Official Report of the Committee on the Children (Scotland) Bill

HL Deb 13 June 1995 vol 564 cc119-54GC

Third Sitting

Tuesday, 13 June, 1995

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

Clause 70 [Exclusion orders]:

The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 162:

Page 57, line 7, after ("child") insert (", irrespective of whether the child is for the time being residing in the family home").

The noble and learned Lord said: Amendment No. 162 seeks to ensure that the sheriff should have power to make an exclusion order whether or not the child is at that time residing in the family home. It could, for example, be the case that a child of a non-abusing parent had gone to live with relatives or friends to make sure that the child was safe. It should therefore be possible for the local authority to seek the exclusion of the abuser so that the child and the non-abusing parent can return to the family home. The amendment is a useful addition and I hope it will receive the Committee's support.

Amendment No. 163 is an associated amendment, which recognises that the child may already have been removed from the family home by, for example, a non-abusing parent to protect the child. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 163:

Page 57, line 9, leave out ("removing") and insert ("the removal of).

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 164 to 166:

Page 57, line 9, at end insert ("; and" ( ) that, if an order is made, 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 who is, or will be, residing in the family home (in this section and sections 71 to 74 of this Act referred to as an "appropriate person").").

Page 57, line 10, leave out ("No order shall be made") and insert ("No application under subsection (1) above for an exclusion order shall be finally determined").

Page 57, line 15, at end insert: ("(3A) Where, on an application under subsection (1) above, the sheriff—

1. (a) is satisfied as mentioned in that subsection; but
2. (b) the conditions mentioned in paragraphs (a) and (b) of subsection (3) above for the final determination of the application are not fulfilled,

he may grant an interim order, which shall have effect as an exclusion order pending a hearing by the sheriff under subsection (3B) below held within such period as may be specified in rules made by virtue of section 74(2)(bb) of this Act.

(3B) The sheriff shall conduct a hearing under this subsection to consider an application under subsection (1) above and an order granted on that application under subsection (3A) above within such period as may be specified in rules made by virtue of section 74(2)(bb) of this Act, and, if satisfied at that hearing as mentioned in subsection (1) above, he may, before finally determining the application, confirm or vary the interim order, or any term or condition on which it was granted, or may recall such order.

(3C) Where the conditions mentioned in paragraphs (a) and (b) of subsection (3) above have been fulfilled, the sheriff may, before finally determining the application, grant an interim order.

(3D) An order under subsection (3B) or (3C) above shall have effect as an exclusion order pending the final determination of the application.").

On Question, amendments agreed to.

[Amendment No. 167 not moved.]

Lord Fraser of Carmyllie moved Amendments Nos. 168 and 169:

Page 57, line 42, leave out subsection (7).

Page 58, line 3, leave out from ("order"") to end of line 4 and insert ("includes an interim order granted under subsection (3A) above and such an order confirmed or varied under subsection (3B) above and an interim order granted under subsection (3C) above; except that in subsection (3) above and in section 73 of this Act, it does not include an interim order granted under subsection (3A) above;").

On Question, amendments agreed to.

On Question, Whether Clause 70, as amended, shall stand part of the Bill?

The Earl of Balfour

Perhaps I may ask a question about the definition of "family home" at the top of page 58 of the Bill. It has been my experience in reading previous legislation that the word "curtilage" is often used to cover the surrounding areas. I am just wondering whether between now and the Report stage my noble and learned Friend would consider the possibility of adding that word. That is my only point.

Lord Fraser of Carmyllie

It certainly is the case that often the word "curtilage" is included and I shall certainly have a look at that. If we were to go one step further forward into Clause 71 and have regard to the things that might be done in terms of such an exclusion order, other than simply entering the house, I suspect it would be possible so to frame the interdict or exclusion that it was an exclusion from more than just the inside of the dwelling house itself and might, for example, include a specified area in the vicinity of the home. It might be, for example, as I am sure the noble Earl will appreciate, that one would want not only to exclude that individual—that named person—from the garden but possibly from the whole street or indeed even the village.

The Earl of Balfour

I am grateful to have had the opportunity to ask the question.

Clause 70, as amended, agreed to.

Clause 71 [Effect of, and orders etc. ancillary to, exclusion order]:

Lord Macaulay of Bragar moved Amendment No. 170:

Page 58, line 20, after ("authority") insert ("or Children's Reporter").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 171, 172, 174, 178, 180 and 182. Apart from Amendment No. 171, these amendments insert the words "or children's reporter" after the word "authority" referring to local authority. It has been pointed out that that should be "principal reporter" rather than children's reporter. I accept that the amendment is to that extent defective. The amendments are put down in the hope that the Government will accept the principle that by bringing the principal reporter into play so to speak, there will be another dimension quite apart from the local authority interest. Of course, the reporter is the person who is most likely to have most knowledge of the background to any of the proceedings taking place in respect of exclusion orders.

Amendment No. 171 relates to the question of the removal of items from the home. It demonstrates the difficulties in the application of provisions relating to the removal of necessary items from the home and is an attempt to broaden and to give flexibility to the removal of, for example, joiner's tools or plumber's tools or whatever they might be, or indeed a lawyer's books, and provides that the person concerned may come back to get them out of the house—although they may not have been removed in the first place. I trust that the Government, if not accepting the amendment, will at least look at the principle behind it. I beg to move.

The Earl of Balfour

Again, this is another case where I wonder whether the Government should have included the principal reporter. I had been quite concerned about that myself: I feel he is such an important person.

On Amendment No. 171, it comes to my mind that, supposing the person you wanted to exclude had a hire purchase agreement for, say, a gas cooker, it would be disastrous if that gas cooker were removed because the family concerned would have nothing to cook with. That is where I am rather grateful to the noble Lord, Lord Macaulay, for having tabled these amendments, because they relate to matters which came to my mind.

Lady Saltoun of Abernethy

I am a little puzzled by the amendment because, when I read it, I understood the noble Lord, Lord Macaulay, to mean that it would enable a chap who was being excluded to take, say, his plumber's tools or whatever with him, or to come and get such tools, but that does not look to me like the effect of it. It looks to me as if his wife, if she did not like him, could refuse him permission to get his tools. I am just a little puzzled and I wonder whether it is possible for the noble Lord to clarify the position.

Lord Macaulay of Bragar

I must say that, looking at the wording of the exclusion order with respect to Amendment No. 171, I have a slight difficulty with it myself. But the principle is there and it may very well be that the wife could stop the person removing any other items from the house. The phrase "or other applicant" is rather loose, but the amendment was tabled to ascertain the Government's reaction to it. It may be that the Government take the view that it is not very intelligible, but I hope that it is. The other "other applicant" could be the person who is being excluded, of course, but then that is almost a contradiction in terms. I accept that the amendment is not too happily phrased, but it has been tabled to raise the issue and to obtain a response from the Government.

Lord Fraser of Carmyllie

While in many respects this amendment is effectively, consequential upon a change that was proposed in Amendment No. 159 which has already been debated, it nevertheless raises an issue of greater substance than is usually the case in consequential amendments.

At the time of the discussion on Amendment No. 159, I indicated our firm view that it would not be appropriate to extend the powers of the reporters because their responsibilities lie totally in the area of children's hearings. Their focus is very much on measures of supervision for the child. To extend the reporter's duty as proposed would be to risk a serious dilution of that focus.

Since the Committee has already agreed that it would not be appropriate to allow the reporter to apply for an exclusion order, it would seem to follow that he should not have a part to play in any of the subsequent proceedings relating to ancillary orders, interdicts, warrants, or powers of arrest. Accordingly, in our view, Amendments Nos. 170, 172, 174, 178, 180 and 182 would not be appropriate.

Amendment No. 171 deserves, possibly, a separate mention. The removal of subsection (2) and, indeed, most of subsection (3) would make what remained of the clause unworkable, since the ejection of the named person and the prevention of his re-entry without permission would no longer be possible. As the noble Lord will appreciate from that explanation, the whole purpose of exclusion orders is thus defeated.

There was some consideration also in the discussion about the matter of the tools of the named person who might be excluded. That matter could be dealt with by the existing provisions of Clause 71(3)(c)(ii) because while that relates to the granting of an interdict, it also allows for a particular exception. It states: grant an interdict of any relevant item specified in the interdict from the home, except by virtue of a subsequent order of the sheriff. If the tools of a trade, a doctor's black bag or a lawyer's books (or whatever it might be) remained in the house, they could be expressly excluded from the terms of any interdict. With that explanation, I hope that the noble Lord will feel that he can withdraw the amendment.

Lord Macaulay of Bragar

I am grateful to the Minister for that explanation. As usual, I shall read with interest what he has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 171 and 172 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 173:

Page 58, line 33, leave out ("any spouse or partner of the named person") and insert ("an appropriate person").

The noble and learned Lord said: Amendment No. 164 introduced a new requirement; namely that there should be a person specified in the application for an exclusion order: 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 who is, or will be, residing in the family home". Although in most situations that person will be the spouse or the partner of the abuser, that will not necessarily always be the case. The term "appropriate person" was therefore introduced in recognition of that possibility.

This group of amendments—Amendments Nos. 175, 176, 181, 183, 184, 185, 188, 189 and 190, are grouped with Amendment No. 173—makes consequential changes to the exclusion order terminology. I beg to move.

Lord Macaulay of Bragar

There is just one matter; having removed the specification of any spouse or partner of the named person and substituted the words "an appropriate person", may I ask whether the phrase "an appropriate person" will be defined, or are we leaving open the definition depending on the particular circumstances of particular households? It is a matter of information because the new provisions create greater confusion whereas the original terms of the Bill were fairly precise. The phrase "an appropriate person" is very worrying. It may be somewhere in the Bill already—if it is, then I apologise for not having seen it—but I do not see it in Clause 84. Perhaps the Minister could give that point some consideration.

3.45 p.m.

Lord Fraser of Carmyllie

The terminology has been adopted deliberately because the make-up of households is potentially almost infinitely variable. It might be, for example, in the ordinary case—that is the way the original drafting proceeded—that the likelihood would be that it would be a spouse or a partner of the named person who was being excluded who would remain in the house with the child. What is not appreciated is that in some cases an appropriate person might be the grandmother—that is the most obvious one to select. But even though she might be a fairly obvious and predictable individual to be the appropriate person to resume or take on the care of the child in such circumstances, it is virtually impossible to predict a finite list. In those circumstances "an appropriate person" is the best terminology to apply.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 173A:

Page 58, line 38, leave out from ("person") to first ("of") in line 39.

The noble and learned Lord said: Amendment No. 173A seeks to limit the extent to which an interdict related to the granting of an exclusion order might affect people other than the named persons. As drafted at present, Clause 71(3)(e) would allow any other person to be named in the interdict and prohibited from taking any step mentioned in the interdict in relation to the child. This would appear to go beyond the reasons for the making of the original order. If there were grounds for any other person to be prohibited through an interdict in this way there would be strong reasons for suggesting that the person should equally be subject to an exclusion order. The amendment takes "any other person" out of paragraph (e) thus making clear that any interdict granted under its terms should relate only to the person named in the exclusion order. I beg to move.

On Question, amendment agreed to.

[Amendment No. 174 not moved.]

Lord Fraser of Carmyllie moved Amendments Nos. 175 and 176.

Page 59, line 14, after ("concerned") insert ("or an appropriate person").

Page 59, line 15, after ("member") insert ("or person").

The noble and learned Lord said: In speaking to Amendment No. 173 I spoke to Amendments Nos. 175 and 176. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Clause 71, as amended, agreed to.

Clause 72 [Powers of arrest etc. in relation to exclusion order]:

Lord Fraser of Carmyllie moved Amendment No. 177:

Page 59, line 22, leave out from ("may") to ("attach") in line 23 and insert (", whether or not on an application such as is mentioned in subsection (1A) below,").

The noble and learned Lord said: This amendment is moved with some reluctance in response to concerns that were raised in another place. The amendments replace the Latin phrase ex proprio motu in Clause 72 with an equivalent form of words in English. The purpose of this provision, namely to empower a sheriff to attach a power of arrest to an interdict whether or not the local authority has made such an application, ought to be clearer. I am bound to say that I think ex proprio motu is a perfectly adequate way of putting it but as that seems to have caused some disagreement in another place we have replaced a worthwhile short Latin phrase with extended English terminology. I beg to move.

The Deputy Chairman of Committees

I should remind the Committee that if this amendment is agreed to I am unable to call Amendment No. 178.

On Question, amendment agreed to.

[Amendment No. 178 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 179:

Page 59, line 24, at end insert: ("(1A) A local authority may at any time while an exclusion order has effect apply for such attachment of a power of arrest as is mentioned in subsection (1) above.").

On Question, amendment agreed to.

[Amendment No. 180 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 181:

Page 61, line 3, after ("family") insert (", or an appropriate person,").

On Question, amendment agreed to.

[Amendment No. 182 not moved.]

Lord Fraser of Carmyllie moved Amendments Nos. 183 to 185:

Page 61, line 22, leave from beginning to first ("the") in line 23 and insert ("an appropriate person who will reside in, or who remains in residence in,").

Page 61, line 24, leave out ("that spouse or partner") and insert ("the appropriate person").

Page 61, line 27, leave out ("spouse or partner") and insert ("person").

The noble and learned Lord said: In speaking to Amendment No. 173 I spoke to these three amendments. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 186:

Page 61, line 31, leave out subsection (14).

The noble and learned Lord said: In moving Amendment No. 186, I speak also to Amendment No. 191. These amendments are consequential on our decision to replace the word "partner" in Clause 72 (13) with "appropriate person". I beg to move.

On Question, amendment agreed to.

Clause 72, as amended, agreed to.

Clause 73 [Duration, variation and recall of exclusion order]:

Lord Macaulay of Bragar moved Amendment No. 187:

Page 61, line 34, leave out subsections (1) and (2).

The noble Lord said: This is a fairly short amendment. However, it is of some importance and it is raised to discuss the issue of what happens after six months. Clause 73 reads at the moment that after the end of a six months period the exclusion order shall cease, except under the conditions specified in Clause 73 (2) where other steps have been taken to make the exclusion order cease before the expiry of six months.

If we are looking for flexibility in these matters in relation to the welfare of the child, which has been discussed at length—and the amendment, although short, raises the issue—what will happen to the child and indeed to the excluded alleged abuser at the end of six months? I am the first to protect the liberty of the subject but it looks as if subsection (1) may be a very restricting subsection. It may be better to build into subsection (1) some qualification that the court can continue the exclusion order beyond six months on cause shown by whoever the person may be. That proposal does not appear to be covered by Clause 73(3) but, if it is, no doubt the noble and learned Lord the Minister will tell me that I am wrong. I know that the clause says over the page, vary or recall an exclusion order", and so on, but I am not quite satisfied that this is not a "bring the guillotine down" on an exclusion order at the end of six months and, whatever the circumstances may be, the alleged abuser is back home with there being no power to stop him. I wonder whether the noble and learned Lord the Minister has any views on that point. Can he say what Clause 73 really means and what the effect of it will be in the area of exclusion orders. I beg to move.

The Deputy Chairman of Committees

I should remind the Committee that if amendment No. 187 is agreed to, I shall be unable to call Amendment No. 188.

Lord Fraser of Carmyllie

I understand the noble Lord's concern and indeed his very proper wish to ensure maximum protection for children in these difficult circumstances. On the other hand, I have very real concerns, which I consider to be equally proper, over introducing open-ended exclusion orders which would run indefinitely until otherwise buried or recalled. That would be the effect of the noble Lord's amendment.

I agree with the noble Lord's construction of Clause 73 (3) that, while variation or recall is permitted, it would not allow for an indefinite extension beyond the six months period of the order.

Having reflected on this very carefully, we have considered that it would be quite inappropriate for public intervention of this type to continue without focus and, indeed, without regulation of property rights. As the noble Lord will recall, it was in the context of the emergency protection of children that such exclusion orders were first proposed for inclusion within our law. It was argued—as noble Lords will recollect—that this was a much better way in circumstances of emergency protection to care for children rather than have resort to a child protection order, the effect of which would be to remove the child from its home, school and one or more parent. It is in that context that we should regard what we are proposing to do, and I am sure he will recognise that it is also important that we should not leave open-ended the regulation or lack of regulation of property rights.

One of the major difficulties in domestic abuse cases is having the courage to make the first positive step towards resolving the situation. The matter can be much more difficult where children are involved. Our provision is therefore designed to allow public intervention and support in the initial stages, but with a view to the longer-term situation being resolved with, but not necessarily by, the local authority.

I believe that we have struck about the right balance in proposing that orders should lapse after six months at the latest. That gives adequate time for all concerned to address the situation and for necessary steps to be put in hand. If it is clear that the named person continues to be a threat to the remaining parent or partner, that remaining parent or partner could on their own seek an exclusion order, not only for their own protection but also for a child. They could secure that from the sheriff under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 where the named person was the spouse or cohabitant.

As I indicated, I consider that six months seems right, as the noble Lord, with his experience, will appreciate. One possible consequence of the exclusion of a named person from the home is that criminal proceedings might be taken against that person. One would certainly hope that if someone was going to be excluded, those who were responsible for investigation and/or prosecution would have taken some steps to bring matters to a head within a period of six months. The last thing one wants is a difficult situation like this carrying on indefinitely without resolution. It would not only be unfair to the named person. I cannot believe that it would be to the benefit of the child in question if no firm decisions were being taken.

I believe that the balance we have struck must be accepted as about right. It provides the necessary support and time to the non-abusing parent or partner to allow him to make important decisions over the child's longer-term interests and security, together with the involvement of the local authority. I hope that with that explanation the noble Lord will withdraw his amendment.

Lord Macaulay of Bragar

The noble and learned Lord has rather anticipated a point I was going to raise—the issue of court proceedings. What happens if the child is the principal witness against the excluded person, as the child is almost bound to be, and the authorities have not ensured that the matter is dealt with within the timescale in Clause 73?

I know that the noble and learned Lord has said that you can apply for an interdict or exclusion order—I cannot remember the phase and I do not have the matrimonial proceedings Act before me—but we also have the application in the criminal law. So we could have three Acts—the Children (Scotland) Act, the matrimonial proceedings Act and the criminal justice Act 1975, all getting into a terrible fankle, if I can put it that way.

Since this Bill is geared towards the interests of the child, might it not be better to build into the Bill some discretion for the court so that if, on the expiry of the six-month period, proceedings have been raised by the service of a summons, or indeed an indictment in many cases, the exclusion order can be continued within the context of the Bill rather than the burden being placed on the partner or whoever is in charge of the child—the appropriate person, as we saw in the previous context, whether it be a grandmother, grandfather or the guardian?

Perhaps the Government will reconsider the amendment, because one can see what could happen. The court could have three different Acts going in different directions. Subject to that, I am sure the Minister's answer will be read with great care by those interested in these matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Lord Fraser of Carmyllie moved Amendments Nos. 188 to 191:

Page 61, line 43, after ("person") insert (", or to an appropriate person,").

Page 61, line 46, after first ("person") insert (", an appropriate person").

Page 62, line 1, after ("home") insert ("and is not an appropriate person").

Page 62, line 3, at end insert— ("( ) For the purposes of this section, partners are persons who live together in a family home as if they were man and wife.").

On Question, amendments agreed to.

Clause 73, as amended, agreed to.

Clause 74, [Exclusion orders: supplementary provisions]:

Lord Fraser of Carmyllie moved Amendment No. 192:

Page 62, line 13, at end insert: ("b) the period within which a hearing shall be held under subsection (3B) of section 70 of this Act after the granting of an order under subsection (3A) of that section;").

The noble and learned Lord said: In speaking to Amendment No. 192, perhaps I may speak also to Amendments Nos. 193 and 194. These amendments can safely be described as of a technical and drafting nature. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 193 and 194:

Page 62, line 14, at end insert ("; ( ) the service of any exclusion order on the named person and the appropriate person within such period as may be specified in the rules.").

Page 62, leave out lines 20 and 21 and insert: ("( ) the person who will be the named person if the application is granted; ( ) the child to whom the application for the order relates; ( ) an appropriate person;").

On Question, amendments agreed to.

Clause 74, as amended, agreed to.

Clause 75 agreed to.

Clause 76 [Recovery of certain fugitive children]:

The Earl of Lindsay moved Amendment No. 195:

Page 63, line 12, leave out ("or the Channel Islands").

The noble Earl said: Government Amendment No. 206 clarifies the way in which the provisions of the Bill will extend to the Channel Islands. New subsection (9) of Clause 96 provides that Her Majesty may by order in council direct that any of the relevant provisions specified … shall extend … to any of the Channel Islands".

Clause 76 is one of those provisions. Therefore, the reference to the Channel Islands in Clause 76 can now be deleted. The intention will be achieved through government Amendment No. 206. Therefore, I beg to move Amendment No. 195 which is consequential upon it.

On Question, amendment agreed to.

Clause 76, as amended, agreed to.

Clauses 77 and 78 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 195 A:

After Clause 78, insert the following new clause:

Application for review of establishment of grounds of referral.

("New evidence: review of establishment of grounds of referral

—(1) Subject to subsections (3) and (4) below, where subsection (2) below applies an application may be made to the sheriff for a review of a finding such as is mentioned in section 62(10) of this Act.

(2) This subsection applies where the sheriff, on an application made by virtue of subsection (6) or (8) of section 60 of this Act (in this section referred to as the "original application"), finds that any of the grounds of referral is established.

(3) An application under subsection (1) above may only be made where the applicant claims—

1. (a) to have evidence which was not considered by the sheriff on the original application, being evidence the existence or significance of which might materially have affected the determination of the original application;
2. (b) that such evidence—
1. (i) is likely to be credible and reliable; and
2. (ii) would have been admissible in relation to the ground of referral which was found to be established on the original application; and
3. (c) that there is a reasonable explanation for the failure to lead such evidence on the original application.

(4) An application under subsection (1) above may only be made by—

1. (a) the child in respect of whom the ground of referral was found to be established; or
2. (b) any person who is a relevant person in relation to that child.

(5) Where the sheriff on an application under subsection (1) above is not satisfied that any of the claims made in the application are established he shall dismiss the application.

(6) Where the sheriff is satisfied on an application under subsection (1) above that the claims made in the application are established, he shall consider the evidence and if, having considered it, he is satisfied that—

1. (a) none of the grounds of referral in the original application to which the application relates is established, he shall allow the application, discharge the referral to the children's hearing in respect of those grounds and proceed in accordance with subsection (7) below in relation to any supervision requirement made in respect of the child (whether or not varied under section 67 of this Act) in so far as it relates to any such ground; or
2. (b) any ground of referral in the original application to which the application relates is established, he may proceed in accordance with section 62(10) of this Act.

(7) Where the sheriff is satisfied as is mentioned in subsection (6)(a) above, he may—

1. (a) order that any supervision requirement so mentioned shall terminate—
1. (i) immediately; or
2. (ii) on such date as he may specify; or
2. (b) if he is satisfied that there is evidence sufficient to establish any ground of referral, being a ground which was not stated in the original application, find such ground established and proceed in accordance with section 62(10) of this Act in relation to that ground.

(8) Where the sheriff specifies a date for the termination of a supervision requirement in accordance with subsection (7)(a)(ii) above, he may, before such termination, order a variation of that requirement or of any condition contained in or related to it, of any requirement imposed under subsection (6) of section 64 of this Act, or of any determination made under subsection (7) of that section; and such variation may take effect—

1. (a) immediately; or
2. (b) on such date as he may specify.

(9) Where the sheriff orders the termination of a supervision requirement in accordance with subsection (7)(a) above, he shall consider whether, after such termination, the child concerned will still require supervision or guidance; and where he considers that such supervision or guidance will be necessary he shall direct a local authority to provide it in accordance with subsection (10) below.

(10) Where a sheriff has given a direction under subsection (9) above, it shall be the duty of the local authority to comply with that direction; but that duty shall be regarded as discharged where they offer such supervision or guidance to the child and he, being a child of sufficient age and maturity to understand what is being offered, is unwilling to accept it.").

The noble and learned Lord said: As your Lordships will see, Amendment No. 195A, and Amendment No. 222A with which it has been grouped, are substantial amendments. It might be helpful if I take a moment to explain exactly what they contain. They provide a new procedure for the consideration of new evidence after a sheriff has held the grounds for referral to a children's hearing to have been established. The Social Work (Scotland) Act 1968 makes no provision for the consideration of new evidence once the grounds for referral have been established. If significant and relevant information comes to light, it is necessary to make use of the nobile officium and to apply to the Court of Session under an exceptional procedure.

That is not a satisfactory way to proceed, although it is available as a route of last resort. It was the subject of comment by the Lord President of the Court of Session, the noble and learned Lord Hope of Craighead, in the recent case of the south Ayrshire children. At the Second Reading, I indicated to your Lordships' House that I would be bringing forward amendments to deal with the matter. Your Lordships may recall that in his maiden speech to your Lordships' House, the noble and learned Lord, Lord Hope, indicated his approval of the approach that we proposed to take.

If there is significant new evidence which would have materially affected the determination of the original application to the sheriff, it is important that there should be an opportunity to consider that evidence. In decisions concerning the welfare of children, it would be wrong to exclude, simply on procedural grounds, significant evidence which might affect an important decision in the life of a child. It is equally important that there should be clear criteria for dealing with potential new evidence to avoid the constant reconsideration of decisions because, if that were to be allowed, it would lead to uncertainty and affect the welfare of the child, which is at the centre of the consideration.

Our new clause tries to strike the right balance between those two objectives. The clause makes provision for a child or a relevant person, who could most commonly be a parent, to apply to the sheriff for the consideration of new evidence. To qualify as new evidence, the evidence should not have been considered at the original proof hearing before the sheriff; it should be of a significance which might materially have affected the original proof findings; there should also be a reasonable explanation of why the evidence was not given at the original proof hearing; and there is, finally in this respect, a test on the reliability, credibility, and admissibility of the evidence.

If the sheriff is not satisfied that any of the claims in relation to the new evidence meet the subsection (3) test, which I have just described, then he will dismiss the application. However, if he is satisfied that the claims do meet the test, having considered the evidence, he will, if satisfied that none of the original grounds is established, discharge the referral to the children's hearing. He may then either terminate the supervision requirement or hold established new ground on the evidence and refer the case to the children's hearing. Alternatively, if he is satisfied that any of the original grounds of referral is established, then he will remit back to the hearing.

The new clause also recognises that bringing a supervision requirement to an abrupt halt may create problems, particularly if the child had been under supervision away from home for a period. The clause therefore makes provision for the sheriff to set a date for the termination of the supervision requirement or vary the requirement so as, in effect, to phase the implementation of his decision. The new clause also provides for the sheriff to direct the local authority to provide supervision and guidance after the termination of the supervision requirement has taken place. The child can, of course, choose whether to accept this support. These elaborated provisions reflect particular difficulties which have, in practice, arisen in the south Ayrshire case to which I referred.

The further government amendment to Schedule 3, page 105, line 17, makes a consequential amendment to Clause 20 of the Criminal Justice (Scotland) Bill which is presently before Parliament. This amendment will ensure that Clause 20, which deals with the construction of clauses regarding the admissibility of evidence, covers the new procedure on new evidence in children's hearings.

I hope that the new clause and the associated amendment in Schedule 3 respond fully to the problem of how to take account of new evidence in relation to children's hearings and that they appropriately reflect the experience of recent cases. With that somewhat extended but necessary explanation of what is allowed for, I commend these amendments to your Lordships.

Lord Macaulay of Bragar

I am grateful to the Minister for that very clear explanation of the foundation for this particular amendment. It comes at a late stage in the Bill, and will require close consideration by us all to see what practical difficulties might arise in the administration of justice. Subject to that, I welcome the amendment.

On Question, amendment agreed to.

Clause 79 [Parental responsibilities order: general]:

The Earl of Lindsay moved Amendment No. 196:

Page 65, line 6, leave out ("duties") and insert ("responsibilities").

The noble Earl said: These are essentially technical drafting changes. They seek to clarify the precise role of the local authority where a parental responsibilities order is made. I beg to move.

On Question, amendment agreed to.

The Earl of Balfour moved Amendment No. 196A:

Page 65, line 21, at end insert: ("( ) Where an order has been made under this section, no application in relation to the child shall be competent under section 11 of this Act.").

The noble Earl said: On behalf of my noble friend Lady Faithfull, I would like to have the opportunity to ask whether Clause 4 could apply in Chapter 4 of Part II? I just wonder whether it would actually apply. It is a very awkward question, I know. Perhaps the Minister would like to write to me.

Lord Earl of Lyndsay

I shall take up the noble Earl's suggestion that we write to him on this matter.

Amendment, by leave, withdrawn.

Clause 79, as amended, agreed to.

Clause 80 [Further provision as respects parental responsibilities orders]:

The Earl of Lindsay moved Amendment No. 197:

Page 65, line 40, leave out ("look after the child") and insert ("fulfil the transferred responsibilities").

The noble Earl said: I spoke to this with Amendment No. 196. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 197A:

Page 66, line 6, leave out (", or for the variation or revocation of,").

The noble Earl said: This amendment seeks to delete a misleading reference to the variation or revocation of a parental responsibilities order as requiring rules for the appointment of a reporting officer or curator ad litem. There will be no role for a reporting officer and facilities already exist for the appointment of curators. There is, therefore, no need for the subsection to refer to "variation or revocation of an order and the amendment makes the necessary deletion. I beg to move.

The Earl of Balfour

May I again ask a question at this stage? In Clause 80 we have this person called a "reporting officer". I notice that subsection (4) says on page 66 line 17: no employee of theirs —that is of the local authority— shall be appointed under either or both of those paragraphs".

I am sorry I have not managed to give my noble friend any warning of this but what kind of a person is this reporting officer? Who appoints him? There does not seem to be a definition of a reporting officer. It is the first time I have come across this word and I am a little mystified.

The Earl of Lindsay

The person is appointed by the courts to witness the consents of the parents. Does that enlighten the noble Earl at all?

The Earl of Balfour

I see; he is appointed by the courts. Fair enough, that is the reason why he must be completely independent from the local authorities and everything else. That is a very great help.

Perhaps I may ask another question. Clause 81(3) refers to the "named person". Is that the same person as appears in Clause 70 of the Bill? These points just made me wonder a little.

The Earl of Lindsay

No, that is a different person.

On Question, amendment agreed to.

Clause 80, as amended, agreed to.

Clauses 81 and 82 agreed to.

Clause 83 [Consent of child to certain procedures]:

Lord Fraser of Carmyllie moved Amendment No. 197B:

Page 67, line 22, at end insert ("; and without prejudice to that generality where a condition contained, by virtue of section 64(5)(a) of this Act, in a supervision requirement requires a child to submit to any examination or treatment but the child has the capacity mentioned in the said section 2(4), the examination or treatment shall only be carried out if the child consents.").

The noble and learned Lord said: Amendment No. 197B and Amendment No. 198, which stands in the name of the noble Lord, Lord Macaulay, are intended to clarify the relationship between particular provisions of the Bill and Clause 83, and in particular to ensure that children have the right to consent or refuse any medical examination or treatment.

I can sympathise with the intention behind the noble Lord's amendment, but if his amendment were to be introduced, it would create an absolute right for children to refuse medical examination or treatment against the express direction of the sheriff or in contravention of a condition imposed by a children's hearing. Such a right is entirely appropriate for children who are of sufficient understanding to make an informed decision, but the amendment would extend that right to children of any age—down to infants. On reflection, I think that the noble Lord would recognise that would go too far.

On the other hand, our amendment, Amendment No. 197B, gives the right to consent to or to refuse an examination or treatment required by a supervision requirement only to children who are of sufficient understanding. I think that the noble Lord will recognise that terminology. It is in line with Section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 which generally extends that right. With that explanation, I invite the Committee to accept Amendment No. 197B. I hope that the noble Lord, given that explanation, will not choose to move his amendment. I suggest that mine is preferable.

Lord Macaulay of Bragar

The question of a child's consent to this particular form of treatment is a very delicate one. As I have indicated to the noble and learned Lord the Minister, notwithstanding his amendment, Amendment No. 197B, I would not in any event be moving Amendment No. 198, so the matter can be considered again.

However, I wonder whether the government amendment takes into account the religious beliefs of the child. We talk of the child having "the capacity mentioned"—that is, the capacity to give consent—but does that take into account the religious or ethnic origin of the child? If it seems that a child requires treatment bur refuses it because he is of a certain religious belief, do the provisions mean the child can withhold consent? Subject to that, I welcome the amendment.

Lord Fraser of Carmyllie

This is a matter not of the religious conviction, but of whether or not the child can consent. If the child is of sufficient understanding and withholds that consent, then because that decision has been rationally made and understood, in those circumstances the child stands in exactly the same position as would the noble Lord in consenting or withholding consent in relation to a medical treatment.

Lord Macaulay of Bragar

Does that cover the position of a child who is asked "Do you understand why you are being asked to do this?" to which the child says, "Yes", and who is then asked, "Do you understand it is necessary for your well-being", and the child says "Yes"? The child may then be asked, "Do you want to give consent?" to which the child says, "No". When the questioner asks "Why?", the child may say, "Because I am of a certain religious persuasion. I know it is for my benefit physically, but I cannot give consent because of my religious beliefs". I am just wondering whether we are moving into another difficult area.

Lord Fraser of Carmyllie

The circumstances in which the noble Lord might decline to consent to medical treatment might be regarded by physicians and by other noble Lords as being, in many senses, irrational, but, provided he had a clear understanding of what he was refusing to consent to, that would be his right. I am saying that in such circumstances, and provided the child is seen to have sufficient understanding, then the child is in much the same position as the adult.

It seems to me that the more critical difficulty in the 1991 Act—I do not shrink from it—lies in determining whether the child has what might be described in the words of the statute as a "sufficient" understanding.

Lord Macaulay of Bragar

The provisions mean in real terms—I am not talking of financial terms—that if a child who has the capacity to understand that for which consent is being asked then gives an irrational reason for not consenting, the questioner who is asking for the consent can do nothing about it.

The Earl of Mar and Kellie

I would like to ask how the amendment will deal with the child who is the subject of a child protection order under Section 54(5)(a)? Does it actually deal with child protection order children or do they have to wait until they come under a supervision requirement from the children's hearing?

Lord Fraser of Carmyllie

The amendment applies to conditions of examination or treatment included in a supervision requirement made by a children's hearing. It does not apply to conditions laid down in a child protection order made by the sheriff.

Clause 54(4) provides for direction in relation to the exercise of any parental responsibility which embraces matters of consent or refusal to examination or treatment.

I hope that fully explains the matter to the noble Earl, but perhaps he may wish to return to it.

On Question, amendment agreed to.

[Amendment No. 198 not moved.]

Clause 83, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendment No. 199:

After Clause 83, insert the following new clause:

Procedural rules in relation to certain applications etc.

(".—(1) All proceedings to which this section applies are civil proceedings for the purposes of section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court).

(2) Any reference in this Part of this Act to regulation or prescription by rules in relation to any proceedings to which this section applies shall be construed, unless the context otherwise requires, as a reference to regulation or prescription by rules made by virtue of subsection (1) above.

(3) In relation to any proceedings to which this section applies, rules may permit a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.

(4) This section applies to any application made to the sheriff, and any other proceeding before the sheriff (whether on appeal or otherwise), under any provision of this Part of this Act.").

The noble and learned Lord said: Part II of the Bill contains a number of provisions for applications and appeals to be made to the sheriff. Some of these provisions contain rule-making powers while others do not. The purpose of this new clause is to ensure that adequate provision is made for all the sheriff court procedure rules necessary to ensure the effective implementation of the provisions of this legislation and, at the same time, to gather all of the provisions for the rules into one clause in the Bill to facilitate reference.

My understanding is that in another place there was the usual complaint made that, where there are such rule-making powers, if they are spread in various places round the Bill it is extremely difficult to draw together any clear appreciation of what is allowed for. That is why this provision is included in this way in the form of a new clause and I certainly anticipate that it will be of great benefit and value to those who wish to know whether or not rules can properly be made in terms of this part of the Bill. I beg to move.

The Earl of Balfour

Grouped with Amendment No. 199 is the amendment to omit subsection (6) of Clause 84, which is the first three lines at the top of page 70. That was my guide to the amendment that I moved in Clause 58 where I started off by saying "at the top of page 70". I wonder in respect of the rules versus regulations problems that I have, whether this clause really deals with all the rules that are made by the courts as compared with regulations by the Secretary of State. I think perhaps the new clause is a better way of doing it and I am quite happy to accept it.

However, I again have a slight problem in that Clause 84, the interpretation clause, ceases to deal with these rules. In view of the amendment already spoken to with Amendment No. 195—it is an amendment to Clause 96 at the bottom of page 12 of the Marshalled List which talks about Orders in Council and refers to a number of clauses including Clause 84—I wonder whether this new clause which my noble and learned friend Lord Fraser has introduced should not be Clause 83A when we come to it at the end of the day.

As I am referring to that, there are regulations issued by the Secretary of State under Clause 68, mentioned in Amendment No. 206, and I wonder whether Clause 58, which also deals with regulations, should perhaps be included here as well. I know that the Minister has spoken to it but I felt that this was the easiest point at which I could raise these questions.

Lord Fraser of Carmyllie

I cannot say that I entirely followed the noble Earl in his detailed traverse through the Bill looking up the terminology of rules and regulations in all its respects, but I shall certainly look again to ensure that there is no duplication and at the same time ensure that there are no gaps because that would defeat the very purpose of the new clause, which is that we should try to draw together in a clear way what is allowed for.

What this new clause deals with, as shown by the reference in subsection (1) to Section 32 of the Sheriff Courts (Scotland) Act 1971, are those rules that are made in the Court of Session by the Lord President under acts of sederunt. The provisions contained in Amendment No. 199 are not intended to cover regulations—there are other regulations, as the noble Earl appreciates—which could be made at the hand of the Secretary of State. The new clause is designed, for acts of sederunt made by the Court of Session.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 199A:

After Clause 83, insert the following new clause:

Legal aid in respect of certain proceedings.

(". For section 29 of the Legal Aid (Scotland) Act 1986 substitute the following section—

29.—(1) This section applies to legal aid in connection with—

1. (a) proceedings before the sheriff (including, without prejudice to that generality, proceedings on an appeal to the sheriff principal from a decision of the sheriff) in respect of any matter arising under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 (in this section referred to as "the 1995 Act"); or
2. (b) an appeal to the Court of Session in connection with such proceedings.

(2) Subject to subsections (3) to (5) below, legal aid to which this section applies shall be available to a child and any relevant person in relation to him in connection with—

1. (a) proceedings before the sheriff on an application for a child protection order or child assessment order, or for the variation or recall of such an order;
2. (b) an appeal to the sheriff under section 47 of the 1995 Act against—
1. (i) a decision of a children's hearing to grant a warrant such as is mentioned in subsection (5)(a) of that subsection; or
2. (ii) any other decision of a children's hearing;
3. (c) an application—
1. (i) by virtue of section 60(6) or (8) of the 1995 Act for a finding as to whether the grounds for a referral are established; or
2. (ii) under section (application for review of grounds of referral) of the 1995 Act for a review of such a finding;
4. (d) an appeal to the sheriff principal or to Court of Session under section 47 of the 1995 Act.

(3) Legal aid shall be available under subsection (2)(b)(i) above on an application made to the sheriff without inquiry into the resources of the child or the relevant person.

(4) Legal aid shall be available under subsection (2)(a),(b)(ii) or (c) above on an application made to the sheriff if the sheriff is satisfied—

1. (a) that it is in the interests of the child that legal aid be made available; and
2. (b) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the case cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them.

(5) Legal aid shall be available under subsection (2)(d) above on an application made to the Board if it is satisfied—

1. (a) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the appeal cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them; and
2. (b) that the child, or as the case may be the relevant person has substantial grounds for making or responding to the appeal and it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.

(6) The Board may require a person receiving legal aid under subsection (2)(d) above or subsection (9) below to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive such legal aid.

(7) Subject to subsection (8) below, legal aid to which this section applies shall be available in connection with proceedings before the sheriff on an application for an exclusion order (or for the variation or recall of such an order) to—

1. (a) a child;
2. (b) a relevant person in relation to a child;
3. (c) a person who is a named person, or will be such a person if the application is granted;
4. (d) a spouse or partner of a person mentioned in paragraph (c) above; and
5. (e) a person who is an appropriate person, or will be such a person if the application is granted.

(8) Legal aid shall be available under subsection (7) above on an application to the sheriff if the sheriff is satisfied after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him that the expenses of the case cannot be met without undue hardship to the applicant or any dependent of the applicant.

(9) Legal aid shall be available in connection with any appeal to the Court of Session from a decision of the sheriff on an application for an exclusion order or for the variation or recall of such an order to any of the persons mentioned in paragraphs (a) to (e) of subsection (7) above on an application to the Board if it is satisfied—

1. (a) after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him, that the expenses of the appeal cannot be met without undue hardship to the applicant or any dependent of the applicant; and
2. (b) that the applicant has substantial grounds for making or responding to the appeal and that it is reasonable, in the particular circumstances of the case, that legal aid should be granted accordingly.

(10) Where in connection with any proceedings—

1. (a) the sheriff has been satisfied as is mentioned in subsection (4)(b) or subsection (8) above; or
2. (b) the Board has been satisfied as is mentioned in subsection (5)(a) or subsection (9)(a) above,

and has made legal aid available to any person, it shall not be necessary for the sheriff or, as the case may be, the Board to be so satisfied in respect of an application for legal aid by such a person in connection with any subsequent proceedings arising from such proceedings.

(11) Legal aid to which this section applies shall consist of representation by a solicitor and, where appropriate, by counsel in any proceedings (including any appeal) mentioned in subsection (1) above and shall include all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to such proceedings.

(12) In this section—

1. (a) "child" and "relevant person" have the meanings given by section 84(2)(b) of the 1995 Act;
2. (b) "child protection order", "child assessment order" and "exclusion order" have the meanings given by section 84(1) of that Act;
3. (c) "named person" and "appropriate person" have the meanings given by section 70 of that Act; and
CWH 138
4. (d) "spouse or partner" shall be construed in accordance with section 73(4) of that Act.".").

The noble and learned Lord said: Amendment No. 199A has grouped with it a number of other amendments, namely Amendments Nos. 218A, 218B and 218C. For any of your Lordships looking at this formidable new clause for the first time, it would seem to be extremely complicated and difficult to follow. It may be helpful if I explain what the amendment does. It provides for technical amendments to the Legal Aid (Scotland) Act 1986. Section 29 of that Act provides for legal aid in certain proceedings relating to children. These are proceedings before the sheriff arising under Part III of the Social Work (Scotland) Act 1968 and related appeals. Part II of this Bill replaces and supplements Part III of the 1968 Act. It is therefore necessary to amend Section 29 of the 1986 Act to ensure that procedures in Part II are covered from the legal aid perspective.

Although this may seem an extensive and elaborate new clause, it should be noted that it begins by saying: For section 29 of the Legal Aid (Scotland) Act 1986 substitute the following section". So in many respects it is a replacement of what is already there. I hope that it will be helpful, as it were in almost a consolidating fashion, for those who have to administer legal aid and understand it to have the new provisions provided in this fashion.

The associated amendments to paragraph 37 of Schedule 3 also amend the definitions of "legal aid" and "person" contained in Section 41 of the 1986 Act. This again is to reflect the provisions of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 84 [Interpretation of Part II]:

Lord Macaulay of Bragar moved Amendment No. 200:

Page 69, line 33, leave out subsection (4) and insert: ("( ) Any reference in this Part of this Act to a child being "in need", is to his being in need of care and attention because—

1. (a) no-one has parental responsibility for him;
2. (b) he is lost or abandoned;
3. (c) for whatever reason, the person who is or has been caring for him is not safeguarding or promoting, or is not adequately safeguarding or promoting, his welfare;
4. (d) he is disabled or affected by the disability of another member of the family;
5. (e) he has witnessed the abuse of one parent by the other;
6. (f) he is unlikely to achieve or maintain a reasonable standard of health or development without the provision of services by the local authority; or
7. (g) his health or development is likely to be significantly impaired or further impaired by the absence of services provided by the local authority.")

The noble Lord said: This amendment seeks to expand the definition of a child "in need", which is set out in the Bill at page 69, line 34. In putting forward the amendment, I am in no way being critical of the present definition. I note that the noble and learned Lord the Minister has an amendment, Amendment No. 201, which covers the same area and, indeed, has common ground with four aspects of Amendment No. 200.

It is an unfortunate aspect of life today that the catalogue of parental negligence, abuse and cruelty, as we are learning day by day, week by week and month by month, knows no bounds. Sometimes that is brought about either by a deliberate act of the parent or by ignorance, and indeed, in many cases reflects on the treatment which the parent may have had during his or her own childhood.

The amendment seeks to broaden the area within which the child in need can be protected and it gives, I hope, greater protection to the child. We know from recent experience that where a child is, for example, lost or abandoned, as set out in the original definition, that can lead to tragic consequences all round—to the child and to the parents, and, indeed, in some cases to people who have murdered the particular child or children, as the case may be.

Paragraph (c) of the amendment gives an umbrella approach to defining a child in need, because obviously one cannot have a universal definition for a child in need. We could be here all night discussing it. We all have our own ideas about what particular circumstances would constitute a child being in need.

As I say, paragraph (c) of the amendment is an umbrella provision: for whatever reason, the person who is or has been caring for him is not safeguarding or promoting, or is not adequately safeguarding or promoting, his welfare". That gives a very wide scope to people to take the child into care. For example, if a child is found wandering about in the main street at half-past eleven at night, or a four-year-old is wandering about, it would on the face of it appear not that the child is necessarily lost or abandoned but that the person who should be looking after the child is not promoting its welfare.

For example, I do not know what the statistics for house fires are in the United Kingdom—and we are dealing only with Scotland at the moment—but there are parents or so-called parents or guardians who have gone out to the pub and perhaps left four children under the age of 12 in the house and the house then goes up in smoke. The reporting of that kind of situation to the authorities before a tragedy happens is the sort of thing that we need to build into the Bill. That is the general purport behind it.

As I say, it is impossible to build into legislation every circumstances, but I would hope that an amalgam of the two amendments, Amendments Nos. 200 and 201, might at least give as near universal coverage and protection to the child as legislation can give. With that explanation, I beg to move.

The Deputy Chairman of Committees

I remind the Committee that should this amendment be agreed to, I shall be unable to call Amendment No. 201.

Lord Fraser of Carmyllie

When we were debating Amendment No. 52 previously, I spoke then, albeit briefly, to Amendment No. 201, which, in our view, is one of the most important amendments to be moved by the Government at this stage of the Bill, knowing as I did that a number of organisations had concerns about the way in which local authority welfare duties were spelt out within Clause 20 as presently drafted. Indeed, such was the knowledge of the concerns expressed that when the Bill was being discussed in another place, undertakings were given that the Government would look again at the scope of the clause.

A number of important adjustments are being made through changes in the definition of "child in need". In Clause 84(4), which is my Amendment No. 201, our revised definition introduces a more child-centred definition of a child in need, and so indicates a positive duty on local authorities to promote the welfare of children in need in their area. The amendment should ensure that no children in need of local authority assistance are prevented by statute from receiving it.

I might say, in relation to Amendment No. 201, that the revised definition is very similar to that in the Children Act 1989. I am confident that the approach we have adopted, which is to place a firm and simple duty on local authorities to promote the welfare of children in their areas who are in need, is one which is very reasonably and properly directed.

I turn to Amendment No. 200 which has a number of features which I should explain to the noble Lord I do not consider are appropriately placed here, although the concerns he expresses in the amendment are perfectly appropriate—not least, the references within that definition, which we had also, to those who had been lost or had been abandoned. If the noble Lord cares to look back to Clause 22, he will find there that: (1) A local authority shall provide accommodation for any child who, residing or having been found within their area, appears to them to require such provision because—

1. (a) no-one has parental responsibility for him;
2. (b) or he is lost or abandoned".

That would seem to be the more appropriate place to deal with the sets of conditions which, certainly, that local authority should be engaged in.

Another concern I have is that in his amendment one provision is within the definition of being in need. A child is so described if, under paragraph (e), he has witnessed the abuse of one parent by the other". That really is an extremely wide and potentially very long lasting provision in that a young child, perhaps aged three or four, might have had the undoubtedly unhappy experience of seeing violent abuse by perhaps the father on the child's mother, but it might seem rather startling that that child should continue within the age definition until reaching the age of 16. For that reason, there are difficulties within the noble Lord's amendment. I would suggest that government Amendment No. 201 is preferable. While I would be interested to hear from anyone with an interest in this matter in Scotland about the new definition, my understanding is that there is a general acceptance that what the Government have now introduced is certainly very much wider. I understand that it is generally considered acceptable to those who properly are concerned that local authorities' duties should be appropriately defined. With that somewhat extended explanation, I hope the noble Lord will feel that Amendment No. 200 can be withdrawn.

Lady Saltourn of Abernethy

Looking at the amendment and at Clause 22—the category "lost or abandoned"—I am wondering whether "lost" should be qualified in some way because the best parents can lose a child temporarily. A child who has been lost temporarily is not really seriously in need except temporarily. What he needs is to be restored to his family. I wonder whether there ought to be some kind of qualification to discriminate between the child who is totally lost and the child who is temporarily lost.

Lord Fraser of Carmyllie

I can imagine local authorities the length and breadth of Scotland would be horrified that if every time a child was lost in a park or a shopping plaza they immediately had to assume an indefinite obligation to care for that child because it was lost.

My noble friend makes a good point, but I believe that it is already covered. Clause 22 requires that, A local authority shall provide accommodation for any [lost] child who appears to them to require such provision". I should have thought that it was part of a local authority's correct approach to such matters if it found a lost child wandering in the streets to see what it could do to return that child to his or her parents without immediately providing accommodation and causing every other agency in the locality to go into top gear. It is a good point, but nevertheless it is covered.

Lord Macaulay of Bragar

I am grateful to the Minister for his exposition in these matters, although I can see that in the light of what the noble Lady, Lady Saltoun, said we may be dealing in terms of timescale. It may be that Clause 22(1), envisaging the provision of accommodation for children as it is spelt out, is indeed the situation where a child is found wandering on a temporary basis and the local authority has a duty to take him into care until his or her parents have been found.

I fully accept the views expressed by the Minister on the wide range of paragraph (e) in Amendment No. 200. It has no timescale. If I may say so, that is a very valid criticism, but it is meant to indicate where the child has been adversely affected by witnessing abuse of one parent by the other. As the noble and learned Lord knows, some of the amendments are tabled in order to have discussion on these matters. We may be able to widen the definition in terms of long-term need, which is what the term "in need" means. Clause 22(1) certainly does not cover the question of a child in need; it merely covers the question of the provision of accommodation for children. I am not sure that the definition of a child in need sits happily in Clause 22(1). Again, we will note with interest what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendments Nos. 201 and 202:

Page 69, leave out lines 36 to 41 and insert:

1. ("(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services by a local authority;
2. (ii) his health or development is likely significantly to CWH 142 be impaired, or further impaired, unless such services are so provided;
3. (iii) he is disabled; or
4. (iv) he is affected adversely by the disability of any other person in his family.").

Page 70, line 1, leave out subsection (6).

The noble and learned Lord said: I spoke to Amendment No. 201 in relation to Amendment No. 52 and I have done so again in relation to Amendment No. 200. So far as Amendment No. 202 is concerned I spoke to that in relation to Amendment No. 199. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Clause 84, as amended, agreed to.

4.45 p.m.

Clause 85 [Approval of adoption society for specific services]:

The Earl of Lindsay moved Amendment No. 202ZA:

Page 70, line 8, at insert ("which is a voluntary organisation").

The noble Earl said: Amendment No. 202ZA and those with which it is grouped are essentially minor amendments to clarify certain aspects in the process through which adoption societies are approved. The first makes clear that an adoption society must be a voluntary organisation. The second amendment allows application for approval of a service which has not yet commenced. The amendment puts beyond any doubt that approval can be given in respect of appropriate new services.

The third and fourth amendments deal with a change in Section 3(7) of the 1978 Act. The change brings in a degree of flexibility to allow the Secretary of State to approve adoption societies for a period less than three years, the present norm. In view of the declining numbers of adoptions and the possible tendency for societies to specialise in offering particular services, there may be occasions on which it would be appropriate to offer approval for a more limited period. This gives that useful degree of flexibility to the Secretary of State in approving adoption societies. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 202ZB to 202ZD:

Page 70, line 11, after ("maintained") insert (", or to be maintained,").

Page 70, line 34, leave out ("and").

Page 70, line 36, at end insert ("; and (e) in subsection (7)—

1. (i) for the words "a period of" substitute "such period not exceeding"; and
2. (ii) after the word "operative" insert "as the Secretary of State may specify in the approval.".").

On Question, amendments agreed to.

Clause 85, as amended, agreed to.

Clause 86 [Welfare of child paramount consideration]:

Lady Saltoun of Abernethy moved Amendment No. 202A:

Page 71, line 13, at end insert: ("(3) In reaching any decision relating to the adoption of a child, a court or an adoption agency shall determine the matter without unreasonable delay.".").

The noble Lady said: With the leave of the Committee, I beg leave to move Amendment No. 202A in place of the noble Baroness, Lady Faithfull, who is unable to be here this afternoon.

The object of the amendment is to prevent unnecessary and undue delay in adoption cases. It gives statutory force to what should be good practice, and what is already in case law in Scotland for courts. Despite good practice and case law, unnecessary delays do occur.

There has been a case where an adoption petition took between four and six months when the children were already freed, because the sheriff was otherwise occupied and delayed the adoption hearing. There are already two changes to the Adoption (Scotland) Act 1978, covering delay, in Schedule 2, paragraphs 4 and 17, but they do not cover all stages of the adoption process. For instance, paragraph 4 only deals with the stage of actually getting parental consent. Paragraph 17 provides that courts shall draw up timetables, but only in cases where there is a dispute over parental consent. It would not cover unopposed cases.

The Government, I believe, said that this was better dealt with in rules of court, with timetables. But are they prepared to undertake that the rules of court will provide timetables for all the adoption court cases, not just disputed ones, because delays do occur in unopposed cases? Also, rules of court are no use in preventing deals by adoption agencies. If we cannot have the statutory protection of the amendment, what about an undertaking to provide regulations with timetables?

Such delays are not in the interest of the children involved, and are very hard on the would-be adopters. I beg to move.

The Earl of Lindsay

I am in no doubt that in moving the amendment the noble Lady, Lady Saltoun, has the welfare of children very much at heart. She has demonstrated that. I doubt, however, whether it is necessary to add the subsection to the Bill in the way proposed.

Clause 86 inserts a new Section 6 into the Adoption (Scotland) Act 1978 and Section 6(1)(a) makes it quite clear that a court or an adoption agency has to regard the need to safeguard and promote the welfare of the child concerned as the paramount consideration. I believe we could reasonably expect that the court or the agency is responsibly discharging that duty in relation to a child, to avoid any unnecessary delay.

The message is reinforced elsewhere. Clause 16 also makes it clear that a court should have the welfare of the child as its paramount consideration in making any determination. And, most importantly, Section 1(3) of the 1978 Act requires that the adoption service shall be provided in conjunction with the local authority social work service so that help may be given in a sensible, co-ordinated manner without duplication, omission or avoidable delay.

I believe that there are already adequate safeguards within the legislation but I would add that, as far as avoidance of delay by the courts is practicable, I believe it can best be achieved through rules of court. We have listened carefully to the points made by the noble Lady and we will consider her argument on this point. On that basis, I hope she will feel able to withdraw her amendment.

Lady Saltoun of Abernethy

I am very grateful to the noble Earl for that explanation. I should be very interested to know in more detail what is proposed but perhaps I could ask him about it at some other time. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 agreed to.

Clause 87 agreed to.

Clause 88 [Adoption by person married to natural parent]:

The Earl of Lindsay moved Amendment No. 202B:

Page 71, line 32, after ("person)") insert ("—(a)").

The noble Earl said: These amendments to Clause 88 are again essentially of a minor nature. Subsection (2) of Clause 88 makes changes in Section 15(1) of the 1978 Act, which deals with adoption by one person. The aim is to ensure that step-parents can be included within the categories of single persons who may adopt. The aim is to remove the need for the natural parent to adopt his or her own child in step-parent adoption cases.

The changes which are now being introduced seek to make clear that the categories of people described in paragraph (aa) and in paragraph (b) are mutually exclusive. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 202C and 202D:

Page 71, line 34, after ("(aa)") insert ("not being a person who may make application by virtue of paragraph (b) below,").

Page 71, line 38, at end insert ("; and (b) in paragraph (b), at the beginning insert— not being a person who may make application by virtue of paragraph (aa) above".").

The noble Earl said: I spoke to these amendments earlier. I beg to move.

On Question, amendments agreed to.

Clause 88, as amended, agreed to.

Clauses 89 to 93 agreed to.

Clause 94 [Interpretation, rules, regulations and Parliamentary control]:

The Earl of Lindsay moved Amendment No. 202E:

Page 74, line 19, at end insert ("or the Lord Advocate").

The noble Earl said: This is a technical amendment. Although Clause 36 empowers the Lord Advocate jointly to make regulations with the Secretary of State in relation to the powers of a reporter to conduct proceedings before a sheriff, there is no provision requiring such provisions to be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. This amendment rectifies that omission. I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 203:

Page 74, leave out lines 21 and 22 and insert ("and no instrument containing such rules or regulations shall be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: This is an amendment to Clause 94(2) to which the noble Earl, Lord Lindsay, referred in relation to the previous amendment on the inclusion of the Lord Advocate. As drafted, subsection (2) referring to "prescribed" states it, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament". It may be an error in draftmanship but I am not sure what the intent is behind the use of the word "either". Amendment No. 203 may also be defective, because it proposes the inclusion of the words: and no instrument containing such rules or regulations shall be made unless a draft of the instrument has been before or approved by resolution of each House of Parliament. That is meant to imply Houses of Parliament. As Clause 94(2) stands, it means that the regulation could go before another place or this place and would not need to be considered in both. That is the rationale, if I can flatter it with that description, behind this particular amendment. With that explanation, I beg to move.

The Earl of Lindsay

This amendment seeks to ensure that no statutory instrument of rules or regulations shall be made unless the draft has been approved by both Houses. We stand by our draftmanship on this side of the table but we will read in Hansard what the noble Lord said.

The amendment would apply to a higher degree of parliamentary supervision of all the matters which the Bill proposes should be dealt with in rules or regulations. It is normal for secondary legislation which deals with detailed and operational matters to be subject to the negative resolution procedure. The Delegated Powers Scrutiny Committee, in its report to the House, did not object to the negative resolution procedure provided in Clause 94(2) to deal with matters for regulation included in the Bill.

If the underlying concern is a lack of notice or consultation on the matters contained in regulation, then I believe that I can reassure the Committee.

We have consulted widely both before and during the passage of the Bill, and we will certainly continue to do so on regulations and guidance following on from it. This has been our practice in the past and it will continue to be so in the future.

I shall ensure that our draftsmanship is right, as we believe it to be. On that basis, I ask the noble Lord to withdraw his amendment.

Lord Macaulay of Bragar

I thank the noble Earl for his explanation. Your Lordships may have noticed, as I have, over the past year that in newspapers and indeed in that august body, the BBC, in particular, the word "either" is becoming confused with "each". We get it in various aspects of broadcasting. I wonder whether that is why the word "either" has crept into Clause 94(2) and whether what the draftsman really meant was "each" House of Parliament. However, if the noble Earl the Minister can give me an undertaking that the intention in the use of the word "either" is that it means both Houses of Parliament, then I am quite satisfied with that explanation. But I am not happy that the word "either" should be left here and I am sure that he would add clarity if the word "either" were eliminated and the correct word inserted in its place. With these observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94, as amended, agreed to.

Lord Macaulay of Bragar moved Amendment No. 204:

After Clause 94, insert the following new clause:

Consultation by the Secretary of State

(".—(1) Before the Secretary of State makes an order in terms of any provision of this Act he shall—

1. (a) consult such organisations as appear to him to be representative of interests substantially affected by his proposals; and
2. (b) consult such other persons as he considers appropriate.

(2) If it appears to the Secretary of State, as a result of the consultation required by subsection (1) above, that it is appropriate to vary the whole or any part of his proposals, he shall undertake such further consultation with respect to the variations as appears to him to be appropriate.").

The noble Lord said: This amendment seeks to expand the area within which the Secretary of State should consult before making any regulations. I beg to move.

The Earl of Lindsay

I must say at the outset that I cannot see the need for this provision to be inserted into the Bill. We have clearly demonstrated over a number of years and on numerous occasions that we are very ready to consult and listen to the views of all relevant parties. The Bill before us today is well informed by such views and well supported for that reason.

The hearing of evidence in the Special Standing Committee was a further demonstration of our willingness to listen. I can assure the Committee that we will continue to consult as frequently on such matters as we have in the past.

The fact that differences of opinion exist in a relatively small number of areas is not as a result of a lack of consultation. It is quite simply that it is not always possible to meet, or indeed reconcile, the expectations of all organisations, which will have their own individual and possibly competing interests to pursue. On that basis, I would ask the noble Lord to withdraw his amendment.

Lord Macaulay of Bragar

I am well aware that a great deal of consultation takes place. However, as Clause 94 stands at the moment, there is no obligation to have any consultation, so that it is left to the discretion of the Secretary of State at the time whether to consult anyone. I do not know whether the noble Earl the Minister accepts that view. Before I withdraw the amendment, perhaps he would give an indication of the Government's view on that.

The Earl of Lindsay

I repeat that we demonstrated in matters concerning this specific Bill and its formulation and in other related areas a willingness to consult in a substantial way both during the formulation and during the passage through both Houses. Therefore, the proof is in the practice.

Lord Macaulay of Bragar

Discussion is taking place in the Moses Room and the noble Earl's words will be enshrined in tablets of stone and noted in due course. With that observation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 agreed to.

Clause 96 [Extent, short title, minor and consequential amendments, repeals and commencement]:

The Earl of Lindsay moved Amendment No. 205:

Page 74, line 32, leave out ("and (8)") and insert ("to (9)").

The noble Earl said: These are technical amendments. Amendment No. 205A ensures that the minor consequential amendment set out in Schedule 3 to the Bill and the repeal set out in Schedule 4 do not automatically have effect on the coming into force of the Bill.

Amendments Nos. 205B and 205C ensure that the references to the Tribunals and Inquiries Act 1992 proposed in Amendment No. 221 will extend to England and Wales. I beg to move.

On Question, amendment agreed to.

5 p.m.

The Earl of Lindsay moved Amendments Nos. 205A, 205B and 205C:

Page 74, line 35, after ("for") insert "subsections (1), (2) and (5) to (9).

Page 75, line 17, leave out ("and 47") and insert (",47 and 47A").

Page 75, line 19, after ("47") insert (",47 and 47A").

Page 75, line 19, after (",47A)".

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No 206:

Page 75, line 33, leave out subsection (8) and insert: ("(8) This section, so far as it relates to the repeal of Part V of the Social Work (Scotland) Act 1968 also extends to the Channel Islands. (9) Her Majesty may by Order in Council direct that any of the relevant provisions specified in the Order shall extend with such exceptions, adaptations and modifications (if any) as may be specified in the Order, to any of the Channel Islands; and in this subsection "the relevant provisions" means sections 68,76,77 and 84 of this Act and any regulations made under Section 68 of this Act.").

On Question, amendment agreed to.

Clause 96, as amended, agreed to.

Schedule 1 agreed to.

Schedule 2 [Amendments of the Adoption (Scotland) Act 1978].

[Amendment No. 206A not moved]

The Earl of Lindsay moved Amendment No. 206B:

Page 78, line 21 leave out ("16(b)(i)") and insert ("16(1)(b)(i)").

The noble Earl said: The amendments to Schedule 2 are simply minor corrections. They stem from detailed scrutiny of proofreading of the Bill and are not concerned in any way with changes to policy. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 206C and 206D:

Page 78, line 49, leave out second ("and").

Page 78, line 50, leave out ("subsection (3)(a)") and insert ("subsection (3)— (i) in paragraph (a),").

The noble Earl said: These are detailed but, I suggest, useful amendments to Sections 12 and 18 of the Adoption (Scotland) Act 1978. Amendments Nos. 206C, 206K, 206L, 206M and 206P are minor consequential amendments.

Under existing legislation, if a child who is under a supervision requirement is placed for adoption or a court decides that he should be freed for adoption, it is necessary for the children's hearing to review the case before the supervision can be terminated.

Where the supervision requirement arose from a need to protect the child and not because of difficulties with his own behaviour, there would almost certainly be no need for it to continue, given the arrangements being made for the child's adoption. The review hearing in those particular circumstances is an unnecessary bureaucratic step which could be hurtful to the new parents. A similar situation arises in relation to freeing orders.

The amendments ensure that where a court is making an adoption or freeing order and it is clear that there is no continuing need for a supervision requirement, the court has the power to terminate that requirement.

As I said, the other amendments are consequential on this main provision. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 206E:

Page 78, line 51, at end insert ("; and (ii) in paragraph (b)(ii), for the words "rights and duties" substitute "responsibilities and parental rights".").

The noble Earl said: I spoke to Amendment No. 206E when moving Amendment No. 206B. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 206F:

Page 78, line 51, at end insert ("; and (d) at the end add— (9) Where a court making an adoption order in relation to a child who is subject to a supervision requirement is satisfied that, in consequence of its doing so, compulsory measures of supervision in respect of the child are no longer necessary, it may determine that the child shall forthwith cease to be subject to that requirement".").

The noble Earl said: I spoke to this amendment on Amendment No. 206C. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 206G:

Page 79, line 41, leave out ("an illegitimate") and insert ("a").

The noble Earl said: This amendment deletes an unfortunate reference to a child as being "illegitimate". Such language has not been used in legislation for many years. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 206H to 206L:

Page 79, line 48, after ("(Scotland)") insert ("Act").

Page 80, line 5, at end insert ("; and (d) at the end add— (9) Where a court making an order under this section in relation to a child who is subject to a supervision requirement is satisfied that, in consequence of its doing so, compulsory measures of supervision in respect of the child are no longer necessary, it may determine that the child shall forthwith cease to be subject to that requirement.".").

Page 81, line 45, leave out from "Reporter"") to first ("the") in line 46 and insert ("has").

Page 84, line 29, at end insert: ("( ) after the definition of "child" insert— "compulsory measures of supervision" has the same meaning as in Part II of the Children (Scotland) Act 1995;";").

The noble Earl said: I spoke to these amendments either when moving Amendment No. 206B or No. 206E. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 206M to 206P:

Page 84, line 31, leave out ("and").

Page 84, line 42, leave out ("and").

Page 84, line 46, at end insert ("; and (e) after the definition of "specified order" insert— "supervision requirement" has the same meaning as in Part II of the Children (Scotland) Act 1995;".").

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Minor and Consequential Amendments]:

The Earl of Lindsay moved Amendment No. 207:

Page 90, line 23, at end insert (", the Children (Scotland) Act 1995 or any other enactment").

The noble Earl said: Amendment No. 207 and those grouped with it are essentially consequential and technical amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 208:

Page 92, line 23, at end insert:

("Local Government (Scotland) Act 1973 (c.65)

.—1(1) The Local Government (Scotland) Act 1973 shall be amended in accordance with this paragraph.

(2) In section 56(9) (enactments exempted from repeal by virtue of that section), for paragraph (d) substitute— (d) paragraphs 3 and 8 of Schedule 1 to the Children (Scotland) Act 1995 (Children's Panel Advisory Committees and joint advisory committees);".

(3) In Schedule 25, paragraph 41 shall cease to have effect.

(4) In Schedule 27, paragraphs 185 and 187 shall cease to have effect.").

The noble Earl said: I beg to move Amendment No. 208, which I spoke to when I moved Amendment No. 207. I would just add, for clarification, that when I moved Amendment No. 207 I spoke not only to Amendment No. 208, but also to Amendments Nos. 217, 218, 219 and 222. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 209:

Page 92, line 41, at end insert: ("() In section 23 (which, as amended by the Criminal Justice (Scotland) Act 1995, provides for remand of persons under twenty one in secure accommodation)—

1. (a) in sub-paragraph (i) of paragraph (a) of subsection (1), for the words "the Social Work (Scotland) Act 1968" substitute "Part II of the Children (Scotland) Act 1995"; and
2. (b) in paragraph (a) of subsection (4), for the words "the Social Work (Scotland) Act 1968" substitute "Part II of the Children (Scotland) Act 1995".").

The noble Earl said: In speaking to Amendment No. 209, I am also speaking to Amendments Nos. 210 to 216 and to Amendments Nos. 220 and 221. These are all technical or consequential amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 210 to 218C:

Page 92, line 46, after ("2(4)") insert ("respectively").

Page 93, line 10, leave out ("paragraph (a)") and insert ("paragraph (c)").

Page 93, line 19, leave out ("the").

Page 93, line 44, after ("2(4)") insert ("respectively").

Page 94, line 6, at end insert: ("( ) In Section 329 (which, as amended by the Criminal Justice (Scotland) Act 1995, provides for remand of persons under twenty one in secure accommodation)—

1. (a) in sub-paragraph (i) of paragraph (a) of subsection (1), for the words "the Social Work (Scotland) Act 1968" substitute "Part II of the Children (Scotland) Act 1995"; and
2. (b) in paragraph (a) of subsection (4), for the words "the Social Work (Scotland) Act 1968" substitute "Part II of the Children (Scotland) Act 1995".").

Page 94, line 9, leave out ("paragraph (a)") and insert ("paragraph (c)").

Page 94, line 17, leave out ("the").

Page 95, line 30, at end insert:

("Local Government (Scotland) Act 1975 (c. 30)

.In section 23(2) of the Local Government (Scotland) Act 1975 (bodies subject to investigation by Commissioner for Local Administration in Scotland), for paragraph (d) substitute— (d) any Children's Panel Advisory Committee formed under paragraph 3, or joint advisory committee formed under paragraph 8, of Schedule 1 to the Children (Scotland) Act 1995;".").

Page 98, line 50, at end insert: ("(5A) In section 13 (which makes provision as to the effect of a refusal to allow a visit to a foster child or to allow premises to be inspected), for the words from "sections" to the end substitute "section 51 of the Children (Scotland) Act 1995 (child assessment orders) as giving the local authority reasonable cause for the suspicion mentioned in subsection (1)(a) of the section.".").

Page 100, leave out lines 43 to 47.

Page 100, line 48, after ("(interpretation)") insert("— (a) in the definition of "legal aid", for the words "Part III of the Social Work (Scotland) Act 1968" substitute "Chapter 2 or Chapter 3 of Part II of the Children (Scotland) Act 1995"; and (b)").

Page 101, leave out lines 1 to 8 and insert ("(b) includes a person under the age of sixteen years.".").

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 219:

Page 102, line 35, at end insert:

("Local Government and Housing Act 1989 (c.42)

.—(1) The Local Government and Housing Act 1989 shall be amended in accordance with this paragraph.

(2) In section 14(5) (restriction of effect of provisions of that section in relation to certain committees), for paragraph (d) substitute— (d) a Children's Panel Advisory Committee formed under paragraph 3, or a joint advisory committee formed under paragraph 8, of Schedule 1 to the Children (Scotland) Act 1995;".").

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 220 and 221:

Page 104, line 25, at end insert: ("( ) In paragraph (f) of section 17(4) (persons to whom notice of an application for an assessment order must be given)—

1. (a) after the word "order" insert "—

(i)"; and

1. (b) at the end insert "; or

(ii) under section 81 of the Children (Scotland) Act 1995". () In paragraph (f) of section 18(7) (persons who may apply for variation etc. of assessment order)—

1. (a) after the word "order" insert "—

(i)"; and

1. (b) at the end insert "; or

(ii) under section 81 of the Children (Scotland) Act 1995".").

Page 104, line 42, at end insert:

("Tribunals and Inquiries Act 1992 (c.53)

. In paragraph 61 in column 2 of Schedule 1 to the Tribunals and Inquiries Act 1992 (which specifies certain tribunals in relation to social work in Scotland)—

1. (a) in sub-paragraph (a), for the words "Social Work (Scotland) Act 1968 (c.49)" substitute "Children (Scotland) Act 1995 (c.00)"; and
2. (b) in sub-paragraph (b), for the words "that Act" substitute "the Social Work (Scotland) Act 1968 (c.49)".").

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 222:

Page 105, line 12, at end insert:

("Local Government etc. (Scotland) Act 1994 (c.39)

.—(1) The Local Government etc. (Scotland) Act 1994 shall be amended in accordance with this paragraph.

(2) In section 128 (establishment of Scottish Children's Reporter Administration)—

1. (a) in subsection (3), for the words from "the 1968 Act" to the end substitute "the Children (Scotland) Act 1995 and any other enactment conferring functions upon him"; and
2. (b) in subsection (8), for the words from "the 1968 Act" to the end substitute "the Children (Scotland) Act 1995 and any other enactment conferring functions upon him".

(3) In section 130 (annual reports by Principal Reporter) in sub-paragraph (i) in paragraph (a) of subsection (1), for the words "the 1968 Act and the Criminal Procedure (Scotland) Act 1975" substitute "the Children (Scotland) Act 1995 and any other enactment (except this Act) conferring functions upon him".

(4) In section 132 (duty of Administration to provide accommodation for children's hearings), for the words "section 34 of the 1968 Act" substitute "section 35 of the Children (Scotland) Act 1995".").

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 222A:

Page 105, line 17, at end insert:

("Criminal Justice (Scotland) Act 1995 (c.00)

. In section 20 of the Criminal Justice (Scotland) Act 1995 (construction of sections relating to the admissibility of certain evidence)—

1. (a) in subsection (3), in the definition of "criminal proceedings"—
1. (i) for the words from "under" to "application" where it appears for the first time substitute "of an application made under Chapter 3 of Part II of the Children (Scotland) Act 1995"; and
2. (ii) after the word "child" insert "or for a review of such a finding"; and
2. (b) in subsection (5), after the word "1968" insert "or by virtue of Chapter 3 of Part II of the Children (Scotland) Act 1995".").

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals]:

The Earl of Lindsay moved Amendment No. 223:

Page 107, line 9, at end insert:

("1973 c.65.	Local Government (Scotland) Act 1973.	In Schedule 25, paragraph 41.
		In Schedule 27, paragraphs 185 and 187.").

The noble Earl said: Amendments Nos. 223, 224 and 225 repeal provisions which are no longer appropriate in the light of this Bill. The reference to the Local Government (Scotland) Act 1973 reflects the amendments already referred to under Schedule 3, as does the reference to the Local Government and Housing Act 1989.

The final amendment to Schedule 4 corrects the references to the Local Government etc. (Scotland) Act 1994 and deletes parts of Schedule 3 to that Act which are now overtaken by this Bill. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 224 and 225:

Page 109, line 25, at end insert:

("1989 c.42.

Local Government and Housing Act 1989.

In Schedule 11, paragraph 15.").

Page 109, line 40, column 3, leave out ("Section 138)" and insert:

		("Section 139.
		In Schedule 13, paragraph 76(6) and (10) to (25); paragraph 92(14)(b)(iii); paragraph 100(6)(b)(iv); paragraph 103; and paragraph 161(7)(c).").

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Title agreed to.

Bill to be reported with amendments.

The Committee adjourned at twelve minutes past five o'clock.