments Nos. 98, 99 and 104. This group of amendments serves an important function. They amend the refuge provision to limit the local authority residential establishments which may operate as refuges to those specifically designated for that purpose.
As your Lordships know, we see refuges as offering a high quality specialised service for a limited period of time for those children who are at risk. We do not expect all residential establishments to be able to accommodate children who might normally be expected to need refuges because of their particularly pressing problems. Therefore, we believe it important that refuges should be carefully selected in advance and staffed appropriately.
The amendments achieve that end. I beg to move.
Baroness Faithfull: May I ask my noble friend the Minister for guidance? For how long would those children be allowed to remain in the refuge? As I understand it, it can be from seven up to a maximum of 14 days. I wonder whether that is an adequate length of time and whether it should not be 14 days to 21 days. If one has a very difficult child with difficult home circumstances, perhaps not living in the area where the child presents itself, the assessment does take time. I am wondering whether the question of timing should be dealt with in regulations or specified here.
The Earl of Lindsay: As the noble Baroness has noticed, the normal timing involved in such cases is that the child should be able to stay in the refuge for seven days and, in exceptional circumstances with permission from the Secretary of State, that can be extended to 14 days.
The important point to make is that the refuges offer instant and expert shelters for children in emergencies. The intention is that the staff in such refuges should be able to relate quickly to such children, get to the root cause of their problems and ensure that appropriate long-term arrangements can be made.
One problem in extending the timing is that you make these refuges less flexible as you begin to clog up their resources. It would be rather similar to patients being allowed to stay in a casualty ward for longer than they need before being directed on to the right service. The importance is that those facilities should be ready to receive at all times. Therefore, children should be cleared on as soon as possible.
Baroness Faithfull: I thank the Minister for his reply, but having had to assess these children myself, I know that it is sometimes very difficult to do so within 14 days. In a very few cases, one sometimes needs 21 days, particularly if the parents cannot be found.
The Earl of Lindsay: I would add that the children in these refuges can be referred to the children's reporter. So there is a facility to continue considering all the circumstances of the case.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 98 and 99:
Page 25, line 4, after ("them") insert ("and designated by them for the purposes of this paragraph").
Page 25, line 8, at end insert ("and is designated by them for the purposes of this paragraph,").
On Question, amendments agreed to.
4.30 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 100:
Page 25. leave out line 10.
The noble Lord said: Amendment No. 100 is grouped with Amendments Nos. 102, 106 and 108. It is an attempt to bring before the Committee the time period which was raised by the noble Baroness, Lady Faithfull. The purpose of the amendment is to get more flexibility

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into the system. In particular, looking at Clause 34(5) on page 26 of the Bill,
"References in this section to the relevant period shall be construed as references either to a period which does not exceed seven days or, in such exceptional circumstances as the Secretary of State may prescribe, to a period which does not exceed fourteen days."
In dealing with these matters, flexibility and time is of the essence. On the other hand, unnecessary detention of a child is at the opposite end of the scale. As I understand it, in the Children Act 1989 relating to England the flexibility area is 14 to 21 days. For consistency within the United Kingdom I cannot see why north of the Border should have flexibility between seven and 14 days while south of the Border it is 14 to 21 days. The Government might wish to reconsider the matter and see whether consistency should be the order of the day.
The Earl of Lindsay: I appreciate the reasoning behind the amendments proposed by the noble Lord, Lord Macaulay. I would question whether they are appropriate and particularly so if they are proposed solely on the grounds of consistency. I am sure the noble Lord will understand that there are plenty of occasions where Scottish statutory legislation should specifically reflect Scottish circumstances.
I think it important to recall the provisions elsewhere in the Bill—particularly for child protection orders and exclusion orders—which confer powers to safeguard children in danger of significant harm. However, a small number of children run away from home, from foster carers or from residential care. In doing so they may put themselves at risk. We propose to empower local authorities to designate short-term refuges to meet the immediate care needs of runaway children. These should provide the opportunity for them to receive counselling with support to discuss their longer-term needs. Refuges are therefore deliberately designed to meet a short-term need.
Refuges are afforded a special status in the Bill by virtue of their nature. Should the strict time limits attached to the maximum period of residence in such establishments be removed it would inevitably bring with it a far greater degree of regulation and prescription than applies at present. This would undermine the special role and effectiveness of refuges.
I would also refer the noble Lord to the response which I gave to my noble friend Lady Faithfull. It is important that refuges react and respond to the children who come to them as quickly as possible, if for no other reason than they can then clear their facilities for further children who might be on their way to them.
On that basis, I ask the noble Lord to withdraw his amendment.
Lord Macaulay of Bragar: I am grateful for that very expansive explanation of the Government's reasoning, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 101:
Page 25, line 16. after ("may") insert ("at the child's request").
The noble Earl said: I spoke to this amendment when
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I moved Amendment No. 96. I beg to move.
On Question, amendment agreed to.
[Amendment No. 102 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 103:
Page 25, line 21. at end insert—
("(c) to any person to be at risk of harm, that person may, with the child's consent, keep him there subject to immediate notification to the Principal Reporter and the Principal Reporter, on receipt of the notification, may—

(i) if he considers that the child does not require refuge, direct that the protection afforded by subsection (3) of this section cease forthwith;

(ii) direct that the protection afforded by subsection (3) of this section be extended to a total maximum period of eight working days, to cease upon the commencement of a children's hearing in terms of section 60(2) of this Act; or

(iii) assist the child in taking advantage of the provisions of paragraphs (a) and (b) of this subsection by the provision of advice and practical assistance, and prescribe the time at which the protection afforded by subsection (3) of this section shall cease to have effect in response of the person making the notification;

and where the Principal Reporter decides in accordance with sub-paragraph (ii), he may refer the case to the children's hearing in terms of section 60(1) of this Act, and section 60(2) shall apply as if a child protection order has been implemented on the day on which the child took refuge; provided that the Principal Reporter may at any time before the commencement of a children's hearing arranged under section 60(2) of (his Act substitute a direction under sub-paragraph (i) for his direction under sub-paragraph (ii).").
The noble Lord said: This amendment is grouped with Amendment No. 105. There is a slight defect in its framing. On page 25, line 33, the words "the procedure whereby any person may be prohibited from giving refuge" should be there, otherwise it does not fit. However, that is a minor matter which can no doubt be corrected.
The main amendment is Amendment No. 103, which brings into the picture of the child's welfare the role of the principal reporter, so that the child in a short-term refuge has someone to go to. Informing the principal reporter means that he can take an active part in investigating why the child is in a refuge and what steps should be taken, and indeed gives him power to direct that the child should be released.
It is a very comprehensive amendment, but it is important in that it gives a safeguard to the child who is in the short-term refuge—whatever "short-term" means—that there is someone who will take an active role in looking after the child's welfare and make recommendations which he would be entitled to do in terms of this amendment.
I hope that the amendment commends itself to the Government; perhaps not in the precise wording in which it is framed, but I hope that the principle is acceptable and that they can consider it again at Report stage.
The Earl of Lindsay: We have considered very carefully these comprehensive amendments to the clause. It is worthwhile reflecting on the background to Clause 34. Its genesis is in part the Children Act 1989, which included refuge provisions because of concern

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expressed by voluntary agencies working in the centre of London with homeless young people, many of whom had run away from residential care or supervision. Indeed, many of these young people had come from Scotland.
The organisations which offered accommodation to any of these young people who were under supervision requirements were at risk of falling foul of the law. Harbouring such children is illegal. I think that it is fair to say that the original intention was as much to safeguard organisations as to allow specifically for the creation of refuges.
As time moved on, the concept of a refuge to which children could turn when they faced particular difficulties had a considerable attraction in its own right. Such a place, however, could not be seen as other than a temporary step-over, aimed at allowing the children involved to get help with the problems they faced.
We therefore see refuges as being rather special in the field of childcare. Ideally, their staff should include workers who are able to get quickly to the root cause of the children's problems, to help any given child face up to his difficulties and to work with colleagues to ensure that the child is brought back into mainstream services as quickly as possible. Those are heavy demands and suggest a high level of skill. Indeed, my noble friend, Lady Faithfull has already referred to that.
The noble Lord's amendment appears to shift the balance away from a limited number of approved refuges or foster parents to allow any person irrespective of qualification to provide refuge for a child. The noble Lord's paragraph (c) includes safeguards to the extent that the child should be allowed to stay only if he consents, and the principal reporter has to be informed, so I must question whether we really want to introduce such a general power. We have considered the amendments carefully, but, on the basis of the explanation that I have given, I hope that the noble Lord will feel able to withdraw his amendment.
The Earl of Mar and Kellie: Before the Minister sits down, I must admit that I had the idea that a refuge was somewhere that the child would determine; for example, the child may find home impossible and go to his grandmother's house. Does notification by the grandmother of the fact that she is looking after the child mean that the grandmother's home would constitute a refuge?
The Earl of Lindsay: In the instances described by the noble Earl, the answer is yes, if the child is already subject to compulsory supervision.
Lady Saltoun of Abernethy: What if the child is not yet subject to temporary supervision? If the child has simply run away from home, what is the system?
The Earl of Lindsay: I was perhaps unclear. It is an offence, if the child is already subject to compulsory supervision, and not otherwise.
Lord Macaulay of Bragar: I listened with some interest to what the noble Earl said in response to Amendments Nos. 103 and 105. I wonder whether the
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Government have had any consultations with the Association of Children's Reporters in Scotland to see whether this amendment might commend itself to them? Will the Government perhaps take the opportunity of entering into consultation with the Association of Children's Reporters to see whether it thinks this would be an additional safeguard to the welfare of the children? If the reporters come back with a negative answer then that may be the end of the matter, but it would be interesting if the Minister could take it up with the reporters and perhaps write to me on the subject before the Report stage of the Bill. In the meantime, having raised the issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 104:
Page 25, line 22, at end insert—
("( ) designation, for the purposes of paragraph (a) of subsection (1) above, of establishments and households;").
The noble Earl said: I spoke to Amendment No. 104 when I moved Amendment No. 97. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 105 and 106 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 107:
Page 25, line 43, leave out ("sections 75 and") and insert ("section").
The noble Earl said: The amendment relates to the deletion of a reference to Clause 75. This sets out the offence provisions in respect of a person who intentionally obstructs a person or a constable acting under various provisions of the Bill. We have to acknowledge that some children seeking refuge may well be running away from a supervision requirement or from some other form of appropriate intervention in their lives. In such circumstances the workers involved will not necessarily know the full background, and consequently their ability to help the children face up to the situation will be limited.
Initial security for the child will have a key part to play, but ultimately if people are acting under the provisions listed in Clause 75, there should be no question of the person running the refuge concealing the child or obstructing constables or persons exercising their duties. The amendment simply ensures that refuges, despite the difficulties, work within the general framework of the law. I beg to move.
On Question, amendment agreed to.
4.45 p.m.
[Amendment No. 108 not moved.]
Clause 34, as amended, agreed to.
Clauses 35 and 36 agreed to.
Clause 37 [Safeguarding child's interests in proceedings]:
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 109:
Page 27. line 8, leave nut ("Subject to subsection (2) below").
The noble Lady said: Amendment No. 109 is consequential on Amendment No. 112. The deletion of Clause 37(2) would allow for a safeguarder to be

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appointed at the time when a child protection order is being considered. When an emergency child protection order occurs, children often feel afraid, vulnerable and guilty, all at the same time. To deprive them of the opportunity to have someone who is specifically allocated to them in order to protect their interests and to listen to their views is not kind. Children need support at this very difficult time. The amendment would require the sheriff to consider providing that support at the same time or immediately after he considers the emergency protection order.
If safeguarders had been appointed to the children in the Orkney abuse cases at the time of issuing the emergency protection orders the damage to the children might have been greatly reduced.
Amendment No. 111 is an extension of the proposed government Amendment No. 113 requiring the sheriff to specify in writing the reasons not only why he has appointed a safeguarder, if he has, but also the reasons why he has not appointed a safeguarder if he has not. The government amendment requires him to give the reasons why he has appointed a safeguarder if he has.
In another place, much was made of the idea that requiring the sheriff to appoint a safeguarder would somehow delay the making of the emergency protection order. I simply cannot understand this because it seems to me that you make the emergency protection order first and as soon as possible afterwards you appoint the safeguarder. I beg to move.
Lord Fraser of Carmyllie: I sympathise with the intention behind Amendments Nos. 109 and 112 but doubt if in practice they would have the desired effect. Child protection orders are indeed to be granted in emergency situations and there ought not to be any scope for postponing the making of such an order until a safeguarder can be appointed, make the necessary investigations and report back to the court. That is the part of it which would bring about the delay which would be undesirable.
What I would emphasise, though, is that the child's case will, after the making of any child protection order, very soon come before a children's hearing which is empowered to appoint its own safeguarder from a panel of persons who will be trained for that specific purpose. In addition, the sheriff, soon after receiving an application to set aside or recall a child protection order, may appoint a safeguarder. As the noble Lady will recollect from earlier discussions of the Bill, there are two routes that can be followed through once a child protection order has been granted. If one follows either of those routes very quickly after the granting of it in emergency circumstances, a safeguarder can be appointed. There is provision for the appointment of a safeguarder as soon as the sheriff or the hearing sees a role for the safeguarder. The child's welfare will be adequately safeguarded by the existing provisions and, accordingly, the amendment is unnecessary.
Amendment No. 111 will indeed go further than government Amendments Nos. 113 to 115 in that it would require a children's hearing to state the reasons for a safeguarder not being appointed. Again, I recognise the intention behind the amendment. I can
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foresee real difficulties of implementation.
The decision to appoint a safeguarder should not be a matter solely restricted to the first sitting of a hearing. It should be an ongoing consideration in the light of the changing circumstances of the case. It would therefore be unrealistic to envisage the decision not to appoint as occurring at any particular time. Indeed, it might have the undesirable effect of inhibiting the hearing making such an appointment subsequently.
Under the provisions of the Bill, a children's hearing must consider whether a safeguarder should be appointed. It is felt that where the hearing decides to follow that course of action its reasons for so doing should be stated in writing. As the noble Lady appreciates, government Amendments Nos. 113 to 115 make such provision.
I shall be moving those amendments but, for the reasons given, I hope that the noble Lady will feel she can withdraw her amendment.
Baroness Faithfull: Before the noble and learned Lord sits down, may I ask what type of person the safeguarder will be? Will it be a guardian ad litem, a trained person, or just someone who is friendly?
Lord Fraser of Carmyllie: I certainly hope it will be the latter.
Baroness Faithfull: Just friendly?
Lord Fraser of Carmyllie: No, it would be more than friendly. I would certainly wish to indicate that one of the desirable features is that the safeguarder should be appointed from a group who are trained and who understand what is required. My noble friend Lady Faithfull has raised an important point. There may be circumstances where what is coining before the courts is such that the appointment of a curator ad litem might be the appropriate way to deal with such a matter.
Lady Saltoun of Abernethy: I am very grateful to the noble and learned Lord for that explanation. Can he say how soon he would expect the hearing to take place?
Lord Fraser of Carmyllie: The hearing has to take place within two days, if you are following the route which many of us hope will be followed after the making of such an order. But on the alternative line. which is described as the more traditional judicial route, I cannot give a direct answer to the question because it would depend upon the sheriff knowing that the application had been made to him to vary or recall the child protection order. Such an application could, of course, be made almost immediately after the initial granting of the order.
Lady Saltoun of Abernethy: I am very grateful to the noble and learned Lord for that explanation and I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 110:
Page 27, line 11, after ("is") insert ("reasonable, appropriate or").
The noble Lord said: This is a very short amendment but it may be regarded as being tautology or semantics.

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or whatever the appropriate word is. It is to insert into the safeguarding of children's interests and proceedings, that the sheriff of the hearing shall consider it, as the Bill reads at the moment at Clause 37(1)(a):
"shall consider if it is necessary to appoint a person to safeguard the interests of the child"
This amendment proposes to insert the words "reasonable, appropriate or" before the word "necessary". This would give the person making the decision a wider discretion, because what is necessary might be appropriate but what is appropriate might not be necessary; indeed, what is reasonable might not be necessary in the particular circumstances. So, although in the course of yesterday's hearing I raised this stage of it, the Committee complained about unenforceable or unintelligible pieces of legislation being forced upon the courts, and people have to make these very important decisions in the life of a child. The word "necessary" is too restrictive and perhaps the Government would like to consider widening the scope of discretion given to the person making the decision by saying that it is "reasonable, appropriate or necessary". That opens all doors to take into account everything that is presented to the person making the decision. As long as the person is restricted by the word "necessary", we can see all the legal arguments. It might be fun for lawyers but not much fun for the child. If we expand it to "necessary, reasonable or appropriate", perhaps we shall be doing justice to all concerned and cutting down the legal process which might follow on the definition of the word "necessary" in particular circumstances.
Lord Fraser of Carmyllie: The noble Lord has accurately anticipated my response. I believe that both "reasonable" and "appropriate" are contained within "necessary"; or, to put it the other way round, I find it difficult to envisage circumstances where something was unreasonable and inappropriate but might be necessary, which is what his alternatives would allow for. For the sake of simplicity, I think we should just stick with the one word "necessary". I am sure that in the context of it any sheriff having to apply his mind to this issue would identify the circumstances in which appointment of a safeguarder would be desirable.
Lord Macaulay of Bragar: That is a very interesting exercise in the use of various words. I suppose I could say that government is necessary but that this Government are not reasonable! Indeed, I would even go to the third option and say they are not even appropriate. With that side observation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 111 and 112 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 113 to 115:
Page 27, line 16, at end insert—
("(2A) Where a children's hearing make an appointment under subsection (1) (b) above, they shall state the reasons for their decision to make that appointment.").
Page 27, line 25, leave out ("and").
Page 27, line 27, at end insert ("; and
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( ) the recording in writing of any statement given under subsection (2A) above.").
The noble and learned Lord said: In responding to Amendments Nos. 111 and 112 I spoke also to Amendments Nos. 113 to 115. I beg to move.
On Question, amendments agreed to.
Clause 37, as amended, agreed to.
Clause 38 [Power of Secretary of State to make rules governing procedure at children's hearing etc.]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 116:
Page 28, line 15, at end insert—
("( ) the making available by the Principal Reporter, subject to such conditions as may be specified in the rules, of reports or information received by him to—

(i) members of the children's hearing;

(ii) the child concerned;

(iii) any relevant person; and

(iv) any other person or class of persons so specified;").

The noble and learned Lord said: Under the current provision in relation to children's hearings, the child and parents are not allowed sight of any reports which may have been provided to panel members conducting the children's hearing. It is the duty of the chairman of the panel to advise the family of the substance of any report which may be referred to by the hearing when considering the case. This amendment to Clause 38 indicates that the rules regarding the conduct of proceedings at and in connection with children's hearings may make provision for the issue of reports by the principal reporter to persons specified. I beg to move.
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 agreed to.
Clause 40 [Prohibition of publication of proceedings at children's hearing]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 117:
Page 29, line 28, leave out subsection (5).
The noble Lord said: Amendments Nos. 117 and 118 relate to the prohibition of publication of proceedings at children's hearings. I think Amendments Nos. 118 and 119 are rather redundant because Amendment No. 117 seeks to leave out subsection (5) altogether. It would appear that the whole purpose behind children's hearings is to give the child the anonymity and the care of the children's hearings proceedings. To give these powers to the sheriffs and the courts would be going contrary to the spirit of the children's hearing system in Scotland.
I could go on at some length about it but that is the basic point behind the amendment. I beg to move.
5 p.m.
The Deputy Chairman of Committees: I should warn the Committee that if Amendment No. 117 is agreed to, I shall not be able to call Amendments Nos. 118 and 119.
The Earl of Lindsay: As the noble Lord, Lord
Macaulay of Bragar, has explained, Amendment No. 117 seeks to remove from all of the sheriffs, the Court of Session and the Secretary of State the power to dispense with the prohibition on publication contained in this clause.
A dispensing power is necessary to provide for exceptional cases in the interests of justice—and I stress that it is exceptional cases that we are dealing with in the interests of justice. The 1968 Act already provides a general dispensing power for the Secretary of State. That comes in Section 58. The Children Act 1989 provides a similar power for both the court and the Secretary of State.
Amendment No. 118 seeks to remove the dispensing power from the sheriff and the Court of Session in respect of proceedings before them. That means that there would be no dispensing power in either the sheriff court or the Court of Session, but the Secretary of State would still be able to dispense with the prohibition in relation to any proceedings at a children's hearing. If it is accepted in principle that a dispensing power is required, one should be available in relation to proceedings, both before the sheriff and the Court of Session.
Amendment No. 119 seeks to remove the power to dispense with the prohibition from the Secretary of State in relation to proceedings at children's hearings. That would mean that only the sheriff and the Court of Session could dispense with the prohibition in respect of any proceedings being considered by them. The Secretary of State would not be able to do so in respect of children's hearings proceedings. For the same reasons as previously stated, if there is to be a power for dispensing with the prohibition, that should be extended to the Secretary of State in relation to any proceedings relating to children's hearings as well as the power which is granted to the court. On the basis of the explanation that I have given, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Macaulay of Bragar: It is interesting to hear that the Secretary of State does have dispensing power, if that is the correct phrase. I wonder whether there are any figures to show how often the Secretary of State has actually used that power in the past five years, for example. Perhaps the Minister will write to me in due course. Subject to that query, I beg leave to withdraw the amendment.
The Earl of Lindsay: To save a letter, I can say that since 1968 the Secretary of State has not used that power of dispensation at all. He has received only one application.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 and 119 not moved.]
Clause 40 agreed to.
Clause 41 [Attendance of child and relevant person at children's hearing]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 120:
Page 29, line 40, after ("shall") insert ("have a right to attend and").
The noble Lord said: Three amendments run together, Amendments Nos. 120 to 122. I have had the opportunity
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to discuss them with the Minister and my understanding is that the Government will be taking this matter away to think about. I may be wrong, but that is my understanding. If that is so, I do not want to take up the Committee's time by addressing the reasons for the amendment.
The Earl of Lindsay: The noble Lord's amendments raise important points of principle. I shall give an explanation. Amendment No. 120 would confer on a child a right to attend his own hearing. This is entirely in line with the increasing emphasis on children's rights.
At present, under the provisions of the Social Work (Scotland) Act 1968, a child has an obligation to attend his own hearing but, unlike his parent, no statutory right to do so. It seems only just that the child should also have the right to attend his own hearing. The difficulties arise on Amendments Nos. 121 and 122 which would then give the hearing the power to remove that right and simply exclude the child without any safeguards.
I fully appreciate the reasons why the noble Lord has made provision for the exclusion of the child in order to protect him from information or situations which would be detrimental to his interests. However, a right to exclude would infringe the child's civil rights.
Although we are providing for the exclusion of the parent under Clause 42, that is only to enable the hearing to obtain the views of the child or to spare the child significant distress. Amendments Nos. 121 and 122 go much wider than that and I cannot advise noble Lords to accept them. I would, however, point out that the power of the hearing to proceed in the absence of the child, which is in the present legislation, would remain. That would allow hearings to proceed without the presence of very young children, such as babies, or young children who might be distressed significantly by the hearing.
I am grateful to the noble Lord for bringing forward these three amendments. We are agreed on the need to recognise the rights of the child and I would be willing to accept in principle Amendment No. 120, but not Amendments Nos. 121 and 122. On that basis, I should be grateful if the noble Lord would withdraw his amendment.
Lord Macaulay of Bragar: I will give some careful thought to what the Minister said. We all recognise that within the children's system of hearings we are dealing with a very delicate area of human relationships where children are perhaps not mature enough to understand what is going on, or even why they are there. I am grateful to the Minister for the co-operation the Government have given in accepting Amendment No. 120, and we will see what happens between now and the Report stage. We may, like General McArthur, come back again. I beg leave to withdraw the amendment on the basis that the Government are accepting the proposal.
Amendment, by leave, withdrawn.
[Amendments Nos. 121 and 122 not moved.]
Lady Saltoun of Abernethy: I thought that Amendment No. 120 had been accepted.
The Deputy Chairman of Committees (Lord Lyell): The amendment was withdrawn as the Minister indicated that the Government would take action. It was my

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understanding that all three amendments were withdrawn.
Clause 41 agreed to.
Clauses 42 to 44 agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved amendment No. 123:
After Clause 44, insert the following new Clause—
(".Sections 170 and 369 of the Criminal Procedure (Scotland) Act 1975 (age of criminal responsibility) shall be amended by substitution of the word "twelve" for the word "eight".").
The noble Lord said: This amendment is put forward with some degree of reservation because it is a very serious matter which has to be given very deep consideration. The amendment proposes that the age of criminal responsibility in Scotland should be raised from the age of eight to the age of 12. The purpose of the amendment is not that of responsibility, but the current theme throughout the Bill is the age of 12 and the proposal is to bring the age into line with the other provisions in the Bill.
I am not completely happy about the amendment as drafted, but I thought it right to move the amendment in order to give the Committee an opportunity to make its own observations.
In Scotland we have the youngest age of criminal responsibility in Europe. I am advised to that effect, and no doubt the Minister will correct me if I am wrong. There is a difficult balance to strike. I formally move the amendment without a great deal of conviction, but it will give the Committee the opportunity to put forward matters for consideration by the Government between now and the Report stage. I beg to move.
The Earl of Balfour: I do not want to interfere with what the noble Lord, Lord Macaulay of Bragar, has just said, but I thought that he was going to move it with Amendments Nos. 137 and 154. Is that right?
Lord Macaulay of Bragar: The other two amendments are consequential to the first one.
The Earl of Balfour: Then I suggest that if these amendments are to be considered, Amendment No. 123 should be put into Schedule 3, if it is go to into the Bill, and not go in as a fresh clause. It is basically an amendment to the Criminal Procedure (Scotland) Act 1975.
On Amendment No. 137, I just wonder in that sense, and considering Clause 48, whether the effect of this amendment would be to extend the power of the children's panel in any way? Also, Amendment No. 154 should read "section 48(2)(i) and (j)" because paragraph (j) brings in the drugs side of it. Looking at Clause 48, I felt that that was perhaps what was intended. I am sorry to be rather technical on this point, but it is something which I had time to look at this morning.
Lord Fraser of Carmyllie: These amendments have been moved by the noble Lord and it is not for me to correct them for him, but given the drafting victories already behind the noble Earl and, shall I say, the victories yet to come, I certainly advise the noble Lord, Lord Macaulay, to look at those points very carefully if
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he intends to return to the matter at a later stage.
As has been said, Amendment No. 123 raises an important issue. Perhaps I might take a moment or two to explain the thinking on it. It concerns the age of criminal responsibility which, as has been said, is eight in Scotland. The issue was fully considered by the Kilbrandon Report back in 1964, and I think it is worth quoting the conclusions of that committee on this issue. The report concluded:
"It is clear therefore that the 'age of criminal responsibility' is a largely meaningless term and …. essentially the expression of a practical working rule determining the cases in which a procedure which may result in punishment can be applied to juveniles".
In short, the Kilbrandon Committee took the view that it was pointless to debate the age at which a child could form criminal intent. What was important was what happened to the child in terms of procedure.
The committee then went on to recommend the establishment of children's panels which have had the effect of taking virtually all children out of the court system and dealing with them through a welfare-based system which is familiar to us all as the children's hearings system in Scotland. Under the present arrangements, no child below the age of eight can be prosecuted in the criminal courts for the commission of an offence; nor can any such child under eight be referred to a children's panel on the grounds simply that he or she has committed an offence. Any child of eight of over may be prosecuted or may be referred to a panel on the ground that he or she has committed an offence.
However, provision is made in Section 31 of the Social Work (Scotland) Act 1968, which will of course be retained, that no child may be prosecuted without the consent of the Lord Advocate.
The practical effect of a direction issued by the Lord Advocate is that virtually no child is prosecuted except those who have committed that most serious type of offence such as murder or rape. However, a child of 15 who has committed a motoring offence which might lead to disqualification may also be prosecuted as may children who have committed offences along with adults.
In practice, the prosecution of children under 12 years of age is very rare indeed. The majority of child offences are dealt with through the children's hearings system. In the past three years, the total number of children prosecuted in the courts under the age of 12 is likely to be in low single figures. Such cases involved the most serious offences and are very rare. Almost without exception, children under 12 are dealt with by the hearings.
There would, however, be major implications for the way in which we deal with young people if at one move we were to increase the age of criminal responsibility from eight to 12 as is proposed by this amendment. Would offences committed by this age group—those between the ages of eight and 12—he ignored entirely? If not, would they be dealt with as matters involving parental control and referral to the reporter under this ground of referral? In such cases, any proof hearing would be on the civil standard of proof. Would that mean less protection for the child offender? What

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messages would be sent to young people if the age of criminal responsibility were to be increased by four years? I invite your Lordships to bear in mind that some 13 per cent. of offence referrals to reporters are in respect of those who are under the age of 12.
Those are some of the major issues which would arise if such a change were to be made. I am grateful to the noble Lord for raising the matter and for the opportunity to spell out how difficult it may be.
As I have mentioned, the vast majority of children over eight and under 12 who commit offences are dealt with by the children's hearings. They do not come before the courts. Instead they come before a children's hearing which can look at the child's needs and take appropriate action.
With that explanation, I hope that the noble Lord will withdraw his amendment. As he has correctly said, the further amendments, Amendments Nos. 137 and 154, are effectively consequential on the raising of the age from eight to 12.
5.15 p.m.
Lord Macaulay of Bragar: I am obliged to the Minister for that full explanation. As I said when I introduced this amendment, it was tabled for discussion purposes in the meantime rather than as a positive amendment. It will be interesting to see, in the light of what the noble and learned Lord has said, what response we receive from the various people with an interest in these matters.
I am equally grateful to the noble Earl, Lord Balfour, for sorting me out on Amendment No. 154. He is known, as the Minister recognised, as a great scrutineer of Bills and amendments. I will look at that again.
I suppose to a certain extent we are lucky in Scotland with the children's hearing system: young people can be contained within the children's hearing system unless, as the Minister has already said, they commit some heinous offence such as murder or rape. With those observations, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Referral or remission to children's hearing On conviction]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 124:
Page 32. line 8, leave out from ("court") to ("shall") in line 10.
The noble Lord said: The effect of these amendments, Amendments Nos. 124 and 125, is to ensure that the courts of solemn and summary jurisdiction are obliged to obtain the advice of a children's hearing before disposing of a case brought against a child. The reasoning is that allowing the clause to stand as it is usurps the whole principle of the children's hearing system and overrides the system. The amendment was a probing amendment to see what the Government's view on this might be.
Lord Fraser of Carmyllie: Amendment No. 124 would make a referral to a children's hearing mandatory where any child is found guilty of an offence or pleads guilty to an offence under Section 173 of the Criminal
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Procedure (Scotland) Act 1975. In the light of the seriousness of an offence which merited a child appearing before the High Court under solemn procedure, it is questionable whether a children's hearing could always offer appropriate advice as to disposal. As we have just discussed, cases appearing before the High Court involving children and solemn procedure are likely to be of the most serious nature and, in many cases, will require a severe disposal.
Children's hearings might not be able to offer advice on disposals which would meet the gravity of the offence. It is for that reason that the High Court has given an option of referring the case to the principal reporter in order to have advice from a children's hearing, rather than making that mandatory. That would seem to be a more appropriate way of dealing with matters.
In relation to the amendment with which this is grouped, which I believe is Amendment No. 125, it would introduce a similar change in Section 372 of the 1975 Act. The noble Lord will appreciate that the High Court is not involved in such cases dealt with under summary procedure and the reference to it in this clause is accordingly incorrect. Amendment No. 126 rectifies that error, and in due course I shall move that amendment.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. I will have another look at these matters and in the meantime I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 126:
Page 32, line 40, leave out from ("case") to ("shall") in line 42.
The noble and learned Lord said: In speaking to Amendment No. 124 I spoke to Amendment No. 126. I beg to move.
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46 agreed to.
Clause 47 [Appeal against decision of children's hearing or sheriff]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 127:
Page 33. line 23, leave out from ("sheriff") to end of line 24.
The noble Earl said: This is a minor amendment. As currently drafted the provision repeats the Social Work (Scotland) Act 1968 that when an appeal is made to the sheriff against the decision of a children's hearing, the sheriff shall hear the reasons for the appeal. On further consideration this wording is not necessary and indeed could even be taken as a restriction on the sheriff's power to hear an appeal. The amendment ensures a provision that the sheriff shall simply hear the appeal. I urge noble Lords to accept this amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 128:
Page 33, line 29, at beginning insert ("The sheriff may, on appeal

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under subsection (1) above, hear evidence from, or on behalf of, the parties in relation to the decision; and, without prejudice to that generality—
(a)").
The noble Earl said: With the Committee's permission, I shall speak to Amendments Nos. 128 to 132 together. Amendments Nos. 128 and 130 to 132 make it clear that in an appeal the sheriff may hear evidence and otherwise restructure the subsection for clarity. Amendment No. 129 revises Clause 47(3) to make it clear that the intention is not for the principal reporter personally to be examined by the sheriff during his consideration of an appeal but the relevant reporter to the child's case. The term "principal reporter" is defined in Clause 84(1) and will include the reporter dealing with the case. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 129 to 132:
Page 33, line 29, leave out from ("Reporter") to ("may") in line 30.
Page 33, line 30, leave out (";and") and insert (";(b)").
Page 33, line 32, leave out ("and") and insert ("; and (c)").
Page 33. line 32, leave out ("the sheriff") and insert ("he").
The noble Earl said: I beg to move Amendments Nos. 129 to 132 en bloc.
On Question, amendments agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 133:
Page 34, line 3, leave out from ("case") to end of line 6.
The noble Lord said: This is an amendment to delete the power of the courts to substitute their own verdict for the disposal by a children's hearing. We have had an amendment moved by the noble Earl, Lord Lindsay, that the sheriff is entitled to hear additional evidence. No doubt Clause 53 is a reflection of the fact that the sheriff can reconsider the case in the light of additional evidence.
The reason for the amendment, as I have mentioned previously, is that the Bill seems to override the principle of the children's hearing system. If the sheriff has taken a view, having heard additional evidence, it might be more appropriate and within the spirit of the scheme if the sheriff were to make his findings of fact, report back to the children's hearing on what his findings are, and leave it to the children's hearing to dispose of the case rather than adopting what is included in the Bill.
That is the problem the amendment is intended to confront. I shall listen with interest to what the Minister has to say. I beg to move.
Baroness Faithfull: I speak with diffidence because I have not worked with the panel system. I have, however, visited three panels, one in Edinburgh and two in Glasgow. May I seek information from my noble and learned friend on this question? As I understand it, the panel system is the welfare system, whereas the sheriffs are the judicial system. If a case is referred to the sheriff, surely it is his business to see whether the law has been rightly carried out or whether there has been something
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left out from a legal point of view. The sheriff is not dealing with the welfare side. I have had representations made to me by chairmen of panels in Scotland who say that when a case goes to the sheriff he takes the judicial view but not the welfare view and that if a welfare view is to be considered it should be referred back to the panel.
I understand that any sheriff could deal with a matter, not really understanding or knowing the child care side. In England and Wales, we have the judicial studies board. Judges in England are instructed—if I can put it that way—or attend courses on child welfare. Is it not right that the case should be referred to the sheriff only on the judicial side but should be referred back to the panel if there is a welfare concept to be dealt with? I ask for further information.
The Earl of Mar and Kellie: I also ask how the sheriff would manage to come up with a different, or what presumably must be a better, decision without conducting a full hearing. I do not see how that could happen because I do not believe the sheriff court would have time effectively to reconvene a hearing in the sheriff court.
Lord Fraser of Carmyllie: Behind this relatively small amendment rests a very important point, one that I take very seriously. The amendment would remove the new power of a sheriff to substitute his own decision for that of a hearing. One of the main strengths of the children's hearings system is its informality. It is part of the welfare model, if that is the terminology you wish to use. But it does leave hearings' decisions open to the challenge that while a person's rights are being determined, and are determined, by it, it is not a judicial body following judicial procedure. This is a consideration that we are bound to take very seriously because of our obligations under the European Convention on Human Rights. We therefore see the need to provide for a wide range of disposals on appeal. Far from being an attempt in any way to weaken the children's hearings system in Scotland, our clear view is that this is a necessary provision to safeguard the position of the hearings system should challenge be laid to it in Strasbourg.
I understand that there may be those who have offered legal opinion to the opposite effect. If I am requested to, I can indicate in some detail why I consider that legal advice to be wrong. But I hope that what I have said is for present purposes sufficient. It is no part of my intention in bringing forward these proposals to attempt to destroy the children's panel system. On the contrary, I want to ensure that it is safeguarded, but we have to look very carefully at what arrangements we have in place in the light of the developing jurisprudence of the European Court in Strasbourg. It is with that in mind that this change is proposed.
I understand very clearly the kind of concern that the noble Earl has that the sheriff might find it difficult to get himself sufficiently advised in all cases to substitute a decision of his own. Nevertheless, if we are to safeguard the position and make sure that the judicial aspects of it are properly covered, this change should be made.
5.30 p.m.
Baroness Faithfull: Before the noble and learned Lord sits down, for information perhaps I may ask whether, if the case remains with the sheriffs, they simply make a legal decision or bring in people, relatives and others, as are brought in in the panel? Does he see a wide circle of people dealing with this case, as does the panel?
Lord Fraser of Carmyllie: I would envisage that if he were to substitute a decision of his own for that of the panel, he would do so after taking a clear and careful view of what was available and appropriate. It is important to recognise that he is a judicial figure and, if necessary, could substitute his own decision. How frequently that would be done, I do not know. In many respects I hope it is a substitution that occurs very seldom indeed, but we must at least leave that option open to the sheriff.
Lord Macaulay of Bragar: This provision raises a matter of some importance in the administration of justice in Scotland in relation to children. As I said initially, it seems to override the function of the children's hearing which has been expressed in the past. In answer to the noble Baroness, Lady Faithfull, the whole idea behind the Kilbrandon proposals, which set op the children's hearings, was that the children who were brought before them would be dealt with by a lay body. That is the essential commonsense feature of the children's hearing. That is what makes it so attractive to people in that the children and their parents can come before the panel and be dealt with in the light of admitted facts. The only judicial role up until now has been that the facts presented by the reporter against the child has been the reason why he or she was before the panel. These were then sent to the sheriff for a judicial decision on what facts he found proved and then he had certain powers. If he found the facts not proved, then that was the end of the case.
What seems to be happening here is that we are getting a two-track system of justice for children. I am not trying to excuse them in any way. People who do wrong obviously must be dealt with within the judicial system, but that is not the only thing the children's panel actually deals with.
It was said by the noble and learned lord, Lord Hope, in a case in 1991 that:
"The genius of the reform"—
referring to the Kilbrandon proposals which brought about the children's hearing—
"was that the responsibility for the consideration of measures to be applied was to lie with what was essentially a lay body, while disputed questions of fact as to the allegations made were to be resolved by the sheriff sitting in chambers as a court of law".
What is happening now appears to be that the sheriff can not only hear the appeal, but he can hear evidence and then make a decision which overrides it. As I read this clause, the children's panel will never hear about it again; it will not know what the sheriff has decided and it will have no jurisdiction to challenge it.
I have seen the legal opinion referred to by the noble and learned Lord. Unfortunately, it arrived on my desk
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by fax at about lunchtime so I have not had time to "digest" it, if I may use that word. If the Minister has indicated that he is quite happy to contradict the opinion which was given by the counsel consulted, it would certainly be of some value to those interested in this particular aspect of the administration of justice in Scotland if he were either to place a paper in the Library saying why he disagrees with the opinion or to write to me. Subject to that, I shall, of course, seek to withdraw the amendment.
Lord Fraser of Carmyllie: Before the noble Lord withdraws the amendment, it may be appropriate if I respond on this matter as it may mean that we need not return to it at a later stage.
Perhaps I may make this point first. It ought to be recalled that Lord Kilbrandon always envisaged that there would be a right of appeal to the sheriff against the decision of a hearing on the merits of a case. I repeat that we have given very careful consideration to this matter in the light of the requirements of the European convention. It is well established case law of the European Court of Human Rights that a procedure which does not comply in all respects with Article 6(1) of the convention can be regarded as consistent with the convention, provided that there is provision for subsequent full control over that procedure by an independent judicial body.
The sheriff court is considered to be a tribunal within the meaning of Article 6(1) for these purposes, and the new provision in the Bill is intended to provide the judicial control over decisions on civil rights required in terms of the convention—that is, in respect of decisions by children's hearings. We do, of course, consider children's hearings to be independent and impartial tribunals. However, procedures in children's hearings are not intended to comply with the requirements of Article 6(l) in all respects. For instance, there is not a legal chairman.
Our aim is to ensure a fair and, as the noble Lord has already indicated, a relatively informal tribunal, in which the views of the child can be heard and where decisions about his future can be taken in an informal atmosphere.
Perhaps I may comment briefly on the opinion which I understand is in the noble Lord's hands. It seems to me that it is to be questioned in a number of respects. First, while it notes the Commission's decision in the McMichael case, it does not take account of the Commission's view that a children's hearing could not be regarded as a tribunal for the purposes of Article 6(1); nor does it take account of the fact that the court decision in the McMichael case was given in February 1995. The status of children's hearings under Article 6, irrespective of the McMichael decision, is not given any proper consideration in the light of Article 6 requirements on the nature of a tribunal for the purposes of the article and the type of proceedings required before such a tribunal.
Finally, we consider that that opinion needs to be questioned as no account is taken of the well established jurisprudence of the court with regard to the acceptability of a procedure which does not comply with

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Article 6, where the proceedings viewed as a whole provide for subsequent determination of civil rights by the court which exercised full jurisdictional control over the prior procedure.
That may be somewhat technical for those who are not immediately familiar with Article 6, but it is important that no-one should be under any misapprehension about this. We are not trying in any way to do anything difficult or damaging to the children's hearing system, but we have to be very careful about how it is to be safeguarded in the context of our international obligations.
Lord Macaulay of Bragar: I was interested to hear that dissertion and I shall read it with care in Hansard because it is a very complicated issue. I have no doubt that the counsel who gave the opinion will also read the Minister's observations with care and we may come back for another shot at it. The whole of this Committee is agreed that we must be very careful to protect the system of the children's hearing, but within that context we still have to protect the rights of the child within the European Convention. I shall read with some care what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 134:
Page 35, line 8. leave out from ("hearing") to end of line 16 and insert ("continuing a child protection order under section 55(4) of this Act.").
The noble and learned Lord said: Clause 47 at present restricts the numbers of decisions of a children's hearing which can be the subject of an appeal to the sheriff. To allow a right of appeal in a wider range of circumstances, and to meet European Court of Human Rights obligations, it seems appropriate to remove those restrictions so that all children's hearing decisions can be appealed against. The exception is a hearings decision to extend a child protection order, which is already subject to its own separate appeals provision. I beg to move.
On Question, amendment agreed to.
Clause 47, as amended, agreed to.
Clause 48 [Children requiring compulsory measures of supervision]:
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 135:
Page 35. line 20, leave out ("supervision") and insert ("care").
The noble Lady said: In moving Amendment No. 135 I beg leave to speak also to Amendments Nos. 138, 139, 143, 150 and 156. These amendments would allow children dealt with by the children's hearing system to benefit from "compulsory measures of care" as opposed to "compulsory measures of supervision'', as the Kilbrandon Report recommended.
Many children referred to the children's hearing system are in need of care and protection. Some may remain in care through the children's hearing for longer than they have in the past due to the proposed extended
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systems of appeal. Supervision does not mean care and care must form part of the provision offered to children in residential and secure accommodation. Two of the Government's reports, the Skinner Report and Scotland's Children recommend that a child should receive "good basic care" when in residential accommodation.
Lord James Douglas-Hamilton stated in Committee in another place that he wanted the Children (Scotland) Bill to harmonise with the Children Act 1989 in England. However, when the term "in the care or disappears from Scottish legislation, the same term remains in the Children Act, in relation to care orders, in both Sections 22 and 31. These amendments would achieve greater harmony, if that is what the Government want. I beg to move.
The Earl of Lindsay: The purpose of these amendments moved by the noble Lady, Lady Saltoun, is similar to that the Committee considered yesterday in relation to Clause 17. During that debate my noble and learned friend Lord Fraser suggested that the use of the "care" terminology has contributed to the uncertainties about where the responsibilities for children lie when they are the subject of local authority care. The same uncertainties arise where children are subject to supervision requirements—and they are confusing for children and their parents.
The vast majority of children subject to supervision requirements live at home, where they are cared for by their parents. The local authority's role will largely, if not wholly, he one of supervision. The revised terminology more accurately reflects the essential effect of the requirement—that is, supervision.
Even where the child is not living at home, it is expected that the parents will continue to have significant responsibilities over the child and exercise them. In this respect the position is similar to a child who is "accommodated" by the local authority, and the same arguments already advanced in favour of the revised terminology will therefore also apply.
I do stress to the noble Lady that we are seeking the greater harmony which she referred to, but we are convinced that this is the right way to approach the subject. On that basis I hope the noble Lady will feel able to withdraw her amendment.
The Earl of Mar and Kellie: Before the noble Earl sits down, may I add, at the risk of re-opening it, to this debate on terminology? It occurs to me that we need a new word for those children who are looked after on a voluntary basis, which would currently come under Clause 15. We need a new name for them as opposed to those who are on compulsory measures.
The Earl of Lindsay: I think we already have a new name—it is "accommodated".
5.45 p.m.
Lady Saltoun of Abernethy: I have to say that I cannot see that this does in fact achieve greater harmony with the Children Act. I am not really very happy about where the children are in residential and secure accommodation. However, having said that, I beg leave

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to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay move Amendment No. 136:
Page 35. line 25, leave out from ("any") to end of line 28 and insert ("relevant person").
The noble Earl said: This is a technical amendment. The clause as currently drafted details those to whom the provisions apply or do not apply. As the term "relevant person" is already defined within the Bill and includes those to whom the provision applies, it is easier to refer to "relevant person" for this purpose. I beg to move.
On Question, amendment agreed.
[Amendment No. 137 not moved.]
Clause 48, as amended, agreed to.
Clause 49 [Provision of information to the Principal Reporter]:
[Amendments Nos. 138 and 139 not moved.]
Clause 49 agreed to.
Clause 50 [Reference to the Principal Reporter by court]:
[Amendment No. 140 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 141:
Page 37, line 24, after ("shall") insert ("—

(a) make such investigation as he thinks appropriate; and

(b) if he considers that compulsory measures of supervision are necessary,").

The noble Earl said: This is the amendment to which we intended to refer, and is connected to Amendment No. 140, tabled by the noble Lord, Lord Macaulay. The noble Lord's amendment sought to introduce the reporter's discretion to decide whether or not a child should be referred to a children's hearing rather than placing on him an obligation to do so if the child is referred to him by a court considering a family matter.
It has the same purpose as the amendment I am now moving to Clause 50, which clarifies the situation and allows the reporter to make enquiries and obtain reports before exercising his discretion over whether or not the child should be referred to a children's hearing. I beg to move.
Lord Carmichael of Kelvingrove: In the temporary absence of my noble friend, Lord Macaulay of Bragar, I have looked at this carefully and it seems as though there is a great deal of semantics in the Bill generally. I believe that Amendment No. 141 probably makes things marginally a little more clear than the amendment that was tabled by my noble friend.
On Question, amendment agreed to.
Clause 50, as amended, agreed to.
Clause 51 [Child assessment orders]:
The Earl of Balfour The Earl of Balfour moved amendment No. 142:
Page 37, line 32, after ("authority") insert ("or Principal Reporter").
The noble Earl said: The purpose of the amendment is to bring in the principal reporter as well as the local authority. It is a matter that concerns me in various following parts of the Bill. I regret to say that I have not
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been able to write to my noble friend about Chapter 3 onwards. As the principal reporter is mentioned in the previous clause I suggest that it is included in Clause 51. I beg to move.
The Earl of Mar and Kellie: Perhaps I may support the amendment. It is a fact that the reporter system can receive information from anyone; it does not have to come from the local authority.
Lord Fraser of Carmyllie: The child assessment order is a new provision introduced in the Bill. At present, if a local authority has reason to suspect—having information from any sources, as the noble Earl points out—that a child is being neglected or is failing to thrive, it may not be able to see the child in order to assess the situation because the relevant person will not allow the authority access to the child. This clause introduces a facility whereby the authority may apply for a child assessment order to ensure that it is able to assess the child's needs and to assess whether there is any need for compulsory measures of supervision.
I would tell my noble friend Lord Balfour that it would not be appropriate to extend this order to the principal reporter for this reason. Referrals to the principal reporter should only be on the basis that there is reasonable cause to believe that the child is in need of compulsory measures of supervision. The assessment order is very much an investigative measure and rightly falls on the local authority, which is charged with that responsibility under Clause 49. In other words, they have separate functions and the function that is imposed upon the local authority comes at a prior investigative stage. It is for that reason that the principal reporter is not included within it.
With that explanation, I hope that the noble Earl will withdraw his amendment.
The Earl of Balfour: I am most grateful to my noble and learned friend for that explanation. I had not appreciated the difference. I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 agreed to.
Clause 52 [Initial investigation by the Principal Reporter]:
[Amendment No. 143 not moved.]
Clause 52 agreed to.
Clause 53 [Child protection orders]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 144:
Page 39, line 35, leave out ("significant").
The noble Lord said: Amendment No. 144 has been grouped with Amendments Nos. 145 and 160. I am again posing the question: what does the word "significant" mean in the legislation? It is as simple as that. Perhaps the Minister could let me know what test there is of the word "significant". On that basis, I beg to move.
The Earl of Lindsay: The quick answer to the noble Lord is that the definition of the word "significant" will belong to the discretion of the judge. He would have

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to judge within the circumstances and with the details available exactly where the significance lay. However, I would just make a wider point on the noble Lord's amendments.
They seek to lower markedly the test for the removal of children from their home in emergency situations to a test of "harm" rather than "significant harm". I would remind the noble Lord that Lord Clyde in his report on the Orkney inquiry indicated that it would only be appropriate to remove children from home under a child protection order where the child is likely to suffer significant harm. I would add that the standard of "significant harm" also applies to emergency protection orders under the Children Act 1989, an Act which the noble Lord himself has prayed in aid in some of his other amendments.
The amendments would allow immediate removal of the child, and without any prior notification, in a far wider range of circumstances where there was no danger of significant harm to the child. They represent, I suggest, an unjustifiable lowering of the test against which such applications should be determined.
I hope I have answered the noble Lord's question. On that basis, I should be grateful if he would withdraw the amendment.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. Does it follow from what has been said that in Clause 53(1)(a)(ii) the words "such harm" are qualified by "significant" in subsection (1)(a)(i)? It is the same harm that we are talking about.
Does that mean that a child who is being so treated (or neglected) that he is suffering only harm will not get protection and the test has to be significant harm, whatever that might mean? Should not the test be that the child is being so treated or neglected that he is suffering harm? Would not that be better than putting superfluous words into the legislation? Should not the sheriff decide whether harm is being done to the child? If harm is being done to the child, in a way it does not really matter whether or not it is "significant". I have not had an opportunity to look at the Oxford English Dictionary to see what the definition of "significant" is in relation to harm as it relates to the way in which a parent treats or neglects a child.
I can see that including the word "significant" is a protection to the parent who can argue, "This is a lot of nonsense; this child has not been neglected and is not suffering harm". The parent can say to the court, "Somebody has to show that it is significant harm". Including the word "significant" might, as we discussed yesterday, create problems of interpretation for the sheriff who is to be asked to make the decision.
We do not have a Richter scale of harm. We do not have scale of one to 10 or of one to 20 as is the case for measuring post-traumatic stress disorder. If you are on the first three rungs of the ladder, then you are into the post-traumatic stress disorder. What meaning is to be given to the word "significant"? We have tabled the amendment to try to find out.
We are not trying to be clever in any way. As I have
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said more than once, we are here to help the children and we recognise that there is an equation here. We not only have to look after the children, but we have to protect the parents. We are trying to achieve a balance. I suggest that perhaps the use of the word "significant" might be looked at again. Perhaps another word could be used, such as "substantial". I am not going to suggest that because I have no responsibility for drafting legislation, but the Government might want to look at the word "significant" to see whether it is appropriate in the context of this particular clause.
The Earl of Lindsay: The noble Lord asked me a specific question at the start and I confirm that, for the purposes of immediate removal, the harm must be judged to be "significant". Judging whether or not it is significant must be left to the circumstances of the case. The noble Lord must surely understand that, without knowing the circumstances, we cannot prescribe what will or what will not be significant.
My last point in response to the noble Lord is that the children's rights underlie much of the Bill but, at the same time, parental rights are also identified and safeguarded in this Bill, so the two are in equilibrium.
Lord Macaulay of Bragar: The Minister meets my point in that we are getting dual protection here of both the child and the parent or partner, but I think that there might be a more appropriate word than "significant". Perhaps we should all go back to the Oxford English Dictionary to see if we can find one. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 145 not moved.]
6 p.m.
The Earl of Balfour The Earl of Balfour moved Amendment No. 146:
Page 40, line 9, leave out ("rules") and insert ("regulations").
The noble Earl said: At the very top of page 70 you will see that rules are usually made by a court. This particular clause refers to Clause 58 under which the Secretary of State may make regulations. I am therefore suggesting that we leave out the word "rules" and substitute the word "regulations" in this clause. I shall be speaking later to Amendment No. 149. I would like to say that use of the word "rules" as the first word of Subsection (6) of Clause 53 is perfectly correct. I beg to move.
The Earl of Lindsay: We are very grateful to my noble friend Lord Balfour. He was referred to this morning by various experts looking at the Bill as the Gavin Hastings of the Committee; he has a very high score rate. This will not be the only amendment from the noble Earl that we will accept today. Indeed, this amendment does correct a wrong reference to the regulations which are made under Clause 58 of the Bill. The reference contained in Clause 53(3) is to rules under Clause 58 and should of course be to regulations under Clause 58. Therefore, I hope the Committee will accept my noble friend's amendment.
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 147:
Page 40. line 31, at end insert:
("() exclude from the child's family home any person named in the order").
The noble Lord said: The drafting of this amendment is slightly defective because it does not quite fit into the context of the Bill. I should like time to consider it. I do not propose to move it.
[Amendment No. 147 not moved]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 148:
Page 40, line 32, after ("order") insert ("and full details of the application upon which the order was made").
The noble Lord said: This amendment makes it necessary to give fuller details within the context of the clause. I beg to move.
The Earl of Balfour: The noble Lady, Lady Saltoun of Abernethy, felt that we were discussing grouped amendments. I do not believe that we are. The amendments were not grouped on the sheet I had. They were to be taken on their own.
Lady Saltoun of Abernethy: They are grouped on today's list.
The Earl of Balfour: I am sorry; I do not have it. I did not obtain the most recent one.
Lady Saltoun of Abernethy: The groupings will have to be re-done.
Lord Fraser of Carmyllie: I have a set of government amendments which begin at No. 158, which might appropriately have been dealt with in the context of Amendment No. 147. We shall deal with them now at the appropriate stage.
In response to Amendment No. 148 I say immediately that I have sympathy with the intention behind the amendment. Under the provisions of Clause 53(5), the applicant for a child protection order must advise the local authority and the principal reporter of the making of a child protection order by the sheriff. There is no reason for the two parties to be advised of the reasons for making the application in the first instance. I agree that it is important for both the local authority and the principal reporter to have such information but this is a matter which is more appropriate for rules of court rather than for primary legislation. On that basis I invite the noble Lord to withdraw the amendment.
Lord Macaulay of Bragar: I accept that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 as amended, agreed to.
Clauses 54 and 55 agreed to.
Clause 56 [Duration, recall or variation of child protection order]:
The Earl of Balfour The Earl of Balfour moved Amendment No. 149:
Page 43, line 32, leave out ("regulations") and insert ("rules").
The noble Earl said: When we were discussing Clause 53 I referred to the fact that we were dealing with rules.
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This may be the result of a slightly misplaced correction when "the Secretary of State" was removed from part of this clause at the Report stage in another place. I am suggesting that on this occasion "rules" should be substituted for "regulations". I beg to move.
The Earl of Lindsay: It is with great pleasure that we see my noble friend back on the field with us again. He is absolutely right—this amendment corrects an error contained in Clause 56(7)(d) which refers to regulations made under Clause 53(6). The reference should be to rules made under Clause 53(6). Therefore, I urge the Committee to accept my noble friend's amendment.
On Question, amendment agreed to.
Clause 56, as amended, agreed to.
Clauses 57 to 59 agreed to.
Clause 60 [Referral to, and proceedings at, children's hearing]:
[Amendment No. 150 not moved.]
Clause 60 agreed to.
Clause 61 [Warrant to keep child where children's hearing unable to dispose of case]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 151:
Page 48, line 26, after ("may") insert ("require any person named in the warrant").
The noble Earl said: Amendments Nos. 151, 152 and 153 are minor amendments and place a duty rather than a discretion on a person named in a warrant issued by a children's hearing to keep the child in a place of safety. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 152:
Page 48, line 27, leave out ("permit any person named in it").
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 153:
Page 48, line 29, leave out ("require any such person").
On Question, amendment agreed to.
Clause 61, as amended, agreed to.
Clause 62 [Application to sheriff to establish grounds of referral]:
[Amendment No. 154 not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 155:
Page 50, line 38, after ("three") insert ("working").
The noble Earl said: Reference has been made in other parts of the Bill to three working days. On this occasion we should also consider whether to add the word "working" to the Bill. I beg to move.
The Earl of Lindsay: The amendment moved by my noble friend Lord Balfour would provide that a child kept in a place of safety under an order issued by the sheriff after he has concluded that the grounds for referral to a children's home have been established shall only be valid for three working days commencing with the date on which the child was first taken to a place of safety.
I assume that my noble friend is concerned about the position where the child is taken to a place of safety

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towards the end of the week. Emergency hearings, however, can be arranged at any time to meet the requirements of the children's hearing system and of the family circumstances. It is not necessary to specify three working days. This is a change to the existing provision in the 1968 Act. It would lead to the child being kept longer than is absolutely necessary if the hearing was not to be held until the third working day as against the third day. Even the Scottish warrior Gavin Hastings did not convert all his kicks in his last match, and I am afraid that this time my noble friend's amendment is one which should be withdrawn. So I would ask him to do that.
Lord Macaulay of Bragar: Before the Minister. sits down, I have some sympathy with what the noble Earl, Lord Balfour, has said. Are we distinguishing between a working day and a dies non?
The Earl of Lindsay: If I understand the noble Lord correctly, working days are taken to be Mondays to Fridays. No doubt the noble Lord works all seven days of the week, but Saturdays and Sundays are not usually included.
Lord Macaulay of Bragar: For legal purposes, and in the Criminal Procedure Act and so on, we have the dies non on a Sunday sometimes not regarded as being a vehicle for calculation of figures, and that is why I asked seriously whether a working day is being interpreted as Monday to Friday. What happens if a child is taken in on a Friday?
The Earl of Lindsay: I refer the noble Lord to Clause 84 and the definition of "working day". It means:
"every day except—

(a) Saturday and Sunday;

(b) December 25th and 26th; and

(c) January 1st and 2nd."

I hope that answers the noble Lord's query.
Lord Macaulay of Bragar: It has certainly answered the question but it is not very satisfactory from the point of view of the child. If "working day" means every day except Saturday and Sunday, and it does not mean Christmas Day or Boxing Day, and it does not mean January 1st or 2nd, it is not much consolation to the child that this has been built into the Bill. It might be something to look at again.
The Earl of Lindsay: I stressed that an emergency hearing can be arranged at any time to meet the requirements of the children's hearing system and the family circumstances. It is the amendment that is seeking to introduce "working" into this definition. The Government are intent on resisting this amendment so that the children's rights are properly protected.
The Earl of Balfour: I am glad I tabled this amendment. I am very pleased to know that there can be very short notice in calling a hearing and that it can take place within three days, regardless of what day of the week the child is taken into care. In that respect, I am very much relieved to know that it can be dealt with as quickly as possible, perhaps with just a day between. I am very grateful to my noble friend Lord Lindsay for
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giving me that information and I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 62 agreed to.
Clause 63 [Continuation or disposal of referral by children's hearing]:
On Question, Whether Clause 63 shall stand part of the Bill?
The Earl of Balfour: Subsection (6) states—and I am sorry that I have not managed to write to my noble friend about this:
"the day on which the subsequent hearing of the child's case by a children's hearing begins".
I wonder whether the Government might consider including the words "is completed", because on reading the clause I felt that the word "completed" would be more satisfactory. Exactly the same point arises in subsection (8):
"A warrant under subsection (7) above shall cease to have effect on whichever is the earlier of—

(a) the expiry of twenty-two days after the warrant is issued; or

(b) the day on which the subsequent hearing of the child's case by a children's hearing begins."

Again, I feel that adding the words "if that is completed" might be an improvement to the wording.
The Earl of Lindsay: Given the normal pedigree of my noble friend's amendments and suggestions we would like to consider what my noble friend proposes and write to him in due course.
Clause 63 agreed to.
6.15 p.m.
Clause 64 [Disposal of referral by children's hearing: supervision requirements, including residence in secure accommodation]:
[Amendment No. 156 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 157:
Page 52, line 23, after ("may") insert (", without prejudice to the generality of that subsection").
The noble and learned Lord said: This is a minor amendment to clarify that the conditions which may be imposed in a supervision requirement are not restricted to those set out in subsection (5)—that is, to require the child to submit to any medical or other examination and to
"regulate the contact with the child of any specified person".
The power to impose conditions is intended to cover a far wider range of specifications. The amendment will make that clear by removing a possible restriction on the imposition of conditions. I beg to move.
The Earl of Balfour: May I take this opportunity to ask a question? Clause 64(6) states:
"A children's hearing may require, when making a supervision requirement, that any place where the child is to reside in accordance with the requirement shall not be disclosed to any named person or class of persons."
That is fair enough. What concerns me is that we are in a way excluding whoever had parental responsibility for the child before that occurred. I just wondered whether

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the person having parental responsibilities should be at least notified where the child is.
Subsection (8) states:
"A supervision requirement shall be in such form as the Secretary of State may prescribe by rules".
Surely the Secretary of State normally prescribes by regulation. I am sorry to bring this up yet again; and I am sorry that I did not have time to write to the Minister.
My last point is this: almost at the bottom of page 52 is a reference to the "relevant local authority". I just wonder again whether the principal reporter should not be brought in here, but I may be wrong. Those are the three questions that I wanted to ask. Again, I am sorry that I have not had an opportunity to write to the Minister.
Lord Fraser of Carmyllie: I did not quite grasp the third point, but I shall try to deal with the first two—in reverse order. First, as regards the provisions,
"A supervision requirement shall be in such form as the Secretary of State may prescribe by rules",
in relation to hearings, he does make rules rather than regulations.
The second point is a very difficult one, and I take the noble Earl back to a case some months ago with which he may be familiar. In very unfortunate circumstances a man who had been divorced from his wife, having had a very violent past with her, discovered her whereabouts because of the requirement that the address of the child should be given to him when the supervision requirement was being reviewed. Acting on that information, he went to his divorced wife's home, with the tragic consequence that she was killed, as you may recall. He has subsequently been convicted of murder. It is a matter which has aroused some controversy, and it is to meet that rather exceptional circumstance that this provision is there.
Lord Macaulay of Bragar: I agree entirely with what the noble and learned Lord says about that very unfortunate case. A degree of discretion is given to the hearing with regard to letting people know where the child might he. But, as we all know, with children who need to be taken into care, it is very often the parent who has caused the problem.
The noble Earl, Lord Balfour, raises an important point. I have just had a quick look at the Bill, and I do not see in it any definition in relation to the care of a child of a named person. We go back perhaps to yesterday's debate. Are we back to the natural parents, the genetic parents, or who are we talking about?
The noble Earl, if I may say so with great respect, raises a very important point of definition. We must have some definition as to who a named person is to he. That would be of guidance to the hearings. The Secretary of State may be able to lay down by regulation, hut there are so many people involved in children's upbringing these days that just to say "any named person" or "class of person" leaves it open. I should like to see more definition given to that part of the Bill. I suppose the way around it—if I may try to be helpful to the Government, which is not a habit of mine—is simply to add the words,
"shall not disclose to any person".
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If that is the children's hearings exercising a quasi-judicial function, then no doubt they can be judicially reviewed in the courts for failing to tell the father, mother, or whoever it may be, where the child is. I just wondered whether the phrase "named person" or "class of person" is in fact not introducing confusion into this part of the Bill. I appreciate the reason behind it, as the noble and learned Lord the Minister has said.
Lord Fraser of Carmyllie: I do not think it is introducing any confusion or difficulty, but I shall certainly look at the matter further and if there are any difficulties we shall try and tidy them up. The noble Lord will appreciate that the value of having amendments is that we can give a more considered response to any detailed point and try to determine very quickly whether or not an amendment can be made without unintentionally altering the impact elsewhere in the Bill. I shall certainly look into the matter.
On Question, amendment agreed to.
Clause 64, as amended, agreed to.
Clauses 65 and 66 agreed to.
Clause 67 [Duration and review of supervision requirement]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 157A:
Page 55, line 12, at end insert—
(" (10A) Where a children's hearing has taken place by virtue of subsection (4)(c) above and a decision has been reached in terms of subsections (8) and (9) above, the relevant local authority—

(a) may, within a period of 3 weeks beginning with the date of the decision of the said children's hearing appeal to the sheriff against that decision; and

(b) where such an appeal is made, shall be heard by the sheriff as to the reasons for the appeal.

(10B) Where the relevant local authority appeals under subsection (10A) above, subsections (2), (3), (4) and (5) of section 47 of this Act shall apply to that appeal as they apply to an appeal under that section.").
The noble Baroness said: This is a very difficult amendment concerning adoption. Those of us who have had to deal with adoption are always faced with fearful problems. On the one hand, one does not want to place a child for adoption unless one is absolutely sure that it is a right placement. On the other hand, one wants to be quite sure that the people, and the mother particularly, asking for adoption will not change their minds. Very often there is conflict. It is very difficult: one wants to fulfil the principle that a child should be placed for adoption as soon as is possible and practicable. If a child is to be placed for adoption, it should be placed as early as possible after the request has been made.
Very often there is conflict. Sometimes the panel, having heard the situation, is very anxious not to make a mistake and give permission for the adoption order to go forward. On the other hand, the social services are very anxious to place the child as quickly as possible so that a change does not have to be made where the child is being brought up.
The purpose of the amendment is to allow a very limited right of appeal to the local authority concerned with the long-term and permanent plans for a child, where the child's hearing does not agree with the plans of the local authority, and there are no other means of

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resolving the conflict of views. The amendment attempts to provide a forum where the matter can be argued before a sheriff and the final decision taken one way or another to prevent drift in a child's life.
I have known children waiting for adoption. The mother will give her approval and then she will withdraw it; the child will then have to stay in the home where it is; and the mother will change her mind yet again. The case can drift on and on. That is not in the interests of the child and we believe that the welfare of the child is paramount. I beg to move.
Lord Fraser of Camyllie: As my noble friend has indicated, this is indeed a difficult area. We shall be returning to adoption at a later stage in the Bill. However, while I recognise the difficulty, I am not sure that this amendment is necessary in the context of children's legislation in Scotland. A local authority will be able to bring to court any case in which it considers the appropriate course of action is for the child to be made the subject of a parental rights order or a freeing order. When an adoption plan is contested it would also be possible and probably prudent also to bring the matter before the court by way of a freeing application. The appeal to the sheriff which is proposed in this amendment is therefore unnecessary, since it is already within the local authority's discretion to bring the matter before the court.
Additionally, the amendment would import a major change in the children's hearings system in that it would empower a local authority for the first time to appeal a hearing's decision to the court. I do not believe that that change would be either appropriate or desirable. But I really rest my case, inviting the noble Baroness to withdraw the amendment on the basis that it is an unnecessary amendment.
Baroness Faithfull: I thank the noble and learned Lord for that reply. I should like to give consideration to what he has said. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 67 shall stand part of the Bill?
The Earl of Balfour: Clause 67(7) says,
"give notice of that proposal in writing to the Principal Reporter".
Fair enough. But I wonder in this case whether we should not include the relevant local authority, at line 30 on page 54.
If I may refer back to the remarks of the noble Lady, Lady Saltoun, that we are not angels, one of the things that concerned me in reading this clause was subsection (10). It states:
"Where a children's hearing vary or impose a requirement or condition under subsection (9) above which requires the child to reside in any specified place or places, they may order that such place or places shall not be disclosed to any person."
What concerned me here was that if it is specified that the child shall reside at more than one place, knowing how difficult some children can be, in leaving the first place he might get lost before he got to the second place and you would have an awful job to find him. Although
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I quite understand that the word may need to be plural, I just wonder whether it is safe to do that, knowing how naughty children can be. That is my question.
Lord Fraser of Carmyllie: On the last point, I suspect that the draftsman has included the plural as a matter of caution rather than envisaging that there will be frequent circumstances in which such a child might be required to live in more than one place. So far as the other points the noble Earl has raised with regard to the clause are concerned, I shall read very carefully what he has said and consider whether amendments need to be made to tidy up.
Clause 67 agreed to.
Clause 68 agreed to.
Clause 69 [Powers of Secretary of State with respect to secure accommodation]:
On Question, Whether Clause 69 shall stand part of the Bill?
The Earl of Balfour: I refer to the last two lines of Clause 69 at the bottom of page 56, which states:
"make provision for the parents of the child to be informed of the placing of the child in secure accommodation."
I wonder whether the word "guardian" should be included. It is something of which I should have given my noble friend notice, but I just have not had the time to do it.
6.30 p.m.
The Earl of Lindsay: We should like to consider the suggestion of my noble friend, Lord Balfour. On that basis, we hope that this clause will stand part.
Clause 69 agreed to.
Clause 70 [Exclusion orders]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 158:
Page 56, line 43, leave out ("and") and insert ("to").
The noble and learned Lord said: There is a substantial set of government Amendments, Amendments Nos. 158, 165, 166, 168 and 169. I understood that the revised list of groupings allowed for those to be considered alongside Amendment No. 147. It might be helpful if I refer to that amendment first. Amendment No. 147 seeks to include among the conditions which may be attached by a sheriff to a child protection order a condition that a suspected abuser should be excluded from the family home. There are major complications in seeking to extend child protection order provisions which authorise the removal of a child to a place of safety to embrace the exclusion of a suspected abuser from the family home.
To empower the sheriff to make an exclusion order as a condition of a child protection order seems contradictory. Why seek to exclude the named individual from the family home when, in fact, application has been made for the protection of the child by removing the child from the family home?
What we have done instead is to provide separately for exclusion orders under Clause 70. I am bound to say that that approach is likely to be more effective since

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it allows a clear range of means for the protection of the children.
While the Bill was under consideration in another place and when evidence was taken in Scotland, we received many representations from organisations in the field of childcare and from other interested parties seeking an extension of the arrangements for the exclusion of a suspected abuser from the family home to allow for an immediate exclusion of that suspected abuser.
As introduced, the Bill would enable exclusion to be effected only where the sheriff considered that the necessary conditions for the making of an order were met—they are set out in Clause 72—and the named person had been afforded an opportunity of being heard or represented at such a hearing.
The need to delay the exclusion of a person until after a hearing was seen by many as a flaw. A strong argument was made in another place to provide for immediate exclusion and my honourable friend the Parliamentary Under-Secretary of State for Scotland agreed that we should consider making the necessary amendment.
We have achieved the necessary change through significant modification of the arrangements for interim exclusion orders and, given the level of interest that there has been in this, I might be forgiven for going through them in a little detail.
Amendment No. 168 deletes the existing arrangements proposed through subsection (7). In its place, Amendment No. 166 brings in new subsections (3A) to (3D). Subsection (3A) allows the sheriff to grant an interim order if he is satisfied that the necessary conditions have been met, even where the named person has not appeared or has not been represented before the sheriff and before any persons on whom notice of the application may be served have been able to make their views known.
Subsection (3B) provides that where the sheriff has granted such an interim order, he shall conduct a hearing within such period as may be specified in the rules made by virtue of Clause 74. It also provides that he may, before finally determining the application, confirm or vary the interim order or tenor or condition on which it is granted, or he may recall the order.
Subsection (3C) provides that where the conditions set out in subsections (3A) and (3B) have been fulfilled, the sheriff may grant an interim order before finally determining the application. And, finally, subsection (3D) makes clear that an order under subsections (3B) or (3C) shall have effect as an exclusion order pending the final determination of the application.
The provisions I have described will enable the immediate exclusion of someone suspected of abusing a child. There is certainly no doubt that child abuse is a very serious matter and local authorities should have as wide an armoury as possible in their hid to combat it. So too, however, is the immediate exclusion of a person from his family home without the opportunity of being heard a very serious matter. I am in no doubt that in some circumstances immediate exclusion would offer the right remedy, but there may be others where the threat to the child is so serious that a child protection
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order alternative would be the only step guaranteed to protect the child's safety. An interim exclusion order which takes immediate effect in the way I have outlined is therefore another element in the range of measures at a local authority's disposal and should be seen as additional to and not just as a replacement or substitute for a child protection order.
The other amendments in this extensive group are essentially consequential. There may be yet further government amendments to come, but so far these are the most significant amendments the Government have introduced and for that reason I have taken some time to spell them out. They will indeed provide local authorities in Scotland with an important new power. I beg to move.
Lord Macaulay of Bragar: Can I formally place on record the recognition from this side of the Committee of the care the Minister has shown in taking on board the points raised at earlier stages of the Bill. I regard exclusion orders as one of the most difficult matters in the Bill. The Minister's proposals have gone a considerable way to protect the child and the alleged abuser. I note what he said with interest.
Lady Saltoun of Abernethy: I was not at all happy about the amendment of the noble Lord, Lord Macaulay of Bragar, which he did not move, because it gave the sheriff carte blanche to make an emergency exclusion order without any of the caveats and considerations which he has to take into account under subsections (4), (5) and (6) of Clause 70 as it stands. Those caveats are very important.
Perhaps the noble and learned Lord will correct me if am wrong, but his interim exclusion order as proposed in Amendment No. 166 would be subject to subsections (4), (5) and (6) as set out on page 57 of the Bill.
If, for example, you remove a chap from his home on the grounds that he has been abusing his daughter, that is bad enough, but if, in the course of doing so, you exclude him from premises which he uses to earn his living, or prevent him from taking the tools of his trade with him so that he loses his job, you have possibly, in error, ruined his future, and very likely destroyed the family as well. This is something which worried me very much about having an interim exclusion order or an emergency exclusion order which was not governed by subsections (4), (5) and (6). I take it that I am right, and that that is the effect of the subsections.
Lord Fraser of Carmyllie: I am very grateful to the noble Lady for her observations. I can confirm that where such an emergency exclusion order is applied for, it would be subject to those subsections to which she referred. She has usefully highlighted the delicacy of the balance we have to achieve. Abuse of children is a very serious matter hut, as she has pointed out, a person who is to be excluded is at that stage no more than an alleged abuser, or suspected of it, and one has to be careful to ensure that he is not subjected to damage or circumstances which would make it impossible for him to continue in his employment.
Baroness Faithfull: I support this amendment. We have before the House of Lords at the moment the

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Family Homes and Domestic Violence Bill which covers this very point. I have consulted with the people who are dealing with that Bill and I understand that they consider that the exclusion clauses as drafted in the Children (Scotland) Bill are very well drafted. In fact they go so far as to say that they think they are better than the Bill applying to England.
The exclusion order applying to men is a very difficult thing. Most men have somewhere else to go and, in my experience, when a man is excluded from the home he goes to his mother, aunt, uncle, granny or someone who lives fairly close. However, it does not mean that the child can remain with the mother in the home. If you take a child away, as has been done in the past—the child may have suffered sexual abuse—it then suffers another abuse by being removed from the home and being removed from the mother. While it seems hard on the father or relative in the family to be excluded, it is perhaps the better of the two ways of dealing with this case. I support the amendment.
Lady Saltoun of Abernethy: There are some cases where it obviously is better but there must be some cases where it would not be a good idea because you have to take into consideration the quality of life of the child if left in the home. If the alleged abuser was the mother's lover the mother may very well regard the girl, especially if she is an older child—a 12, 13 or 14 year-old—as a rival and be furious with her for being responsible for having her lover removed from the home. It is not just as straightforward as all that.
Lord Fraser of Carmyllie: Perhaps I may conclude on this by saying that that certainly is correct. It is far from simple and there are circumstances when the issue will be very fraught indeed. That is why we want—and I believe we have now achieved—to offer to local authorities in particular a wide range of options which can be considered and have the most appropriate one applied in all the circumstances. I am very grateful for the support that has been afforded to these amendments. There will be one very happy bunny draftsman in view of the compliments that have been paid to the drafting of his
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provision.
On Question, amendment agreed to.
[Amendments Nos. 159 and 160 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 161:
Page 57, line 4, leave out ("and").
The noble and learned Lord said: Amendment No. 161 is in fact consequential upon Amendment No. 164 which is largely self-explanatory and a useful addition to the Bill. It brings in a further condition that must be satisfied before the sheriff can make an exclusion order The condition is that there will be a person specified in the application who is capable of taking responsibility for the provision of appropriate care for the child and any other member of the family who requires such care and is residing in the family home. It is possible to imagine the situation where a disabled elderly person relies for assistance on the person who was to be excluded. The amendment simply ensures that the safety and wellbeing of children and others in the family home will not be put at risk through the removal of a suspect abuser. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie: Having regard to the number of amendments that still have to be considered and the arrangements that have been agreed for this Committee, it would seem to me that it is extremely unlikely, if not impossible, for us to conclude the remainder of the amendments within the time considered as a suitable period for any sitting of this Committee.
I would accordingly suggest that this might be a convenient moment for the Committee to adjourn until Tuesday next.
The Deputy Chairman of Committees: The Committee stands adjourned until Tuesday next at 3.30 p.m.
The Committee adjourned at a quarter before seven o'clock.