HL Deb 06 December 1962 vol 245 cc379-94

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Earl Jellicoe.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 15:

Effect of approved school order on fit person order

15. Where a person has been committed by order of a court to the care of a fit person and, while the order is in force, an approved school order is made in respect of him, (the order committing him to the care of that person shall be of no effect while he is under the care of the managers of an approved school; but this section shall not affect the powers of the Secretary of State under subsection (4) of section 84 of the principal Act to discharge him from the care of the person to whose care he has been committed by the first-mentioned order or the power of the court under subsection (6) of that section to vary or revoke that order.

6.15 p.m.

LORD STONHAM moved, after the second "school" to insert: except if deemed necessary in the person's interests and after consultation with the managers of the approved school, during such periods as the person is absent from the approved school.

The noble Lord said: Clause 15 provides that where a child has been committed by the court to the care of a fit person—of course the term "fit person" includes, and very often means, the representative of a local authority—and, while the order is in force, an approved school order is made in respect of the child, the order committing him to the care of that person is to have no effect while he is under the care of the managers of the approved school. I am aware that this provision is in line with the recommendation of the Ingleby Committee. But during periods of absence from the approved school, such as when a child goes on leave, perhaps, with his parents, or when he is in hospital, or for some other approved reason, I feel that it would be of considerable advantage for the local authority to be able, in suitable cases, to continue to give personal support or assistance to the child if the need should arise.

We must remember that under the fit person order the officers of a local authority may already for some time have had close personal contact with the child, and perhaps also with the child's parents anti family. Therefore, it seems self-evident, I think, that this continuing contact with the parents while the child is in an approved school should not necessarily terminate when the order is made. Indeed, it very often could be a most useful supplement of the work and help given by the approved school. Therefore, we consider—and the Amendment tries to persuade the Government—that, subject to consultation with the approved school managers, the fit person order should in the child's own interests continue during such periods as the child is away from the school for a wholly approved reason.

I think the whole point of an approved school order must be rehabilitation. If a fit person order has already been made before the child goes to an approved school, it might be argued that there has been some failure, otherwise an approved school order would not have had to be made. Nevertheless, no one, or no official, can know more about that child than the fit person named in the order before the child goes to an approved school. When for good and sufficient reasons—during holidays, while in hospital care, or at other times—the child leaves the approved school, it would surely be wholly advantageous for the continuing care and contact to go on. That is all that this particular Amendment provides. It appears to me a most reasonable proposal, which I hope will commend itself to the Government.

Amendment moved— Page 10, line 17, after ("school") insert the said words.—(Lord Stonham.)


I do not find it altogether easy to reply to the Amendment which the noble Lord has moved, particularly in view of the sympathetic way in which he has moved it. But, as he has indicated, we are in fact dealing here with another of the Ingleby Committee's children. Clause 15 is directly based, as the noble Lord indicated, on the recommendation which is to be found in paragraph 349 of the Committee's Report. The object of the clause is quite straightforward: to avoid a confusing situation, which the Ingleby Committee pointed out can arise under the law as it stands at present. As the law now stands, a child who is subject to a fit person order, and who has been sent to an approved school after that order was made finds itself the possessor at one and the same time of two substitute parents: the fit person, who, as the noble Lord said, is usually a local authority, though not invariably so, and the school managers.

The noble Lord has explained the purpose of his Amendment not only sympathetically but also very clearly. As I understand it—and he will correct me if I am wrong—his Amendment would revive the fit person order during periods when the child was absent from his or her approved school, if that revival were considered necessary in the child's interests and if the school managers were in agreement. I think that there is a technical difficulty about the noble Lord's Amendment as it is drafted. It deals with a revival of the fit person order if it is "deemed necessary in the person's interests".


Will the noble Earl allow me to intervene? Subject to reading in Hansard what I said, I do not think I used the word "revival". The clause as it stands provides that the fit person order shall have no effect while the child is in approved school. It does not mean that the order is abolished. All I am saying is that when the child is not at an approved school, subject to the approval of the school managers, it should have effect. It is not a question of reviving it, because it has not been abolished.

6.20 p.m.


I see the noble Lord's point, and I was not in any case wishing to press what I thought was a possible technical objection. But, like all technical objections, it could be got round. My point, and I make this point subject to what the noble Lord has just said, is that if it was a question of reviving it—and I quite take the point that it may not be—then it is not clear from his draft on whom the responsibility for deeming it necessary would fall. But I am happy to look again at that point, because this slight technical difficulty is not the real one which I see in the noble Lord's Amendment. May I remind noble Lords that there are a number of circumstances in which a child may be absent from his or her approved school. The child can be absent whilst he or she is in hospital; he can be absent on leave in the charge of any person whom the managers think suitable; he can be absent on release under supervision; and, last but not least, he or she can, of course, be absent if he or she has absconded.

I have listened very carefully to the noble Lord, but I cannot myself see what we should gain if the fit person order applied during any of those periods of absence. I do not see what we should gain, and I do not see how any possible gain would offset the revival of the anomalous situation which the Ingleby Committee in their recommendation were anxious to avoid. I would grant straightaway that the position would be entirely different if the child were automatically or totally divorced—either whilst he or she was at his or her approved school, or legitimately absent from it—from the fit person to whom the child had been entrusted under the original fit person order. But, as I understand it, there is no reason at all—taking the local authority as an example of the fit person—why the local authority should not keep in touch with a child, who has left their care as a fit person, to go on to an approved school.

Indeed, there are many ways, as I see it, in which the former fit person can continue to give that personal support and assistance to the child of which the noble Lord spoke. The managers may very well invite the local authority, for example, to undertake the after-care of the child on his release from school, during the period in which he remains under supervision. Indeed, if we follow the ingleby Committee's recommendation that after-care should be increasingly entrusted not to the approved school welfare officers but to local authority agencies, the frequency of that situation will be likely to increase rather than diminish. If the local authorities have this after-care responsibility entrusted to them they will, in any event, be in touch with the child when he is absent from the school on leave. Again, if the child has no actual or real parents, or if his actual or real parents are deemed unsuitable for him to stay with while he is on leave, it is of course already open to the managers, if they think it is in the child's interests, to allow him to spend his leave in the care of the former fit person. All this can be achieved without amending the clause as the noble Lord has suggested, and I should have thought that in practice that means that the continuing personal support and connection with the former fit person is, in fact, not broken.

All this would not really be important if in following the noble Lord's Amendment we were not, as I think we should be, likely to get into rather a tangle. Could I take an example? Under the noble Lord's Amendment the position would be odd, to say the least, where a child had been released from his approved school to return to his actual parents, under supervision; for under paragraph 12 of the Fourth Schedule to the 1933 Act, the manager's parental powers are then—and I quote the wording of the Act — exercisable by the parents or, as the case may be, by the parent with whom he is living; but it shall be the duty of any such parent so to exercise those rights and powers as to assist the managers to exercise control over him. In that situation, which I do not think is necessarily a far-fetched one, the child would have, as I see it, three semi-parents at one and the same time. There would be the fit person who, under the noble Lord's Amendment, would retain his full parental powers; there would be the child's real parent, who would be exercising the managers' parental powers under the clause which I have quoted; and, finally, there would be the managers of the approved school themselves, who would be retaining some sort of general responsibility. That is the sort of difficulty which, as I see it, the noble Lord's Amendment might land us in.

I should be happier about confronting that difficulty—although I do not myself quite see how one could get round it—if I thought that, by accepting this Amendment, one was in fact going to benefit the child concerned. But since what the noble Lord most feared was a break of contact between the child and the former fit person in whose care he was entrusted, and since I feel that his fears there are somewhat exaggerated, I do not myself see that one would be gaining anything by accepting the noble Lord's Amendment, looking at it from the child's point of view. Furthermore, I feel that one might be losing something, through getting oneself involved in the sort of muddle which I have pointed out. I realise that all this is deep and rather complicated water, and I should be the last to claim any particular expertise in this particular field. But, as I see it at present, I could not in honesty recommend noble Lords to accept the Amendment of the noble Lord, Lord Stonham, sympathetic as I am to the purpose behind it.


I am most grateful to the noble Earl for that careful, sympathetic and detailed reply. When he began he said that he was in a position of some difficulty in answering my case, and of course his difficulty became clearer as he proceeded, because it is possible that it arose from the fact that he was wholly in sympathy with my argument but he had no power in his brief to say that he accepted the Amendment. But he has given me an example of the kind of difficulty that would arise if the Amendment were accepted: he has quoted an imaginary case which, of course, would have practical application on quite a number of occasions—I readily admit that—and he has reminded me that, in paragraph 12 of the Fourth Schedule to the principal Act, the child could be released to the care of his parents.

May I just take the noble Earl through his own example? The child is released to the care of his parents. There is at that time in force an approved school order and a fit person order. They are both in force at the time. He said that, therefore, there would be three sets of parents, the approved school managers, the fit person and the real parents. My Amendment does not affect that position at all. That position exists now and will exist if Clause 15 is unamended. The only difference that my Amendment will make is, that the fit person would be informed that little Johnny was at home, and he would continue to give an eye to him because he was so informed, in exactly the same way that he was giving an eye to him before the approved school order was made, before he went to the approved school. In other words, it would merely be continuing the relationship—if you like, the two sets of parents—which existed before he went to the approved school, and when he is at home the third set of parents mentioned by the noble Earl will not be acting. They are the approved school managers who are away from him for the time being. I think that is a completely effective answer to the noble Earl, though all credit is due to him or whoever it was who thought that one up as the unconvincing reply to the case I made.

Let me now quote an example of my own. The noble Earl said that the local authority would in any case be in touch with the child when he was on leave from the approved school. How? Who is going to tell the fit person? Little Johnnie breaks his leg; he goes into a hospital near the approved school; he is in the orthopaedic department, possibly under traction, for three or four months. Who is going to visit him? The "fit person" does not even know he is in hospital unless little Johnnie thinks that he liked Mr. Jones very much and that he will write to him and tell him so. Of course not. When we think of practical examples like that, the kind of things that happen, there is no answer whatever to this Amendment. Anyone who has practical knowledge of these things knows the people, knows the families.

I was born far too many years ago just outside the gates of the City of London, and I have lived there all my life. I know these people; I know the kind of problems they have; I know the welcome, too, that most of them in the end give to the so-called fit persons who care for their children. Hundreds of families and tearful mothers come to me about their boys in approved schools, perhaps 100 miles away, trying to make some kind of contact, to get some kind of intermediary. I am anxious for that contact to continue. Do not think that the approved school managers or the approved school staffs do not want this kind of contact: they do. They know that this continuity is important.

This is not an unimportant matter to the people concerned: it is quite an important matter. It is an endeavour to introduce (or reintroduce, if you like) some kind of humanity into this particular provision. If he cannot accept it now, I would ask the noble Earl to give an assurance that he will go away again and have a look at this to see whether he cannot accept it or, if it is technically at fault, something like it. I do not claim any kind of preference for any particular woods, but to embody this principle which I have moved in my Amendment.


I am again grateful to the noble Lord for the moderation and the sympathy with which he has put his case, but I am not myself yet by any means convinced by it. He asked me how the local authority concerned would know whether Johnnie was in their area in hospital or elsewhere. Of course, if they were the after-care agent in this case they would be informed.


Will the noble Earl forgive me? Little Johnnie has had his accident falling down the approved school steps or on the football field, and he goes to the local hospital there. There is no question of after-care. He is going back to the approved school when his leg is better. It is not after-care.


I should have thought that if the liaison between whoever was responsible within the local authority for the after-care, the child care officer concerned, and the approved school was as close as it should be then the child care officer would be informed. The noble Lord also alluded to the difficulty which I had mentioned, but what I do not think he pointed out was that if Clause 15 remained unamended that difficulty would Abe considerably less. Of course, there would not be the three persons concerned exercising some form of parental responsibility: that responsibility would be quite clearly placed upon the managers of the school concerned, subject to the provisions of the principal Act which I mentioned.

That said, I myself am not at all unsympathetic, as I have mentioned before, to the purposes behind this particular Amendment: nor indeed am I unsympathetic to the rather similar purpose which I discern behind the immediately following Amendment. I am certainly not prepared at this stage to accept the Amendment, nor am I able to offer any lively hope that, if one were to reconsider it, one might be able to come forward with something which was close to what the noble Lord has suggested. But I am certainly prepared to look again at the arguments which he has advanced, in Hansard, in the cold light of to-morrow morning.


I am most grateful to the noble Earl for his words; and after the qualified assurance which he has just given and which I fully understand, I ask your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.36 p.m.

BARONESS WOOTTON OF ABINGER moved to leave out Clause 15. The noble Baroness said: The purpose of this Amendment is closely related to that of the Amendment just withdrawn by my noble friend, but this Amendment goes a little further and I think it is drafted in a form which may meet some of the objections raised by the noble Earl in his reply. In reply to my noble friend, the noble Earl gave an example purporting to show that the proposal of my noble friend might not be very practicable. I should like to begin by giving another example.

Let the noble Earl suppose that he has been sent away to a boarding school; that he has, at the time, either no parents or no effective parents, so that he has been living in the care of a local authority, and that a welfare officer to whom he has become much attached is. so to speak, his parents' substitute. The noble Earl arrives at his boarding school and is very unhappy there. It may be an experience that he has had. He does not like the headmaster; he does not like the other masters; he does not like the régime; and he has absolutely nobody in the world to turn to except the authorities in that particular school. Any other child would write home to his parents; any other child who had a substitute parent would write home to the substitute parent. But under this clause there is nobody who would be obligated (he might be willing, but he would not be obligated) to receive the child's complaints. I think this is a very important situation, and I can assure the noble Earl that it can in fact arise.

Now the noble Earl said that there would be a confusing situation because the approved school and its managers are for the time being in charge of the child, and that it would be very confusing if a fit person were also in charge of the child. But this is no more confusing than the fact that when a child goes to boarding school he still has parents; and the parents and the school, as a rule, work out between them what are their respective spheres. I know that occasionally the parents make nuisances of themselves and are very unpopular with headmasters, but sensible people work this out, and the child at least has somebody other than the school authorities to whom to turn. The noble Earl worked out a hypothetical case in which he suggested that there would be three people involved: there would be the natural parents, whose contact is presumably slight if the child is under a fit person order; there would be the fit person and there would be the school. There might be: but for a child in a strange environment and a strange school, let there be three sooner than no second one to wham he can turn.

I think it is very important to make it clear that in this Amendment we are not asking that the fit person order shall automatically continue. The noble Earl's reply to my noble friend appeared to be entirely based on that assumption. That is not so. There are plenty of ways of getting rid of a fit person order if it is appropriate to do so. All we ask is that it should not automatically cease to have effect while the child is away at an approved school. May I remind the Committee of the ways in which an order can be got rid of? First, when a child is sent to a school the local authority can come to the court and ask far the fit person order to be revoked. In practice they very frequently do and it is for the court to decide whether or not it is in the child's interests to revoke the order. Secondly, the Secretary of State can discharge a fit person order, if he sees fit, under Section 84 of the principal Act. Thirdly, Clause 7 (2) of the present Bill also empowers local authorities to ask for the order to be revoked, and most courts would revoke it in cases in which local authorities find the fit person cannot manage. Finally, the authority managing the child brings the child back to be further dealt with. We are definitely not asking that the fit person order should automatically continue; but we are asking that it should not automatically cease to have effect when the child is sent to an approved school.

If the noble Earl would picture himself as an unhappy child sent to a fit person, or perhaps to a local authority home, and then passed on to another strange environment in an approved school, he would, I think, hesitate very much before saying that automatically the obligation of the substitute parent is to lapse while the Child is in school. The noble Earl said that the welfare officer could keep in contact, providing, of course, that he knew the child needed him. But local authorities have a great many children to whom they are obligated to pay attention. For this reason, they are not very disposed, except in special cases, to keep up these obligations where the order has ceased to have effect, and to take over voluntarily additional duties. All we ask is that the order should not automatically be discharged but that, where a court thinks it appropriate, the local authority or substitute-parent should be obliged to maintain contact with the child. I beg to move.

Amendment moved—

Leave out Clause 15.—(Baroness Wootton of Abinger.)

6.44 p.m.


I should like to support the Amendment moved by the noble Baroness from the point of view of principle. My principle is that nothing must be done to weaken the realities of the mother-substitute relationship, between the fit person, if a lady, and the child. If I may be allowed, I will tell the noble Earl a factual and not a hypothetical story. I may wrap it up a little, and I am not criticising the individual officers concerned who are quite sincere people. My purpose is to illustrate the principle rather than to argue that my example comes very close to this clause.

I have for some time been interested in a certain long-term prisoner. His child is in the care of the Children's Department and the mother has disappeared. An officer of the Children's Department, who must be regarded as the mother-substitute, had been in communication with the long-term prisoner for a considerable time and he had received regular, kind reports from this lady about the progress of the child. When he last heard the child was getting on very well. A few months ago this long-term prisoner wrote to me in great distress to say that he had been sent for by the deputy governor of the prison and asked to sign a form which, as he understood it, though he may not have been right, involved the certification of his child as mentally unsound. He was, in fact, being asked to sign a farm consenting to the removal of his child into the care of a mental institute at least for some time. This was the first he had heard of the matter. His child, he understood, was getting on very well, but he was sent for by the deputy governor and asked to sign a form. He was naturally overwhelmed with sorrow and anger.

I followed up the matter, and it is interesting to see how difficult it is to make a reality of this mother-substitute situation. In fact the child was getting into trouble. It was behaving itself badly in certain ways, and the authorities decided that the child should be placed in a certain kind of mental institution for adolescents. Accordingly, the mental welfare officer—an excellent man—was asked to get in touch with the prison and, following that, the deputy governor received a form through the mental health authority which he duly called on the prisoner to sign. Your Lordships may ask: where was the mother-substitute in all this? Some-days later—I think it was after I had intervened, but I do not know—the mother-substitute, who had been in touch with the prisoner for years about the child, wrote to explain the circumstances: that the child was getting involved in trouble. But until that moment the prisoner had no indication of why he was suddenly being asked to agree to what he called the certification of his child.

I am not levelling criticism against people. It is not a question of a scandal; I have seen the individuals, all of whom meant well. But it is extremely hard, in cases of this kind, particularly where the father is in prison and the mother has disappeared, to see that the children's officer is a true mother-substitute. It is impossible to see how the true mother, an aunt, or even near relatives could have allowed the mental health officer to approach the governor and allow the form to be placed in front of the father without any explanation whatever. That was what occurred. It is hard enough to maintain a reality of this relationship, but I feel that this clause as it stands would make it still harder. I therefore support the noble Baroness in her Amendment.


I do not want to prolong our discussion this evening. In discussing Lord Stonham's Amendment I have, of course, already explained that the Ingleby Committee took the view that on certain occasions it might be confusing and possibly really difficult for a child to have in law two substitute parents at one and the same time, and the Government are inclined to agree with that view. The noble Lord, Lord Stonham, said that he was speaking from personal experience and knowledge of the sort of cases involved here. I do not doubt that. I know that to be the case, as I know that both the noble Earl, Lord Longford, and the noble Baroness, Lady Wootton of Abinger, speak from deep personal knowledge and experience of cases of the sort involved under the Amendment which we have been discussing. But, at the same, time I would point out that the Ingleby Committee Report was not based on ignorance. It was based on extremely expert advice which was available to that Committee. The Ingleby Committee thought it right to place the responsibility for the child's welfare squarely on the manager of the approved school.

Of course, this is not done just for administrative convenience or inconvenience, as the noble Lady was inclined to suggest at Second Reading. Having two substitute parents at one and the same time can lead to obvious and practical difficulties. For example, there could well be conflict between the fit person and the manager of the approved school as to whether or not a particular child should or should not spend his or her leave with his or her actual parents. That is the sort of complication which could arise from divided responsibility in this field.

I must say straight away that I am not at all unsympathetic to the arguments which the three noble Lords opposite have advanced about the very real hardship to the child which could be involved in breaking her or his relationship with, say. a child care officer, to whom the child had grown used and grown to love. However, I do not think that this is necessarily an inevitable consequence or, indeed, in many cases, a likely consequence of Clause 15, if left unamended, because, as I have already pointed out, there are many ways in which these close and valuable links which may have been forged between a child and his care officer can be maintained. I would grant, however, that with an inadequate local authority or an overworked local authority there may be an advantage in having a statutory obligation laid upon that authority. That is a point which I should certainly wish to consider.

We have felt with the Ingleby Committee that it was right to get these responsibilities as clear-cut as possible. We feel that Clause 15, which follows the Committee's recommendation very closely, does not involve, and need not involve, any hardship to the child which it will affect: indeed, rather the reverse, since I think that there is nothing which can involve such hardship for the child as a fuzzy and unclear-cut situation, and I should have thought that the situation in which a child finds itself with two parents at one and the same time—because the managers of the approved school are the child's parents while the child is there—is a fuzzy situation in itself. Nevertheless, I am not unsympathetic to the arguments to which I have just listened from the Benches opposite, and while I feel that there are strong reasons for following the advice of the Ingleby Committee—and I am far from being persuaded that we should not follow that advice—personally I should very much welcome an opportunity, between now and the Report stage, of looking at these twin Amendments afresh in the light of what has been said this afternoon.

6.52 p.m.


I am delighted to hear that the noble Earl will look at the matter again and in a sympathetic spirit. I have no doubt whatever about his sympathy. If I have doubt, it is about his appreciation of practical realities. He has spoken so far as though in all cases the fit person was a child care officer, and in the majority of cases he or she is, but not in all. Suppose the fit person is an aunt and that aunt is not persona grata to the headmaster of the approved school, as may well happen. He can tell the aunt that she has no control over the child while he is in his care; and though the child may be very unhappy at school and longs to enlist the sympathy of his aunt, perhaps quite wrongly, the headmaster has the whip-hand in every sense of the word.

The noble Earl has said that in most cases it is likely that the fit person will extend a kindly interest in the child, even though the order has ceased to have effect. I can only say that I think that his experience of the realities of local government must be rather limited. The noble Earl drew many pictures of conflict between headmaster and fit person, but we have seen many cases of division of opinion between headmaster and parent as to the place for a child to spend his holiday or as to the right course he ought to pursue. The substitute parent should not be pushed out of the picture so that the headmaster and the managers of an approved school have the sole say.

I say, with regret, that nothing that the noble Earl has said to-night dispels the impression, which I expressed to your Lordships yesterday or the day before, that the Government have shown an uncanny discrimination in picking those parts of the Ingleby Report which are hostile to the child and ignoring those which are in his favour. This is one of them, another piece of evidence in my thesis. I can only say that I could wish that the noble Earl would find himself in the situation in which he was sent to a strange school, away from all the people that he knew, a school which had power to say to him that the people who were his friends, who looked after him before, his welfare officer or his aunt, have no say now. Now he is their child and he has no legal right or recourse. I regard this as a matter of great importance, but I should like to put these arguments perhaps before a more representative Committee. I do not think that it would be wise to pursue the matter at the moment, the more so as the noble Earl has expressed his willingness to let his sympathy guide his inquiries between now and the next stage. In the circumstances, therefore, I shall be glad to have the leave of the Committee to withdraw my Amendment.

Amendment, by leave, withdrawn.


I think we have agreed that we shall not go any further with the Bill at this stage, and in the light of that, I beg to move that the House do now resume.

Moved, That the House do now resume.—(Earl Jellicoe.)

On Question, Motion agreed to, and House resumed accordingly.

House adjourned at two minutes before seven o'clock.