§ 12.24 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Stonham)
My Lords, I beg to move that this Report be now received.
§ Moved accordingly, and, on Question, Motion agreed to.
§ Clause 1 [Care proceedings in juvenile courts]:
§ Lord STONHAM moved Amendment No. 1:
Page 1, line 19, at end insert—
("(aa) it is probable that the condition mentioned in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs; or").
§ The noble Lord said: With this Amendment I should like also to discuss Amendment No. 4 and Amendments Nos. 25 and 26, which are all on the same point. These Amendments are designed to deal with an important point which has been put to us by some children's officers and others. The existing definition of the situations in which a child or young person may be found to be in need of care, protection or control includes as part of the definition the fact that any one of a number of offences has been committed against him. It is clear that if any of these offences is committed against a child or young person he will be covered either by paragraph (a) or by paragraph (b) of subsection (2). That is why the subsection contains no express reference to the commission of these offences.
§ The existing law, however, also includes in the definition a child or young person who is a member of the same household as another child or young person against whom one of these offences has been committed. In relation to sexual offences, paragraph (b) already covers the position. If a sexual offence is committed against one girl in the household another girl in the same household may be "exposed to" the same danger. To find that a girl is "exposed to" moral danger, it is not necessary that an offence should already have been committed against her. In the case of ill-treatment, however, the position is different. If one child has been ill-treated, it does not follow that other children in the household come within paragraph (a), the paragraph covering proper development being prevented or neglected, or their health being likely to be impaired.
§ But there are, however, situations where the treatment of one child is such that the risk to other children of the household is so great that it ought to be possible for the court to make an order in respect of them. In particular, there are some "battered baby" cases where, if nothing is done, there is a real danger that the same thing will happen to another baby in the household, who may be seriously injured and may even die as a result. The object of the new paragraph (aa) is to give the court power in such cases to make an order, as a preventive measure. But first there has to be a finding that condition (a) has been satisfied in the case of another child 590 who is, or was, a member of the same household as the child before the court—and the word "was" covers the situation where the first child has died. Second, the court has to be of opinion that, having regard to that finding, there is a probability that condition (a) will be satisfied in the case of the second child.
§ Amendment No. 4 to Clause 2 is to make it clear that since the new condition rests on a finding of probability this probability must be assessed on the basis of what would probably happen to the child if no order were made. The Amendments to Clause 26 are consequential. Their effect is to extend the powers to take a child or young person to a place of safety so as to include cases covered by the new paragraph (aa) of subsection (2). Without my Amendment, Clause 26 would not be satisfactory in relation to the condition specified in the new paragraph (aa). If I may put it in this way, my Lords, the question whether the condition is satisfied in relation to baby George may depend upon the court finding that baby Victor has been ill-treated. The Amendments to Clause 26 therefore provide that a person seeking to take baby George to a place of safety must have reasonable cause to believe that a court would find paragraph (aa) satisfied in his case. All the existing paragraphs of subsection (2) relate to factual situations and not to court findings, and the Amendments are required only in relation to the new paragraph (aa).
§ Noble Lords may be worldering whether it is the Government's in: ention that the juvenile court should have power to make an order on the grounds specified in paragraph (aa) alone. In consequence of the Amendment to subsection (2), which was moved by the noble Earl, Lord Jellicoe, and carried against Government advice, any one of the situations described in paragraphs (a) to (e) of this subsection, and in the proposed new paragraph (aa), would by itself be sufficient grounds for court proceedings and a court order, irrespective of whether an order was necessary so as to secure the care or control which the child needed. The words which the Amendment deleted are—as I have made very clear, the words which ensure a double test—essential to the achievement of the main principles of this Bill. Amendments to delete these words were moved 591 twice in another place, and on each occasion the Amendment was negatived on a vote. The arguments deployed in support of the Amendment made in this House were essentially the same as those which had been very fully deployed in the other place; no new considerations were advanced.
§ In the circumstances it would be surprising if the other place were to agree to the Amendment which this House made in Committee; and it is the Government's intention to invite them not to agree with it. In making this announcement of the Government's intentions I have no wish to reopen the full discussion which we had in Committee. It now seems unlikely, however, that the Lords' Amendments to the Bill will be considered in another place before the Summer Recess, and it may be that we in this House will not take the Third Reading before the Recess. This may accordingly be the last opportunity before October for a Government statement on this issue. This is one of the most crucial issues which has arisen on the whole of this Bill, and it would be most undesirable if everyone concerned, in Parliament and outside, were to be left in a state of uncertainty about the Government's intentions for another four months. I thought it would therefore be for the general convenience if I were to make this statement now, so that everyone concerned, whatever his own views on the matter, may know where the Government stand and what our intentions are. I beg to move.
My Lords, I think I can be very brief. First may I take up the last point with which the noble Lord was dealing.. I have noted what he had to say about the Government's intentions. I do not wish to become involved in the argument over that particular issue at this stage. I should like to say only that, in the circumstances, if the Government take that view I think they are absolutely right to have made the announcement now. Secondly, I should like to say that the group of Amendments which the noble Lord moved seemed to me to be important and necessary. I think it is true to say that the 1963 Act extended its protection to all the children of the family and I am very willing to concede—although it 592 is not really a concession—that in certain sad, rare cases (for example, the "battered baby" cases to which the noble Lord referred) these provisions will be necessary. I should like to say that in principle I agree with them.
§ On Question, Amendment agreed to.
§ 12.33 p.m.
Earl JELLICOE moved Amendment No. 2:
Page 1, line 20, after ("is") insert ("falling into bad associations or is")
§ The noble Earl said. My Lords, this Amendment is the same as that which my noble friend Lady Brooke of Ystrad-fellte—who unfortunately is not able to be here this morning—moved during the Committee stage. It was an Amendment which attracted a great deal of support from both sides of the Committee. I am moving the Amendment again because I believe that it is addressed to a real point. I was far from persuaded by the arguments deployed by the noble Lord, Lord Stonham, in Committee. The Amendment would reintroduce into the Bill phraseology with which many of us are familiar because it appeared in the 1963 Act, in the 1948 Act and also I believe in the 1932 Act. I am not suggesting that this phraseology should be re-imported into the Bill out of mere conservatism (with a small "c") but for two straightforward practical reasons.
§ The first is that I can think of a number of instances in which a girl or boy should be in care when the court might not be able conscientiously to find that the existing provisions of subsection (2) of this clause were satisfied. For example, the court might not be able to find that the provision of paragraph (e) was satisfied or that a child was not receiving full-time education under paragraph (d), or that he was "beyond the control of his parent or guardian" under paragraph (c), or that paragraph (a) applied. The court might not be in the position to substantiate the case that the child was in moral danger. Nevertheless it might be perfectly clear to the people concerned with the child's welfare, the children's officer of the authority concerned, that the boy or girl was heading for absolutely certain trouble in that he was "tagging along" with or "mucking in" with a group of highly undesirable adolescents, very possibly older than he 593 himself. Nevertheless it might be extraordinarily difficult to substantiate that he was in moral danger.
§ "Moral danger" is very much a matter of subjective judgment. It is not a very tangible sort of phrase. I know that "falling into bad associations" also involves a question of subjective judgment, but it is a much more tangible thing and a much more ascertainable criterion. Secondly, I understand that the phrase "moral danger" has a rather special ring in the ears of many juvenile magistrates. The noble Lord, Lord Stonham, was inclined to argue that there was not much difference between "moral danger" and falling into bad associations", but for the courts "moral", in this sense, has often acquired a sexual meaning. Very often girls have been found by the court to be in need of care, protection or control because they were in "moral danger" in the sense that they were exposed to sexual danger. This applies also to boys. This phrase in the ears of many juvenile magistrates, may well imply that the boy was consorting with a group of homosexuals. Indeed, there is some justification for this common belief in that the definition of "moral" in the Oxford English Dictionary of 1803 is "virtuous with regard to sexual conduct".
§ I believe that it is desirable to reimport this phrase "falling into bad associations" into the Bill, first, because it will give an added tangible test or criterion whether a child is in need of care, and secondly, because it would be helpful for the guidance of the courts because "moral danger" has for many juvenile magistrates this rather special connotation. At the Committee stage the noble Lord, Lord Stonham, argued with surprising vehemence that not only was this Amendment unsatisfactory but also it would be dangerous. He instanced the case of four children, three of whom might have committed an offence (for example, a small theft) who were brought before the court and for whom a care order was made. The noble Lord argued that the care order would apply also to the fourth child, who was not guilty of any offence but who was known to be associating with the other three. I find this point a little difficult to concede to the noble Lord. As the noble Lord, Lord 594 Kilbracken, said, it was conceivable that the fourth child might in any case be held to be in need of care since he was in moral danger as a result of his association with the other three.
§ Lord KILBRACKEN
My Lords, I am grateful to the noble Earl of attributing that remark to me. I agree with it; but in fact I never made it.
My Lords, I did not dream it up; it was in my recollection, and my noble friend Lord Brooke of Cumnor has come to my help. The noble Lord might have been like a former Duke of Devonshire who dreamt that he was making a speech in the House of Lords and woke up to find that he was; because at col. 758 I find this remark:
§ "Lord KILBRACKEN
Would that not be possible already, because the boy in question would be exposed to moral danger through his association with the other three?"—[OFFICIAL Report, 3/7/69.]
§ Lord KILBRACKEN
My Lords, I thank the noble Earl for reminding me of the very wise words I spoke on that occasion.
My Lords, I am very grateful to the noble Lord, Lord Kilbracken, for reinforcing my argument so poignantly. But I think the point that he was making was an absolutely valid one; and in any event this phraseology is already in our legislation. I would ask the noble Lord, Lord Stonham, whether it has given rise to the sort of practical difficulties which he was anticipating?
I am not claiming that this is of absolutely cardinal and vital importance; that by not adopting this Amendment one of the main props of the Bill, or a prop that is absolutely vital to it, will be knocked out. But I am claiming that it is far better in this case that we should leave the old phraseology undisturbed and this will make things a lot clearer for the people on the ground, the people with whom the children really count; magistrates, children's officers, probation officers, the police and so on. My Lords, I beg to move.
§ Baroness WOOTTON of ABINGER
My Lords, at the time when the noble Earl moved this Amendment in Committee stage, I was disposed to support him. At that time I was hoping that I 595 could persuade the Government to remove paragraph (e) from subsection (2)—that is the offence condition—and substitute, along with some such expression as the noble Earl proposes to put into the Bill, some vaguer phrase covering undesirable social behaviour. Not having succeeded in that objective, my enthusiasm for the noble Earl's Amendment has, I am afraid, diminished. For the purposes of the record I should like to say that I do not feel able to support it so long as the offence condition remains in the Bill.
§ 12.43 p.m.
§ Lord STONHAM
My Lords, when the noble Baroness, Lady Brooke of Ystradfellte, moved this Amendment in Committee, in the course of my reply I explained that the existing separate paragraphs of subsection (2) already covered all the situations in which society was justified in interfering compulsorily with the lives of children and the rights of their parents. The noble Earl, Lord Jellicoe, has said that he could think of quite a few instances—that is what he said—where children were falling into bad associations in such a way that they ought, in his view, to be brought before a court; but they would not be covered by any one of these situations. Unfortunately, the noble Earl did not give us any of the instances to which he referred and so I am unable to judge, but I ask your Lordships to think for yourselves.
We are asked to consider that we should add the words, "falling into bad associations" and that they should be of such a nature that a child who could not be taken to court should be taken to court; and that the Bill does not provide for it. The things provided for in the Bill are, if he is:avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated; or … he is exposed to moral danger; or … he is beyond the control of his parent or guardian; or … he is of compulsory school age … and is not receiving—proper education; or he has committed an offence.
I have done a lot of reading, and a lot of thinking also, over this particular point; I have tried to think of one case which would not be covered by one or 596 other of these provisions, and I have failed. All the examples I can think of, and all those that other people have mentioned to me already, fall under the provisions in paragraphs (a), (b) or (c). In all these cases, whether the child's bad associations were part of the cause of his problem, or merely a symptom, the actual problem with which the court proceedings would really be concerned would be the prevention or neglect of proper development, or exposure to moral danger or being beyond control.
In our previous discussion I was taken strongly to task for describing the effect of this Amendment as "guilt by association". Perhaps your Lordships would prefer another way of putting the point; namely, the Amendment wants us to judge a child by the company he keeps. I was thinking of this when the noble Earl referred to my noble friend Lord Kilbracken, who it well known to your Lordships as a very considerable and extremely well-informed expert on gaming; and my noble friend did not get that experience by just sitting on the sand by the seaside. No one could have a higher opinion than I of my noble friend, Lord Kilbracken, but he obviously must have been in very bad associations at times and it has left him unimpaired.
I like to think that I have a great many personal friends on the other side of the House and that we mix on terms of very warm personal friendship. But there are people in this world who would think that in so doing I was falling into bad associations. I hope it would not be a case for calling me before a court. The point is, my Lords, that this is an entirely wrong approach. We are against this Amendment because we do not want to take a single child before a court unnecessarily. The noble Earl asked whether the use of these words had given rise to practical difficulty in the courts, and I am bound to say that they have not. But that is partly because this provision is so very little used; people do not like using it.
I am also bound to say this—and I think it will impress the noble Earl because he said that these words, the phraseology already in our legislation, had a special use and a special significance for magistrates. Well, neither in the comments on the Memorandum 597 which we sent out nor in comments received since the Bill was published has there been any evidence of a general view that the expression "bad associations" ought to be retained. On the contrary, a very large majority of those who have commented have accepted that this phrase should disappear.
My Lords, I do not wish the noble Lords to make a false point any more than I should wish to do so myself, and I think that he may have misheard what I said. I said that the phrase "in moral danger" had a special sense or meaning for magistrates.
§ Lord STONHAM
I thought that the noble Earl was referring to the words in his Amendment. But, of course, we have "exposure to moral danger" in the Bill. That is one of the provisions on which I rely heavily in saying that the noble Lord's Amendment is unnecessary and, as I still feel, harmful.
Let me mention the bodies which have accepted the removal of these words as being right. At the top of the list is the Magistrates' Association; next, the Inner London Juvenile Court Chairmen; next, the Justices Clerks' Society, and also a number of experienced juvenile court magistrates and justices' clerks; children's officers, child care officers, chief constables and the Police Federation. As the noble Lord, Lord Brooke of Cumnor, will agree, we could rarely have as important a collection of bodies and people as that in support of something we were going to do. In the face of such overwhelming support for the Government from people who know, I think there is no point in pressing the Amendment. I would add, though, that I am conscious of the danger that if we have these words in the Bill, we may have children going to court who ought not to be taken to court. That is very important. I mentioned that the Magistrates' Association are quite happy about these words not being in the Bill, although like everybody else magistrates vary and some, of them find these words of value and importance. In view of what I have said and of the consideration I have given to this Amendment, I hope that the noble Earl will feel able to withdraw it.
§ 12.51 p.m.
§ Lord KILBRACKEN
My Lords, I was relieved to hear from my noble friend that he did not think that, because I was of appropriate age, an order should be made in my own case. The noble Earl said that I reinforced his argument on one point. I should like to retract that reinforcement for a moment to take issue with him on his suggestion that the word "moral" has this particular sexual implication. In support of this, he had to go back to a dictionary dating from the year 1802. I suggest that he might consider the situation in 1969. Surely the word "moral", when used nowadays, never really can be considered only to have that specific sense of "sexual". It is a word we can argue about a great deal but I should have thought that it was a very wide road indeed. I new feel that if a child is falling into bad associations, he must certainly be in every case exposed to moral danger as well.
§ Lord BROOKE of CUMNOR
My Lords, ten days ago my noble relative was kind enough to substitute for me when the House was considering the Housing Bill, and perhaps I may reverse the position, because she is not able to be here today. I cannot understand why the Government are being so obstinate about this. The noble Lord, Lord Stonham. says that he cannot conceive a case where this issue would be important. I want to ask him how he thinks a case such as the following should be handled.
There is in the neighbourhood a gang of boys who have been in trouble with the courts, who have been committing offences and who are well known to the police and to those in the neighbourhood as an undesirable gang. A boy, who has not come to notice before but who is not of very strong character, joins up with this gang. It is perfectly clear to anybody who knows boy life that sooner or later that boy is likely to be led into committing an offence. My concern is to try and save that boy before it is too late and I should have thought that the sensible course was to make it possible by law for the juvenile court to consider whether any sort of order should be made in his case. "No", say the Government, "Certainly not. That is bringing a child into court unnecessarily. We must let this run." That means that we must wait until the boy actually does commit 599 an offence, whether in the old or the new meaning of that word.
It is this sort of feature which unfortunately has convinced me that parts of this Bill are likely to be an encouragement to juvenile delinquency. Parts of the Bill I welcome warmly but the Government seem to me to be slow in understanding boy life and in appreciating that a sharp warning needs to be given at an early stage if there is to be any chance of saving a boy from going (so to speak) over the edge. I do not believe that a boy like that would be judged to be in moral danger because, in spite of the arguments of the noble Lord, Lord Kilbracken, who may be perfectly right so far as general literature is concerned, I am fairly sure that the ordinary juvenile court would consider that "exposed to moral danger", normally meant a girl in some form of sexual danger and would not think that in the normal case it would be applicable to boys. That is my question to the Government. How do the Government visualise the kind of case I have mentioned should be handled to prevent the boy from going further down hill? The easy course to do so would be to accept this Amendment. If the Government have some other ideas, I think we are entitled to hear them.
My Lords, I can corroborate every word the noble Lord has said. This Amendment gives an opportunity of influencing youths before they have come entirely under the influence of the gangster. I have seen it over and over again in my own experience and I do hope that noble Lords will stand firm about this Amendment.
§ Lord STONHAM
My Lords, the noble Lord, Lord Rowallan, is utterly determined to get every child into court, if he possibly can. The main object of this Bill is to avoid taking children into court, if it is unwarranted; to avoid, as my noble friend Lady Brooke of Ystrad-fellte said the other day, getting them into court waiting rooms, where more criminals are made than can be cured in the courts. Please, my Lords.
The noble Lord, Lord Brooke of Cumnor, said that we are slow in understanding boy life. I am afraid that the 600 noble Lord is a bit slow in understanding this Bill. He asked: must we wait until a boy commits an offence? Of course, we do not have to wait until he commits an offence. This is only one of the five conditions which would justify an authorised person in bringing a child before the court. I would suggest that the noble Lord, Lord Rowallan, should read Clause 1 (2) of the Bill and he, too, would have a better idea of this. The noble Lord, Lord Brooke of Cumnor, asked how the Government want this sort of case handled. These cases are now being handled by local authorities under Section 1 of the 1963 Act. It is not a new problem. The local authority first encourage parents to take the matter in hand. They give the parents help in dealing with the child, on a voluntary basis if need be, and then, if that does not work, if the fears which the noble Lord thinks are inevitable are justified, there would be sufficient evidence to take action under subsection (2) of this clause.
What we have to ask ourselves is this. On what ground are we in Parliament entitled to say that a child is to be put in danger of court proceedings, removed from his home and his parents, his brothers and sisters, not because there is anything about the child's own behaviour in the circumstances which gives cause for concern, but because his associates are said to be bad? I have a little more faith in human nature. I believe that human beings frequently have a remarkable facility for resisting bad influences. I believe that we can learn from our contacts with all kinds and conditions. I believe that those regarded as bad can benefit from contact with others who are not bad, provided that we in Parliament do not pass laws based on the implicit assumption that the bad ought to be segregated and kept apart. No case has been made out for this Amendment, and I hope that the noble Earl will withdraw it.
§ Lord SILKIN
My Lords, I should like to say a few words. First, I think this is in any case a bad Amendment from the point of view of draftsmanship, because it says "falling into bad association". What is the meaning of "is falling"? Has he fallen; is he going to fall? It is a little doubtful, and anyone who has to interpret this would find the greatest difficulty.
601 Secondly, the Bill already provides for this: it says "is exposed to moral danger." I should have thought that, in the popular sense a young person who is associating with others, and is in bad company, is certainly exposed to moral danger. The only thing that the noble Lord, Lord Brooke, could say was that "moral danger" had a sexual connotation. I do not agree. In these days, "moral danger" means the danger of stealing, the danger of violence and all sorts of dangers of that kind. It certainly does not primarily connotate sex. Therefore, on two grounds I would say that we ought not to accept this Amendment: first, that it is badly drawn; and secondly, in so far as it has any significance, it is already covered.
Viscount ST. DAVIDS
My Lords, I have considered this Amendment with great care, and though at times I wondered whether I agreed with the noble Earl, I have come to the conclusion that I cannot possibly agree with him. I live surrounded, more or less, by youngsters. Some are good; some are bad, and some are indifferent—or possibly good and bad in turn. I should loathe to see anything on the Statute Book which more or less insisted that the bad children had to be kept away from the others, or that some had to be labelled bad and the others kept away from them. I think it is important that they should all be able to run together. In my view, the Amendment is far too sweeping, and if it were put into the Bill we might get far more children into court than ought to be there. Therefore, in spite of my wish to get children who need help to such help at the earliest possible moment, I feel that, on balance, we must come down against this Amendment.
My Lords, I am grateful to the noble Lord, Lord Stonham, for the care and good humour with which he has addressed himself to this Amendment. I should like to take this opportunity of thanking the noble Lord, not only on my behalf, but on behalf of all noble Lords, for the communications which he has sent us between the Committee and the Report stage. This has been extremely helpful 602 to all of us who are dealing with this complicated legislation.
But, that said, I cannot agree wi: h the case that he and a number of his noble friends have put forward, because they have not really met the case which I, at least, sought to deploy: that the importation, or re-importation, of these words into the Bill would be a useful reinforcement, and would give an ascertainable criterion which would be lacking if the Bill went forward as it stands at the moment. The noble Lord, Lord Silkin, has pointed to defects in the drafting of the Amendment. I am no lawyer, and I take note of what he has said; but I merely point out that these words have stood the test of 37 years: they have been in our legislation ever since 1932, and have been re-imported into two Children and Young Persons Acts since then. On the question of the interpretation of the word "moral", I, like my noble friend Lord Brooke of Cumnor, would agree with the noble Lord, Lord Kilbracken, that "moral" has a far wider connotation than that of the purely sexual. All I was seeking to point out was that it has acquired this special sexual connotation for many magistrates in juvenile courts. I think this is too restrictive, and one needs a wider criteria.
On the final point that the noble Lord, Lord Stonham, and others have made—that adoption of this Amendment would mean that a great many children would be hauled up before the courts unnecessarily—all I would say is that I do not think this is the case, and I do not see how noble Lords can possibly argue that it is. The noble Lord, Lord Stonham, has in emphatic terms assured us that it is the Government's firm intention, using their majority in another place, when this Bill is considered there, to strike out the Amendment that we carried on the Committee stage which reintroduced the second criterion. If, as he says, this is the Government's intention, that surely straight away knocks his argument to the ground. I am not persuaded by the arguments which the noble Lord has deployed. I am not one for dividing the House unnecessarily, especially on a Friday morning, but in this case I must stand by my Amendment.
§ 1.6 p.m.
§ On Question, Whether the said Amendment (No. 2) shall be agreed to?603
§ Their Lordships divided: Contents, 40; Not-Contents, 41.
|Ampthill, L.||Emmet of Amebrley, Bs.||Merrivale, L.|
|Auckland, L.||Falkland, V.||Milverton, L.|
|Berkeley, Bs.||Fraser of Lonsdale, L.||Mowbray and Stourton, L.|
|Bessborough, E.||Goschen, V. [Teller.]||Rankeillour, L.|
|Boston, L.||Gray, L.||Rowallan, L.|
|Brooke of Cumnor, L.||Gridley, L.||St. Aldwyn, E.|
|Conesford, L.||Grimston of Westbury, L.||St. Oswald, L.|
|Craigavon, V.||Ilford, L.||Sandys, L.|
|Cromartie, E.||Jellicoe, E.||Selkirk, E.|
|Daventry, V.||Jessel, L.||Sempill, Ly.|
|Denham, L. [Teller.]||Lauderdale, E.||Somers, L.|
|Derwent, L.||Lothian, M.||Strathclyde, L.|
|Drumalbyn, L.||MacAndrew, L.||Terrington, L.|
|Addison, V.||Gardiner, L. (L. Chancellor)||Royle, L.|
|Archibald, L.||Garnsworthy, L.||St. Davids, V.|
|Arwyn, L.||Henderson, L.||Samuel, V.|
|Balogh, L.||Kennet, L.||Segal, L.|
|Bowles, L. [Teller.]||Kilbracken, L.||Shepherd, L.|
|Buckinghamshire, E.||Listowel, E.||Silkin, L.|
|Burden, L.||Llewelyn-Davies of Hastoe, Bs.||Sorensen, L.|
|Champion, L.||Lucas of Chilworth, L.||Stonham, L.|
|Chorley, L.||McLeavy, L.||Stow Hill, L.|
|Clwyd, L.||Mitchison, L.||Strabolgi, L.|
|Cork and Orrery, E.||Morrison, L.||Wells-Pestell, L.|
|Crook, L.||Phillips, Bs. [Teller.]||Wise, L.|
|Douglass of Cleveland, L.||Plummer, Bs.||Wootton of Abinger, Bs.|
|Gaitskell, Bs.||Ritchie-Calder, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ [The Sitting was suspended at 1.16 p.m. and resumed at 2 p.m.]
§ 2.0 p.m.
Lord STONHAM moved Amendment No. 3:
Page 2, line 15, after ("court") insert ("may make orders in pursuance of paragraphs (c) and (d) of the preceding subsection but subject to that").
§ The noble Lord said: My Lords, with this Amendment I should like to discuss Amendment No. 66 in the 5th Schedule. Subsection (4) of Clause 1 provides that the courts shall not make more than one of the orders mentioned in subsection (3), but it has been represented to us by the County Councils Association and by a number of children's officers that while in general this provision is sound it may occasionally be desirable to make both a care order and a hospital order. The court may rightly consider that a hospital order is appropriate, but the child may have no parents, or no effective parents, so there will be nobody to visit him while in hospital, or to receive him when the hospital order is discharged.604
§ The Government think there is merit in this argument, and the Amendment therefore enables a care order and a hospital order to be made at the same time. The hospital order will naturally prevail over the care order as regards the place where the child is to reside for so long as the hospital order is in force. Hospital orders and fit person orders can coexist under the present law, and no practical difficulties need arise from having two orders in force. Section 10 of the Mental Health Act 1959 provides that where a child or young person in the care of a local authority under the Bill is admitted to a hospital or nursing home in England and Wales, the authority shall arrange for visits to be made to him on behalf of the authority and shall take such steps in relation to the patient while in the hospital or nursing home as would be expected to be taken by his parents. Local authorities will have this duty where a child subject to a hospital order is also subject to a care order. The power to make a hospital order in criminal proceedings is in Section 60 of the Mental Health Act 1959. This provision is amended by Schedule 5. The Amendment to that Schedule enables a court to make a care order as well as a hospital 605 order in criminal proceedings in respect of a young person. I beg to move.
My Lords, I am grateful to the noble Lord for his explanation of this Amendment, which seems to me to be quite right and I have no quarrel with it whatsoever.
§ On Question, Amendment agreed to.
§ Clause 2 [Provisions supplementary to Section 1]:
§ Amendment moved—
Page 3, line 46. at end insert—
("(6A) In determining whether the condition mentioned in subsection (2) (aa) of the preceding Section is satisfied in respect of the relevant infant, it shall be assumed that no order under that Section is to be made in respect of him.")—(Lord Stonham.)
§ On Question, Amendment agreed to.
Earl JELLICOE moved Amendment No. 5:
Page 5, line 28, leave out ("twenty-five") and insert ("fifty")
§ The noble Earl said: My Lords, this Amendment was moved by my noble friend Lord Brooke of Cumnor at our Committee stage. It affects the amount of recognisance that a parent or guardian may be required to enter into. At present the limit is set at £25. On the whole, we should be inclined to argue that this is a matter which could well be left to the discretion of the court, but alternatively, if that is not thought right, it should be set at a figure somewhat higher than £25. That is the figure which is the maximum for a recognisance which a young person might be asked to enter into under Clause 3 (7), and we believe that in any event it would be a good thing that some distinction should apply between the maximum which is applicable in the case of a parent or guardian and that which is applicable in the case of a young person. There is, of course, plenty of scope for argument over how high to pitch this sum. In another place the Opposition, I believe, argued un successfully that the maximum might be put at £100, and I should have thought there was a good deal to be said for that.
§ When this point was argued in Committee in your Lordships' House I believe there was some disposition on the 606 part of the Government to reflect again on this matter, and if the Government feel unable to accept £100—which seems to me to be reasonable—I hope on reflection they will be prepared to accept £50, because by accepting that, and therefore by accepting this Amendment they would be accepting the principle of drawing some distinction between the maximum which applies in the case of a young person and that which would be applicable in the case of a parent or guardian. I beg to move.
§ Lord STONHAM
My Lords, as the noble Earl has said, in Committee the noble Baroness, Lady Brooke of Ystrad-fellte, argued persuasively in favour of a higher maximum limit for the binding over of parents than for the binding over of young persons. My noble friend Lady Serota undertook to look at the matter again. We think that the considerations are nicely balanced, but we see the force of the argument that there should be different maxima for parents and for their children, and I would advise the House to accept this Amendment.
My Lords, may I just thank the noble Lord for that forthcoming attitude, more especially alter his Napoleonic victory just before lunch. I am delighted to find a spirit of magnanimity reigning on the part of the victors.
§ On Question, Amendment agreed to.
§ Clause 3 [Further supplementary provisions relating to Section 1(2) (e)]:
Lord STONHAM moved Amendment No. 6:
Page 6, line 45, leave out from ("1952") to ("then") in line 3 on page 7.
§ The noble Lord said: My Lords, I ask the House to consider with this Amendment also Amendment No. 8. My munificence knows no bounds, because these are two rather technical Amendments to meet a point raised by the noble Viscount, Lord Colville of Culross, in Committee. Your Lordships will recall that in Committee I moved an Amendment to secure that compensation could be ordered in care proceedings in respect of an offence of malicious damage falling within Section 14 (1) (b) of the Criminal Justice Administration Act 1914. Having considered the arguments put forward by the noble Viscount at our Committee 607 stage I agree with him that the Amendment which I then moved can be improved upon. This Amendment removes the words inserted in Clause 3 (6) by the Committee Amendment and they are replaced by the words inserted at the end of Clause 3 (6) by the Second Amendment. I beg to move.
My Lords, on behalf of my noble friend Lord Colville I should like to express my appreciation for these two Amendments, which I think substantially meet the point raised by my noble friend at Committee stage.
§ On question, Amendment agreed to.
§ Earl JELLICOE moved Amendment No. 7:
§ Page 7, line 9, leave out ("one") and insert—
- ("(i) in the case of an offence under section 14 (1) (b) of the Criminal Justice Administration Act 1914 (which relates to malicious damage amounting to five pounds or less) five pounds, and
- (ii) in any other case, four")
§ The noble Earl said: My Lords, I think this case has partly been met by the last Amendment, but there is still another leg to this Amendment upon which I should like to advance an argument. The House having accepted the last Amendment, I am not quite clear whether in fact this Amendment would be valid as it stands, and I should like to look at its drafting in any event. I address my argument to the question of £100 or £400—and this point was argued with a great deal of ability and legal agility by my noble friend Lord Colville of Culross at the Committee stage. What we should be attempting to do by our new subsection (2)—and I think the Amendment would achieve that objective—would be to draw a clear distinction between the power to award compensation for indictable offences and the equivalent power to award compensation for summary offences—that is, the Section 14 (1) (b) offences. In the latter case, where the damage does not exceed £5, my Amendment would restrict the compensation to £5, and I think this would be right; but in the former cases, the more serious ones, the maximum limit would be raised from £100, the present limit in the Bill, to £400. This was discussed in our Committee at some length 608 and I do not want to go at great length into the arguments for raising the maximum. I should like to summarise them under four heads.
§ In the first place, I should like to remind noble Lords that £500 is a maximum for compensation for which an adult is liable under the Criminal Law Act 1967, and this would be the same amount. Secondly, we do not see why there should be a different maximum in these cases. After all, as my noble friend pointed out at our Committee stage, it will be the parents who in most cases will be liable for paying the amount of compensation ordered. That may well be right, because the parents may well have a measure of responsibility in the matter. Thirdly, although some may say that £400 is on the high side, I think your Lordships should recall that the £100 limit goes back for at least 99 years, to the Forfeiture Act 1870, and I suspect that the value of money has decreased by a factor of more than four since that date. It is also perfectly obvious that young persons, like adults, are capable of doing damage—for example, to a motor car—which could run up to the £400 limit. My fourth reason for suggesting that we should raise this maximum to £400 is that that would in fact be the maximum, but there is no reason why the court should necessarily award the maximum sum. It would be in the court's discretion.
§ For all those reasons I believe it would be right to raise the maximum figure for compensation under this clause from the present £100 limit to £400. I hope very much that the noble Lord will agree that this is right, even though he may not feel, in view of the Amendment we have just made, that the wording is absolutely right. I beg to move.
§ Lord STONHAM
The noble Lord's Amendment would make subsection 6 (a) of Clause 3 read thus:section 34 of that Act (which relates to compensation for loss of property or damage to it) shall apply as if the finding were a finding of guilty of the offence and as if the maximum amount of the award under that section were:609 I think the noble Earl is right in taking the view that the Amendment just accepted, and No. 8 which I discussed with it, would affect the viability of what he has now moved. That will not prevent us from discussing the sense of the two points which are embodied in the Amendment, namely, to increase the maximum of compensation from £100 to £400 and to fix a lower maximum of £5 in the case of an offence under section 14 (1) (b) of the 1914 Act which relates to malicious damage amounting to £5 or less.
- (a) in the case of an offence under section 14 (1) (b) of the Criminal Justice Administration Act 1914 (which relates to malicious damage amounting to five pounds or less) five pounds, and
- (b) in any other case, £400"
May I deal with the second point first? The amount of compensation is automatically limited by the amount of the damage. Compensation is compensation, and if the amount of the damage is £25 compensation for it cannot exceed £25. If the amount of the damage is £4, the court can award up to £4; if it is £50, the court can award up to £50; but if it is £120, as the Bill stands at present the court cannot award more than £100. The upper limit, whatever it is, comes into play only where the amount of the damage is more than that limit. In the Government's view a special limitation in respect of damage of £5 or less is unnecessary. If it were, it would be equally necessary to provide that if the damage was less than £10 the amount of compensation should not exceed £10, and so on right up the scale. It is also undesirable because it carries the implication that, above £5, it is all right to include a punitive element in compensation and to award £50 when the damage is £30.
Turning to the upper maximum, which the Amendment would raise to £400, the Government remain of the opinion that £100 is adequate. We are dealing here with damage by children under 14. Few children of this age have the ability to pay compensation themselves, except where the damage can be measured in a few pounds, the clause makes provision for payment by the parents and there can be little doubt that in the great majority of cases it is the parent who would find the money. The question is, how far should one place such a vicarious liability on the parents?
Obviously, liability must attach to them. There is no general provision in the law enabling people to recover from parents damage which they suffer as the 610 result of the acts of children. A child can commit damage without committing a criminal offence—as a negligent cyclist or a negligent pedestrian or a negligent ball-player, not intending to kick the ball through the window. In none of these cases has the injured party any remedy except by suing the child in the civil courts, if he is worth it, which is unlikely. He cannot sue the parent unless the parent has instigated the act which caused the damage, or been negligent himself. Whether he should be able to sue the parent is not an easy question and is outside the scope of this Bill. From the point of view of the victim, the law is capricious, his chance of compensation depending on whether the act was a criminal offence, whether there are court proceedings, whether the court thinks it right to make a compensation order, whether the parents are able to pay and so forth.
The question comes down to how far it is desirable to impose on the parents a financial liability for the act of their child in situations where the parent has no direct responsibility. The effect on the relationship between parent and child has to be considered, particularly where the amount has to be paid by weekly sums stretching over a period. A good deal of harm might be done to this relationship if the parents suffer from a sense of grievance over having to pay a considerable sum for something done by a child in a situation where they had no direct opportunity to avert it. In the Government's view this is not a situation in which one can simply apply the maximum of £400 laid down for adults, and that is why, taking all the factors into account, the Government are of the opinion that the sum of £100 is right. I am sure the noble Earl is aware that his right honourable friends and honourable friends in another place put this matter forward. The Amendment was accepted there by the Government, and they expressed themselves as well satisfied with this maximum of £100. It boils down to this. The relationship between parent and child is a special case, and often the damage is done in circumstances where the parent was not negligent, did not instigate it and could not possibly have stopped it. In those circumstances, although one has sympathy with the person who has suffered 611 damage in excess of £100 in this way, we think on balance that that figure is right.
The noble Lord prefaced his remarks by saying that this was on the whole a fairly evenly balanced argument, one way and the other, and I agree with him. I am fully aware of the attitude taken by my friends in another place, although I do not feel under any total compunction necessarily, and I am sure the noble Lord does not, to take the identical view our respective friends do in another place. On balance and on considering this matter, I had come to a different conclusion from that to which the noble Lord has come. We know only too well that even children under 14 are fully capable of doing well over £100 worth of damage if they set their minds to it, and I think there was a strong case for allowing the maximum compensation in these cases to be raised to the same as for adults in the Criminal Justice Act 1967; but this would, of course, remain very much within the discretion of the court. That said, I endorse the noble Lord's view that this is a pretty evenly balanced argument, and I certainly should not wish to press it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
Page 7, line 28, at end insert—
("For the purposes of this subsection an offence under section 14 (1) of the Criminal Justice Administration Act 1914 (which provides for damage committed wilfully or maliciously to be punishable on summary conviction) shall be treated as an indictable offence within the meaning of the said Act of 1952.")—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 5 [Restrictions on criminal proceedings for offences by young persons]:
Page 8. line 40, leave out from ("either") to second ("not") in line 41 and insert ("have notified the informant that they do not wish to make such observations or have").—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 10 [Further limitations on publication of particulars of children and young persons]:
§ 2.22 p.m.
§ Lord STONHAM moved Amendment No. 10:
§ Page 14, line 6, after ("section") insert—
- ("(a) the references to a young person concerned in the proceedings as to the person in respect of whom they are taken shall be construed as including references to any person who has attained the age of seventeen but not eighteen and against or in respect of whom the proceedings are taken and, in the case of proceedings under Part I of this Act, any other person in respect of whom those proceedings are taken; and
- (b) the references to a juvenile court shall, in relation to proceedings in pursuance of the provisions of sections 15 and 16 of this Act or on appeal from such proceedings, be construed as including a reference to any other magistrates' court or, as the case may be, the court in which the appeal is brought; and
§ The noble Lord said: My Lords, I would ask your Lordships to consider with this Amendment Nos. 11 and 18. The first Amendment, No. 10, replaces subsection (4) of Clause 15 of the Bill, which the third Amendment proposes to omit. This subsection was inserted by an Opposition Amendment moved on Report in another place and accepted by the Government. It was appreciated at the time both by those who moved the Amendment and by the Government, that some re-drafting would be necessary to give a practical effect to the proposal. The object of the Amendment made in another place was to apply the restrictions on publicity in juvenile court cases to cases where the adult court discharges, or make a minor variation in, a supervision order in force in respect of a person over 18. So we are dealing only with the question of publicity. It applies only to proceedings under subsection (3) of Clause 15. It was felt that since the person had been protected from publicity when the supervision order was made by the juvenile court, it would be wrong for him to be exposed to publicity if an adult court subsequently varied or discharged the order because he had been satisfactory under supervision. When the practical difficulties were considered, however, they appeared more complicated than was expected. The difficulties are two.613
§ First, a reporter in the adult court cannot be expected to distinguish the proceedings to which the restrictions apply. He may not be sufficiently knowledgeable to know the difference between a probation order made after 17 years of age and a supervision order made before 17. It is necessary, therefore, to provide that the court shall announce that the restrictions apply. The second difficulty is that complicated provisions would be required to enable reporters to distinguish between proceedings under subsection (3) and proceedings under subsection (5). For example, the supervisor might apply under subsection (5), because the supervised person was not reporting, but the court might take the view that it was not a case for a fine and that the best course was to discharge the supervision order. Or the supervisor might apply for discharge under subsection (3), saying that although the supervised person was not reporting he had not broken the law and was in steady employment; but the court might take a different view and consider that it was a case where the supervisor should apply under subsection (5), and this would be done.
§ Although the Bill sets out the powers of the court under two separate subsections it may not be so easy to distinguish them in practice. It would be necessary for the clerk to make two announcements to the Press: first, at the outset, that these were proceedings to which the restrictions might apply; and secondly, at the end of the proceedings, on whether they did apply. This seems too complicated a provision to deal with what was recognised in another place as a minor change in the law and which relates to proceedings which are in any event seldom sufficiently newsworthy to be reported. The Government have therefore come to the conclusion that the simplest way to deal with the matter is to apply the juvenile court restrictions to all proceedings in the adult court relating to supervision orders. The new paragraph (b) contained in the first Amendment does this.
§ There is a further complication because the existing restriction on the reporting of the names of those appearing in juvenile courts applies only to children and young persons—that is to say, those under 17. If a person over 17 appears before a juvenile court—for example in connection with a probation order or fit 614 person order made by that court—there is no restriction on publicity, although in practice the Press do not distinguish between those over 17 and those under 17 in juvenile court proceedings. However, if the juvenile court restrictions are to apply to supervised persons over 18, it would be odd not to apply them to persons against or in respect of whom proceedings are taken in a juvenile court when, for example, criminal proceedings "straddle" his 17th birthday or adoption proceedings are brought in respect of him between his 17th and 18th birthdays. It would also be odd not to apply them to proceedings in a juvenile court in respect of a person over the age of 17 who is subject to either a care or supervision order. The new paragraph (a) contained in the first Amendment therefore applies the existing restrictions on publicity to all persons aged 17 to 18 against or in respect of whom proceedings are brought in a juvenile court and to all persons in respect of whom proceedings are so brought under Part I of the Bill.
§ The new subSection inserted by Amendment No. 11, at page 14, line 10, places on the adult court a duty to announce the fact that Section 49 applies to supervision proceedings in that court. The words after the semi-colon are necessary because it would be wrong for a newspaper to be liable to prosecution for publishing the name of a person appearing before an adult court if the court failed to carry out this duty. I beg to move.
My Lords, I must frankly say that I find this an extraordinarily complicated area of the law and, not being a lawyer, all I will say is that what the noble Lord has said sounds right to me, but I should like very much to look at his statement in the Report of our proceedings. It is my understanding that the procedure which he is now suggesting and which would be embodied in the Bill by these Amendments, is satisfactory.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 14, line 10, at end insert—
("( ) Where by virtue of paragraph (b) of the preceding subsection the said section 49
applies to any proceedings, it shall be the duty of the court in which the proceedings are taken to announce in the course of the proceedings that that section applies to them; and if the court fails to do so that section shall not apply to the proceedings in question.").—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Clause 12 [Power to include requirements in supervision orders]:
§ 2.31 p.m.
Earl JELLICOE moved Amendment No. 12:
Page 15, line 8, after ("but") insert ("subject to the next following subsection")
§ The noble Earl said: My Lords, I think it would probably be for the convenience of the House if we were to discuss this Amendment together with my Amendment No. 14 and Lord Wells-Pestell's Amendment No. 13. I do not know if that is agreeable to the noble Lord, Lord Wells-Pestell, but all the Amendments bear closely on the same subject—indeed, the wording of my Amendment is extremely close to that of the noble Lord, Lord Wells-Pestell.
§ We discussed this matter at quite considerable length at the Committee stage, and I think there is here a great deal of common ground between us: we are all anxious to preserve a wide amount of flexibility for the supervisor. For example, he may have authority under the terms of a supervision order to give directions to a child or young person to live for 90 days in some particular place—a hostel, for example: and after 45 days the supervisor may come to the conclusion that if this direction were to be carried out in full, to the full 90 days, this could lead to the young person concerned becoming completely "browned-off" and then the direction would, as the Americans say, or as we are tending increasingly to say, be merely counter-productive.
§ I think we all wish to preserve this degree of flexibility for the supervisors. I would readily concede that in many-cases—indeed, most—it is the supervisor rather than the court who knows most about the child, being in close and constant touch with him. I have no quarrel with that. Nor have I any quarrel with the general principle of the variation and discharge of supervision orders which is part of Clause 15. I readily 616 recognise that here we are dealing with highly responsible people. But what worries us is the supervisor's ability, it would seem, under the Bill as at present drafted, entirely to ignore, or do nothing at all about, a particular supervision order. That is why my two Amendments, taken together, would make it obligatory on the supervisor, if within six months he has not given directions which he is empowered to give under a supervision order, to go back to the court and seek the discharge or the variation of the order. It will then be up to the court to decide whether it is going to vary the order, or discharge it, or say that the order shall still apply. Only in the last event will it be obligatory on the supervisor to give the necessary direction.
§ I am not wishing to claim any special expertise in drafting here, more especially since this is not my drafting but that of my noble friend Lord Colville of Culross. The wording is extremely close to that of the Amendment which the noble Lord, Lord Wells-Pestell, has down, although in one small respect I think it is a little more flexible, since my Amendments would give the supervisor a chance to ask the court not to issue a direction at once and to explain his reasons why that was so.
§ To sum up, my Lords, I should like to make it clear that the power of the court to discharge or vary supervision orders would not in any way be affected by acceptance of these Amendments. It is only on the rather exceptional cases that they would bite. But we feel that in certain exceptional cases it is desirable that there should be this particular power which is written into our Amendments. In essence, we entirely agree that the supervisor should have considerable flexibility. What we are anxious about is that the present law prohibits his having complete carte blanche. This is what my Amendment is designed to avoid. But I am not worrying in any way that there should be great flexibility. I beg to move, and will listen with great interest to what the noble Lord, Lord Wells-Pestell, has to say in view of the considerable similarity between the two Amendments.
§ Lord WELLS-PESTELL
I apologise to your Lordships for having down an 617 Amendment on Report stage. I was here on the first day of the Committee stage when I had these Amendments down, but due to circumstances beyond my control I could not attend on the second day. The noble Viscount, Lord Colville of Culross, dealt most effectively with this matter on the second day of the Committee stage and there is not a great deal that I want to add to what the noble Earl, Lord Jellicoe, has just said. What exercises my mind is that this clause appears to allow conditions of various kinds to be inserted in a supervision order. In fact, the Bill empowers the supervisor to give directions of a specified kind to the person under supervision. The supervisor, however (and the noble Earl made this point a moment or two ago)—has a complete discretion—I quote:to decide whether and to what extent he exercises any power … conferred on him.I think there are two related grounds for objection. First, as a matter of principle (and I believe it to be a matter of principle) the court should be able to order a certain form of treatment with some certainty that it will be given. It may well be that my noble friend the Minister may say that this is no longer going to be the function of the court; that this is to be left to the supervisor. There is, however, some danger in this, because I believe that the court must assume responsibility for considering and determining the kind of treatment that is to be given to the person to be supervised. That is why I think the court should be able to order a certain form of treatment with some certainty that it will be given.
The way the new scheme for intermediate treatment will operate makes it necessary to give the supervisor some discretion; and I accept what the noble Earl said; that he must have discretion. But it will give the supervisor some discretion over precisely what form of treatment the supervised person receives, and some discretion about starting dates to fit in with the arrangements of those who run the schemes. Nevertheless, if a supervisor takes the view that it would not be right for him to make any use of the powers given to him by the courts, I feel that he should justify this to the court direct, and this is primarily my concern.
Secondly, if a supervisor can be given powers which he is under no obligation 618 to use—and I understand this to be the position—it may be tempting to add these powers to a supervision order as a normal practice, just in case they are needed; and I think that would be a mistake. In my view it would be better if the court were asked to vary the original order if the supervisor thought he needed powers which were not envisaged when the original order was made.
I realise that this is not an easy situation. My noble friend the Minister, with his customary courtesy and helpfulness, has written to me quite a long letter on the subject, and I find myself in sympathy with the difficulties which he sets out. But I want to make these points because I still hope that it will be possible to put something into the Bill whereby the supervisor will be under the obligation to go back to the court within a specified period and indicate to the court what has been done. It is very important that in the last analysis the court should have the responsibility for seeing that certain things are done and accept the responsibility for treatment.
§ 2.43 p.m.
§ Baroness WOOTTON of ABINGER
My Lords, if I understand these Amendments, and I am not quite sure that I do, I view them with some dismay. I have expressed the view that the powers given to supervisors may be excessive. I think I expressed that view at the Committee stage. My fear is rot so much that the supervisor will do too little as that possibly he may be tempted to do too much. As I read these Amendments, their effect is to say that when a supervision order is made, if the court gives the supervisor power at some time to tell the child to go and live in a hostel, or to go and live with Auntie May, or to attend a youth club, or to take part in some activities approved as part of the regional scheme, it is up to him to exercise it or not to exercise it. I think it would be a great mistake that the supervisor should have to go back to the court and explain why he has not exercised any of these powers.
I agree with my noble friend Lord Wells-Pestell that it may well be that this whole list of powers will be put into supervision orders almost automatically, because, who knows, when this child is put under supervision for several years, 619 in the unforeseen future it may be necessary to send him to live in a particular place or direct him to take part in certain activities. So as to safeguard the future, I think it likely that most of these powers will be written into supervision orders. But when time goes on, the supervisor is the only person who is in close contact with the child, and it would be a great mistake if he felt himself in any way obligated to exercise some of these powers if the child was in fact doing perfectly well without them.
If he has to go back to the court and ask for a variation of the order, or to be relieved of some of the powers, he is putting on the court a responsibility that it is in no position to discharge. The court, six months later, or after an even longer interval, is quite out of touch with the child and really can act only on what the supervisor says, and I do not think that the court ought to take the responsibility of, so to speak, interfering in the future control of the child once it has made this supervision order and has given discretion to the supervisor. I should like the supervisor perhaps to have to consult somebody before he exercised positive powers; I would much rather see some Amendment that way round. I do not think he ought to be called upon to explain why he has not sent the child to a hostel; why he has not sent it to live with Auntie May; why he has not sent it to join a youth club; why he has not said that it must take part in certain forms of social service. This seems to me to be an imposition that it would be improper to lay upon him, and one on which the court is not in a position to give a sensible judgment.
§ 2.48 p.m.
§ Lord STONHAM
My Lords, my noble friend Lord Wells-Pestell was kind enough to refer in friendly terms to the fact that I had sent him a long explanatory letter—one of many long explanatory letters I wrote between Committee and Report. I think the one he referred to ran to some five foolscap pages. That will teach me, because we are still having it discussed! I was grateful to have the support of my noble friend Lady Wootton of Abinger. It is rather surprising that we are having this discussion in this way, because my 620 noble friend Lady Wootton is putting the point of view—and she speaks with enormous experience as a magistrate—with which I agree, whereas my noble friend Lord Wells-Pestell—a former probation officer—is putting exactly the kind of case that I thought he would not have put arising from his experience.
The noble Earl, Lord Jellicoe, said that these Amendments are addressed to exactly the same point, and I agree with him. The point is whether it is right that subsection (2) should leave a supervisor who has been empowered by the court to issue directions, with discretion to issue no directions at all. There are differences of detail in the Amendments, but they are very similar in approach. I think they are both subject to the same objections.
The whole scheme of Clauses 12 and 19 in this Bill is that it is for the court to decide whether to confer on the supervisor power to issue directions, and it is for the supervisor to decide—within the fairly fine limits allowed by the court—what use to make of those powers. Ask yourselves, why do we have these highly trained, dedicated people, with their vast experience, acting as supervisors unless we expect them, and give them reasonable freedom, to do the job according to their judgment and according to their discretion. These Amendments would cut right across that and right across the whole principle of the scheme. They would leave the supervisor with full discretion how to use his powers, provided he made some use of them within six months of the making of the supervision order. If he then did not do so, my noble friend wants us to give the court power to instruct him to use his powers.
This is absolutely wrong, and I am thinking again not of the supervisor but of the child, because I want the supervisor to give the child, within the limits imposed by the court, the treatment that he needs. If it is thought that if the supervisor were to give him no directions he would then be flouting the court, and that this would be improper or an affront to judicial dignity, well, I must reject it, because under subsection (2) the court has no power to give instructions to the supervisor or to the supervised person. Its powers are purely enabling powers, and there is no question of its being flouted if these powers are not used.
621 It seems to me illogical to trust the supervisor with the decision precisely how and when to use the power the court has given to him, but not to trust him with the decision that after all he need not use his powers at all. Once we accept as reasonable the division of function between the court and the supervisor which I have described, I think it is inconsistent to attempt, as the Amendments do, to give back to the court an area of decision which properly belongs to the supervisor.
Let us consider, as my noble friend Lady Wootton did, what the supervisor might do. He has been given these powers and he might want to direct the boy to join a youth club or undertake some form of activity, but the boy says, "I will do it anyway"; he volunteers. So the supervisor does not use his powers, I think quite wisely. Has he to go back to the court and say, "The boy is doing this and I have not told him to"? That does not seem to me to be a reasonable kind of thing to suggest. The supervisor might want to gain the boy's confidence before putting the relationship between them to the test, and this might take some time. The youngster might not be co-operative at first, whereas after a time, after he has got confidence in his adviser, he might. Suppose, again, the order was made in the autumn and the supervisor thought that the boy ought to go to an early summer holiday camp, beyond the six-month period. He would have to go back to the court and ask whether this was right.
Courts are not likely to empower supervisors to issue these directions except in cases where enquiries into the child's background have shown that this power is likely to be valuable to the supervisor. I think we agreed in our discussion in Committee that it will be in only a minority of cases that no directions are issued; and if all these cases had to be taken back to the court. I have no doubt that in nearly all of them the court would agree with the supervisor's judgment. In fact, I will go so far as to say that I personally, as a matter of principle, would take the supervisor's judgment against the court's, because the supervisor is the person who is treating the child. It is the court that issues directions and decides the framework; it is the supervisor who fits the lyric to the music.
622 I concede that there might be a small number of cases where the court did not agree with the supervisor. Under the Bill as at present drafted, however such situations could not arise, because the respective roles of the court and the supervisor are clearly defined, and thus there is no area of potential conflict. I believe it would be most unfortunate to create an area of potential conflict, as the Amendments would. Also the Amendments propose that such conflicts should be resolved by the court instructing the supervisor to do something which he considers to be, at best, unnecessary, and which may perhaps be positively damaging. What kind of situation is that? We ought not to have supervisors if we thought that that was going to happen; because either the supervisor would have to ask to be relieved of his responsibility for the child or he would be forced to discharge that responsibility in a manner which, in his experienced judgment, was wrong.
My noble friend Lord Wells-Pestell referred to the danger of conditions being inserted as a habit by the court in case they are needed. That did not seem very complimentary to the court, but I suppose it is true that it could happen. I think it is quite unlikely that courts would be so undiscriminating in their choice of what to include in a supervision order. It is much more likely that they will say to the supervisor, "If you think you need these powers later, come back to us and ask". That would be the normal and proper thing to do. I suppose the difference between the points of view lies in the way in which one looks at this particular Bill and this particular section of the Bill. But I think that an enormous responsibility for the success of this particular scheme is going to rest on the supervisors. I hope that we shall express our confidence in them by leaving them, once the court has taken the decision and created the framework, to do the job professionally and properly within the limits imposed by the Bill.
§ Lord WELLS-PESTELL
My Lords, I do not know what the noble Earl is going to do in this matter but I certainly do not want to press the Amendment. However, I want to comment on something which my noble friend said.
§ Lord SHEPHERD
My Lords, I feel I ought to intervene. This is Report 623 stage. Only the mover of an Amendment has the right to speak twice unless the permission of the House has been obtained. I think the noble Lord should take that into account.
My Lords, I am sure the House would extend that courtesy to the noble Lord, seeing that on this very point he has an Amendment down which, had he not agreed that mine should be taken with it, he would in fact have moved.
§ Lord WELLS-PESTELL
I am much obliged to your Lordships. The only comment I want to make is that my noble friend the Minister referred to the skill and competence of the supervisors. He may have had in his mind when he said that the Probation Service; but I would remind the noble Lord, as I am sure he knows, that the bulk of the supervisors will not be, and may not be when the new Act comes into force, probation officers. They may well be, in the main, supervisors who have not had the skill and the experience of dealing with delinquents.
§ Lord STONHAM
My Lords, that is something I really cannot accept. It is a reflection on children's officers and others, and I cannot accept it. Many of the supervisors will of course be probation officers, and I did have them in mind; but I think they will all be skilled and proper persons for the job.
§ Lord CHORLEY
My Lords, I should just like to say a word about this matter because I have been a magistrate for a very long time.
My Lords, I think the noble Lord is out of order in speaking from the Bishops' Bench.
§ Lord CHORLEY
I beg your Lordships' pardon. I should just like to say that although I sympathise tremendously with what the Minister said in answer to the Amendment put forward by the noble Earl opposite, there was one point at which I thought he went, perhaps, a little too far. After all, magistrates are the people who have to decide about these things, and he was suggesting that in effect the supervisor would know more than the magistrates. At the time when the magistrates deal with a case they 624 give great care and consideration to it. There are several of them, and they discuss these matters most carefully. From time to time it is fairly clear that there is a difference of opinion between them and the probation officer. I am talking in a rather old-fashioned way because my experience has been in the past, but in that situation I must say that my court never had any doubt at all as to the fact that what they said "went".
Certainly at that time, if it had been clearly indicated to the probation officer that the court expected him to take a certain line, and if he felt that this was a wrong line, he would say, "I would rather one of my colleagues took over this case". It seems to me altogether wrong that, in effect, the supervising officer is deliberately to go against what the magistrates have decided is the best treatment for a particular child. I am not saying that the Minister said this in so many words, but he seemed to me to be getting very close to it. That would be an altogether wrong principle to lay down because, at the end of the day, it is the magistrates who ought to be in control of these cases.
§ Baroness BIRK
My Lords, it seems to me that we are putting magistrates in a rather elevated position, so far as judgment is concerned, compared with a probation officer or children's officer, who would in fact have more detailed knowledge of a child. The magistrates would do the best they can—they would have all the reports before them, and they would see the child—but surely the person under whose supervision the child comes is the person who will be in direct contact with the child. I hope that these Amendments will be rejected.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, I must support this point of view. My noble friend Lord Chorley seems to me to be reversing the correct way to look at this. The magistrates make the decision that a certain form of treatment is best for the child, and then hand the child over to the person who is to give the treatment; that is, the supervisor. It is absolutely fatal if one is to start interfering with that man. I think the point has been well made, and I will not make it again. The whole system depends, it seems to 625 me, on the magistrates' having confidence in the people who are doing the treatment, on there being mutual confidence on both sides and, above all, on the supervisor's being given a free hand to carry out his job.
My Lords, I wish to say only a few words on this Amendment. Unlike the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Chorley, I am still in order. I think we should keep a sense of proportion here as to what these Amendments are about. There is No intention on my part to drive a horse and cart through the principle of the Bill, as one would almost assume from the forcefulness of some of the language used from the Front Benches opposite. I agree—and I made this clear—that there should be considerable discretion vested in the supervisors. I agree with what the noble Lord, Lord Stonham, said: that they should be given great discretion on the use they may make of their powers. I do not query that.
The only point—and it is quite a narrow one—is whether or not there should be some check or control if they make no use whatever of those powers. That is the sole point to which my Amendments are addressed. I think that there should be some further arbiter. It is wrong to confer powers when there is no obligation to use them. That may lead to the position that the noble Baroness, Lady Wootton, thought may arise of powers being unnecessarily built into supervision orders. If the procedure in these Amendments were adopted I think it would be a very rare event for a court to go against the considered judgment of the supervisor. After all, he is the person closest to the child concerned; he sees most of the situation on the spot. But I do not go as far as the noble Lord, Lord Stonham (and here I agree with the noble Lord, Lord Chorley), in thinking that one should back one against the other. The court may not have the precise knowledge of the situation, but it may have more judgment. I believe that there should be this ultimate responsibility vested back in the court. That said, if the noble Lord, Lord Wells-Pestell, does not wish to press this Amendment I find myself in some agreement with him. We have ventilated this subject very thoroughly and I should 626 be willing to withdraw my two Amendments.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Selection of supervisor.]:
§ 3.5 p.m.
Earl JELLICOE moved Amendment No. 15:
Page 17, line 1, leave out from ("unless") to ("a") in line 3.
The noble Earl said: My Lords, I think the point at issue is quite a narrow one. At Committee stage my noble friends moved an Amendment which would have struck out subsection (2) altogether. Now we should like to remove only two lines in it; namely the words:
the local authority of which the area is named or to be named in the order, in pursuance of section 18 (2) (a) of this Act so requests and
The subsection would then read:
A court shall not insert in a supervision order a provision placing a child under the supervision of a probation officer unless a probation officer is already exercising or has exercised …
and so on. I should like at the outset to make it clear that I am in no way wishing to attack the general philosophy of this Part of the Bill which is, I understand, to place the primary responsibility for children up to 14 with the local authority children's service, whether one is dealing with a child under Section 1 of the 1963 Act or with a child to whom some form of court order might apply. What I find hard to accept is the way in which the Bill as drafted would take away all discretion from the court in this area.
§ The Bill recognises that, as an exception, the probation officer should be the supervisor for children of this age where the probation service is already working with the family. I believe that this is right. The probation officer concerned has got to know the family well, and its circumstances, and probably already knows the child concerned and its problems; he knows the whole family dilemma. I believe the principle is right, that the probation officer should in those circumstances be looked to—but not always. I think it is also desirable in order to avoid duplication of services, whether they are court or local authority services, concerned with a particular family.627
§ Under the Bill, however, even this rather exceptional provision of the Probation Service being called in can apply, under the Bill as drafted, only if specifically the local authority so requests. It is that particular qualification, that particular "if or unless" clause which my Amendment is designed to remove. There might be a whole variety of reasons why the local authority should not so specifically request. It might be as a result of some mishap or accident that there was no objection at all on the part of the local authority to the probation officer dealing with a particular child; but, through some mischance, the specific acceptance or agreement of the local authority was not notified to the court. Secondly, local authorities—indeed, all institutions—depend on people, and people are fallible. And it is quite possible that, for good reasons or bad reasons, the children's department or some department of the local authority may have run up against this family in the wrong sort of way. They may have had some sort of brush and there may be between the family and the local authority a continuing friction. In such circumstances it might be best if the Probation Service were to deal with the child. Just because one side or the other has got a bit "bloody-minded"(if I may use that term) the local authority might not give this specific permission.
§ This is not a very wide point, but I think it is of some importance. I believe that the court should have this discretion, in the exceptional case where the Probation Service has already been involved with the family, of making the probation officer the supervisor without the express permission of the local authority. It is only a discretion that I am seeking to preserve, and one which would be exercised only in that particular specified circumstance. I beg to move.
§ Lord STONHAM
My Lords, as the noble Earl said, during the Committee stage the noble Viscount, Lord Colville of Culross moved, and subsequently withdrew, an Amendment designed to remove the whole of subsection (2) of Clause 13. This Amendment is on a much narrower point: that the court need not ask whether the local authority 628 approves, but may appoint a probation officer as a supervisor of a child under 14 if the probation officer has previously worked with the family or the child. It seems to me that here there are two things. One is that there is a suspicion of the local authority in the matter, and the second, a failure to appreciate the comprehensive overall responsibility of a local authority for children under 14. The power now in the Bill, by implication, for a local authority to decline to give its consent is not a power of veto. The responsibility of local authorities is positive, to consider in every case whether supervision would be best undertaken by a probation officer who had an established relationship with the family or by the authority.
The terms of this subsection are wide enough to cover cases where no probation officer has any longer any such relationship; and there will be cases in which, despite the existence of such a relationship, it would be desirable that the child should not be supervised by the same officer who is supervising the same member of the family. I wonder whether the noble Earl has considered that point in relation to this Amendment. For instance, I am sure that everyone will agree that a child care officer would normally be the right supervisor for a very young child. There are cases where an officer is supervising another member of the family. Suppose, for example, the probation officer is supervising the father of the family and is experienced with the family. Should the court appoint the same officer to supervise a child of the family who has come before the court? It is by no means an unlikely or improbable circumstance. Or perhaps a child might be under supervision to prevent further ill-treatment by his father. I suggest that there are quite a number of such cases where it would not be right for probation officers to discharge the function; indeed, they would not wish to do so.
The reason this subsection places on the local authority the preliminary decision whether to suggest the appointment of a probation officer is simply that it is part and parcel of the authority's responsibility towards all children under the age of 14. I believe that when we discussed this point in Committee noble Lords accepted my argument that this 629 should be the primary responsibility of local authorities, irrespective of whether or not a child has been before the court. Once this is accepted and given effect to by legislation, it seems right that the local authority, which has the general responsibility for all work with children of this age, should have the function of deciding whether to recommend to the court that the supervision of a particular child should be undertaken by a probation officer. The authority is in the best position to judge.
I could not agree with any suggestion that local authorities cannot be expected to discharge this responsibility sensibly. That is the reason for subsection (2), which invites Parliament to make absolutely clear that local authorities have the main responsibility for all work with children under 14, including the responsibility of deciding when such work can best be undertaken by someone else. The Amendment would derogate from this principle. Under the Amendment, Parliament would at one and the same time be laying down the principle and saying that in some cases the courts may depart from it. This would be undesirable. The Amendment would, for instance, enable a court to name a probation officer as the supervisor of any child, of any age, one of whose parents happened to have been on probation at any time in his or her life, even if this had been years or decades previously.
May I tell your Lordships, briefly, the history of this subsection? Paragraph 24 of Children in Trouble said this:The supervision of a child under 14..will be by the local authority; in cases where the probation service was already working with the child's family, arrangements could be made for the probation officer concerned to supervise the child".What we had in mind was that the local authority should always have the formal responsibility for supervision under the court order but that authorities would, in suitable cases, make arrangements for the actual supervision to be undertaken by a probation officer already working with the family. We then received representations from the Probation Service that probation officers were accustomed to working directly to the court and would not wish to act as agents of local authorities. When the Bill was drafted, we provided that, instead of the local authority being able to arrange for the Probation 630 Service to act in some cases as their agents, they should be able, in defined circumstances, to suggest to the court that a probation officer should be lamed in the order. This is simply a piece of machinery to meet the representations by the Probation Service while preserving the principle of the original proposal in the White Paper. It has always been a key feature of the Government's proposals that, whatever might be the detailed machinery, the initiative for proposing that a probation officer mould supervise a child under 14 should be placed squarely with the local authority as part of its general responsibility towards all children of this age.
My Lords, again I am grateful to the noble Lord for his explanation, but I would say that although much of what he said I found persuasive, he did not answer my question about what I would call a case going by default—that is, the possibility of the Probation Service not being called in through some mishap, through the matter not coming to the attention of the court. This is something which, in circumstances not difficult to conceive, could happen, and I should have thought it would be better to safeguard against this possibility, even if we accept the principle which the noble Lord has just enunciated: to redraft this subSection in such a way that in cases where a probation officer is already exercising or has exercised duties in connection with the family the court would be able to call in the Probation Service, unless there was specific objection to this from the local authority. I wonder whether the noble Lord would be prepared to consider this, because it seems to me that it would effectively safeguard against the possibility of this going by default as the result of some accident or mischance.
My Lords, in view of what the noble Lord has so kindly said, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 [Variation and discharge of supervision orders]:631
§ 3.18 p.m.
§ Lord WELLS-PESTELL moved Amendment No. 16:
Page 17, line 25, after ("may") insert—
("(a) make no order, but remind the supervised person of the requirement of the supervision order and of the power of the court to vary or discharge the order under this section; or (b)")
§ The noble Lord said: My Lords, I beg to move Amendment No. 16. Clause 15 (1) deals exclusively with the variation and discharge of supervision orders. As I read it, it means that the court would have either to vary an order or discharge it. During the consideration of the Bill in another place, questions were raised about the steps which it would be possible to take in the event of a person under supervision failing to comply with the terms of the supervision order. The provisions which have applied in the past to probation orders are not applicable to supervision orders. I am satisfied that the power of the court to reconsider a case on the application of the supervisor, to vary an order and make a care order will enable most situations to be dealt with.
§ But I believe that there will be occasions—and this is the real reason for my Amendment—when the court will wish an existing order to continue but will want to have the child or young person before it so as to indicate clearly to the young person who is under supervision that if he will not co-operate with the court, the court will be obliged to consider whether some other form of order would be more satisfactory. I believe I am right in saying that in the Commons Committee the Under-Secretary of State for the Home Department referred to the possibility of a court warning a young person and giving him a second chance without varying or discharging the order. What I want to suggest to your Lordships, and in particular to my noble friend the Minister, is that such a possibility should be given formal recognition in the Bill. I beg to move.
§ Lord STONHAM
My Lords, as my noble friend has said, in another place, in Committee, in the course of discussion of Clause 15 my honourable friend Mr. Elystan Morgan said that when a supervised person was brought back before the court under subsection (1) of this clause, 632 the court might decide that it was not necessary on that occasion to use any of its powers under the subsection but might give a warning to the supervised person very much on the lines suggested by my noble friend in this Amendment. Subsequent to the statement by my honourable friend, the National Association of Probation Officers put the suggestion to the Home Office that this possibility should be written explicitly into the Bill. But it is not necessary; and the Amendment is not necessary. It is likely that sometimes a child or young person will be brought before the court under Clause 15 (or indeed under Clause 1), and the court will decide not to make an order on that occasion, but to issue a warning instead. This is something the courts will be able to do as the Bill is now drafted. There is no need to amend the Bill to make this possible. But having considered this matter further, I would assure my noble friend that the proposed Amendment would go a great deal further than is necessary to give express recognition to the possibility of the court issuing a warning; the Amendment would have far wider implications which may not be obvious at first sight.
One of the main objects of this Bill is to ensure that a child or young person is not brought before a court at all unless the person bringing him believes that a situation exists in which a court order is required so as to ensure that he receives the care or control which he needs. It is then for the court to decide whether an order is necessary for this purpose. It is true that this House has amended the Bill so that it no longer fulfils that object, but, as I explained earlier, the Government intend to suggest to another place that they should not accept this deletion of one of the main principles of the Bill. The Amendment proposes a substantial departure from this approach. It proposes that supervisors should bring cases to court where they do not believe that an order is necessary. It would therefore mean more cases going to court. I am sure that this point has escaped my noble friend, and he has not realised that this will be one of the consequences.
It may be suggested that the Amendment would provide a useful means of supporting the authority of the supervisor. In my view it would have the 633 opposite effect, because the impression would be created that the supervisors lacked authority and needed bolstering up by the courts. I hope that I have convinced my noble friend that what he mainly desires can be done now and that it is not necessary to write this provision into the Bill. Secondly, if we did it, it would run counter to the main principle of the Bill, which I know he fully supports. In those circumstances, I hope that he will feel able to withdraw the Amendment.
§ Lord WELLS-PESTELL
My Lords, I do not altogether accept what my noble friend has said. I should think that if it was desirable for a supervisor to bring before the court a young person who is not fulfilling the task of the supervision order so that the young person could be warned, it would be desirable that this should still happen. Having heard my noble friend on this matter, and having regard to the fact that he says it can be dealt with as the Bill is constructed at the moment, with your Lordships' permission I beg leave to withdraw the Amendment.
§ Amendment by leave withdrawn.
Page 18, line 16, at end insert ("or").—(Lord Stonham.)
§ On Question, Amendment agreed to.
Page 18, line 35, leave out subsection (4).—(Lord Stonham.)
§ On Question Amendment agreed to.
§ Clause 16 [Provisions supplementary to Section 15]:
Lord STONHAM moved Amendment No. 20:
Page 20, line 17, leave out ("or reference").
§ The noble Lord said: My Lords, there is no mention of a reference in subsection (1) of Clause 16, and the inclusion of the words "or reference", which the Amendment deletes, is not appropriate. I beg to move.
§ On Question, Amendment agreed to.634
§ Clause 24—[Powers and duties of local authorities etc. with respect to persons committed to their care]:
§ 3.27 p.m.
§ Lord STONHAM moved Amendment No. 21:
Page 29, line 30, at end insert—
("(4A) If at any time a person subject to a care order has throughout the preceding twelve months been accommodated by virtue of the order in an establishment where care, treatment and education are given wholly or mainly on premises forming part of the establishment and it appears to the local authority to whose care he is committed by the order that during that period—
In this section ' independent person' means a person satisfying such conditions as may be prescribed by regulations made by the Secretary of State with a view to securing that he is independent of the local authority in question and unconnected with any community home.
(4B) A person's appointment as a visitor in pursuance of the preceding subsection shall be determined if the care order in question ceases to be in force or he gives notice in writing to the authority who appointed him that he resigns the appointment or the authority give him notice in writing that they terminate it; but the determination of such an appointment shall not prejudice any duty under the preceding subsection to make a further appointment.")
§ The noble Lord said: My Lords, this Amendment arises out of the discussion which we had on July 9, which I am sure the noble Earl will recall, because it arose on an Amendment which he himself moved, and subsequently withdrew, to restrict the care order to three years at a time. I undertook to consider, in the light of what he said, whether it would be possible to propose any alternative Amendment to meet the main anxieties which he, and indeed others, had expressed. As the Amendment which 635 I have now moved indicates, the Government accept that an additional safeguard is desirable and feasible in some cases. I know that the noble Earl has later on in the Order Paper an alternative to his original Amendment, but we feel—and I hope the House will forgive me if I explain this—that this meets his point, and indeed provides a really valuable safeguard and assistance for children.
§ In formulating this Amendment we have taken great pains to identify the particular situations in which additional safeguards are desirable, and to devise machinery which will be effective, and sensitive to the individual needs of each child concerned. Obviously, this is very important. In Committee I explained the very considerable safeguards which the Bill already contains. These safeguards will be adequate in the great majority of cases. It would not be desirable to set in motion additional safeguarding machinery in cases where this is not really necessary. To do so might well be upsetting to the children concerned, in addition to causing extra but unnecessary work for the staff. It is important that we should hit the right nail on the head with the right hammer, rather than using a mallet to hit a larger number of nails, less effectively in cases where safeguards are really needed, and unnecessarily in other cases.
§ Accordingly, the opening words of my Amendment define as precisely as we are able the kinds of cases where we believe that an additional safeguard is necessary and will be valuable. These words define two factors, both of which have to be present. The first is that the child or young person should be accommodated for an appreciable period in an establishment where care, treatment and education are given wholly or mainly on the premises. Thus the Amendment is directed at establishments such as the present approved schools, and will mainly affect older children; this is in accordance with the views expressed in our debate on July 9. The Government do not believe there is a need to apply these extra safeguards on behalf of children who are living with foster parents or in ordinary children's homes or hostels and going out daily to the local school or to work. The need for an additional safeguard arises with 636 children who spend virtually all their time in the establishment where they are accommodated, with very little contact with the world outside.
§ Secondly, the Amendment is limited to cases where the child has little or no contact with his parent or guardian. If a child has parents or a guardian who are in touch with him and visiting him, we believe that it would be wrong to interfere with the relationship between the child, his parent and the local authority. It should be left to them to decide whether and when an application should be made to the court for revocation of the care order. Any automatic requirement for a court hearing would to a considerable extent take the matter out of their hands, and would mean cases going to court even when the child, his parents and the local authority all agreed that this was wholly inappropriate and that the child should remain in care. I should, however, like to stress that we have very much in mind the need to ensure that the child, if he is old enough to understand, and his parents, are made fully aware of the nature of a care order and of their right to apply at any time for its revocation. How far this can best be done by the court when making the order, and how far by the local authority or the staff of the community home where the child is accommodated is a matter which we shall be discussing with those concerned. This may best be dealt with by advice in a circular, or it might also be appropriate for rules of court. We certainly intend to ensure, by appropriate means, that parents and children know their rights in this regard.
§ Having thus defined the situations in which an additional safeguard is desirable, the Amendment does not simply say that all these cases must be taken to court. It requires the local authority to appoint an independent person as the child's visitor. The authority will have some discretion to judge whether the contact between the child and parents is so infrequent that a visitor should be appointed. But we have put a "long-stop" there because we have made it the duty of the local authority to appoint a visitor—a friend—if the child has not visited or been visited by his parents or by a guardian over a period of 12 months. This will be a moving period of 12 months; that is, once the child has been 637 accommodated for 12 months in an establishment of the kind in question, the local authority will be under a continuing duty, so long as he remains in that establishment, to consider whether to appoint a visitor.
§ This independent visitor will have not only the right to take the case to court at any time if he thinks that desirable, but also the duty to visit, advise and befriend the child. This means that he will be doing some of the things which the child's absent or ineffective parents might otherwise have done—visiting him, discussing his case with the staff of the establishment and of the local authority, and generally giving what help he can. I believe that this is a valuable feature of this scheme. It will ensure that cases go to court when they should; and it will also provide a source of outside help and guidance to the child, whether or not an application is made to the court. It may then mean—in fact I think it will mean—that many children who have no parents, or who have ineffective parents, may gain a friend for life.
§ I hope noble Lords will agree that this Amendment will cover those cases where the need for an additional safeguard has been felt, and will provide not only an effective safeguard but also one sensitive to the needs of the individual child, going beyond mere machinery to get cases before the court where necessary. I beg to move.
§ Baroness WOOTTON of ABINGER
My Lords, I very much welcome this Amendment, which I think is a necessary protection for children who may have been virtually abandoned by their parents or guardians. I have been asked by the noble Baroness, Lady Emmet of Amberley, who is unable to be here, to express on her behalf her appreciation of the fact that the Government have accepted the suggestion which I think originated with her. I am, however, a little disturbed that this provision does not go further.
I do not see that the distinction between the child who is in a residential institution, and who goes to school there but does not go into the outside world officially for any purpose, and the child in a residential institution who goes out to school overrides this situation in which the child has been virtually abandoned 638 by his parent or guardian. I should have thought that in the second case, as much as in the first case, there ought to be somebody who occupies the position of parent or guardian and in particular has a right to see that application may be made in certain circumstances for the care order to be discharged. I should have thought that all children in care should have either a parent or guardian who maintains contact with them, or an independent person who occupies that place in lieu of the parent or guardian.
My Lords, I, too, should like to welcome this Amendment. I am grateful to the noble Lord for the attention he has given to the arguments fully ventilated at Committee. I and a number of other noble Lords were then expressing, as he has mentioned, very real anxiety for the adequacy of our safeguards in this respect. There is he six months' review by the local authority. The child can apply for discharge of the order and the parent or guardian can apply, but we felt that there was here a major loophole, or loopholes, and that this was a very important area, given the fact that care is now covering such a wide spectrum of possibilities. I am grateful to the noble Lord for this Amendment and the care which, typically, he has taken in looking into this matter.
To a certain extent my doubts and anxieties are removed by this Amendment, though I still have some residual anxieties. I have the anxiety which the noble Lady has expressed that this is still restricted to the residential establishment. I hope that by cudgelling our brains, and with the amount of time we have available for this Bill (and we may have a little more than we first thought was available to us) it might be possible to devise a formula which would cover all children in care, as the noble Baroness has suggested.
Further—this is not really a doubt but a query in my mind—I wonder whether the noble Lord can explain a little more about the type of independent persons whom the Government have in mind for the discharge of what will be very important functions. I notice that the person concerned should be "independent of the local authority" in question. I was wondering what precisely that means. It may be a term of art of 639 which I am not aware of the precise meaning. It seems to be highly desirable that the persons concerned should know the locality pretty well, and how that is compatible with "independent of the local authority" I do not know. Perhaps the noble Lord would say a little more about what lies behind those words.
That said, I should like, in the light of what the Minister has said, to think rather carefully over the Amendment which we had drafted, No. 24. As a result of our previous discussion on that Amendment, and in the light of the noble Lord's remarks at our Committee stage, we have tried to restrict it; and I shall be considering between now and when we come to that Amendment the extent to which the noble Lord's Amendment renders it superfluous. My Lords, I think it would be churlish of me not to say again that I am very grateful to the noble Lord for this constructive Amendment. I think it advances matters quite considerably. Nevertheless, I hope—and I come back on the point made by the noble Baroness—that we shall be able to devise a fully effective safeguard of this kind for all children in care.
§ Lord STONHAM
My Lords, I am very grateful to my noble friend Lady Wootton of Abinger and to the noble Earl. Frankly, I feel rather excited about this Amendment. I think it is going to open new possibilities and new fields. Of course, it is a common fate of anybody doing anything new that one of his noble friends get up and says that it does not go quite far enough. My noble friend may be quite right, but I am sure she will agree that the child in the open situation (she said that all children in care should have this opportunity) does not need the kind of friend I am talking about, with statutory rights of access to the court. He needs friends; and it is good child care practice to help him to find them.
§ Baroness WOOTTON of ABINGER
My Lords, I am sure my noble friend will forgive me if I point out that I have just said that I do not agree with this point of view. He said he was sure I would agree with what he is saying, but my speech was entirely directed to disagreeing with it.
§ Lord STONHAM
My Lords, that is a situation I shall be coming to. I was hoping that my noble friend would agree with this. In any case, I submit that many of these children will be with foster parents. Imagine the situation if we insisted that they should also have a friend, when they are living with people acting as parents to them. No doubt we shall have experience of this and shall be able to see whether it needs to be extended at all.
The noble Earl asked me about "independent". "Independent" means that the person must not be a member or an officer of the local authority, or anyone in the authority's employment, direct or indirect. The kind of people we have in mind would be local in the sense that they would be available to the local authority—magistrates, teachers, retired clergy, citizens of good repute of all kinds: and not only good repute, but of good intent and willing to take on this work.
§ Baroness BIRK
My Lords, I wonder if my noble friend could explain this. I agree with my noble friend Lady Wootton. I think she was referring to cases where the child was not necessarily with foster parents but was in an institution or children's home and going out to school. Although the child would be in establishments, it would not be wholly in one establishment. I do not think the way the Amendment is worded covers that case. I do not know whether it could be worded so that wherever a child is in an institution, even though not being educated in the same institution, it would have these opportunities. I should have thought that where the child was with foster parents and the arrangement was working well, it would not appear to the local authority that this would be necessary.
My Lords, may I, with the permission of the House, put one further question to the noble Lord on this Amendment? I was wondering why the period of the preceding twelve months has been introduced. Is the purpose to establish whether there is communication with the parent or not? I should have thought a shorter period might have been more appropriate.
§ Lord STONHAM
My Lords, I am sorry that I did not make this clear. I 641 used the expression "twelve months" as a "long-stop". It is mandatory on the local authority; if a child has not received a visit from his parents within twelve months the authority must appoint a person to be his friend. But it can, under the clause, appoint a visitor in less time than that. It is a matter of discretion.
§ On Question, Amendment agreed to.
§ 3.45 p.m.
Lord STONHAM moved Amendment No. 22:
After Clause 24 insert the following new Clause:M
§ Transfers between England or Wales and Northern Ireland
§ ".—(1) If it appears to the Secretary of State, on the application of the welfare authority or the managers of the training school to whose care a person is committed by a fit person order or by virtue of a training school order, that his parent or guardian resides or will reside in the area of a local authority in England or Wales, the Secretary of State may make an order committing him to the care of that local authority; and while an order under this subSection is in force it shall have effect as if it were a care order and as if sections 20 (2) and (3) and 21 (1) and (5) of this Act were omitted and in section 29 (3) (a) of this Act for the reference to section 20 (3) there were substituted a reference to subsection (3) of this section.
§ (2) If it appears to the Minister of Home Affairs for Northern Ireland, on the application of the local authority to whose care a person is committed by a care order other than an interim order, that his parent or guardian resides, or will reside in Northern Ireland, the said Minister may make an order committing him to the care of the managers of a training school or to the care of the welfare authority in whose area his parent or guardian resides or will reside; and the provisions of the Children 1968 c. 34. (N.I.). and Young Persons Act (Northern Ireland) 1968 (except sections 83 (3) (a), 88 (3), 90 and 91 (3)) shall apply to an order under this subsection as if it were a training school order made on the date of the care order or, as the case may be, a fit person order.
§ If an order under this subsection commits a person to the care of the managers of a training school, the contributions to be made in respect of him under section 161 of the said Act of 1968 shall be by such 642 council as may be named in that order, being the council within whose district his parent proposes to reside or is residing at the time of the order.
§ (3) When a person is received into the care of a local authority or welfare authority or the managers of a training school in pursuance of an order under this section, the training school order, fit person order or care order in consequence of which the order under this section was made shall cease to have effect; and the order under this section shall, unless it is discharged earlier, cease to have effect—
- (a) in the case of an order under subsection (1), on the earlier of the following dates, that is to say, the date when the person to whom the order relates attains the age of nineteen or the date when, by the effluxion of time, the fit person order aforesaid would have ceased to have effect or, as the case may be, the period of his detention under the training school order afore-said would have expired;
- (b) in the case of an order under subsection (2), on the date when the care order aforesaid would have ceased to have effect by the effluxion of time or—
- (i) if the person to whom the order relates is committed by it to the care of a welfare authority and will attain the age of eighteen before that date, when he attains that age;
- (ii) if the order has effect by virtue of subsection (2) as a training school order and the period of supervision following the detention of the person in question in pursuance of the order expires before that date, When that period expires.
§ (4) An order under this section shall be sufficient authority for the detention in Northern Ireland, by any constable or by a person duly authorised by a local authority or welfare authority or the managers of a training school, of the person to whom the order relates until he is received into the care of the authority or managers to whose care he is committed by the order.
§ (5) In this section 'training school', 'training school order' and ' welfare authority' have the same meaning as in the said Act of 1968, and 'fit person order' means an order under that Act committing a person to the care of a fit person."
§ The noble Lord said: My Lords, I beg to move Amendment No. 22. This new clause provides for transfer to 643 Northern Ireland of persons subject to English care orders and for the transfer to England or Wales of persons subject to Northern Ireland training school orders or fit person orders. These transfer provisions operate, as with the transfer provisions between England and Scotland which will be moved later, only where the parent or guardian of the child resides or will reside in the other country. This can arise where, after an order has been made in relation to the child, the parents move to the other country and it is desirable that the child shall be moved there also. Or it can arise, more exceptionally in the case of Northern Ireland, where a child resident in one country comes before a court in the other. I beg to move.
§ Lord BROOKE of CUMNOR
My Lords, I am sure it is right to introduce this new Clause into the Bill. With memories of my Home Office experience in the background, I know how important it is to get the law right on this question of transfer. Sometimes it requires a good many words to do so. I only hope that the Government have got it right, because from my recollection it is extremely easy to make a slip and find that one of these permutations and combinations is not satisfactorily covered. But, having said that, I certainly welcome the attempt by the Government to amend the Bill so as to cover these cases.
§ On Question, Amendment agreed to.
Lord STONHAM moved Amendment No. 23:
After Clause 24 insert the following new clause:
§ Transfers between England or Wales and the Channel Islands or Isle of Man
§ ".—(1) The Secretary of State may by order designate for the purposes of this section an order of any description which—
- (a) a court in the Isle of Man or any of the Channel Islands is authorised to make by the law for the time being in force in that country; and
- (b) provides for the committal to the care of a public authority of a person who has not attained the age of eighteen; and
- (c) appears to the Secretary of State to be of the same nature as a care order other than an interim order;
§ (2) The Secretary of State may authorise a local authority to receive into their care any person named in the authorisation who is the subject of a relevant order; and while such an authorisation is in force in respect of any person he shall, subject to the following subsection, be deemed to be the subject of a care order committing him to the care of the local authority.
§ (3) This Act shall have effect, in relation to a person in respect of whom an authorisation under this Section is in force, as if sections 20 (2) and (3), 21 and 29 and in section 25 (4) the words from 'and if' onwards were omitted; and it shall be the duty of a local authority who propose, in exercise of their powers under section 13 (2) of the Children Act 1948, to allow 1948 c. 43. such a person to be under the charge and control of a person residing outside England and Wales to consult the relevant authority before exercising those powers.
§ (4) An authorisation given to a local authority under this section shall cease to have effect when—
- (a) the local authority is informed by the Secretary of State that he has revoked it; or
- (b) the relevant order to which the authorisation relates ceases to have effect by the effluxion of time under the law of the place where the order was made or the local authority is informed by the relevant authority that the order has been discharged under that law; or
- (c) the person to whom the relevant order relates is again received into the care of the relevant authority;
§ The noble Lord said: My Lords, I beg to move Amendment No. 23. This clause provides for the accommodation in the care of local authorities in England and Wales of children and young persons subject to court orders made in the Channel Islands and the Isle of Man. The existing law, which is Section 83 of the Children and Young Persons Act 1933—and it will be of some comfort to the noble Lord, Lord Brooke of Cumnor, that a lot of this is based on the existing law—provides that if the insular law enables children or young persons under 17 years of age to be sent to approved schools in England, a child or young person with respect to whom such an order is made may be received into such approved school as the Secretary of State may direct. He is then treated as though he was subject to an approved school order under our law. With the abolition of the approved school order in England or Wales this will no longer be possible. It is therefore necessary to make other arrangements. The insular laws, in addition to empowering courts to make approved school orders, also empower the courts to make fit person orders committing to the care of an insular authority. It is possible that the islands may make adaptations to their law on fit person orders or introduce new orders similar to care orders. The Clause is designated to cater for these different possibilities by enabling the Secretary of State to designate an insular order which appears to him to be of the same nature as a care order. A child or young person subject to an order so designated may then be received into the care of a local authority in England or Wales. I beg to move.
§ Lord BROOKE of CUMNOR
My Lords, I appreciate, likewise, the need for this new clause. I will not repeat the random comments that I made on the last new clause, though many of them will be equally applicable here. I would only say that members of the general public have No idea of the additional complications necessarily existing because 646 of the separate Administrations in the Channel Islands and the Isle of Man, although our law and their law in the normal case satisfactorily overcome those complications.
§ On Question, Amendment agreed to.
§ Clause 25 [Children to whom Part II applies]:
§ 3.50 p.m.
§ Lord BROOKE of CUMNOR
My Lords, the next Amendment, No. 24, concerns a matter of some importance, and it was referred to indirectly by my noble friend, Lord Jellicoe, in his speech on Amendment No. 21. In his speech he indicated that he would like to consider whether, in the circumstances, he wished to move Amendment No. 24. I wonder whether the noble Lord would be willing to agree at this time that the House should now adjourn, because we might be able to save time in the long run if, in fact, my noble friend Lord Jellicoe does not wish to move this Amendment. I know it is agreed to stop our proceedings at about this time. I think that the Opposition have made sufficiently clear their desire to make progress with the Bill and not to hold it up. It is only too clear that we cannot finish today.
§ Lord STONHAM
My Lords, I wish to be quite accommodating. I am not quite clear what the noble Lord, Lord Brooke of Cumnor. means. Does he mean that it is in any case not his intention to move Amendment No. 24 now on behalf of his noble friend; because, if that is the position, I should be grateful if we could just stay another five minutes, when I think we might get another dozen or so Amendments done.
§ Lord BROOKE of CUMNOR
My Lords, in that case I must reserve the right of my noble friend Lord Jellicoe to put down this Amendment again on Third Reading, because he clearly has not had sufficient time to consider the effect which Amendment No. 21 has had on the purpose underlying Clause 24. I cannot help thinking that it might be better if we were to end now. I do not think that it will make very much 647 difference in the long run to our completion of this Bill, and I repeat my noble friend's assurance that he is anxious not to hold up progress.
§ Lord STONHAM
My Lords, I put that query because I was not quite sure what the noble Lord had in mind, but, in the circumstances he has now explained, I think it would be convenient if we adjourned the further consideration of the Report stage of the Bill, and when we resume we resume with the Amendment of the noble Earl, Lord Jellicoe.