Lords Sitting of 17 February 1975

Preamble
The House met at half past two of the dock: The CHAIRMAN of COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.
The Lord Goodman—Took the Oath.

CONCORDE SALES POLICY
Lord BALFOUR of INCHRYE: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, while favouring receipt of firm orders for Concorde, they would consider some lease-purchase scheme to assist capital-hungry airlines who seek to operate this type of aircraft but are, in the foreseeable future, not likely to have resources for immediate cash purchase.
The MINISTER of STATE, DEPARTMENT of INDUSTRY (Lord Beswick): My Lords, the Government recognise the problem facing international airlines which currently find themselves in a difficult financial position. We are prepared to consider any proposal from the manufacturers either for selling Concorde on
2
normal credit terms or for leasing the aircraft to a potential airline customer, although we should of course be bound to take account of any cost to the Government arising from such a scheme. The requirements of individual airlines, and the fiscal arrangements relating to leasing in different countries, vary considerably. It therefore seems better to be able to respond quickly to particular opportunities which arise rather than to attempt to establish any general leasing scheme.
Lord BALFOUR of INCHRYE: My Lords, arising from that Answer, may I ask whether the Minister is aware that his reply will give a great deal of satisfaction in many quarters where the matter has not been clear hitherto?
Lord BESWICK: My Lords, I am much obliged to the noble Lord.
Lord POPPLEWELL: My Lords, would my noble friend agree that it would appear that this is the type of matter which will be dealt with with very little trouble under the new legislation by which we propose to assist these industries who find themselves in great financial difficulties?
Lord BESWICK: My Lords, I was referring particularly to overseas airlines, which are not covered by the legislation which my noble friend has in mind.
Lord TREFGARNE: My Lords, are the Government saying clearly that they will be prepared to purchase some of these aircraft and lease them to foreign

3
airlines? That, I submit, is the point which is not clear.
Lord BESWICK: My Lords, what I thought I had made clear is that we should be prepared to consider any scheme put to us.

PARKING RESTRICTIONS
2.39 p.m.
Lord BALFOUR of INCHRYE: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether guidance is given to traffic wardens as to what can be considered a reasonable time to allow householders to park in restricted streets when engaged in loading or unloading personal luggage and whether the time allowed takes into account the variable distance between residence and nearest parking point.
Lord WELLS-PESTELL: My Lords, traffic wardens are instructed in the provisions of the local traffic regulation orders they are employed to enforce. These orders are generally made by local authorities and their terms vary; I understand that in London they commonly permit vehicles to wait in restricted streets other than clearways for so long as may be necessary for the purpose of loading or unloading personal luggage.
Lord BALFOUR of INCHRYE: My Lords, arising from that reply, may I say that I regret I am not clear as to what the Minister said. Did he say that in certain circumstances and in certain localities a householder would be unable to load luggage into his car and that it depends on the local authority as to whether they are so permitted?
Lord WELLS-PESTELL: My Lords, I am saying that on clearways, for example, a car is permitted to remain for only two minutes. So far as other restricted areas in London are concerned, traffic wardens have been told that if a private car is obviously parked for the purpose of loading or unloading, then they are permitted to allow the owner some grace. In the unloading or loading
4
of large vehicles such latitude could be up to about 20 minutes. It is very much at the discretion of the warden whether or not he puts a ticket on a vehicle in a restricted area.
Lord BALFOUR of INCHRYE: My Lords, leaving out the question of clearways, may I ask whether the Minister agrees that reasonable tolerance should be allowed to householders to load their own luggage? Will he ensure that the need for such tolerance is made known, down the line, to all traffic wardens?
Lord WELLS-PESTELL: My Lords, I thought that I had made the point clear: tolerance is permitted, provided the warden can see the purpose of it. If it is obvious that a vehicle is being loaded or unloaded, then he is permitted to accept that position, provided it does not go on for an interminable period.
Lord ROYLE: My Lords, may I ask whether one's wife is included in the loading and unloading? Or is she not luggage but baggage?
Lord SLATER: My Lords, may I ask whether my noble friend would agree that there seems to be very harsh treatment, for example, in Cartwright Gardens, where they have private hotels and where even a hotelier is not allowed to park his car in front of his hotel unless he pays the penalty or the charge which has been imposed by the local authority? Does my noble friend not think that that is a case of harsh treatment?
Lord WELLS-PESTELL: My Lords, it is not really for me to express an opinion, but I should not have thought that that was unreasonable. After all, householders and hoteliers do not own the roadway. It is for the convenience of the travelling public, and if it is a restricted area it is subject to the regulations. I would repeat that if wardens can see that a car is being loaded or unloaded, they are expected to give a certain amount of tolerance.
The Earl of HALSBURY: My Lords, is the noble Lord aware that once a warden has put pencil to paper and initiated a ticket, a process as remorseless as a Greek tragedy has set in, and that though one may arrive in the middle of this process, and though the warden would have exercised due grace had she

5
known that one was unloading, nothing can be done about it? Must we all be victims indefinitely of this purely bureaucratic process?
Lord WELLS-PESTELL: My Lords, I am not sure that the noble Lord is correct in what he says. It is true that once the ticket is made out and placed on one's windscreen, one has the option either of paying the penalty or of not paying and leaving it to a court to decide. But if a member of the public feels aggrieved by virtue of the fact that a ticket has been left on his windscreen, he can write to the police setting out the position and, if his explanation appears reasonable, the matter will be withdrawn.
Lord TREFGARNE: My Lords, can the noble Lord say what percentage of traffic penalties not paid are subsequently found not guilty in the magistrates' courts?
Lord WELLS-PESTELL: My Lords, I cannot do that. I did not come prepared for that at all.

EAST/WEST RELATIONS
2.45 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what proposals they have in mind for the development of the detente between the West and East in the light of the recent visit of the Prime Minister and Foreign Secretary to Washington and their immediate visit to Moscow.
The PARLIAMENTARY UNDERSECRETARY of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, my right honourable friend the Prime Minister made a Statement on his visit to Washington in another place on 4th February. I can confirm that he discussed East/West relations with President Ford and Dr. Kissinger. My right honourable friends have not yet returned from Moscow, but
6
I understand that a communiqué is being issued today.
Lord BROCKWAY: My Lords, I thank the Minister for that reply, and welcome the concord reached both in Washington and, it appears, in Moscow, particularly the endorsement of the idea of a summit meeting of the European Conference on Security and Co-operation. May I ask whether the Government arc giving consideration to the necessary machinery to follow up that conference, to implement the 26 items of agreement by the Commissions which have been sitting at Geneva?
Lord GORONWY-ROBERTS: My Lords, we are of course in favour of continuing the multilateral discussions within the framework described by the CSCE. After the conference, we shall want to seize every opportunity to work for the full and effective implementation of its decisions. Detailed arrangements have still to be settled.

GOVERNMENT STATEMENTS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, at a convenient moment after 3.30 p.m. my noble friend Lord WellsPestell will repeat a Statement on National. Health Service consultant contracts. This will be followed by a Statement to be repeated by my noble friend Lord Beswick on EEC agricultural prices for 1975/1976. May I also add that dinners are available this evening.

BUSINESS OF THE HOUSE
2.47 p.m.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in his name on the Order Paper.
Moved, That leave be given to the Lord Aberdare to advance his Unstarred Question from Thursday next to Wednesday next.—(Baroness Llewelyn-Davies of Hastoe.)
On Question, Motion agreed to.

EUROPEAN COMMUNITIES COMMITTEE
The CHAIRMAN of COMMITTEES (The Earl of Listowel): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Lord Chelwood be appointed to the Select Committee on the European Communities in the place of the Lord Drumalbyn.—(The Earl of Listowel.)
On Question, Motion agreed to.

HOUSING RENTS AND SUBSIDIES BILL
2.49 p.m.
Report received.
Clause 1—[Rents for Public Sector Dwellings]:
Lord AVEBURY Lord AVEBURY moved Amendment No. 1:
Page 2, line 2, at end insert—
"( ) In section 111(1) of the Housing Act 1957 (General responsibility for local authority's houses) after the word "determine" there shall be inserted the words "having regard to management and repair costs, cost of borrowing and economies of scale associated with public sector house-building"."
The noble Lord said: My Lords, Section 111(2) of the Housing Act 1957 requires a local authority to make
" such reasonable charges for the tenancy or occupation of the houses as they may determine ",
but nowhere in that Act, or in the Bill now under consideration, is the word "reasonable" defined, nor are local authorities given any guidance on the criteria to be used in defining it for themselves, apart from the rules which noble Lords will be aware of, which provide that local authorities should not make a profit on their housing revenue account. These rules are all of a character which defines the maximum which can be allowed under the heading of "reasonable rents", but within that maximum I am afraid we have no guidance at all.
One can argue—and I know that some noble Lords do—that of recent years local authorities have been far too strictly constrained by the dictates of Central
8
Government, and that wherever possible your Lordships and another place should restore the maximum degree of freedom to them. However, if one looks at every other important field of social policy, I think it is now agreed that uniformity is essential, so as to avoid differences of treatment between one citizen and another. That is certainly so throughout England, if not the United Kingdom, particularly on matters that require cash transactions between an individual citizen and a public authority. To illustrate the point, it would be quite unthinkable for prescription charges, for instance, to be varied considerably from one area of the country to another.
If housing is to be considered a social service—and I understand that noble Lords opposite take that view, as we do on these Benches—there is no logical reason why rents should be in a different category from any other charge which is made for social services. As has already been remarked in the proceedings on this Bill, it is worthy of note that the rebate scheme provided for under the 1972 Act is retained, and to that extent the Government obviously take the view that housing is a social service, and that the benefits of it should be uniform throughout the country.
It seems to me that the reason why the Labour Party treats rents as being different is the entirely illogical one that under the Conservative Housing Finance Act the formula used implied a very steep increase for large numbers of tenants—a criticism of the formula and not of the principle. We of course supported the principle in the White Paper which preceded the 1972 Housing Finance Act, but not the way in which it was implemented. In the absence of any-such formula at all, what may tend to happen in practice is that rents will vary considerably from one authority to another according to the political complexion of the landlord. It could well be, in the case of tenants living on opposite sides of a street, that because one of them happens to be in the area of a Conservative authority and the other is in the area of a Labour authority one will have to pay twice as much rent for a very similar dwelling.
In the case of the private sector, it is generally agreed that the 1965 Act formula has worked reasonably well. But

9
the Tories wrongly assumed that it could be read across as it stood into the public sector, ignoring the economic differences between the two that were highlighted in the Milner Holland Report. That Report showed that what is a reasonable rent for a council house is not the same thing at all as a fair rent for the equivalent privately-rented property, because the costs are quite different. Milner Holland showed, for example, that with a two-bedroomed dwelling in the local authority sector the economic rent was roughly half that of the same dwelling in the private sector. This is the point I am trying to deal with in the Amendment.
It would be an act of temerity on my part, or on that of any other layman, to try to write into the Bill a definition of the word "reasonable". The most one can try to do is to sketch in some of the factors which should be taken into account by local authorities. To anticipate one possible objection of the Government, they might reply that the circumstances mentioned in my Amendment would invariably be taken into account and come under scrutiny when housing committees were thinking about what the level of rent should be. If this is the case, then there is no harm in spelling it out. But if, on the other hand, we are to be told that in specifying these factors we are implying that local authorities may ignore others of equal importance, which cannot necessarily all be anticipated at this stage, then as an alternative to the proposal in this Amendment I should be perfectly happy for the Secretary of State to have a power to make orders to require local authorities to take account of any matters he may think fit. But I suggest, my Lords, that to leave the term "reasonable" entirely unqualified, as it was in the 1957 Act, is a recipe for unreason and for enormous differences of rent which are not fair to tenants. I beg to move.
Baroness YOUNG: My Lords, I very much regret that the noble Lord, Lord Avebury, was not with us at the Committee stage, because I hoped very much that he would support me in my Amendments to Clause 1. One of the Amendments which the Committee carried was to amend subsection (3) of Clause 1 and so to allow a local authority, if it chose to do so, to make a surplus, and this
10
would meet the kind of circumstance which the noble Lord, Lord Avebury, has suggested in his Amendment No. 1. This is a helpful start to a definition of what is meant by a "reasonable rent", and it became very clear at the Committee stage not only that there would be a variety of circumstances between local authorities, but that Clause 1 itself is very unclear in its drafting, in particular in regard to what is meant by a local authority "having a balance", and what is meant by not being allowed to make a surplus, neither of which was fully explained, and which have been left— certainly, with regard to having a working balance—undefined in the Bill.
It therefore seems helpful to suggest that some of the things to which a local authority should have regard are management and repair costs. It is very unfortunate that the recent local government circular should have told local authorities to economise on repairs— a very shortsighted economy, I should have thought—and also to economise on management, when all the evidence that we have at the moment goes to show that we need better management, not economies on management on public authority housing. I am therefore very glad to support this Amendment, and I hope that the Government will accept it.
2.58 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, the noble Lord, Lord Avebury, has raised a particularly interesting point. I do not know how pleased he will be at the support he has received, which in fact would take us back to the Housing Finance Act—which I really cannot believe is what is in his mind. The question of reasonable rents has again arisen. Here we are really returning to the basis that local authorities have used for many years—over 50 years before the 1972 Act. When one goes beyond what has been accepted as reasonable—and I shall be going into this in rather more detail in a moment—one has finally to leave it to the courts to decide what is a reasonable rent in any individual case. It is quite clear that the noble Lord who introduced the Amendment has given it careful consideration and I should like to acknowledge his further consideration in giving

11
me earlier a brief idea of what he had in mind. As I understand it, he wishes the Bill to set out some objective guidelines for the determination of rents in the local authority sector, and he is disturbed by what he regards as a gross disparity in rents for similar houses which happen to be in different local authority areas. This is certainly so at first glance —I appreciate very much what I think many of us would feel about this.
But the noble Lord falls into the camp of those who think that council rents should be governed by some objective test and this is an aim with which I would most certainly sympathise. Rents should be seen to be rationally determined. However, the noble Lord's Amendment would not achieve his aim, and in drafting, this, of course, is the problem which I think he acknowledged himself, particularly in so complicated a Bill as this. The Amendment might however succeed in achieving several other ends, not all of which I think the noble Lord would sympathise with— for instance, putting back the clock to the 1972 Housing Finance Act.
The Amendment would require local authorities to have regard to several factors in determining their rents. Let me look for a moment at these factors, bearing in mind that local authority housing finance is governed by the principle of meeting the cost left after subsidy either from rents or rates. First, there is the item of management and repair costs. Certainly local authorities must have regard to these; indeed, they must do more—they must pay them. Next, the noble Lord's Amendment mentions the cost of borrowing. This is the major local authority housing expense and it would be quite superfluous to tell a local authority to have regard to this, because any local authority treasurer would immediately reply: "The thought of my council's loan charges gives me nightmares and I am puzzling all the time how to meet them from income, either from the tenants or the ratepayers".
Local authorities do not do more in practice than cover these costs by income. At the present time about half their housing income comes from rents, about twofifths from subsidy, and the remainder from the rates. The Bill fixes the sub-
12
sidies and, in addition, one of its principal aims is to give local authorities freedom of choice, within the limits set by the word "reasonable", as to how they bring in the rest, either from rents or rates. To insert a piece of guidance to them on the lines of the Amendment (which I agree is well-intentioned) would have the result, I am afraid, of confusing them. What, they would ask, is the sense of bidding them to have in mind factors which must already dominate their thinking? Is it a roundabout instruction to cover all their housing costs out of rents? If so, what about their subsidies? Or is it an oblique way of telling them to cover no more than their housing costs out of rents?—in other words, a reinstatement in a less clear form of the no-profit rule which was deleted by an Amendment in Committee. I do not think that the noble Lord really intends that. If this Amendment were included in the Bill it could mean a very heavily trodden path to the courts, and one wonders what they would make of the situation.
The third factor of the noble Lord refers to economies of scale. It is quite true that local authorities can achieve many such economies. They offer contracts for large numbers of repetitive units with the prospect of repeat orders, and so they can get better terms from contractors than those same contractors would quote for building the same house as a one-off job. As a result, their borrowing is less than it would have been for a number of one-off jobs, and their loan charges are less. I think the noble Lord would agree with me on that point. That takes me back to my point that it is mainly loan charges that have to be covered by income.
Economies of scale are already, and automatically, taken into account in the loan charges. There is no possibility of taking further account of them by an injunction of this kind. Similarly, the economies of scale associated with managing large numbers of houses—economies which sometimes seem more apparent than real—are already taken into account when the council estimates how much it will need to spend on management and maintenance, and adds that sum to the expenditure side of its Housing Revenue Account estimates.

13
The noble Baroness, Lady Young, mentioned economy on repairs and maintenance. The fact is that councils were asked in that Circular to keep the same standard of service in real terms, but it was made clear that there could be no increase in standards this year. This is not because of any whim of the Government; it is due to a cut-down on public expenditure, of which the noble Baroness will be well aware. It is not my intention to decry economies of scale; all economies of this kind are very desirable. My point is that there is no possibility of having regard to such economies separately from having regard to the noble Lord's first two factors, and they, for the reasons I have already given, are superfluous; that is, as regards putting them into the Bill.
The Amendment is, unfortunately, not merely superfluous: it would be positively harmful in narrowing local authority freedom of decision. By listing the factors to which regard should be had in this way, the Amendment would exclude several factors to which authorities might wish, or need, to have regard. I have in mind, for example, factors of a social or economic kind, which might lead a local authority gradually to adjust its rate fund contribution to housing to be either more or less than the contribution which it will, as it were, inherit from the 1972 Act when it moves into its new position of rent freedom. The Government do not propose either to require or forbid authorities to do this; they know their areas and the circumstances of their people, and if they consider that some adjustment in the contribution from the rates is either equitable or necessary, while remaining within the limits of reasonableness, they should be free to make that adjustment.
The noble Lord is concerned at the differences in rent which occur between one local authority and another. Let us leave subsidies out of the reckoning for the moment, and suppose that local authority "A" covers its costs by charging an average rent of £4 a week while local authority "B" needs £5. Is the noble: Lord suggesting that local authority "A" should put up its rents to £5 to get rid of the disparity? If so, it would first reduce its rate fund contribution to housing, and so the disparity would be transferred from
14
the rents to the rates of the two councils. Eventually authority "A" would have got rid of its rate fund contribution altogether, and would be moving into profit. What then happens to the profit? The Council may reduce the rates still further, thus increasing that disparity, or it may treat itself to a new amenity such as a swimming pool; or—and really this is quite likely, and it is what the 1972 Act provided for—it may see part of the profit clawed back for the benefit of the Exchequer—and I cannot think that is what the noble Lord had in mind. If the alternative course were followed, and authority "B" reduced its rents to the level of "A", either the rates would have to rise, or there would have to be more subsidy. Since one cannot, in justice to the taxpayer, have an uncontrolled subsidy which simply picks up the bill whenever a council decides to cut its rents, there would have to be a system of external control by independent nonelected boards deciding what the rents should be. Thus we should be back to the system in the 1972 Act, with all that flowed from it. I need hardly remind your Lordships that the whole point of this Bill is to get rid of that Act and return autonomy to local authorities.
The reasons for differences in rents between one local authority and another are many. One cannot equate rents with other social services. There are complex social and economic factors involved. Sometimes one authority is more efficient than another and provides the same service more cheaply. In that case, its people should benefit. Another authority may be more parsimonious than its neighbour. In that case, its tenants should pay less because they are getting less. In some cases the situation may be due to housing history. Not all authorities build houses at full stretch all the time. A council that finds itself in an easier housing position, and reduces its rate of building for, perhaps, three or four years will find itself temporarily in a better financial position because its proportion of older houses with less debt is higher. That will enable it to keep down its rents until its rate of building rises again. It is this disparity in building that is the biggest single cause of disparity in rents.
All these factors are due to local decisions taken by elected local councillors and ultimately the electorate has the final

15
say because they can elect new councillors. While the system of local government exists, such variations will be inevitable unless the key decisions are taken out of their hands. The Bill aims to keep such decisions firmly in their hands. The noble Lord's Amendment would introduce interference which tenants will not appreciate. There are other aspects of housing policy just as important as uniformity—a matter which noble Lords opposite did not grasp until the Housing Finance Act had done all the harm it did.
The noble Lord spoke of the attitude of the Milner Holland Committee, and its approval of the way in which the fair rent formula has worked: I think he would have found equally approving comments in the Report of the Committee on the Rents Acts (the Francis Committee) in 1971. The essential feature of the fair rent system is that it works well in the privately-rented sector, where the problem is one of being fair, on the one hand, to a landlord who seeks a return on an asset and, on the other hand, to a tenant who is in no way responsible for the scarcity of accommodation in a particular area. This is a completely different problem from the problem in the public sector where it is a matter of bearing inescapable costs in the most reasonable way possible.
It was one of the errors of the 1972 Act that it transposed a formula from the area where it was applicable to an area where it was not applicable. I appreciate the noble Lord's eagerness to find a formula—and I am in great sympathy with what he is setting out to try to do—but he is, I feel, seizing one without thinking through its application. What works in one sector does not work in the other, and we have had enough proof to be able to see that. However, I hope this will be of some comfort to the noble Lord. This Bill is an interim measure, certainly as regards its provisions for subsidies and finance generally, and therefore to this extent it must be regarded as interim as regards rents also. I do not mean to suggest that local authority freedom and responsibility are only to be regarded as interim arrangements. They have permanent value, for theirs is a responsibility to distribute the bearing of costs, and it will be the legis-
16
lation consequent upon the long-term review of housing finance that will determine how much the costs will be.
The noble Lord may be assured that equity will be a prime objective of that review. In the meantime, I suggest that the immediate objective is to set up a system that restrains rents so far as humanly possible, and that is best served by allowing local authorities full scope for their economy and ingenuity with a minimum of restraint. I apologise to the House for having taken a little time on this, but not only did I owe it to the noble Lord, Lord Avebury, who put down the Amendment, but I feel that in raising this point he has rendered a service. He has underlined a number of things which I hope I have explained to his satisfaction, and although it would be impossible to write them into the Bill, they should always be kept at the top of people's minds, certainy those of local authorities. He has made many valuable points which we have recorded and noted and I hope now that he will consider withdrawing his Amendment.
Lord AVEBURY: My Lords, I am extremely grateful to the noble Baroness for the thorough answer which she has given to this matter and for the several important points which she has made in the course of her speech. I would just remark that the differences between two authorities may be a great deal larger than the example she quoted where "A" was charging £4 a week and "B" was charging £5, and the question was whether to bring one of the rents down by £1 or put the other up by £1 in order to equalise them. My formula is not of a strictly arithmetical nature, so that the rents of the two authorities would have had to be made identical. The factors which I set out in the Amendment were merely those to which the local authorities should have regard, and I should have thought that differences as small as between £4 and £5 would be quite reasonable—to go back to the 1967 Act term—bearing in mind the other factors the noble Baroness mentioned.
One in particular, which she said was the most important, was the scale of building that has been the practice of a particular local authority in the past and the effect it had on current rent levels.

17
Because one local authority had been idle and had not built any new houses for several years past, then, as the noble Baroness said, it would be able to charge a lower rent because the costs it was incurring were in pounds of much less value than those of today. I am hoping that when we come to discuss later clauses of the Bill we shall see that local authorities are in fact being insulated from the burdens that have been imposed on them in previous Acts as a result of complying with Government policy. This is not a point which I wish to develop on Clause 1, but surely it is grossly unfair that local authorities should have had to charge much higher rents because of the additional costs they incurred in getting on with new building. I hope that when we come to Schedule 1 we shall be able to clarify this.
The noble Baroness was right when she said that my intention was not to return to anything like the 1972 Act formula. My reference to Milner Holland was only to the difference in the appropriate levels of rent between the private and the public sectors which that committee emphasised, and to the inapplicability of a formula which worked in the private sector to the councils where the circumstances are so different. This is the point underlying some of those factors in the Amendment. I certainly take the point made by the noble Baroness—in fact, I mentioned it in my speech—that if one did not include all the points she wanted to take into consideration by implication you might have been saying, "Do not bother about the economic and social factors which arc, as she said, of equal importance". This is why I suggested, in view of my inadequacy as a draftsman, that it might be a good alternative if the Secretary of State had an order-making power that he could require local authorities to take into account certain facts including those I mentioned. Perhaps that discussion ought to wait, as the noble Baroness suggested, until we have the long-term review of housing policy. I accept that it would be wrong to make any fundamental departure from the path we have set ourselves on now while the Government are awaiting advice. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 8 [Certain amenities to be disregarded in determining fair rent]:
3.17 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 2:
Page 5, line 38, leave out (" paragraph ") and insert (" paragraphs ")
The noble Baroness said: My Lords, I have put down this Amendment again on Report stage and I am hopeful that the noble Baroness, Lady Birk, will say she is able to accept it. The point of this Amendment—that is, Amendment No. 2, and the consequential Amendments which go with it, particularly No. 3 and No. 4 and the Amendments to the Schedule which I think put the Amendments in order—is to balance the effect of Clause 8 on the reckoning of a fair rent. Clause 8 states that if there is a new amenity in an area which has not been provided by a landlord, this shall be discounted for the purpose of the fair rent.
This Amendment says that if there is any deterioration in the amenities of the area—which again are not the responsibility of the landlord—this, too, shall count in the fair rent. Either way, it will make a difference to the capital value of the house and, to that extent, to the fair rent. We discussed this at some length in the Committee and I do not wish to take up the time of the House in going over the arguments again. But I hope very much, in view of what the Government said at Committee stage, that they will feel able to accept this Amendment this afternoon. I beg to move.
Lord MELCHETT: My Lords, these Amendments repeat the Amendments put down in Committee by the noble Earl, Lord Kinnoull, to make what is now Clause 8 work in both directions; that is, to require rent officers and rent assessment committees, when fixing fair rents, to disregard not only the provision of and improvements in neighbourhood amenities since the material date, as the clause requires, but also deterioration in, or disappearance of, such amenities. The latter disregards as well as the former would, under the Amendments which the noble Baroness has moved, apply to changes since the material date which is defined in subsection (2). This is certainly an improvement on the former Amendments.

19
In general, the argument that what is sauce for the goose is sauce for the gander is attractive since it is founded on equity, but my honourable friend the Minister for Housing and Construction and I, after very careful consideration as we promised, are not enthusiastic about the proposed Amendments. Under the Bill as it stands, owners of tenanted dwellings in a locality which has increased in attractivenes through expenditure to which they have not contributed will not benefit financially in consequence of that expenditure. Most people, I think, would agree that this is reasonable. But the reverse proposition, as it might be described, does not so readily stand up to examination. If the clause were amended as proposed, people living in deteriorating neighbourhoods would both lose the amenities and have to pay rents reflecting the value of amenities that had diminished or disappeared.
I had hoped that the noble Baroness might have drawn your Lordships' attention to one other disadvantage of this Amendment. As the noble Earl, Lord Kinnoull, said at Committee stage, and as I accept, Clause 8 will not make the job of rent officers and rent assessment committees any easier; in fact, the noble Earl said it would add to their problems. I hoped we might have had an admission that at the very least this Amendment will double these problems.
As I said in Committee, it is open to question whether deterioration of amenities is, in general, likely to be as identifiable for disregard purposes as provision for improvement of them. Even where an identifiable amenity disappears—for instance, when an open space is built over —its loss is frequently balanced by the provision of some other benefit, such as improved public services to the area. I do not intend to ask your Lordships to divide on this Amendment, but I hope that the noble Baroness will consider carefully the effects of what she is proposing before she decides whether to pursue it.
Lord HAWKE: My Lords, I am not impressed with the Minister's argument. I thought his statement that it was attractive that both sides of the coin should be reflected in the Bill was the one that should have held the field. But I cannot see the argument that the rent officer will
20
find it much more difficult to decide when an area has declined than when an area has improved. Frequently, the provision of public transport might merely have been withdrawn. The argument that if public transport comes to an estate which had none before the landlord should be refused any increase in rent, although the area has "become an attractive one for commuters, but that if public transport is withdrawn he is expected to take less rent in consequence, does not stand up logically at all.
Baroness YOUNG: My Lords, I should like to thank the noble Lord, Lord Hawke, for his support of my Amendment. I was sorry that the noble Lord, Lord Melchett, was not able to say that the Government would accept it. However, I hope they will reconsider. The noble Baroness, Lady Birk, undertook to look at it after Committee. So far as I can see, the difficulty about this point is the burden that will fall on a rent officer in determining a fair rent. The noble Lord, Lord Melchett, will know better than I why this clause was written into the Bill on Report in another place; it was not in the first print of the Bill. As he himself has said, it will be difficult for rent officers to take into account an amenity, and to determine at what stage something becomes an amenity which could have affected the fair rent. I imagine that the kind of factor the other place had in mind when accepting the Amendment was the provision of a playing field, a playground or a piece of public open space, or something that was expected to benefit the area as a whole and the house in particular.
I see the difficulties that this provision can have for rent officers. But, in fairness, if we are going to take into account —perhaps one should say "disregard"— an amenity provided by someone else, we must at the same time disregard a deterioration which is not, after all, the fault of the owner of the house which is being let. He cannot alter local authority decisions except by the way he votes at an election, or by influencing certain members of the council. The fact that the area is deteriorating may be against everything for which he has worked. He may have fought as hard as he can to prevent it. He may have preferred something quite different. It seems to me that as he and his livelihood will be affected

21
by this situation he, too, should be considered in the matter. What is fair for one is fair for the other.
Almost any Amendment put down to a Bill will create extra work for somebody —not least for the Government, and the Opposition when the matter is being discussed; and of course for others who follow. But I believe there is merit in this case and because of that, even though it will affect other people, I hope the Government will consider it.
On Question, Amendment agreed to.
Baroness YOUNG: My Lords, I beg to move Amendment No. 3.
Amendment moved—
Page 6, line 8, at end insert—
" (bbb) any deterioration after the material date in the amentities of the locality (including the disappearance of any of them) other than a deterioration attributable to any act or omission of the landlord or a superior landlord or a predecessor in title of the landlord or a superior landlord; and ".—(Baroness Young.)
On Question, Amendment agreed to.
Baroness YOUNG: My Lords, I beg to move Amendment No. 4.
Amendment moved—
Page 6, line 11, after "(3)(bb) insert "and (bbb)".—(Baroness Young.)
On Question, Amendment agreed to.
Clause 9 [Increases of rent under controlled tenancy permitted towards cost of repairs]:
3.26 p.m.
Lord AVEBURY Lord AVEBURY moved Amendment No. 5:
Page 7, line 1, leave out (" 12½ per cent.") and insert (" the prescribed percentage ").
The noble Lord said: My Lords, if it is for the convenience of the House, may we take Amendment No. 6 with this Amendment since it is consequential upon it. These two Amendments are designed to take account of a point already touched on in Committee; namely, that a landlord cannot at present borrow money at anything like an interest rate of 12½ per cent. and therefore he will be "in the red" on any repairs carried out on controlled property. Before proceeding, I should declare interest as a landlord of controlled property.
There are two alternatives here. One is the alternative that has already been suggested: to put into the Bill a higher fixed percentage, such as 15 per cent., which would bear some relation to the cost of the money which might be borrowed by a landlord for this purpose if he were to undertake repairs at today's date. The other approach, which I prefer, is that rather than aim at a figure which was realistic in today's conditions, one should provide for a variable rate which it is hoped might be reduced at some rate in the future, if the Government's efforts to bring down short-term interest rates generally are successful—and there arc signs that that is already happening.
If a landlord were able to borrow from the bank to finance repair costs at the moment, he would probably pay an interest rate of approximately 15½ per cent. Therefore, for every £100 he spent on repairs he would be out of pocket to the tune of about £2·50p a year in terms of the amount he received back from the tenant in consequence of the work. But if we could return to interest rates of the kind which were quite common a few years ago, 7 or 8 per cent., then 4 per cent. over the banks' base rate—the prescribed percentage as defined in the second of these two Amendments—would be only 11 or 12 per cent. and therefore lower than the amount which the Government have provided for in the Bill. So I hope, in spite of the complexity of having to carry out reviews every six months, and on grounds of equity both to the landlord at the moment and to the tenant if interest rates are reduced, that the Government will feel disposed to accept this Amendment.
Lord HAWKE: My Lords, this Amendment has a great deal of merit. I hasten to add that I have no interest whatsoever as a landlord or in any other way. If one takes the case of a landlord borrowing to carry out repairs, he does not borrow at 60 years or 40 years or for an unlimited period; he must borrow on such terms as the bank lay down and repay them in a comparatively short time. On that basis, judged by today's interest rate, 12½ per cent. is utterly impracticable. How could he get a loan from anybody repayable in instalments at that rate? It is quite impossible. I am not quite sure

23
whether the noble Lord, Lord Avebury, had that in mind when he was talking about the rate. In other words, I think that not only is he correct in saying that there should be some variable factor for the rate of interest, but that it should also take into account the fact that the landlord has to borrow for a fixed term, and a comparatively short term, and repay the capital.
Lord ROBBINS: My Lords, may I add my support to what the noble Lord, Lord Hawke, has said. I am quite astonished that a Government Department at this time and in this place should wish to insert a precise figure relating to the rate of interest. I am no "futurologist". It may be that the noble Lord, Lord Avebury, has reason to suppose that in time to come interest rates may come down. I can easily think of cases in which interest rates will rise, and rise considerably. It seems to me to be mere expediency just to have a blanket phrase instead of a precise figure.
Baroness YOUNG: My Lords, once again I wish that the noble Lord, Lord Avebury, had been with us in Committee, because my noble friend Lord Kinnoull and I put down an Amendment on this point, though I am bound to say that we suggested 15 per cent. rather than 12½ per cent. However, on reflection I should be very happy to support the Amendment before us, for precisely the reasons which have been advanced by the noble Lord, Lord Robbins, and the noble Lord, Lord Hawke. This is a better Amendment. The arguments have been put forward, and I hope very much that the Government will consider the Amendment.
Baroness BIRK: My Lords, before I come to what seems to be the main argument against these Amendments, may I deal with one or two of the technical anomalies. The effect of the Amendment put forward so clearly by the noble Lord, Lord Avebury, would be to allow a rent increase of a prescribed, but variable, percentage per annum instead of 12½ per cent. of the cost of repairs to a controlled dwelling. This percentage would be prescribed at six-monthly intervals and would be the average of the Bank of England minimum lending rate
24
for the previous six months. First, apparently the noble Lord relies on the assumption that landlords need to borrow money to carry out all repairs and that therefore the rent increase to which the landlord is entitled should be tied directly to interest rates. If that is so, it is perhaps strange that the Amendment leaves unchanged the figure of 12½ per cent. in respect of repairs to other premises of the landlord which also benefit the tenant of the controlled dwelling. Here I refer to subsection (2) of Clause 9. Therefore the noble Lord is dealing only with a part of the problem, not with the whole problem.
Secondly, the Amendment creates an anomalous situation in relation to repairs completed after the 6th April 1973 but before this Bill comes into force. The prescribed percentage rent increase would have to be the average minimum lending rate for a period of six months before the Bill comes into force. This rate could well be different from the minimum lending rate when the repairs were completed. Assuming for the moment—although I shall have something more to say about the minimum lending rate—that the minimum lending rate is intended to be the equivalent of the cost of borrowed money, then if the rate, when the Bill comes into force, is lower than it was when the repairs were completed, the landlord would not get an adequate level of rent increase. If it were higher he would get rather more than that to which he was entitled. This is a problem which is inherent in any form of variable rate, and it is one of the reasons for having a fixed rate. With a fixed rate, people know where they are. However, there are much more serious objections to this Amendment. First of all, I am not sure—
Lord HAWKE: My Lords, before the noble Baroness abandons the subject of the rate of interest, may I ask her who in this country can borrow money at the minimum lending rate?
Baroness BIRK: My Lords, that is exactly the point to which I was coming. The noble Lord, Lord Hawke, seems to have jumped to the point himself. The noble Lord, Lord Avebury, the noble Lord, Lord Hawke, the noble Lord, Lord Robbins, and the noble Baroness, Lady Young, do not seem to me to realise the

25
effect on landlords of the present conditions when using the Bank of England minimum lending rate for this purpose. From May to September 1974 that rate stood at 11¾ per cent. Since then, it has been gradually coming down and is at present 10 per cent. So, far from getting 12½ per cent. or the higher figures which have been suggested from time to time during the course of the discussion of the Bill, at present landlords would get only something like 11 per cent. I cannot believe that that is what the noble Lord had in mind. Maybe the noble Lord, Lord Avebury, had it in mind, but I cannot believe that the noble Lord, Lord Hawke, the noble Baroness, Lady Young, and certainly the noble Lord, Lord Robbins, had that in mind because this Amendment relates to the Bank of England minimum lending rate. With respect to the noble Lord, Lord Robbins, we are not talking about even a power to vary the rate. We are talking about something specific and we are talking about this Amendment. The Bank of England minimum lending rate is lower than the rate at which, as I am sure everybody here is aware, it is possible to borrow commercially—and that is the Amendment about which we are talking this afternoon.
Apart from this, I think that the general assumption behind the Amendment is dubious. Where minor repairs are involved, and for many landlords this applies to major repairs as well, it is quite likely that the repairs would not be completed on borrowed money. Nor could it be argued that a rent increase based on the minimum lending rate represents the real opportunity cost to the landlord who carries out repairs on his own capital. What is clear, however, is that a landlord who has sufficient capital to carry out repairs might be very reluctant to do so if lending rates were falling, particularly if we are to take what is stated in the Amendment—the Bank of England minimum lending rate. He would prefer to delay the repairs, hoping for a better return when the lending rates rose.
The Amendment would also put tenants in a most unfair position. When repairs were being done, often they would have no knowledge of the percentage rate of interest upon which their new rent would
26
be based. Six-monthly alteration of the prescribed percentage would give rise to considerable confusion and difficulty in the calculation of the rent increase. There is a point here which must be stressed. All sorts of arguments, which do not come into this Amendment which is before us this afternoon, may arise about having an order with power to vary. On the other hand, however, there is a necessity in this kind of area—realising the relationship between tenants and landlords—to appreciate that one would be dealing with people who must have an element of certainty about what is to happen to them and what expenses they will incur. This is one of the main reasons, although it may have some disadvantages, for having a fixed rate, because there would also be the purely practical difficulty for the landlord of a controlled tenancy, of having to work out a calculation involving three decimal places based on a figure which many ordinary people may not readily know how to discover; nor could tenants readily know whether they would be liable to pay the increase which is being demanded of them. Obviously, with the percentage changing as frequently as this, it would not be possible to incorporate a figure into the Department's forms and leaflets.
One point which has been made constantly during this and other debates, particularly by the noble Baroness, Lady Young, is the necessity that people should know where they are and for advice to be given in leaflets and forms by the Department. The likelihood of inaccurate demands being made would be considerable. I fully appreciate the desire of the noble Lord, Lord Avebury, that there should not be an arbitrary figure, but as I have said, the main advantage of the 12½ per cent. provision is its simplicity and ease of understanding. These Amendments would destroy the simplicity for the sake of an assumption which, in my view and that of my honourable friend the Minister for Housing Construction, is not well founded. May I say that—
The Earl of KINNOULL: My Lords, the noble Baroness extended that confusion because the tenant would not know what rate would be charged. Could not we have written into the Bill that the rent officer be consulted and that

27
the rent officer should announce every six months what the then rate should be for that particular improvement or repair to the property?
Baroness BIRK: My Lords, that may be possible if we were considering the whole question and there were different Amendments before us today on the Marshalled List. However, what we are discussing today—and I find it difficult to believe that the noble Earl would support this—is an Amendment where the rate is tied to the minimum lending rate of the Bank of England.
The Earl of KINNOULL: My Lords, I am sorry to interrupt the noble Baroness once again. Is she therefore saying that she accepts the principle but not the Amendment?
Baroness BIRK: No, I am not saying that, my Lords. When the noble Earl intervened I was about to say that, in preparing the Bill and thinking about the comments which have been made upon it in various places, naturally my honourable friend had considered a number of alternatives to the 12½ per cent., including some form of variation. He came to the conclusion, and I agree with him on this, that they should not be pursued and that nothing more practical and equitable than 12½ per cent. could be decided upon. In other words, I was about to say that this had been considered, though not in the terms of the Amendment which has been put down by the noble Lord, Lord Avebury, because that is quite impracticable; and, as I have pointed out, it would be completely inadequate, anyhow. However, on the wider question, this matter has been considered. Above all, my honourable friend had in mind that a major review of housing finance is taking place and that reports such as that to which the noble Earl has referred could well in the widest aspect arise in the course of the review. While once again I say that I appreciate the motivations behind the Amendment which has been moved by the noble Lord, Lord Avebury, in view of this explanation I hope that he will withdraw his Amendment.
Lord AVEBURY: My Lords, I am all in favour of simplicity and ease of understanding and I hope that on some other
28
occasion the Government will bring forward a Bill which will prevent the bank from charging me more than 12½ per cent. on my overdraft. I should be perfectly happy to pay a fixed interest rate of 12½ per cent. and to know exactly where I stand with my bank instead of always having to calculate the current rate on my overdraft. If, therefore, the noble Baroness is thinking along those lines she has my wholehearted support.
Baroness BIRK: My Lords, I am sure the noble Lord will not mind me pointing out to him that today we have this Amendment. May we have his bank account put down as a different Amendment to a different Bill?
Lord AVEBURY: My Lords, I am only dealing with the principle of keeping interest rates constant in saying that if that is the principal objection which the noble Baroness has to this Amendment because she wants simplicity and ease of understanding in terms of what people will have to pay indirectly in interest rates, then we ought to apply this principle across the board and stop anybody else from having to suffer variable interest rates.
Baroness BIRK: My Lords, may I reply to the main point which the noble Lord has just made. It was not my principal objection, but it was one of the arguments which I was assembling, together with the others. One of the main arguments against this particular Amendment is that it is just not viable. In other words, it would not be fair and would not be workable. With great respect, I think that the noble Lord has made a mistake in the way that the Amendment itself is drafted. Therefore the objection is not just on a general ground. We are dealing with a specific Amendment, and I am resisting that Amendment for the reasons which I have given.
Lord AVEBURY: My Lords, perhaps I was exaggerating in saying that this was the main reason why the noble Baroness was resisting my Amendment, although I thought that it loomed large in her thinking. However, there were other objections which she made and I was going to deal with those. May I repeat that if the principle which the noble Baroness is following is that we

29
should have a constant interest rate for the sake of certainty, that ought not only to apply to people who are having to pay increased rent or repair costs.
Moving backwards in the chronological sequence of her argument, the noble Baroness asked how tenants would discover what this prescribed percentage was in order to protect themselves against inaccurate demands that might be made upon them. Under the terms of the second Amendment, the Secretary of State has to declare what the prescribed percentage is at intervals which are laid down in that Amendment. It would be for the Secretary of State to decide how these figures were best promulgated and drawn to the attention of both the landlords and tenants who had to observe them. I should not have thought there was any great difficulty here. Ministers have power to draw things to the attention of the public. They can issue Press notices and require rent officers to draw the figures to the attention of those with whom they have to deal. There are all kinds of ways in which one can make sure that all parties to deals have full knowledge of the prescribed percentage on which their rents are to be calculated. The noble Baroness, in arguments that I suppose were designed to appeal particularly to the Conservatives, pointed out that the minimum lending rate was lower than the 12½ per cent. laid down in the Bill. If I may say so, she has missed the whole point of the Amendment. What I am trying to do is to get across the principle of variable interest rates. Once that is accepted by the Government we could go on to discuss the detail.
I am sure there would be differences in philosophy between us because the noble Baroness, Lady Young, has already said that she thinks that the figure of 15 per cent. is more appropriate than the figure of 12½ per cent. which is mentioned in the Bill. The noble Lord, Lord Hawke, said that he thought that whatever figure was laid down ought to contain some element of capital repayment. However, I agree with the noble Baroness that if this money is being spent on the landlord's own property, one has to take into account the benefit which he is obtaining from it. Ultimately when he needs to sell the house with vacant
30
possession, as all landlords do if they can get it, then whatever has been spent on repairs will come back to him in terms of an improved yield from the sale price of that property. Therefore I would not agree with the noble Lord, Lord Hawke, that a landlord should expect to get something back in terms of increased rent for the capital element of the sum he has had to borrow.
The Amendment does not rely upon the assumption that the landlord has to borrow the money, because if he does the work out of capital which he has on deposit in the bank, or in a building society, or in some other form of near cash, then he has forfeited the interest on the money which has to be withdrawn. If he is receiving 12½ per cent.—although I do not know at the moment whether that is so—from a loan which he has made to a finance company, and he withdraws that loan in order to pay for the repair costs, then the 12½ per cent., or whatever is the interest that he is receiving on that money, comes to much the same as if he had to borrow it from a bank. The interest charges may not be precisely the same, but I think the noble Baroness can see that there is no difference in principle between having to borrow the money on the one hand, and forfeiting interest which one would have been receiving if one had been able to invest that money elsewhere, other than in the repair costs.
All I wanted to do this afternoon was I to try to give some opportunity to the House to discuss the principle of variable rates. This 12½ per cent. that we have heard about has a very long and no doubt honourable historical validity. It has gone on ever since I can remember, in an era of much lower interest rates than those operating now. The noble Lord, Lord Robbins, emphasised that it is time that we got around to thinking in terms of much greater fluctuations in interest rates than in the past. Although this may not be precisely the moment at which to write provisions of this kind into the Bill, I hope that as a result of my Amendment the noble Baroness will see the matter is given serious attention in the long-term review which she has already mentioned. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.

NHS HOSPITALS: CONSULTANTS' CONTRACT
3.50 p.m.
Lord WELLS-PESTELL: My Lords, with your Lordships' permission, it might be convenient if I were now to repeat a Statement being made in another place by my right honourable friend the Secretary of State for Social Services about consultants in National Health Service hospitals. The Statement reads as follows:
"In my Statement on 13th January I told the House of the events leading up to the consultants' rejection of the Government's proposals of 20th December for a new consultant contract and their decision to start industrial action. I indicated that while two principles were not negotiable, that is the maintenance of the existing differential between whole-time and parttime consultants, and the introduction of a system of payment by item of service, there were other aspects of the proposals which could and should be further discussed. I proposed a return to the negotiating table as quickly as possible.
" The consultants responded by asking for clarification of certain points, and although sanctions were continuing, I agreed exceptionally to meetings between their representatives and health departments' officials on 23rd January and 5th February. The clarification talks have been useful, I think, for both sides, but by their very nature they cannot reach the detailed agreement which must come as a result of negotiation. Following those meetings I wrote to the professions on 11th February explaining my position on the points the consultants' representatives put to me. I have placed a copy of my letter in the Library."—
There will be also a copy in the House of Lords Library—
" First, let it be quite clear that a new contract is not being foisted on consultants against their will. They came to me when this Government took Office and told me of their longstanding dissatisfaction with their contract. At their request I set up a Working Party to deal with their complaints. I was not then, and I am not
32
now, forcing—or even urging—them to take a new contract.
" In common with the majority of contracts of employment for senior professional people the present contracted commitment for whole-time and maximum part-time consultants is open-ended. It is not limited to 38½ or 31½ hours. The purpose of my proposals of 20th December was to meet the consultants' complaint that this system did not adequately reward the very long hours many of them do. Their representatives in the JWP had themselves asked that the consultant's present open-ended commitment should be replaced by a closed contract which would clearly define his basic commitment and ensure that additional work could be contracted and paid for separately. The Government have accepted this principle and I believe that negotiations should be resumed in order to discuss how it should be implemented. As I told the House on 13th January, and as my honourable friend the Minister of State spelt out again in the debate on 23rd January, we arc not insisting on a precise ' nine till five' formulation of the new standard contract and accept the need for flexibility provided the basic commitment is specific enough for a system of extra payments to be built upon it and provided the whole-time differential is maintained.
" I also attach great importance to replacing future payments of distinction awards by a new system of financial supplements which would be more widely available to all consultants. The aim would be to provide financial recognition for special contributions to the National Health Service, particularly in those specialities or in geographical areas where understaffing has created difficulties. I believe there is considerable support in the profession itself for this kind of change though here again I am willing to negotiate criteria and methods of payments which would be right for the National Health Service and fair to consultants and which would protect those who have benefited under the old scheme.
" Because I recognise that many of these concepts are novel and require considerable discussion I am anxious

33
that our discussion of them should not hold up the Review Body's repricing of the existing contract which we want to see completed if at all possible by 1st April. The Government recognise that consultants have had to wait twelve months for their substantive review and that they are due for an increase in pay and are ready to give the consultants the same assurances that I gave to the GPs. My Department has already submitted its evidence explicitly recognising the need for pay increases and I have now supplemented this with new figures on the present state of recruitment and the manning of hospitals in the NHS which reinforce the case. I am also today submitting evidence to the Review Body supporting important improvements in the consultants' incremental scale which would considerably shorten the scale and particularly help the younger consultants by removing the present danger of overlap between the senior registrars' and the consultants' earnings. In addition I have told the consultants that I am willing to submit joint evidence with them on other matters to which they attach importance, such as the introduction of a London allowance for medical and dental hospital staffs and the financial recognition of family planning work. It would, of course, be necessary for negotiations to be resumed for joint evidence to be possible.
" Since agreement on more fundamental changes in the existing contract will necessarily take some time I have, as I have already told the House, offered to invite the Review Body to price the new arrangements without commitment and at a later stage. I am also prepared to ask them to do this within the context of the present review so that the arrangements could enter into effect within the same twelve months period. But it will clearly only be possible to do this if the Review Body has some indication of the lines of the new arrangements before it reports in April on the existing contract. This is another reason why the negotiations should be resumed immediately.
" Any decision to lift sanctions and resume negotiations rests with the professions' committees and I understand
34
they are to meet on Thursday to consider my letter and the replies I have received. I regret to inform the House that in these replies the professions' negotiators, while recognising that there is common ground between us on a number of points, conclude that a recommendation for the immediate lifting of sanctions is unlikely. I can only hope that after considering my letter and Statement today the profession at their meetings on Thursday will decide to resume negotiations and to lift their sanctions which are damaging the Health Service and causing hardship to thousands of patients. I will, of course, inform the House of the outcome."
My Lords, that is the end of the Statement.
3.58 p.m.
Lord ABERDARE: My Lords, the House will be grateful to the noble Lord, Lord Wells-Pestell, for having repeated that Statement. I find it a rather lengthy apologia for the failure of the Secretary of State to reach agreement with the consultants. A new contract is important, and there is no doubt at all that many consultants are doing a great deal more work than is called for by the present contract; it does not do them justice. However, it takes two to make a contract, and the Government will have to await the outcome of the meeting of the professions on Thursday before they know whether negotiations can be resumed. I would only ask them to show much greater understanding than they have done hitherto of the needs of the consultants. The consultants place very high in their priorities their own independence and freedom to practise medicine. They are united in their opposition to the recent Government proposals. No agreement will be possible if the Government insist on proposals which are too heavily biased in favour of full-time salaried service. I am sure all of us hope that an agreement will be reached on a new contract. I am sure it is possible, but only if the Government show greater flexibility and understanding.
Lord AMULREE: My Lords, I too would like to thank the noble Lord, Lord Wells-Pestell, for repeating the Statement. It is a long Statement, and

35
it includes a large number of points. All I consider to be really important is that negotiations should be resumed as soon as possible, and I very much hope that, in the light of the Statement given and the letter written to them, the consultants will see fit to lift their sanctions when they meet together on Thursday. To apply sanctions is rather alien to professional people as a rule, and one would very much like to see them revert to a more normal practice.
Lord WELLS-PESTELL: My Lords, I am most grateful to the two noble Lords who have spoken. I do not think this is a time to engage in argument and I will make no comment on what the noble Lord, Lord Aberdare said, except to say that in the last analysis it is desirable that both sides in any dispute should get round the table, and the sooner this can be done the more likely is it that the problems will be resolved.

EEC: FARM PRICES
Lord BESWICK: My Lords, if it is convenient to the House I will repeat a Statement made by my right honourable friend in another place reporting on the decisions reached last week by the Council of Ministers (Agriculture), and the Government's own determination of guaranteed prices following the Annual Review.
" In my view the most important decision of the Council was to make radical changes in the Community regime for beef. Under the new arrangements it will be open to any member country to switch the emphasis of support away from permanent intervention and on to a variable premium, financed to a substantial extent from Community funds. The United Kingdom will take up this option. During the beef year beginning in March, the Community will pay about £47 million towards the cost of the premiums we shall pay on clean cattle sold for slaughter.
" The average premium throughout the year can be up to about £5 per live cwt. but may vary above or below this figure at particular times. The total cost of the premiums will vary according to the state of the market, but at
36
most would be about £135 million over the year. These premiums will enable the Government to assure producers of a fair return. I shall announce details of the scheme later; but my aim will be to provide an average return to producers of between £22 and £23 per live cwt.
" It is an essential feature of the new arrangements that the premium cannot be paid on beef sold into intervention.
" This reduces the effective buying-in price to a level which will mean that support buying cannot take place on more than a limited scale.
" This new system has been introduced on our initiative. I regard it as a major reform of the Common Agricultural Policy. It gives the producer an assured return without forcing consumer prices up to unacceptable levels, and without building up mountains of frozen beef. This is the right way to give support.
" The other main group of decisions concerned the level of common agricultural prices for the coming year. The increases average between 9 and 10 per cent. They relate, however, to support prices for Community producers. Their effect on food prices in this country, together with that of the transitional step we make towards common price levels, should be less than 2 per cent.
" The biggest common price increase is of 15 per cent. for sugar. As a result of monetary changes, our own sugar beet growers will benefit from an effective increase of about 17 per cent. bringing the total sugar beet price to about £16 a ton. I hope this will encourage an increase in the sugar beet acreage.
" The common target price of milk is increased by 6 per cent. in March and 4·7 per cent. in September. These increases, together with the transitional step, will result in higher prices for butter and cheese; but the Council also made provision to raise the contribution from Community funds to the general butter subsidy from about £25 to about £48 a ton.
" The Council also agreed on minor changes in the monetary arrangement

37
applying to the Common Agricultural Policy. The percentage increases in common farm prices, when expressed in national currencies, will be slightly smaller in countries with appreciating currencies and larger in countries whose currencies have depreciated. For the United Kingdom this change means a new representative rate reducing monetary compensatory amounts by 2½ points, over and above a reduction of 1¼ points which is being applied on a general basis to countries with depreciated currencies.
" Finally, the Council reached agreement in principle on the Directive on Less Favoured Areas, which deals mainly with aid for hill farming. We obtained an amendment so that the payments are not reduced for pensioners, a point to which this House attached importance. The contribution from Community funds will be a minimum of 25 per cent., but this is to be considered next month with a view to an increase. I expect the United Kingdom to be a net beneficiary.
" I turn now to the determinations of guaranteed prices which the Government has made in the light of the Annual Review.
" First, the guaranteed price of milk will be increased by some 5p per gallon, and is expected to average about 34·75p per gallon for the year from 1st April. The standard quantity will be increased by 59 million gallons so that it should continue to include all milk sold by the Marketing Boards. As a consequence, the maximum retail price of milk will be increased by 1p per pint on 2nd March.
38
" The guaranteed prices for wheat, barley and oats will be increased to £51·80, £46·80 and £44·60 respectively.
" The guaranteed price for potatoes will be raised by £6 to £28 per ton.
" The guaranteed price for fat sheep will be increased by 6p to 35·5p per lb. The guaranteed price for wool will be increased by 5p to 3lp per Ib.
" The hill sheep subsidy will be raised by a further 60p per ewe over and above the increase made in December. The Exchequer cost of the increase in the level of support for the sheep sector in 1975–76 is estimated at about £34 million, including £9 million for continuing last December's hill sheep subsidy increases.
" With the introduction of the new arrangements for beef, I propose to lay an Order restoring the calf subsidy to the level obtaining before the increase of £10 made last March.
" Finally, it is intended that the guaranteed price for pigs should be set at £403 for the period till July, when the basic price applying in this country under Community arrangements will be increased to substantially above that level.
" With permission I shall circulate in the Official Report the full details of these determinations, and a note of the main economic data arising from the Annual Review. I am confident that the new beef régime, the increases in Community prices applying in this country, and the increases in our own guaranteed prices together represent a settlement that is good for our farmers and also takes due care of the interests of the British consumer."
My Lords, that ends the Statement.
Following are the details referred to:

1974–75

1975–76

Determination at 1974 review

Revised determination

Determination at 1975 review

Increase over 1974 review determination

Increase over revised 1974–75 determination

Wheat (per ton)

£39·62

£42·97✶

£51·80

£12·18

£8·83

Barley (per ton)

£35·73

£38·78✶

£46·80

£11·07

£8·02

Oats (per ton)

£34·20

£37·12✶

£44·60

£10·40

£7·48

Potatoes (per ton)

£22·00

No change

£28·00

£6·00

—

Pigs (per score dwt.)

£3·49

£4·03†

—‡

—

—

Sheep (per lb. dew.)

29·50p

No change

35·50p

6·00p

—

Wool (per lb.)

26·00p

No change

31·00p

5·00p

—

Milk (per gallon)

26·27p

29·74p§

34·75p||

8·48p

5·01p

✶ It was announced on 17th July 1974 that the 1974–;75 guaranteed prices for wheat, barley and oats were raised to £41·27, £37·26 and £35·67 respectively in the light of increases in CAP prices agreed in March. These guaranteed prices have been further raised in the light of the decisions of the EEC Council of Ministers in September-October 1974.

† The revised determination is effective from 28th October 1974.

‡ The pigs guarantee is to be terminated after 27th July 1975 in accordance with the Act of Accession.

§ This is the estimated average effective level of the guarantee, taking account of the increase in the guaranteed price to 29·79p per gallon at the beginning of October 1974, following the 5 per cent. increase in CAP prices then agreed, and the introduction of a special additional payment of 4·18p per gallon at the same time.

|| Average. The guaranteed price will be related to a standard quantity of 2,950 million gallons. It is intended to assure the Boards an average price of 34·0 pence per gallon for production during the period 1st April—15th September 1975 and 35·5 pence per gallon on the remainder of the standard quantity or on the residue of production whichever is the less.

MAIN ECONOMIC DATA
1. Income, output and productivity
The figures in the following table update the series shown in Table 18 of the 1974 Annual Review White Paper and incorporate revisions to the figures in the earlier years:

ALL COMMERCIALLY SIGNIFICANT HOLDINGS

Net Income at current prices

Net Product at constant prices

June-May years Labour Productivity

Year

Actual

3-year moving average

Index

Index

£m.

£m.

1964–65– 1966–67 =100

1968–69– 1971–72 =100

1964–65– 1966–67 =100

1968–69– 1971–72 =100

1970–71

610

618

111

102

137

104

1971–72

684

718

—

110

—

115

1972–73

861

943

—

111

—

117

1973–74

1,283 (1,194)✶

1,092

—

117

—

126

1974–75 (forecast)

1,133 (1,159)✶

—

—

117

—

131

✶ Adjusted to normal weather conditions.

2.Gross capital formation

Year

In plant machinery and vehicles £m.

In buildings and stock £m.

Work-in-progress and stock valuation changes £m.

Total £m.

1970

133

117

116

366

1971

152

133

157

442

1972

192

159

202

553

1973

231

209

389

829

1974 (forecast)

309

266

430

1,005

3. Aggregate cost changes
Net cost change relating to all products: +£692·1 million.
4. Public expenditure
Public expenditure under the common agricultural policy and on national grants and subsidies in 1975–76 is estimated at £306 million. This figure is subject to Parliamentary approval of the Estimates and does not take account of the Review determinations.
Earl FERRERS: My Lords, we are grateful to the noble Lord, Lord Beswick, for having repeated that Statement. It is a very full and complicated one, because of course it gives the alterations not only in European farm prices, but also in our own guaranteed price determinations. The Statement started with the Minister saying:
" In my view the most important decision of the Council was to make radical changes in the Community regime for beef ".
There is a distinct switch of emphasis of support away from permanent intervention, and the Statement says that we will take up that option. Does this mean that intervention and the variable premium will be available in the United Kingdom? Does it mean that we can opt out of one or both of them, or for one or other, or will both be operative? Also, how many countries in the Community are opting for the variable premium on beef, or is it just ourselves?
We shall need to study these proposals with great care, because what at first sight appears to be acceptable often holds a large number of snags. I would not wish to commit myself or anyone else in commenting upon these without fully studying them, other than to say that at page 8 the Statement says:
"With the introduction of the new arrangements for beef, I propose to lay an Order restoring the calf subsidy to the level obtaining before … last March ".
Of course that is a major negotiating rub, because what it means is that the calf subsidy will have come down from £18·50 to £8·50 and it is those nicely phrased delicacies put into the Statement which make one think that, possibly, it is not quite as beneficial to the agricultural community and indeed to this country as one thinks at first sight.
I wonder whether the noble Lord could enlarge slightly on the monetary changes to which he referred. Does this mean that the "Green Pound" which we discussed the other day has been revalued? If so, has it been devalued? If it has, can the noble Lord say, without going into great; detail, whether it is now on a par with the Irish "Green Pound" or whether there is any difference?
The only other matter I should like to refer to is milk. I am glad to see that the price has been increased by 5p per gallon. I wonder, frankly, whether this will be
42
enough, not only to reimburse farmers for the costs they have had but also to encourage the increase in milk production which is so essential. The increase in the guaranteed price starts on 1st April but the retail price of milk, for some curious reason, starts a month earlier on 2nd March. I wonder why. Can the noble Lord say whether the increase in price is to be funded entirely by the increase in retail price? How will the increase of price to the producer affect the milk fund, because either the milk fund has to have an increase in retail price, which it will have, or it has to have an increase in subsidy as well. I hope the noble Lord will be able to give the assurance that it is not the intention of Her Majesty's Government to increase further the subsidy on milk. Would the noble Lord say whether the details of the Statement have the agreement of the National Farmers' Union? If he could answer those questions I should be grateful.
The Earl of KIMBERLEY: My Lords, I, too, wish to thank the noble Lord, Lord Beswick, for repeating the Statement. I agree very largely with what the noble Earl, Lord Ferrers, has asked, and I have one or two other points. I have been given to understand that the cost of transporting New Zealand lamb this coming year is nearly to double, which means that even the 6p per pound which the fanner is to get for lamb is, perhaps, not a sufficient incentive to increase production of lamb in this country. With regard to milk and the extra money per gallon from the end of September, could we please have some assurance that it may be reviewed again nearer that time, as no doubt wages will rise again and so will fuel for tractors and other farming commodities.
The calf subsidy is very frightening because it is a retrograde step. I know that one permanently seems to harass the Minister about the poor farmers' plight, but surely the subsidy need not go down, as the noble Earl, Lord Ferrers, said, from £18 to £8 a calf. I believe that the total increases in the Statement come to about £306 million, and I also believe that in the last 12 months farming costs have risen by £740 million; so the Statement is adequate to recoup some of the losses, but it does not allow for expansion or increase in production in the agricultural industry.
Lord WIGG: My Lords, may I underline one or two questions which have been asked. I wonder whether my noble friend would be kind enough to reduce this Statement into terms which people like myself can understand. Would he tell us how much is to be taken from the pockets of the consumer, the housewife? How much is to be contributed by subsidy from the British Government? How much is the British Government to pay to the EEC? How much is the EEC to put into it? If we get answers to those questions, we shall know what it is all about. In the meantime, may I express my congratulations and my sympathy to the noble Lord for having to get up and repeat this smokescreen to cover the fact that the Foreign Office, in attempting to keep us in the Common Market, is getting the Ministry of Agriculture to put out a Statement which nobody can understand until they can read it.
Lord BESWICK: My Lords, I should first thank the two noble Lords for the rather cautious welcome which they have given to this Statement. The first question related to whether one could choose as between intervention and the variable premium. The fact is that the option is a combination of both intervention and the variable premium; that is the option we have decided to take. It is open to all the other members of the Community. I cannot say which others will follow our example in opting for this blend of the two schemes. The noble Earl, quite rightly and understandably, seized upon the reference to the calf subsidy. It will mean that the special arrangements which were made for the calf subsidy before this new scheme came into operation will be withdrawn, and there will be, in effect, a reduction. He is quite right about that.
So far as the "Green Pound" is concerned the net effect of the changes to which I have referred will be to close the gap as between the market exchange rate and the exchange rate used for CAP purposes. It will go some way to meet criticism put by the noble Earl's friends last week, although there will still be something of a gap. The noble Earl asked about the situation as between this country and Ireland. Again, there will still be the gap between our exchange
44
rate, the "Green" exchange rate, and the Irish exchange rate. The real difficulty here, I think, stems from the relationship between the Northern Ireland producer and the Irish Republic market. My right honourable friend has under-taken to go into this matter to see what can be done to help, in particular to see what can be done to increase the facilities for processing and slaughtering of cattle in Northern Ireland, thus making it less advantageous to go through the Republic into this country.
The noble Earl, Lord Kimberley, said that he was virtually in agreement with what had been said by the noble Earl, Lord Ferrers. I think that in answering those questions I have answered all the questions the noble Earl had in mind. I was asked about agreement with the NFU. I cannot say that they have agreed; there is no question of them agreeing now, but I have no knowledge of them disagreeing either. My noble friend Lord Wigg asked how much would come from the pocket of the consumer in this country. I cannot give it to him now in terms of absolute figures—that will, of course, depend upon the market price of these commodities through the year—but the estimated increase in the cost of living, as a result of these changes in the increase in the food element in the retail price index, will be something under 2 per cent. The additional cost of the milk increase will mean another 1¾ per cent. increase in the food price element in the cost of living index.
The noble Lord wanted to know how much came from this country and how much came from the Common Market. The fact is, of course, that nothing comes from the Common Market as such. The FEOGA kitty is contributed by individual member-States. I understand that the total contributed by this country to the FEOGA kitty in 1974 was of the order of £160 million, while we actually got back in the shape of these subsidies around £112 million.
Lord WIGG: My Lords, can I take it, then, that as a result of this magnificent Statement this afternoon this country is £50 million in the red, and that there is to be added to the cost of living 2 per cent. plus 1¼ per cent. for milk, thus 3¼ per cent.? Is that the picture? Have I got it right?
Lord BESWICK: My Lords, it is right that the cost of living is as I have quoted. So far as the FEOGA Fund is concerned, it covers a wider area of commodities than those that I have listed. We pay into that Fund monies which are used for subsidising commodities which we do not in fact use. The net difference so far as this country is concerned is of the order that I have described.
Lord WIGG: My Lords, would my noble friend explain what we get out of the Common Market? The people of this country have 3¼ per cent. added to the cost of living, and the Exchequer pays a net sum of £50 million. Can I have explained, as a simple person, what we are supposed to get out of this, except the Statement which has gone on for several minutes? That is all we have got in return.
Lord BESWICK: My Lords, I should be quite happy to discuss that with my noble friend, but not on this occasion.
Earl FERRERS: My Lords, may I ask the noble Lord to answer a question which I think understandably he forgot. What is the effect on the milk fund of the increase in the price of milk? Is this to be found solely by the increase in the retail price, or by an increase in the milk subsidy?
Lord BESWICK: My Lords, it will be funded entirely by an increase to the consumer.
Earl COWLEY: My Lords, can the noble Lord say whether any decisions were taken at the recent meeting of the Council of Ministers in respect of the unilateral ban on beef imports, and its effect upon the non-preferential trade agreements between the EEC, Argentina, Uruguay, and Brazil?
Lord BESWICK: My Lords, I understand that the ban was extended indefinitely by the agreement of October last year, although there is a global exception to that ban of something of the order of 38,000 tons overall, of which the United Kingdom can receive 13,500 tons. We have made it clear that so far as we are concerned we should like to get this ban lifted.
The Earl of ONSLOW: My Lords, could the noble Lord tell us whether the variable subsidy on beef will be on a live hundredweight basis or a headage basis? If it is on a live hundredweight basis, this will considerably help the dairy producer with fattening and selling off fat Friesian cattle. Is the noble Lord aware —I am sure that he is—that prices of inputs into corn growing have gone up very high in the last year or so? Furthermore, we as farmers—and I must obviously declare an interest—have had a very bad autumn sowing season because of the rains. These prices for wheat, barley and oats look really rather disappointing.
Lord BESWICK: My Lords, the target price for beef will be between £22 and £23 per live hundredweight on the hundredweight basis. I accept what the noble Lord says about the increased cost of feedingstuffs, but there are others among his friends who would like to see the price of cereals going up even more. I did not answer one question from the noble Earl, Lord Kimberley, about the situation in September so far as the milk price is concerned. I indicated that there would be this further increase in September.
Lord DAVIES of LEEK: My Lords, may I ask on what base? Let us assume that the base now is 100; will the 6 per cent. next September be on the 104 or on 100?
Lord BESWICK: My Lords, I confess that I do not follow that question. What I said was that the price of milk will go up by 6 per cent. in March and 47 per cent. in September. Those are the figures that I gave.
Lord DAVIES of LEEK: My Lords, the price of milk now is 100 and it is going up 4 per cent. in March; is it going up later 6 per cent. on the 104 or on the 100 that it is now? This is an important financial point.
Lord BESWICK: My Lords, it is a point that I shall have to check. I think that the noble Lord got it the wrong way round. It will be 47 per cent. on the 106.
Lord DAVIES of LEEK: My Lords, that is not really 4 per cent.

HOUSING RENTS AND SUBSIDIES BILL
4.25 p.m.
Report stage resumed.
Clause 10 [Reserve power to limit rents]:
Baroness BIRK Baroness BIRK moved Amendments Nos. 7, 8, and 9:
Page 8, line 36, leave out (" section ") and insert (" subsection ")
Page 8, line 41, leave out ("section") and insert (" subsection ")
Page 8, line 42, leave out (" section ") and insert (" subsection ")
The noble Baroness said: My Lords, with the leave of the House I will move Amendments Nos 7, 8 and 9 together. These three Amendments are consequential on the Amendments made at Committee stage which inserted subsections (5) to (9) into Clause 10 and provided a different date of operation (two weeks after Royal Assent) for these provisions. The remainder of the clause comes into operation on Royal Assent. Consequently, the reference in subsection (4) of the clause to the coming into force of the section should be to the coming into force of that subsection—that is to say, on Royal Assent—and these Amendments produce that result.
On Question, Amendments agreed to.
Clause 16 [Citation, etc.]:
Baroness BIRK Baroness BIRK moved Amendment No. 10:
Page 14, line 24, leave out (" subsections (7) and (8)") and insert (" subsection (7)")
The noble Baroness said: My Lords, this is merely a drafting Amendment to leave out an unncessary reference in subsection (9) to subsection (8). Subsection (8), which preserves the effect of the rent freeze in the public sector until 31st March 1975, comes into force on Royal Assent, and has no relevance to the commencement provisions in subsection (9). I beg to move.
On Question, Amendment agreed to.
Baroness YOUNG: My Lords, I beg to move Amendment No. 11. It is consequential.
Amendment moved—
Page 14, leave out lines 33 and 34.— (Baroness Young.)
On Question Amendment agreed to.
Schedule 4 [Provisions Supplementary to section 9]:
Baroness BIRK Baroness BIRK moved Amendment No. 13:
Page 30, line 20, at end insert—
(" . The power of the Lord Chancellor under section 106 of the Rent Act 1968 to make rules and give directions for the purpose of giving effect to certain provisions of that Act shall extend to the provisions of section 9 above.")
The noble Baroness said: My Lords, this is a purely technical Amendment. It extends the order-making power for the Lord Chancellor to make procedural regulations. This power is contained in Section 106 of the Rent Act 1968. This Amendment extends it to cover the new jurisdiction conferred on the county couirt by Clause 9 of this Bill, which enables the court to determine the proportion of the cost of repairs to premises which contain a dwelling let on a controlled tenancy which is within the 12½ per cent. rent increase figure.
On Question, Amendment agreed to.
Schedule 5 [Minor and consequential amendments]:
Baroness YOUNG: My Lords, I beg to move Amendment No. 14.
Amendment moved—
Page 32, leave out lines 42 to 44.— (Baroness Young.)
On Question, Amendment agreed to.
4.29 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 15:
Page 35, line 31, at end insert—
(" . At the end of section 17 of that Act (loans and grants limited to registered housing associations) there shall be added the following subsection:—
" (5) Nothing in subsection (l)(b) above shall prevent a local authority, including a county council, from making loans under section 119(3)(a) of the Housing Act 1957 to an unregistered self-build society, as defined in section 12 above, for the purpose of enabling it to meet the whole or any part of any expenditure incurred or to be incurred by it in carrying out its objects." ")
The noble Lord said: My Lords, the purpose of this Amendment is to enable local authorities to make loans under Section 119(3)(a) of the Housing Act 1957 to self-build societies, who have not been registered by the Housing Corporation, on or after 1st April 1975. Under Section 17(1) of the Housing Act 1974, the making of certain loans and grants to housing associations is limited from 1st April 1975 to those associations registered with the Housing Corporation under Section 13 of that Act. Subsection (1)(b) of Section 17 provides that loans under Section 119(3)(a) of the Housing Act 1957, which enables local authorities to make grants or loans to housing associations, are restricted in this way. This Amendment removes that restriction in the case of self-build societies.
Although it was a basic principle to assist only registered housing associations, we recognise that self-build societies, who are housing associations by definition, should not be required to go through the complicated system of registration and deregistration. This is because the self-build societies are inevitably transient by nature, since on completion of the project the houses are transferred to individuals and the society wound up. But the Government wish to encourage an expansion of self-build activity alongside the development of registered housing associations. I beg to move.
Baroness YOUNG: May I thank the noble Lord for that explanation and say that I think that is a most useful provision which I am happy to support.
On Question, Amendment agreed to.
4.31 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 16
Page 38, line 9, at end insert—
" . For section 114 of that Act (rehabilitation orders) there shall be substituted the following section: —
"Rehabilitation orders"
114.—(1) This section applies to any house comprised in a clearance area under Part III of the Housing Act 1957—

(a) which has been purchased by agreement or compulsorily at any time before 2nd December 1974 under section 43 of the Housing Act 1957, or

50

(b) which is subject to a compulsory purchase order—

(i) which was made under that section at any time before 2nd December 1974, and

(ii) which, at any time before 2nd March 1975 has been confirmed in accordance with Schedule 3 to the Housing Act 1957; or

(c) which has been included in the clearance area by virtue of section 49 of the Housing Act 1957.

(2) Where any house to which this section applies—

(a) was included in the clearance area by reason of its being unfit for human habitation, and

(b) in the opinion of the local authority is capable of being, and ought to be, improved to the full standard,

the local authority may make and submit to the Secretary of State an order (in this section and Schedule 10 below referred to as a "rehabilitation order") in relation to that house.

(3) In addition to applying to any house to which this section applies, a rehabilitation order may, if the local authority think fit, be made to apply to any other Part III land.
(4) Schedule 10 to this Act and, subject to paragraph 9 of that Schedule, Schedule 4 to the Housing Act 1957 shall have effect in relation to rehabilitation orders.
(5) On the effective date the local authority shall cease to be subject to any duty to demolish or secure the demolition of buildings on the land imposed by Part III of the Housing Act 1957.
(6) Where by virtue of subsection (5) above a local authority are freed from the duty to demolish or secure the demolition of a house which was included in a clearance area as being unfit for human habitation, the authority shall take such steps as are necessary—

(a) to bring the house up to the full standard, or

(b) where it is not vested in the authority, to ensure that it is brought up to that standard.

(7) A local authority may accept undertakings for the purpose of subsection (6)(b) above from the owner of a house, or any other person who has or will have an interest in a house, concerning works to be carried out to bring it up to the full standard and the time within which they are to be carried out.

51
(8) In this section and in Schedule 10 below—
"effective date" means the date on which a rehabilitation order becomes operative;
"full standard" means the standard attained by a dwelling with respect to which the conditions mentioned in section 66(2) of this Act are fulfilled;
" local authority ", in relation to land means the authority who are the local authority for the purposes of Part III of the Housing Act 1957 in relation to that land; and
"Part III land" means—

(a) land in the clearance area, except land subject to a clearance order which has been made and confirmed by virtue of section 44 of the Housing Act 1957, or

(b) land surrounded by or adjoining that area for whose purchase under section 43(2) of the Housing Act 1957 a resolution has been passed (whether or not it has been so purchased), or

(c) land to which the provisions of Part III of that Act apply by virtue of section 49;

and "house" has the same meaning for the purposes of this section and that Schedule as for those of the said Part III." "

The noble Lord said: My Lords, if I may be allowed to do so, I should like to speak to Amendments Nos. 17, 19 and 22 while moving Amendment No. 16. There has, in recent years, been growing criticism of the bulldozing of whole areas of substandard housing and an acceptance that schemes of wholesale comprehensive redevelopment were not necessarily the best method of dealing with such areas. The Housing Act 1974 introduced the new concept of housing action areas and gave local authorities increased powers for securing the improvement of substandard houses and making grants for this purpose.
Authorities who in the recent past had decided to clear areas of unfit houses may well have chosen, had the provisions of the 1974 Act been in force, to recondition rather than redevelop. But once an authority has initiated action under Part III of the Housing Act 1957 to clear houses there is under existing statutory provisions no turning back. To overcome this difficulty, the Government introduced in the Housing Act 1974 a power whereby
52
authorities could change their minds and rehabilitate houses scheduled for demolition under slum clearance compulsory purchase orders. The relevant provisions were Section 114 and Schedule 10, which empowered authorities to make a rehabilitation order in respect of any houses in a compulsory purchase order confirmed before three months after the coming into operation of that Act. The rehabilitation order would, if confirmed by the Secretary of State, revoke the CPO in respect of any property not yet acquired, would release them from the duty to demolish any property already acquired, and would require them to achieve the rehabilitation of the unfit houses included in the rehabilitation order. No doubt some of your Lordships will remember that these provisions were introduced into the 1974 Bill by your Lordships at a very late stage in the Bill's proceedings. The provisions were welcomed by both sides of the House and did in fact honour a promise made to the Opposition by my honourable friend at an earlier stage to introduce such a provision. The fact that a provision has all-Party agreement does not, however, necessarily mean that it is easy to draft.
In the light of subsequent examination it is clear that there are certain ambiguities in the present provision that should be removed. The Government are seeking to take the opportunity presented by this Bill to remove these ambiguities and clarify the procedure by amending these rehabilitation order provisions. We have come to the conclusion that this can best be achieved by redrafting them. But I can assure your Lordships that the substance of these provisions remains unchanged.
I should perhaps specifically invite your Lordships' attention to paragraph 7(2) of the revised Schedule which relates to the serving of notices of the making of the rehabilitation order. These must now be served additionally on all persons with an interest in other property in any clearance area where the rehabilitation order contains properties in that area. Further, my right honourable friend the Secretary of State has been given power to dispense with the service of notices in any particular case. It is unlikely that such dispensations will be given readily but one can envisage circumstances where the requirement to serve notices on any person

53
who received notice of the making of the earlier compulsory purchase order would be unduly onerous and indeed unnecessary. For example, one could have a very large clearance area or compulsory purchase order covering several acres, and a rehabilitation order covering a single terrace of houses on the edge of the compulsory purchase order. It is quite clear that the properties on the far side of the compulsory purchase order some hundreds of yards distant from the terrace to be rehabilitated will in no way be affected by the proposed rehabilitation, and in such a case the authority should be relieved of the time and trouble of serving unnecessary notices.
The provision as it exists, as well as in its amended form, requires my right honourable friend the Secretary of State to prescribe certain forms. Because of the procedural difficulties to which I have referred, no forms have as yet been prescribed and therefore no local authorities have so far been able to make rehabilitation orders. These revised provisions, which, I repeat, incorporate only drafting; and procedural Amendments, will, I am told, enable the necessary forms to be prescribed, and allow local authorities to go ahead. I beg to move.
Baroness YOUNG: I should like to thank the noble Lord for his explanation of this series of Amendments. Rehabilitation of areas rather than the redevelopment of them is something that we on this side of the Committee very much welcome. Not only is it very good housing policy to preserve houses which have been in existence for a very long period of time; but I am certain that the people living in these areas much prefer the familiar surroundings which they know rather than something in glass and concrete, and probably a tower block of flats. This is not the kind of housing in which most people want to bring up their families. I welcome this series of Amendments and take the opportunity of thanking the noble Baroness, Lady Birk, for writing me about them.
Lord AVEBURY: I very much welcome: these provisions. I agree with the noble Baroness, Lady Young, that people nearly always prefer area rehabilitation rather than having to move some distance away and then taking a chance on getting back to the place they were brought up in. I had an instance
54
recently on the outskirts of Manchester where it was proposed by the local authority at Chorton-cum-Hardy to demolish 111 dwellings. They had begun the procedure for setting in motion a public inquiry when the residents got together and, with the assistance of qualified architects, were able to show that of the 111 houses all but three were capable of rehabilitation. In the end, much to the delight and joy of everyone living in the area, the local authority withdrew the scheme. One hopes that by means of these Amendments the Government will have encouraged many other local authorities to take that attitude and to adopt rehabilitation rather than comprehensive redevelopment.
I put down a Question today about rehabilitation orders under the 1974 Act; but I withdrew it because the noble Baroness was good enough to point out to me that this matter would become clear when the Amendments under discussion were moved. But; there is one remaining point that I should like to ask the noble Lord to deal with. Buried within the lengthy Amendment No. 19, I see that there is still mention of the order being made in the prescribed form. As he probably knows, this was the difficulty which I was seeking to clarify in the Question I had put down about the 1974 Act. Due to the defects in the drafting of Schedule 10 to that Act, a particular local authority which had under consideration a scheme for rehabilitation was not able to proceed (although I gather it had not formally made any approach to the Department about this obstacle), because no order had been made by the Secretary of State setting out the form in which the proposed work should be submitted. Will this local authority (and any other in a similar position) be able to get on with such schemes without further delay, or will there be a long interval before—and this is mentioned in paragraph 6—the Secretary of State prescribes the form in which a rehabilitation order has to be made. If the noble Lord can assure me that that will be a simple matter—and that the local authorities will know shortly how to proceed with the schemes—that would be helpful.
Lord MELCHETT: My Lords, by leave of the House I think I can help the noble Lord, Lord Avebury, in this matter. The Government are well aware

55
of the need for urgency and to get the prescribed forms under way as quickly as we possibly can. They will of course have to be laid before the House, and it is the Government's hope that they will be laid before Easter. They will then be here for three weeks. We could say that once the prescribed forms had been laid local authorities would then be in a position to get on with the work. I can assure the noble Lord that we are well aware of the urgency, and that the forms will be laid before the House by Easter at the latest.
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I beg to move Amendment No. 17.
Amendment moved—
Page 38, line 9, at end insert—
(" . In section 115 of that Act (compensation) for subsection (5)(b) there shall be substituted the following paragraph: —
"(b) the effective date of the rehabilitation order, as defined in section 114 above," "). —(Lord Melchett.)
On Question, Amendment agreed to.
4.42 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 18:
Page 38, line 9, at end insert—
(" . In section 119(3) of that Act (option mortgages) for the word "section" in the second place where it occurs, there shall be substituted the word "subsection ".")
The noble Lord said: My Lords, the Government had originally envisaged bringing the whole of Section 119 of the Housing Act 1974 into force on a single day. In the event, this has not happened and there will need to be at least two commencement orders for the Section. Therefore, for the sake of clarity, this Amendment provides that the appointed day for the purpose of the transitional period for existing option mortgages under subsection (3) is the day on which subsection (3) comes into force. I beg to move.
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I spoke to Amendment No. 19 with No. 16. I beg to move.
Amendment moved—
Page 38, line 11, at end insert—
56
(" The following Schedule shall be substituted for Schedule 10 to that Act (rehabilitation orders):—

REHABILITATION ORDERS
Introductory
1.—(1) In this Schedule,
"notice land" means land in relation to which a notice is required to be served under paragraph 7 below; and
" the, relevant date ", in relation to any land comprised in rehabiliation order, means the effective date or the date on which confirmation of the order was refused.
(2) The references to the Housing Act 1957 in section 178 of that Act (power to prescribe forms etc.) shall include references to this Schedule.
General
2. A rehabilitation order may be made and confirmed notwithstanding that the effect of the order in excluding any land from a clearance area is to sever that area into two or more separate and distinct areas; and in any such case the provisions of Part III of the Housing Act 1957 relating to the effect of a compulsory purchase order when confirmed, and to the proceedings to be taken after confirmation of such an order, shall apply as if those areas formed one clearance area.
3.—(1) Where a local authority have made a rehabilitation order they shall not until after the relevant date—

(a) serve notice to treat under section 5 of the Compulsory Purchase Act 1965 in respect of any land included in a compulsory purchase order made and confirmed by virtue of section 43 of the Housing Act 1957 which also includes notice land; or

(b) demolish, without the consent of the Secretary of State, any building on notice land.

(2) Where the owner of a house to which section 114 above applies and which was included in the clearance area by reason of its being unfit for human habitation requests the local authority to make a rehabilitation order in respect of the house, and the authority refuse to make an order, they shall give him in writing their reasons for so refusing.
4.—(1) Where—

(a) land included in a compulsory purchase order made and confirmed by virtue of section 43 of the Housing Act 1957 is comprised in a rehabilitation order, and

(b) the rehabilitation order becomes operative in respect of that land, and

(c) no interest in the land has vested in the local authority before the relevant date, and

(d) they have not before the relevant date served a notice to treat in respect of any interest in the land under section 5 of the Compulsory Purchase Act 1965,

the compulsory purchase order shall cease to have effect in relation to that land on

57
the relevant date, and if the land is included in a clearance area, it shall cease to be so included.

(2) On and after the effective date, in a case where sub-paragraph (1) above does not apply, any compulsory purchase order relating to the land and confirmed by virtue of section 43 of 1he Housing Act 1957 shall have effect in relation to any interest in the land which at the relevant date has not vested in the authority—

(i) in so far as it relates to a house, as if it had been made and confirmed under Part V of the Housing Act 1957, and

(ii) in so far as it relates to land other than a house, as if it had been made and confirmed under Part VI of the Town and Country Planning Act 1971.

(3) Where a rehabilitation order becomes operative in respect of any land and any interest in that land is vested in the local authority at the relevant date—

(a) any such interest in a house comprised in the order shall be treated as appropriated to the purposes of Part V of the Housing Act 1957, and

(b) any other such interest in the land so comprised shall be treated as appropriated to the purposes of Part VI of the Town and Country Planning Act 1971.

5. Where—

(a) a rehabilitation order becomes operative in respect of any land and

(b) its effect is to exclude from the clearance area any land adjoining a general improvement area (within the meaning of Part II of the Housing Act 1969),

that land shall be included in the general improvement area unless the Secretary of State otherwise directs.

Procedure for making and confirming rehabilitation orders
6. A rehabilitation order shall be made in the prescribed form and shall describe, by reference to a map—

(a) the houses to which it applies and which were included in the clearance area by reason of their being unfit for human habitation, and

(b) the other land to which it applies.

7.—(1) Before submitting a rehabilitation order to the Secretary of State the local authority, except in so far as the Secretary of State directs otherwise—

(a) shall publish in one or more newspapers circulating within their district a notice in the prescribed form stating that such an order has been made and describing the land to which it applies, and naming a place where a copy of the order and its accompanying map may be seen at all reasonable hours, and

(b) shall serve on every such person as is specified in sub-paragraph (2) below a notice in the prescribed form stating—

(i) the effect of the rehabilitation order,

58

(ii) that it is about to be submitted to the Secretary of State for confirmation, and

(iii) the time within which and the manner in which objections to the order can be made.

(2) The persons mentioned in sub-paragraph (1)(b) above are—

(a) every person on whom notice was served of the making by virtue of section 43 of the Housing Act 1957 of any compulsory purchase order which, at: the date of its confirmation, included any land subsequently comprised in the rehabilitation order;

(b) every successor in title of such a person,

(c) every owner, lessee and occupier of Part III land other than a tenant for a month or a period less than a month;

(d) mortgagees of Part III land, so far as it is reasonably practicable to ascertain such persons; and

(e) every person on whom notice would have been required to be served under paragraph (c) or (d) above whose interest has been acquired under section 43 of the Housing Act 1957 since the clearance area was declared to be such an area.

(3) A notice under this paragraph shall be accompanied by a statement of the grounds on which the local authority are seeking confirmation of the rehabilitation order.
(4) A notice under this paragraph shall be served in accordance with section 169 of the Housing Act 1957.
8.—(1) If no objection is duly made by any of the persons on whom notices are required to be served under paragraph 7 above, or if all objections so made are withdrawn, the Secretary of State may confirm the order with or without modifications.
(2) If any objection duly made is not withdrawn, the Secretary of State, before confirming the order, shall cause a public local inquiry to be held or afford to any person by whom an objection has been duly made and not withdrawn an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(3) After considering any objection not withdrawn and the report of the person who held the inquiry or of the person appointed under sub-paragraph (2) above, the Secretary of State may confirm the order with or without modifications.
(4) The Secretary of State may require any person who has made an objection to state the grounds of the objection in writing, and may disregard the objection if he is satisfied that it relates exclusively to matters which can be dealt with by the tribunal by whom any compensation is to be assessed.
(5) The Secretary of State's power to modify a rehabilitation order includes power, subject to sub-paragraph (6) below, to extend it to any notice land.
(6) The Secretary of State shall not extend the application of a rehabilitation order to any land unless he has served on the following persons, namely—

59

(a) the local authority who made the rehabilitation order,

(b) every owner, lessee and occupier of that land, except a tenant for a month or a period less than a month, and

(c) so far as it is reasonably practicable to ascertain such persons, on every mortgagee of any such land,

a notice stating the effect of his proposals, and has afforded them an opportunity to make their views known.

9. In the application of Schedule 4 to the Housing Act 1957 to rehabilitation orders, it shall have effect as if—

(a) every reference to a compulsory purchase order included a reference to a rehabilitation order;

(b) every reference to the Housing Act 1957 were a reference to this Act; and

(c) there were added, at the end of paragraph 1, the words "and every person on whom the Secretary of State served notice under Schedule 10 to the Housing Act 1974.".")—(Lord Melchett.)

On Question, Amendment agreed to.
Lord MELCHETT Lord MELCHETT moved Amendment No. 20:
Page 38, line 11, at end insert:
(" . In Schedule 14 to that Act, in paragraph 2(b) (transitional provision concerning loans by the Housing Corporation) for "(c)" there shall be substituted "(e)".")
The noble Lord said: My Lords, this Amendment rectifies an omission in the Housing Act 1974. Paragraph 2 of Schedule 14 to the 1974 Act provides for the situation where before the operative date—which means 1st April 1975 or such later date as may be specified under Section 17(1) of the 1974 Act— the Housing Corporation had agreed to make a loan to a housing association under Section 2 of the Housing Act 1964 which will be repealed from the operative date, but where the loan had not been made at the time Section 2 was repealed. In those circumstances, the Corporation may nevertheless make a loan under Section 9 of the 1974 Act after the operative date, notwithstanding the fact that the housing association was not registered, provided the loan was made in respect of any of the matters specified in paragraphs (a) to (c) of Section 17(4) of the 1974 Act.
Section 17(4) of the 1974 Act provides for similar transitional arrangements for loans by local authorities to unregistered housing associations where these were approved before the operative date in connection with matters specified in paragraphs (a) to (e). As originally intro-
60
duced, subsection (4) included only paragraphs (a) to (c). Additional paragraphs, which are now (b) and (c), were introduced by amendment later. It was not recognised at the time Section 17(4) was amended that consequential amendments were required to paragraph 2 of Schedule 14 to the 1974 Act. This Amendment rectifies that omission. I beg to move.
Lord AVEBURY: My Lords, before we leave these considerable Amendments of the 1974 Act, may I take the opportunity of inviting the Government to be more wary in the future of criticising noble Lords for the defectiveness of their drafting?
On Question, Amendment agreed to.
Schedule 6 [Repeals and revocations]:
4.45 p.m.
Baroness YOUNG: My Lords, I beg to move Amendment No. 21.
Amendment moved—
Page 40, leave out lines 1 to 12.—[Baroness Young.)
On Question, Amendment agreed to.
Lord MELCHETT: My Lords, I spoke to Amendment No. 22 with Amendment No. 16. I beg to move.
Amendment moved—
Page 41, column 3, leave out lines 2 to 4. —(Lord Melchett.)
On Question, Amendment agreed to.

UNSOLICITED GOODS AND SERVICES (AMENDMENT) BILL
Brought from the Commons; read la, and to be printed.

CHILDREN BILL [H.L.]
4.47 p.m.
Lord WELLS-PESTELL: My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, that the House do again resolve itself into Committee.—(Lord Wells-Pestell.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Nugent of Guildford in the Chair.]
Clause 30 [Custodianship orders]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 36:
Page 20, line 15, leave out (" (within the meaning of the 1958 Act) ")
The noble Lord said: If it is convenient to your Lordships, perhaps I may take Amendments Nos. 36 and 81, which are drafting. Section 57 of the Adoption Act 1958 defines "relative" in relation to a child as meaning a grandparent, brother, sister, uncle or aunt, whether of full blood, half blood or by affinity, and including the natural father. As your Lordships will know, Clauses 7 to 21 of the Bill make various fresh provisions in relation to adoption orders and the expression "relative" is used in several of these. The insertion of the 1958 Act definition of "relative" into Clause 68 settles any doubt which might otherwise arise as to the precise meaning of the expression in these provisions. A consequence of the insertion of the 1958 Act definition of "relative" into Clause 68 is that the words "within the meaning of the 1958 Act" in Clause 30(3)(a) become superfluous. The Amendment to Clause 30 deletes them. I beg to move.
Lord SANDYS: The Committee will be grateful to the noble Lord for giving us this explanation. It occurred to us that we should have to rely on previous Statutes to provide the definition of the word "relative". However, in view of what the noble Lord, Lord Wells-Pestell, has said, I do not think we have any further comment. It seems reasonable that his proposal should stand.
On Question, Amendment agreed to.
4.50 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 37:
Page 20, leave out lines 22 to 33.
The noble Baroness said: This Amendment is a probing Amendment to try to get a much clearer explanation than appears to be written into the Bill of exactly what is meant by subsection (3), paragraphs (b) and (c). The clause deals with the new idea of custody and the subsection is concerned with the persons qualified to apply for a custodianship order. I feel that paragraph (a) is fairly clear, as is paragraph (b)(i), but it is very unclear as to who is
62
meant by paragraph (b)(ii). Does this mean, for example, that anyone who has been looking after a child for periods —and these need not be continuous— which add up to 12 months and include the three months preceding the making of the order, is entitled to apply for a custodianship order? It seems to me that this could include the warden of a children's home or a matron of a boarding school or anybody who, as a friend of a family, has been looking after a child for a period of a year while its parents were abroad.
It is far from clear whether it is the intention that a custodianship order should be given under circumstances of that kind. Further on, subsection (7) indicates that the Secretary of State has power to vary the period of time provided under paragraph (c), which stipulates three years, so presumably that too could be reduced if it were thought to be a good thing. Whenever we have talked about time limits in relation to the present Bill, we have been concerned to weigh the benefits to the child against the rights of the parent. It seems to me and to my noble friends on this side of the Committee that here, and particularly in subsection (2), there appear to be no safeguards for parents at all. I feel certain that that is why my noble friend Lord Hylton has put down the subsequent Amendment on the Marshalled List; people who have fostered their children will clearly be very concerned lest a custodianship order be placed on the children after a very short period indeed —one year—in which there could have been a continuous period of care for only three months out of the whole year.
I hope that the Government will look again at the drafting and will explain exactly who is meant by "any person" and whether there are any people who are precluded from this. I think that it would be helpful to know whether they have considered a suggestion which has been made by quite a number of people that there should be some kind of explanatory leaflet for parents when their children go into care and might then become subject to these orders. The fact remains that not only is the clause not at all clear but there will be considerable variation of practice as between one local authority and another. Certainly, all the evidence we have at the moment is that there is

63
very great variation of practice between those local authorities which assume a Section 2 right under the Children Act 1948—that is, which assume parental rights over children—and it could well be that there will be variation under the custody section of the present Bill. I do not necessarily think that this is a bad thing, but I feel that it could be very worrying for parents if, as seems to be the case under the clause, someone who, perhaps, has to go abroad for a year and has to leave his child in a school or a home or with somebody, can find at the end of the year that that child has had a custodianship order taken out on him, when the natural parents have every intention of coming back home and of looking after the child themselves. I hope that the Government will be able to explain to us what it is that they have in mind in these two paragraphs. I beg to move.
Lord WELLS-PESTELL: If I may, I shall endeavour to answer the noble Baroness briefly. The safeguard for parents is that the consent of the parent, or the person or body having parental rights, is needed before an application can be made. This applies unless the applicants have looked after the child for three years or more. The noble Baroness mentioned paragraph (b). This provides that where a person other than a relative or step-parent with whom the child has had his home for less than three years wishes to apply for a guardianship order, he must, as well as obtaining the consent of the person or local authority having legal custody of the child, also have looked after the child for a period or periods before the making of the application amounting to at least 12 months, including the three months preceding the making of the application, as specified in the paragraph. I should have thought that this provided all the safeguards necessary.
As we are dealing with Clause 30, I wonder whether your Lordships would allow me to make a general comment, because I think that it is important for us to see very clearly what this part of the Bill is trying to do. Part II has been included in the Bill because the Houghton Committee—in common with almost everybody who has studied the problem—
64
wished to enable step-parents, relatives or foster parents to establish a reasonably secure home for a child without at the same time severing the child's connections with its former family. This would be an alternative to adoption which, of course, involves such a severance. The Houghton Committee and, I understand, the bulk of the people consulted when the Bill was drafted concluded that the way to provide for this was to use the existing concept of legal custody which the noble Lord, Lord Wigoder, would know very well and which is already familiar to both the divorce courts and the magistrates courts in connection with matrimonial disputes. It is the term used where parents separate and a court orders that the child shall have his home with one parent or the other.
It is then possible to make provision for such things as access and the payment of maintenance by the other parent, and we can borrow this well-established system of law to apply to the new situation being created by Part II of the Bill. Although the orders made under Part II of the Bill relate to the already familiar concept of legal custody, we have called it "Custodianship orders", so as to avoid confusion between, on the one hand, orders giving legal custody to step-parents, relatives or foster parents in the circumstances envisaged by the Bill and, on the other hand, orders giving custody to one parent to the exclusion of the other which one finds in matrimonial disputes. I hope that if the noble Baroness will consider what I have said in an earlier part of my reply—that is, that the safeguard for the parent is that the consent of the parents or the person or body having parental rights is needed before an application can be made—and the remarks which I have made regarding paragraph (b), she will see that there is no cause for anxiety at all.
Baroness YOUNG: I am grateful for that explanation. I hope that the noble Lord is right in saying that there is no cause for anxiety, because, so far as I can see on reading this clause—and I may not have read it correctly—any child who has been placed privately as a foster child could be subject to these provisions, or alternatively a child in the care of a local authority, who has been fostered or placed, presumably in a children's home,

65
could also become subject to these provisions. It may well be that the parent has not really understood all the implications of the difference between the custody order and the care order when the child is in a children's home. It is for that reason that I think some explanation ought to be given to parents when such a proposal is before them, because in this new concept of custody the child is in a very different relationship, not only to its natural parents but, in this new relationship, to its custodians.
I will read very carefully what the noble Lord has said and consider the matter further, to see whether or not we should return to it on Report. It leads me to make one more point, to which I hope to return at a later stage. This very complicated piece of legislation will have to be worked by social workers and will need to be understood by a great many lay people—parents, foster parents, and custodians in this clause—and I wonder whether the Government are to consider offering a simplified version to parents or others to explain what it is all about.
Lord WELLS-PESTELL: I am obliged to the noble Baroness. We subscribe to a good deal of what she has said, and we recognise the need for the public to be fully informed on these matters. The question is, how best to do this in the simplest possible terms. In the same way that the noble Baroness will read what I have said to your Lordships, I should also like to read what she has said, to see whether there is anything that ought to be done about this matter. But we have considered the matter and we are quite certain in our own minds that things are perfectly all right as they are. However, if we have some reason to think otherwise, obviously we should want to do something about it.
Lord SOMERS: Would the noble Lord clear up one point for me? He was saying that the permission of whoever has custody of the child is necessary. Certainly that is so in paragraph (b), but does it also apply to paragraph (c)? So far as I can see it does not.
Lord WELLS-PESTELL: Yes, I should have thought that under Clause 30(3), the persons qualified to apply for a custodianship order are as set out in paragraph (b)(ii), but for a different
66
period from that set out in paragraph (c); but they all apply, as will be seen in Clause 30(3).
Baroness YOUNG: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.5 p.m.
Lord HYLTON Lord HYLTON moved Amendment No. 37A:
Page 20, line 33, at end insert ("provided that the child has not been in the home of such a person as a foster child within the meaning of the Children Act 1958.").
The noble Lord said: Before going any further I should make absolutely clear that there are two possible kinds of fostering which occur at present. In my view, one type is potentially good and the other is potentially very bad. The first type is when a fostering is arranged either by a local authority or by an approved children's society. Here most careful investigations are made into the background of the foster parents, the sort of home they occupy, and into the likelihood of their making a really good job of looking after someone else's child. In the second kind of fostering, which is the privately arranged fostering, no previous inquiries need be made. There is nothing laid down as to payment for the fostering; this; is simply something which is agreed between the parties. Although it is a duty on a foster parent to report to the local authority the fact that he or she is fostering, I believe that this is not always done, and that even where it is done the degree of subsequent supervision as to how the arrangement is working out in practice for the child is very slight.
To turn to the Amendment, it is a free standing Amendment although it has some connection with my subsequent Amendment No. 66D. The purpose of this Amendment is very slightly to strengthen the rights and to allay the fears of parents who have placed or will place a child privately with foster parents. If the Bill is passed as at present drafted it is very likely that some foster parents will apply for custody. I would here add that I did not myself realise that it is possible they may do so so soon as my noble friend Lady Young pointed out. I had in mind the three year possibility, or the possibility that the foster parents might apply to adopt under the five years

67
in Clause 27. The foster parents, when making an application in one form or another will, I fear, sometimes do so in order to satisfy their own emotional needs, rather than from considerations of the real long-term interest of the child. Whatever the motives of the foster parents in applying, the effect on the natural parents is likely to be serious. They may well move their child suddenly and without warning, or, worse still, they are likely to move their child from one foster home to another, so that it never qualifies whichever time rule applies. In my view—and I think it is widely shared —this is a disastrous child care practice in any circumstances.
As regards the drafting of this Amendment, I should perhaps explain that the reference to the Children Act 1958 embraces persons under sixteen fostered by someone other than a relative or a guardian and not in the care of a local authority. It is therefore a negative description of the child fostered by private arrangement. It is estimated that there are at present some 10,000 children privately fostered. If this Amendment is accepted, confidence between natural parents and foster parents will be increased, switching and snatching of children will be avoided, and natural parents will have an incentive to arrange any necessary fosterings through the proper channels of the local authorities and the approved children's societies. I beg to move.
5.10 p.m.
Lord WELLS-PESTELL: May I first of all say that the Government sympathise with the aim of the Amendment, but they do not share the same anxiety which the noble Lord has expressed to the Committee this afternoon. We take the Amendment to be a safeguard for the position of the child in long-term private foster care but, having regard to the safeguards embodied in the Bill and, for that matter, elsewhere in the law, we do not consider that any special provision is called for on the lines suggested by the noble Lord.
I do not want to overstress this, but the Houghton Committee considered these matters over a long period of time, and recommended that where foster parents have cared for a child for a number
68
of years the natural parent should not be able to intervene in an effort to frustrate an application for custody. The Committee made clear that they intended their recommendations to apply not only to children boarded out to foster parents by a local authority, but also to children placed privately. The Government agree with the Committee on this point. The Houghton Committee saw no need to suggest a procedure such as that suggested by the noble Lord this afternoon. We feel that the principal safeguard in court proceedings concerned with the custody or upbringing of children is Section 1 of the Guardianship of Minors Act 1971. This provides that in any proceedings before a court, where the custody or upbringing of the child or the administration of his property is in question, the court shall regard the welfare of the child as the first consideration in deciding such questions. We find ourselves with some measure of sympathy for the Amendment, but we are not of the opinion that it needs to be put into the Bill in the way indicated.
Baroness YOUNG: Before my noble friend withdraws his Amendment, if he is so minded, I feel after having listened to that explanation that natural parents have real cause for worry in these circumstances. To rely on this other Act of Parliament—though I am not suggesting for one moment that the courts will not put the interests of the child first—will make any parents apprehensive of allowing a child to be fostered, if they feel that a custodianship order could be brought in after such a very short period of time. What will happen is that parents will move a child around from one foster home to another, as my noble friend has suggested. It may well be that private fosterings are not a good thing, but they do take place. Because of that, natural parents could find themselves partly losing their child after a year and it is likely that they will take steps to prevent this and will move a child around from place to place—a most undesirable practice. If private fostering is not a very good idea, it is certainly a very bad idea to keep moving children from place to place, particularly small children. I understand that many of the children concerned are, in fact, quite small, so I wonder whether the Government would consider looking again to see whether they ought to insert

69
some safeguard into the Bill to protect the interests of parents and small children.
Lord REDESDALE: I was originally somewhat worried about the Amendment, because of my lack of knowledge of the Children Act 1958, but having seen the very negative way in which it sets out what a foster child is I am not so worried. I should like to raise just one matter. Various speakers have mentioned the "chopping and changing" of homes by natural parents, to prevent a child being adopted by a foster parent or by someone else. What worries me about the Bill is that some parents act so irrationally that they will chop and change whatever happens. I feel that taking away the rights of the foster parents in these cases will not achieve very much. A parent who is going to act rather selfishly and not in the true interests of the child will do so whatever happens, but in the circumstances we have been talking about they might do so even more frequently.
Baroness FISHER of REDNAL: Before my noble friend answers, I should like to say that I am concerned that in child care practice we have got away from the large institutional homes and have encouraged fostering. This has been a great benefit to the child, inasmuch as social workers have been able to work along with both the foster parents and the natural parents to encourage rehabilitation. Arising out of this clause, parents will not be likely to move their child around from foster home to foster home but will say, "We want the child placed in X ", which might be a large children's home. This would be quite contrary to good child care practice, and I say that with some knowledge of what might be called the "thinness on the ground" of social workers. Local authority reorganisation has meant that there are not so many social workers employed in this field as the Department would like. Therefore, it might be making things more difficult for them when there is a conflict arising in connection with custodial orders. Looking in the long term at what fostering means, it can only mean the ultimate rehabilitation of the child with the natural parent, and this Amendment seems to me to be operating against the best interests of the child in the long run.
Baroness ELLIOT of HARWOOD: I should like to support my noble friend Lady Young in what she has said. We are none of us in favour of private fostering, and I hope that under this Bill it would become very difficult for guardians, for the mother, for the putative father or whoever it is, to foster a child privately without the local authority, the social worker or the adoption society, if there was one, being aware of it. If this is not made clear in this part of the Bill we shall be leaving loopholes for more and more independent action by somebody who may be very distraught, unhappy and worried and who does not know quite what to do for the best. We might leave a big hole in this Bill and none of us would like that, including, I am sure, the Government. I wonder whether the noble Lord, who is very experienced, could draft something which would make it quite clear that moving a child around in order to avoid something the parent did not want could be avoided. If that could be done, we should all be very happy.
Lord WELLS-PESTELL: I cannot add anything to what I have said already, except that this point has been considered and the anxiety which has been expressed today is certainly not felt on the Government side, because a great deal of time has been given by the Department and also by the Houghton Committee to investigating this matter. One has to face the fact that in the last analysis one cannot stop up every hole. I am satisfied, and generally speaking I think noble Lords are satisfied, that there is protection in an existing Act. In a Bill of this kind we have to try to avoid repeating and introducing powers which already exist and thereby adding to a great deal of confusion. That is why this House in particular spends a good deal of time year after year on consolidation. I would say with very great respect that the anxiety to which the noble Lord, Lord Hylton, quite rightly gives utterance need not cause him any concern.
Lord HYLTON: I am grateful to those of your Lordships who have spoken to this Amendment. I have some sympathy with the point of view expressed by my noble friend Lord Redesdale, but I think he is dealing with future

71
rather unquantifiable situations. The noble Baroness, Lady Fisher of Rednal, I think may be confusing the regularised situation where the fostering has been arranged quite properly through a local authority. The Amendment refers to the unofficial privately arranged fostering.
I was glad that my noble friend Lady Elliot of Harwood used the word "distraught", because that is where this Amendment comes in. We are dealing with the fears and apprehensions of natural parents, and when the noble Lord, Lord Wells-Pestell, replied, he put the whole weight of his case on the Guardianship of Minors Act, but that would only bite where a case has come before the court. We are worried about the case where the natural parent is perhaps in a panic or is worried or upset and takes precipitate action without bothering to go before the court or to wait until the foster parents have made an application to the court. I feel that by a fairly simple change of wording we can do something to put this situation right and I hope that I can persuade the Government to reconsider this point.
Lord WELLS-PESTELL: Without taking up too much of your Lordships' time, let me give an assurance at this stage—and I can give it at every stage of the Committee—that on the following day we make ourselves fully informed of what members of your Lordships' House have said on the previous day. We shall do so tomorrow. We often see things that we can perhaps do something about. The noble Lord's remarks will be looked at and automatically reviewed to see whether we have missed something. I can give that assurance to the noble Lord and to everybody else who moves an Amendment in this House.
Lord HYLTON: On that basis, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
5.23 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 38:
Page 21, line 1, after ("or") insert ("the applicant himself has legal custody or")
The noble Lord said: I do not know whether I can take this shortly; I will try to do so. The main purpose of the Amendment is to regularise the position
72
where there is a dispute between partners. It makes clear that a relative or other person who already has legal custody of the child can apply for a custodianship order under Clause 30(3)(a), (b) or (e) without first having to obtain the consent of some other person. There are several possible situations in which a person who has legal custody of a child might wish to apply for a custodianship order. The most important of these is where a custodianship order has previously been made giving custody of a child to a married couple whose marriage has since run into difficulties or broken down altogether. In such circumstances, one of the two might wish to apply for a custodianship order giving him or her sole custody, and this would often be the best solution. The advantage is that the new custodianship order can be made simultaneously with the revocation of the old without reviving the rights of those originally having custody of the child. I hope that I have said enough to justify this Amendment. I beg to move.
Baroness YOUNG: I thank the noble Lord for his explanation of this Amendment. It seems to be a somewhat complicated legal point which I should prefer to study when I have a chance to look at the Record.
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 39:
Page 21, line 17, at end insert—
" ( ) No application for custodianship (or guardianship) may be made in respect of a child in the care of a local authority without the prior consent of that authority, when the child is subject to:—

(a) a care order made under section 20 of the Children and Young Persons Act 1969, or

(b) a resolution made under section 2 of the Children Act 1948;"

The noble Baroness said: We have put down this Amendment because when we are considering custodianship orders I want to make clear the position of the child who is in the care of a local authority. As I understand it, an application for adoption of a child in care can be made only with the consent of a local authority. I suspect that subsection (3) is intended to cover the case of a child in the care of the local authority, but this seems to be implicit rather than explicit in the Bill. The Amendment

73
that I have put down would make it absolutely clear that where a child was in the care of a local authority that local authority must be consulted in the case of a custodianship order. I beg to move.
Lord WELLS-PESTELL: Where the child has not had his home with the applicant for at least three years, the provision, as I think the noble Baroness will agree, is unnecessary as it is already covered by the Bill. Where the child has had his home with the applicant for more than three years, the Government consider that a power of veto is undesirable. This perhaps is a matter for argument. Briefly, the effect of Clause 30 as it stands is that an application for a custodianship order cannot be made without the consent of the person already having legal custody unless the child has had his home with the applicant for more than three years or unless no person has legal custody or the person with legal custody cannot be found. It follows—at least I hope it does—that the Amendment is unnecessary in relation to a child who has had his home with a relative for less than three years.
I do not know whether the Amendment has been put down because of a misunderstanding as to the meaning of the expression:
"with the consent of a person having legal custody of the child".
In the absence of any court order, the parents of a child have the same rights and authority in relation to the custody or upbringing of a child and in relation to his property. In other words, both parents have the legal custody of the child which they retain even after they have placed their child in the care of a local authority or a voluntary society. Where, however, there is a dispute between the parents, the court may make an order, either in the exercise of the matrimonial jurisdiction or under Section 9 of the Guardianship of Minors Act 1971, vesting the child's custody in one parent to the exclusion of the other.
There are also several circumstances in which both parents may be deprived of the legal custody of the child. I do not think I need to say much more, except that if the object of the Amendment is to prevent foster parents applying for legal custody in this kind of case, without the local authority's consent even after the
74
child has had his home with them for over three years, this in the Government's view goes too far. The local authority, which would in any case have to prepare a report for the court, would be free to oppose the application if it wished. If it considered the foster parents unsuitable, it might have been expected to withdraw the child before the three years were up. This is probably the crucial point of the argument.
Baroness YOUNG: Yes, it is the crucial point. Parents could well, having heard this explanation, be concerned about this matter. If one takes the case of the mother who is mentally ill and whose child is taken into care and placed with foster parents, the mother being in hospital for some time but intending when she comes out to look after the child again, as I understand it under subsection (3)(c) the foster parents could apply for a custodianship order without notifying the local authority at all.
The first consequence of this could be that parents would be reluctant to allow their children to go into care. This would be the kind of case in which the local authority would not be assuming parental rights but would be taking the child into care because it was in the child's best interests during a difficult period of family life. The second consequence would be that, if a child went into care, the parents would almost certainly insist upon his going into a residential home. I believe that this is the point the noble Baroness,, Lady Fisher of Rednal, was making on the previous Amendment. Now that we have heard the Government's explanation, I think that in this particular case it would be almost certain for the majority of children who come into care and are fostered for relatively short periods of time. Having heard the Government's explanation I am considerably less happy than I was before because I had misunderstood this subsection. I wonder whether the Government would consider this point again. I think what is proposed could lead to a lot of rather bad child-care practice.
Lord WELLS-PESTELL: If the noble Baroness wants us to look at the point, of course we will do so and. if this assurance will satisfy her, I will undertake to let her have views on this particular matter.
Lord HYLTON: May I ask the noble Lord the Minister to look at this matter from the point of view of ultimate family reunion? This point goes also for my previous Amendment which I have withdrawn. This is what we should be aiming at in the great majority of cases.
Baroness YOUNG: With the Minister's assurance, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.35 p.m.
Lord WIGODER Lord WIGODER moved Amendment No. 40.
Page 21, line 18, at end insert—
(" (10) For the avoidance of doubt, it is hereby declared that the provisions of section 1 of the Guardianship of Minors Act 1971 apply to applications made under this section.")
The noble Lord said: I beg to move this Amendment, which is at one and the same time both important and necessary. The position is that in Part I of the Bill, which deals with adoption, specific criteria are laid down in Clause 2, which we have already debated, as to the way in which a court is to approach any problems relating to adoption. When we come to Part III, which relates to care, we shall see that in Clause 49 there are indications of the way in which that matter is to be approached. But throughout this part of the Bill—Part II dealing with custodianship orders—there is no indication anywhere of the standards by which courts are to approach the problems which will arise.
I have no doubt that the Government have been advised that the reason for this is that applications under Part II are to be governed by Section I of the Guardianship of Minors Act 1971. Your Lordships will remember that that lays down that:
"Where in any proceedings … the custody or upbringing of a minor … is in question, the court … shall regard the welfare of the minor as the first and paramount consideration …".
In the first place, I would not venture to disagree with the legal advice that the Government have received on this matter. Secondly, I am in no doubt that the standard laid down in the 1971 Act, of "first and paramount consideration", is the appropriate standard by which applications under Part II of this Bill should be judged.
My reasons for venturing to put forward an Amendment which explicitly incorporates into this Bill the provisions of Section I of the 1971 Act are threefold. First, I have been surprised to discover the number of voluntary societies and individuals much concerned with child welfare to whom it simply had not occurred that the 1971 Act was to govern applications made under this Bill. Secondly, we must always remember that lay justices will have a great part to play in administering the provisions of the Bill. They will have on many occasions extremely complex sets of facts to determine, and it is the duty of Parliament to ensure that we give them all the assistance we can in making the law clear beyond doubt.
Thirdly, it has occurred to me that an ingenious argument can be put up for saying to a court that the 1971 Act does not apply to this Bill. It would involve arguing that, however similar are custody and upbringing under the 1971 Act and custodianship under this Bill, they are nevertheless different concepts and therefore it may be that the provisions of Section 1 of the 1971 Act do not apply to this Bill. I am not suggesting that I find that argument attractive or that it would be likely to succeed, but I am anxious to avoid the possibility that doubt may be raised by complicated submissions of that nature. I therefore suggest that it would be desirable to include in this Bill some provision along the lines of this Amendment, on the basis that it can do no conceivable harm and may serve a very useful purpose. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE: First, may I apologise to the Committee for not having been present throughout its deliberations. I was sitting judicially throughout the day and it was not possible for me to change my various activities quite so easily as is normally the case. However I feel the Government owe an explanation to the noble Lord, Lord Wigoder, although if I have missed something in the earlier deliberations which makes what I say unnecessary I hope that the noble Lord, Lord Wells-Pestell, will tell me so and that the Committee will accept my apologies. I was going to raise this point on the Question, Whether the clause shall

77
stand part?, and I may revert to it again at that stage. It seems to me that the point which the noble Lord, Lord Wigoder, has made arises from the fact that the Government have chosen to disregard the findings of the Houghton Committee by introducing custodianship as a new and separate conception from guardianship—a point that, so far as I am concerned, is controversial. I raised this point on Second Reading and I shall raise it again.
The opinion which I expressed on Second Reading, which had been fortified by one circular submission from a very responsible body which I quoted then, has since been corroborated by an equally weighty submission to the same effect from the Law Society: that this notion of custodianship is the introduction of a new and fifth wheel to the coach; that the multiplicity of legal conceptions here leads to the darkening of counsel, and not to the simplification of the law which most of us would like to see.
As regard the merits of the case, there can be no doubt about them at all. I imagine that there would not be a single dissentient voice in this Committee, either from these Benches or from the Government Benches. I entirely agree with what the noble Lord, Lord Wigoder, has said. The only possible criterion to apply to this novel conception of custodianship, if it is to be a new and separate conception, is that already applied to guardianship; namely, that the interest of the child must be paramount in all these cases, as it is in guardianship, as it is in care and control, as it is in maintenance and access, and in everything short of adoption itself where certain other considerations have to be taken into account. I hope the Government will give a satisfactory assurance, but I am bound to say that I think the noble Lord, Lord Wigoder, has a point here. A new conception has been introduced—to my mind, to the mind of the Committee and to the mind of the two bodies to which I referred, wholly unnecessarily—and it has not been made plain that the paramount consideration in these cases is to be the interest of the child. I think that that should be made plain.
Lord WELLS-PESTELL: If I may say so, there is no objection to the principle
78
underlying the Amendment, but I wonder whether it is really necessary. I find myself at some disadvantage, having heard the noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Wigoder, but I would ask whether this Amendment is really necessary. Moreover, I should like to ask the two noble Lords who have spoken whether its acceptance might have harmful consequences, in that it might cast doubt on whether the principle set out in the clause applies to the rest of Part II of the Bill. We had a good deal of discussion on Part II at the appropriate time, and my recollection is that the noble and learned Lord the Lord Chancellor decided to look into the question of the welfare and paramountcy. I understand that he will be producing a document on this matter giving his views, copies of which will I think be sent to noble Lords who took part in the debate and there will obviously be a copy in the Library.
But as I understand the position, Section 1 of the 1971 Act provides that where in any proceedings before any court,

"(a) the custody or upbringing of a minor; or

(b) the administration of any property … is in question ,the court, in deciding that: question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father … in respect of such custody, upbringing … is superior to that of the mother, or the claim of the mother is superior to that of the father."

I seem to recall that when we discussed this during the Second Reading debate on Tuesday, 21st January, the noble and learned Lord, Lord Hailsham, said in a reply:
"My Lords, the noble Lord need not worry about that; it is by implication of the existing law ".—[Official Report, col. 66.]
I do not know whether I have said anything that in any way eases the mind of the noble Lord, Lord Wigoder, but the section applies to proceedings under Part II, because a custodianship order is an order granting legal custody. This is clearly set out in Clause 30(1), and is confirmed by implication by Clause 33(3), which requires a local authority to investigate:
"(a) the matters relevant to the operation of section 1 (principle on which questions relating to custody are to be decided) of the Guardianship of Minors Act 1971 in relation to the application; "

79
The reference to "any proceedings before any court" in Section 1 makes plain that the paramountcy principle is intended to apply where any questions concerning the custody and upbringing of a child or the administration of its property arises in court proceedings.
It is possible that one may seek to argue about the second half of the Section, and that the court should not take into consideration whether from any point of view the claim of the father in respect of these matters is superior to that of the mother, or the claim of the mother is superior to that of the father. The effect of limiting the application of the paramountcy principle to disputes between the parents probably speaks for itself. I should also have thought that this argument is invalidated by a judgment of the House of Lords in 1969, where it was held that the latter part of the Section did not call for or imply any constriction of the natural meaning of the first part so as to limit the application to disputes between parents.
Lord HAILSHAM of SAINT MARYLEBONE: That is accepted.
Lord WELLS-PESTELL: If the noble and learned Lord accepts that, I do not know whether I have said anything which makes him and the noble Lord, Lord Wigoder, feel that it is unnecessary to press this Amendment. If both noble Lords are of the opinion that the way in which the Amendment is set out is essential to the Bill—I was going to say of supreme importance, because one obviously wants to send the Bill from this House phrased in the best possible way—then of course we will look at it to see whether something can be done along those lines.
Lord HAILSHAM of SAINT MARYLEBONE: Before the noble Lord, Lord Wigoder, replies, may I just say that my attitude to this Amendment will depend upon the question which I raised before; namely, whether custodianship is a valid new conception or whether it ought to be affiliated to the general law of guardian-ship. If one can get rid of it and call it part of the law of guardianship, which I think is the view of a respectable body of opinion including the Houghton Committee, I do not think that this Amend-
80
ment is essential, because obviously Section 1 would apply. But if the noble Lord is going on with his new nomenclature of applying custodianship and pretending, as I think he is, that it is a new conception, then I think something on the lines of this Amendment is necessary.
After all, as the noble Lord, Lord Wigoder, pointed out, these orders have to be interpreted by, among others, benches of lay magistrates all over the kingdom, and, although they have very well qualified clerks to advise them, the more simple we can make it for them to understand, the more likely they are to get it right. This is no criticism of benches of lay magistrates. They sit in inconvenient courts without libraries and with only a Stone's Justices Manual to guide them, and one has to spell it out up to a point.
Reference has been made to Clause 2 of this Bill. At first sight, that applies only to adoption, and as I have pointed out twice before when you are dealing with the full course of adoption different considerations apply, because you have to consider the consent of the parents—or parent, if there is only one—before you consider the question of paramountcy, as those two conceptions cannot be read together. But when you are dealing with custodianship, when you are dealing with guardianship, when you are dealing with maintenance, when you are dealing with care and control, when you are dealing with access, one must lay down that the paramount consideration is the interest of the child.
I am sorry to say that lurking here and there in parts of the United Kingdom there are people who still forget that when they come actually to adjudicate. Therefore, it needs to be spelt out as the considered view of Parliament in all these cases. If the noble and learned Lord, Lord Wigoder, will take my advice, he should not press this Amendment at this stage, but only on condition that the noble Lord considers this quite seriously, both in relation to the general criticism which I have made on the question of custodianship, and in relation to the arguments put forward by the noble and learned Lord, Lord Wigoder, so that we can have a satisfactorily worded Bill when we send it to another place.
Lord BYERS: May I briefly support that view, because the purpose of the Amendment was to put some clarity into the Bill at a point where we did not think it was clear. That is why the Amendment said, "For the avoidance of doubt …". I hope that the noble and learned Lord can look at this again—and I am not making a Party point—to see whether, at the next stage of the Bill, we cannot come back with something that would make it clear beyond peradventure.
5.50 p.m.
Lord WELLS-PESTELL: I am grateful to the noble and learned Lord. At this stage, I ought to make one point clear I tried to deal, when the noble and learned Lord was not here, with the question of legal custody and custodianship. Briefly, I think what I said was that "custodianship" is a legal term in the Bill to describe the order vesting legal custody in a person other than the parent. The term has been coined to distinguish such orders from the transferring of legal custody to one parent to the exclusion of the other. If I correctly recall my words, I referred to the situation in the matrimonial court where one has applications for custody under a matrimonial order in the same way that one has an application for custodianship under the guardian-ship of minors.
I drew the attention of your Lordships' House to the fact that in this Bill, as we were dealing with a situation which involved other people—it may involve relatives and others in the community— rightly or wrongly the term "custodianship", is used to try to distinguish between the two situations. This might be a false kind of distinction, but having heard what has been said today, I should like to take advice on the matter. If that meets with the approval of the noble and learned Lords, Lord Wigoder and Lord Hailsham of Saint Marylebone, I shall gladly do so.
Lord WIGODER: My Lords, I am grateful to the noble and learned Lord, Lord Hailsham of Saint Marylebone, for his support on this matter. In view of what the noble Lord the Minister has said, of course I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The Countess of LOUDOUN moved Amendment No. 41:
Page 21, line 18, at end insert—
("'(10) In the case of a child who is in the care of a local authority or voluntary agency, and where parental rights are vested in the local authority, no application for custody may be made without the leave of that local authority.
(11) There shall be a right of appeal to a Magistrates' Court against a refusal by a local authority to give leave under subsection (10).
(12) In the case of children in the voluntary care of a local authority or of an approved child care agency, foster parents may not apply for custody if an objection is lodged by a parent.").
The noble Countess said: My Lords, I beg leave to move Amendment No. 41 which stands in my name. Subsections (10) and (11) are additional subsections which would not sap the confidence of the parents who apply to local authorities for their children to be voluntarily received into care. The local authority, as a recognised child protection agency, should be relied upon to take such action as is in the overall best interest of the children in its care.
Subsection (12) seeks to safeguard the relationship, trust and confidence between parent and social worker in cases where the child is received into the care of a local authority or voluntary agency on a voluntary basis under Section 1 of the Children Act 1948. Under subsection (3)(c) of this clause, a child in care under Section 1 of the 1948 Act, who was placed in a local authority private foster home, could become the subject of an application by the foster parents for custodianship, after living in their home for three years. The consent of the parent and of the local authority is not required under subsection (3)(c). When parents learn that their rights and responsibilities may be wrested from them after three years and vested in foster parents, it is likely that the essential trust between parent and social worker will be seriously undermined, threatening the contract entered into by the parent and social worker. It may also tend to precipitate the unwise removal of the child from care before the three-year time limit has been reached. This Amendment would prevent such a situation arising; thus the jeopardising of the essential relationship of trust between social worker and

83
parent can be avoided. It would also safeguard the child from precipitate removal from care to avoid the three-year time limit, and the possibility of a custodial order being made without parental or agency consent. If, however. Clause 12(2) and Clause 12(3) are deleted, this subsection would not be necessary.
Lord SANDYS: My Lords, I should like to support the Amendment, and I do so with enthusiasm. But I would just refer to what the Houghton Committee said about fostering practice. I think your Lordships should be aware of the Houghton Committee's paragraph on this matter. At paragraph 150 of their Report on page 43, they say:
"The fostering practice of local authorities and voluntary societies was outside our terms of reference, and we did not consider it appropriate to institute a wide ranging enquiry on a matter which is only marginal to adoption law and procedure".
A little later in that same paragraph they strongly recommended that A Guide to Adoption Practice should be published. Here I would most heartily agree with the noble and learned Lord, Lord Wigoder, in his desire for clarity—shared on our side of the House—so that lay justices and others concerned in the administration of this Act, when it comes about, should not have difficulty in its administration.
It is of further interest to consider what Houghton had to say in Recommendations Nos. 34 and 35. This also ought to be borne in mind by Her Majesty's Government when considering this Amendment. Recommendation 34 says:
"Local authorities should have power to assume parental rights in respect of children in the care of a voluntary society, if the society so requests ".
Recommendation 35 relates especially to subsection (11) in the Amendment. It says:
" There should be a right of appeal from the decision of a juvenile court to uphold a resolution assuming parental rights ".
I assume that this recommendation, referring to a decision of a juvenile court, naturally would refer also to a magistrates' court. With these words, I wish to support the Amendment.
Lord WELLS-PESTELL: My Lords, if I may just deal with one point raised
84
by the noble Lord, Lord Sandys, I ought to say at this stage that a Working Party is sitting under the chairmanship of Mrs. Thomas, to produce A Guide to Fostering Practice, recommended by Houghton. I cannot honestly say when that Working Party will report. It will obviously take a fair amount of time, and it will not be available before the summer.
I should like to ask the noble Countess who moved this Amendment whether it appears really necessary in view of Clause 30 which already gives in substance— noble Lords may argue, not in a great deal of detail, but, nevertheless, in substance—the intention behind it. The effect of Clause 30 as it stands is that an application for a custodianship order cannot be made without the consent of the person already having legal custody, unless the child has had his home with the applicant for more than three years, or unless no person has legal custody of the child, or the person with legal custody cannot be found. That is covered in subsection (b). It follows that the Amendment is unnecessary in relation to the child who has had his home with a relative or foster parent for less than three years.
I wonder whether the Amendment has been put down because of a possible misunderstanding as to the meaning of the expression "with the consent of a person having legal custody of the child". In the absence of any court order, the parents of the child have the same rights and authority in relation to the custody or upbringing of the child, and in relation to his property; in other words, both parents have the legal custody of the child which they retain even after they have placed their child in the care of a local authority or voluntary society.
However, where there is a dispute between the parents the court may make an order in exercise of their matrimonial jurisdiction or under Section 9 of the Guardianship of Minors Act 1971 vesting the child's custody in one parent to the exclusion of the other. There are also several circumstances in which both parents may be deprived of their legal custody of the child, the most important of these being where the local authority resolves to assume parental rights with respect to a child in their care under Section 2 of the Children Act 1948, and

85
where the child is the subject of a care order under the Children and Young Persons Act 1969, because Section 24(2) of that Act gives the local authority concerned parental powers. Hence in both these cases the local authority, not the parents, has legal custody of the child, and its consent would therefore be required to an application for a custodianship order where the child has had its home with the applicant for less than three years.
I would say, with respect, that it also follows that where the child is in voluntary care and the local authority does not have parental rights with respect to him, the parents will have retained legal custody and their consent will be required to any application for a custodianship order. I should have thought, therefore, that in the circumstances this Amendment would not help the Bill in any way. If the Committee and the noble Countess are convinced of that, I hope that the Amendment will not be pressed.
The Countess of LOUDOUN: I thank the noble Lord for that explanation. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 30, as amended, shall stand part of the Bill?
6.3 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I am very grateful, of course, to the noble Lord, Lord WellsPestell, for having repeated in essence what he appears to have said during my temporary absence earlier this afternoon. But I still have my doubts and I hope he will carry back those doubts to those advising him for reconsideration on Report. I quite recognise, of course, that this Part of the Bill confers on persons, who were not previously entitled to that kind of relationship, the power to apply for and to obtain the custody of a child. But it appears to me, and it appears to those bodies to which I have referred, that the rights when they are given are identical to those of guardianship. I cannot see any difference.
The noble and learned Lord the Lord Chancellor did not indicate on Second Reading what the difference, if any, might be. The noble Lord—certainly in the repeated form in which he made his observations—did not indicate that there was any difference between the rights con-
86
ferred by custodianship and the rights conferred on a guardian under the existing law. The Houghton Committee simply recommended that the rights conferred on guardians should be extended to the new classes of person without any change in nomenclature. I therefore remain—I hope not obstinately, but still up to this point persistently—in doubt as to whether one ought, in order to make the law a more rational and coherent code, to call the person who obtains the same bundle of rights by the same name, whenever he obtains it.
I do not want to pursue this matter. It is not simply a matter of semantics although, obviously, in all legal draftsmanship, semantics play a prominent part, and very boring they are. But, on the other hand, if you confer different names on different groups of people, who none the less possess the same bundle of rights in each case, the time will come when people will differentiate between the rights which they possess. The basic point about our law at the moment is that it is much too complicated. It has been getting more complicated during the 45 years during which I have studied it, and I do not regard complication as a virtue for its own sake. I may be wholly misguided about this. I do not wish to be dogmatic, but I ask the noble Lord to study the question again and see whether there is something in what I have said. In saying it, I am conscious that I am voicing the opinions of people who are more qualified to voice opinions of this kind than I am myself.
Baroness ELLIOT of HARWOOD: I should like to support the noble and learned Lord in what he has said, although not because I have any particular knowledge of the law. I was not able to be present at the Second Reading of this Bill and I was going to ask the noble Lord a question. When I first read the Bill and studied it, I could not make out why the word "custody" was being used in this connection. When you think about "custody" you think about people in prison, people in mental institutions under a mental health Act; they are, as it were, in custody. It seems to me that the word has two meanings. One is guardianship, and the other is being in prison or under some duress; anyway, not being a free person. I was

87
going to ask the noble Lord whether he could think of another word. I thought the word "guardianship" could not be used here, as it meant something different, but if, as it seems, the noble and learned Lord, Lord Hailsham, thinks it does not, it could easily be used. The new custodianship order could be incorporated under the Guardianship Act. It would be very much easier for the ordinary person, not a lawyer who reads the Bill or who is dealing with a court, not to have to use words which have a different connotation in the mind of the general public.
Baroness MASHAM of ILTON: Leading on from what the noble Baroness has said, during Second Reading there was great concern expressed by noble Lords in all parts of the House over the words "custodian" and custodianship". Since then I have been thinking of another word. We will not know, until the noble Lord tells us, whether there is a difference between the words "custodianship" and "guardianship". The word "custodianship" does not remind me only of prisons; it also reminds me of museums. I do not think "custodianship" is very appropriate to children. I wonder whether the noble Lord would accept, "protector" and "protectorship". I should like the Committee's views on this.
Lord WELLS-PESTELL: I will resist entering into an argument with the noble and learned Lord, Lord Hailsham; I do not think I am competent to do so. But I will enter into an argument with him at any time on our respective political philosophies; I should be very happy to do so and would welcome an opportunity. But on this matter I really feel at some disadvantage, and I must say so. Therefore, I want to resist the invitation to try to deal with this point adequately, because I do not think I am able to do so. I have very copious notes on guardianship and custodianship—several pages of them—which it would be unfair to inflict upon your Lordships, in view of the amount of work that we have to get through. If the noble and learned Lord, Lord Hailsham of Saint Marylebone, will not listen, I shall risk a brief definition.
88
I would say that guardianship is wider than custody; it confers rights in relation to a child's property, whereas custody rights are concerned only with a child's person, including the place and manner in which his time is spent. This is probably the fundamental difference. A guardian, generally speaking, acts in place of a dead or missing parent. When one tries to shorten it, one falls into the trap of oversimplifying it, but as one layman speaking to another, perhaps, I can put it like that. It may be that this will, in some measure, satisfy the noble Baroness, Lady Masham of Ilton. On the issue raised by the noble and learned Lord, I must take the advice of the present noble and learned Lord on the Woolsack when he is available, and leave it to him.
Lord HAILSHAM of SAINT MARYLEBONE: I am content to leave it like that, and I thank the noble Lord for his courteous reply. I wished only to put down a marker to ensure that the matter was given further consideration.
6.11 p.m.
Baroness YOUNG: Before we lose Clause 30, may I raise two points on the Question, Whether the clause shall stand part? which are quite distinct from the discussion we have already had. First, may I ask a question about payments to custodians. As the noble Lord, Lord Wells-Pestell, will be aware, foster parents are paid by local authorities, not a very large sum but a sum of money which varies from authority to authority. I wondered whether the same was to apply to custodians. This undoubtedly will be one of the regulations to be made on this matter, but it would be helpful for people to know whether this will be the case.
The other point I wished to raise was on what appears to be a gap in the provisions of custody. I may not be reading the Bill correctly, but under Clause 47(8) when a custodianship order is made the Section 2 rights under the Children and Young Persons Act 1948 go. What I want to know is what happens to the residual rights of a child when the parental rights have been assumed by the local authority and then lapse because a custodianship order is made, which is not, of course, the same as the parental rights of the local authority. There must be a residue left

89
over, and the Bill does not seem to be clear as to the position of those rights with regard to a child. I shall quite understand if the noble Lord cannot give me an answer this evening on either of these paints, but I should be glad if he would write to me about them before we reach Report stage.
Lord WELLS-PESTELL: Will the noble Baroness allow me to adopt the course she has suggested so far as the second point is concerned. I wonder whether the first point that she raised is met and explained in Clause 31(5), on page 22. It reads:
"A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child."
I should have thought that that met the question she put to me. So far as the other point is concerned, I should be glad to accept her invitation to communicate with her.
Clause 30, as amended, agreed to.
Clause 31 [Access and maintenance]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 42:
Page 21, line 19, leave out ("the court which made the custodianship order") and insert ("an authorised court ").
The noble Lord said: I wonder whether noble Lords will give me permission to take Amendment No. 42, and speak to Amendments Nos. 44, 45, 46, and 47. Perhaps it would be for the convenience of your Lordships if I took them together. The Amendments to Clauses 31 and 32 are paving Amendments for the substantive Amendment, No. 76, which is to Clause 64. As the Bill stands, jurisdiction to make orders relating to access and maintenance while a custodianship order is in force, and to revoke a custodianship order, is limited to the original court which makes the custodianship order. Jurisdiction under Clause 32(3) is not assigned to any court. The Government propose, in Amendment No. 76, that in addition to the original court certain other courts should have power to make these orders. Amendment No. 76 appears today as a starred Amendment because the previous Amendment needed slight adjustment.
The reason for these Amendments is as follows. In the first place, if the
90
custodians move to a different part of England and Wales, there seems no reason why another court should not, in accordance with the rules of the court, also be able to exercise the jurisdiction conferred on the original court. This can be achieved for the magistrates' court by rules under the Magistrates Courts Act 1952, but for county courts, express provision is required. This would be conferred by the proposed Clause 64(6)(b).
Secondly, we must take account of the fact that there may, while a custodianship order is in force, be divorce proceedings between the parents of the child, or, indeed, between the custodians themselves. In any such proceedings the divorce court has to be satisfied that the arrangements for the children of the family are satisfactory, and it might well be appropriate that the custodianship order should be revoked or that orders for access and maintenance should be varied. This would be achieved by the new Clause 64(6)(c). With those comments, I beg to move.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 43:
Page 22, line 1, leave out subsection (3) and insert—
"(3) No order shall be made under subsection (1)(b) requiring the father of an illegitimate child to make any payments to the child's custodian."
The noble Lord said: This is a drafting Amendment to remedy a defect in the present form of Clause 31(3), which relates to the father of an illegitimate child. A claim against the father of an illegitimate child for maintenance would ordinarily be brought by the mother under the Affiliation Proceedings Act 1957; and Clause 38 of the Bill enables a custodian to apply under the same Act. If, on the other hand, the father himself wishes to look after the child he may apply for custody under Section 9 (as applied by Section 14) of the Guardianship of Minors Act 1971. However, since subsection (1)(b) of Clause 31 enables the custodian in whose favour a custodianship order has been made to apply to the court for an order requiring the child's father to pay maintenance, this provision, if left unqualified, would enable a custodianship application to be used as a substitute for the procedures laid down in the Affiliation Proceedings

91
Act 1957. This is not the intention. Subsection (3) was intended to prevent this situation arising. The subsection also produced some other unintended effects and the revised and simplified form adopted in the Amendment remedies this. I beg to move.
Baroness YOUNG: I should like to thank the noble Lord for explaining this Amendment. When I read it, not having had a note of what it meant, I was rather surprised. This is something which is sometimes done; but I now understand that it applies to another Act and I am therefore glad to support it.
On Question, Amendment agreed to.
6.20 p.m.
On Question, Whether Clause 31, as amended, shall stand part of the Bill?
Lord WIGODER: Might I raise a point on Clause 31, to see whether I have understood correctly what appear to be some rather curious consequences that may follow, and to ask the noble Lord, Lord Wells-Pestell whether the Government intend these consequences. Under Clause 31(l)(c) it appears that:
"On the application of the custodian,"—
a court may—
"… require the child's mother or father (or both) to make … periodical payments towards the maintenance …"
Subsection (2) reads:
"References in subsection (1) to the child's mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the Matrimonial Causes Act, 1973)."
In relation to the parties of a marriage, section 52(1) says:
"a child of the family" means—

(a) a child of both those parties; and

(b) any other child, not being a child who has been boarded-out with those parties by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family ".

It seems to me that Section 51(l)(b) in that Act must clearly include a foster child who is being looked after by foster parents where the child has been privately fostered who are carrying out their task, perhaps as a social service and perhaps at considerable financial expense to themselves.
92
As I understand Clause 31 of the Bill, if this is right, it would mean that on the application of the custodian (who may be, say, the child's grandparents), an application may be made that the foster parents of the child—who may not be blood relatives; perhaps the marriage has broken down or one of the parties has died—who are no longer going to foster the child, may be ordered to pay maintenance for a child who is clearly not theirs and not in any way related to them. It seems to be a somewhat improbable consequence to be intended by the Government. It would discourage people from becoming foster parents if they realised that there might be an indefinite financial liability even when they are no longer fostering the child.
One can understand that under the Matrimonial Causes Act there are circumstances in which, after a divorce, the husband may be ordered to maintain his former wife's children, even if they are not his children. This is not the place to reconsider that matter. But it is a novel extension of that principle to extend that principle away from matrimonial proceedings altogether. I would ask the noble Lord whether I am right in thinking that this is a possible consequence of the clause as it stands; whether the consequence is intended; and, if so, what the justification for it can be, either morally or socially.
I would make another observation. In the Matrimonial Causes Act 1973 Section 25(3) at least sets out certain safeguards before a court makes a maintenance order against a person who is not a natural parent of the child. If we are now to extend the law to custodianship and guardianship proceedings, ought we not to incorporate in this Bill similar safeguards to those incorporated in the 1973 Act?
Lord WELLS-PESTELL: It never occurred to me that that interpretation could be put upon it, so I must look carefully at what the noble Lord has said. I am certainly very familiar with the Matrimonial Causes Act 1973. It is quite a common practice in matrimonial courts to make a husband contribute towards the support of children who are not his, because they are children of the family. They may be his stepchildren; they

93
could even be—and I think I am right— adopted children; but they are nevertheless children of the family. I should have thought that this would apply in the case of adoption; but I do not think it would apply in the case of fostering. This is a matter which I want to look at. If the noble Lord is content to leave it there, I will write to him. I do not know how I am going to get through all the letters I have promised to write as a result of this Committee stage, but I will communicate with him.
Clause 31, as amended, agreed to.
Clause 32 [Revocation and variation of orders]:
6.26 p.m.
Lord WELLS-PESTELL: I beg to move Amendment No. 44.
Amendment moved—
Page 22, line 19, leave out (" The court which made a custodianship order ") and insert (" An authorised court").—(Lord Wells-Pestell.)
Baroness PHILLIPS: Before accepting this Amendment, I wonder whether my noble friend can explain the phrase— which I must confess as a magistrate I have never heard before—an "authorised court". Do we have unauthorised courts? Since we frequently refer in other Amendments and in the Bill itself to "the court ", surely that is a better description. If we write into this Bill the phrase "authorised court", we shall need a definition of an "unauthorised court ".
Lord HAILSHAM of SAINT MARYLEBONE: I thought that I had understood this phrase. I thought it was referred to directly in Clause 68 in the definitions; and that refers back to Clause 64 as to the meaning of this phrase which is defined at some length there. I think that it is a shorthand phrase for the courts referred to in Clause 64. Am I right in thinking so?
Lord WELLS-PESTELL: I shall not make the error I made some time ago when I said that, as always, the noble and learned Lord is right. But on this matter I was going to say that he invariably is right. It is true that it is referred to in Clause 64(1).
On Question, Amendment agreed to.
Lord WELLS-PESTELL: I beg to move Amendment 45 formally.
Amendment moved—
Page 22, line 20, leave out ("it") and insert (" a custodianship order").—(Lord Wells-Pestell.)
On Question, Amendment agreed to.
Lord WELLS-PESTELL: I beg to move Amendment No. 46.
Amendment moved—
Page 22, line 33, after (" apply ") insert ("to an authorised court ").—(Lord Wells-Pestell.)
On Question, Amendment agreed to.
Lord WELLS-PESTELL: I beg to move Amendment No. 47.
Amendment moved—
Page 22, line 38, after (" apply ") insert (" to an authorised court").—(Lord Wells-Pestell.)
On Question, Amendment agreed to.
Lord WIGODER Lord WIGODER moved Amendment No. 48:
Page 23, line 3, at end insert:
(" (7) Where an application is made under subsection (l)(a) or (b) the Court shall give notice to the local authority in whose area the child resides, within the seven days following the receipt of the application.
(8) On receipt of a notice given by the Court under subsection (7) the local authority shall investigate the matter and submit to the Court a report of their investigations.").
The noble Lord said: I beg to move Amendment No. 48, the purpose of which is to seek to give protection to the child in a case where a custodianship order is revoked on the application either of the custodian or of the parents or guardian of the child. The reason is simple: it is, as I understand it, that if a custodianship order is revoked the full legal rights will automatically revest in the parents of the child. It may be that by the time the custodianship order is revoked the natural parents of the child may be either unable or unwilling to look after the child or to attempt to safeguard its welfare in any way. In those circumstances, my Amendment seeks to provide that where there is an application for the revocation of custodianship, and the local authority is not a party, then it shall be made a party to the application. The local authority shall investigate the matter and submit to the court a report of its investigations. The object of the Amendment is to ensure that there will not be a vacuum when a custodianship order is revoked, that the local authority will necessarily be a

95
party and will be able, if necessary, to take appropriate steps to fill that vacuum. The wording of the Amendment follows precisely the wording of the proposed Clause 33 which provides that the local authority shall be a party to the making of a custodianship order and shall submit a report. For those reasons I beg to move.
Lord WELLS-PESTELL: I did not want to stop the noble Lord because I was rather anxious to hear what he had to say. We were looking at this position at the present moment because it seems to us (and I hope that I do not appear to be presumptuous) that there is a real point here. But at this stage I cannot say what is our thinking on the matter. We may propose to give the court a discretionary power, but perhaps I should not jump the gun at this stage. If the noble Lord will allow us to continue looking at this point, it may well be we shall come up with something similar to his requirement. I shall endeavour to let him know something of our thinking on the matter.
Lord SANDYS: I, too, should like to support the Amendment of the noble Lord, Lord Wigoder, and to relate it back to a much earlier Amendment in regard to the guardian ad litem. It appears to me (and I speak subject to the correction of the noble Lord, Lord Wigoder) that in the final paragraph of the Amendment the guardian ad litem appears to have a special role to play. It was apparent from the Houghton Report (and I referred to its terms of reference earlier) that the guardian ad litem was conceived as being a person specifically suited to advise in adoption cases. However, he or she appears to have an opportunity of playing a particularly important role in this case. Therefore I should like to support the Amendment.
Lord WIGODER: I am grateful to the noble Lord, Lord Wells-Pestell, for his observations, and in the light of what he said I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 32, as amended, agreed to.
Clause 33 [Notice of application to be given to local authority]:
6.34 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 48A:
Page 23, line 6, after ("resides") insert (" and, if the child is in the care of a local authority or voluntary organisation, to the authority or voluntary organisation in whose care the child is ").
The noble Baroness said: The object of this Amendment is again to bring into line the practice that where a custodianship order is to be made the local authority in whose area the child resides will be informed. The object of my Amendment is that if the child is in the care of a voluntary organisation that organisation shall also be informed when a custodianship order is to be made. I believe this to be the right thing to do. I hope that this Amendment, and Amendment No. 51A which I have tabled, will meet this point. I beg to move.
Lord WELLS-PESTELL: I want to be perfectly frank and say I was not wholly clear why the noble Baroness moved this Amendment. I was not sure whether it was done to ensure that any local authority or voluntary organisation in whose care the child is should be given the opportunity to take part in the court proceedings to determine the application. In any event an Amendment to Clause 33 would not be altogether apt because the notification provided for in the clause is for a different purpose. It is intended to provide in the Rules of Court for notice of proceedings to be given to the child's parents, any local authority or voluntary organisation in whose care the child is, and any other interested person or body, and the rules will also ensure that the views of those organisations or persons will be brought to the court's attention. If the noble Baroness is not satisfied with that as an explanation, I shall certainly study her remarks and let her have our reaction. But I hope that the explanation I have given meets her point.
Baroness YOUNG: I am glad to hear that explanation and to hear what the Rules of Court will provide. It is always difficult to know quite where a Bill actually says that this procedure is to take place, because we do not see the rules and

97
therefore we cannot know. I am not altogether happy about that position. Where a child is in the care of a voluntary society, I feel that that society should at least be informed of what is to happen, as is the case with a local authority. I wonder whether I may take up the noble Lord's offer to look at this matter. It is in line with one or two other of my Amendments, the principle simply being that what applies to a local authority should apply to a voluntary society. I think that course is only right. I take it that my interpretation of what the noble Lord said was correct?
Lord WELLS-PESTELL: Yes, I thought I expressly said so. If I did not, I do so now.
Baroness YOUNG: I thank the noble Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord WIGODER Lord WIGODER had given Notice of his intention to move Amendment No. 49:
Page 23, line 18, leave out second ("and").
The noble Lord said: This Amendment is purely grammatical and links either with Amendment No. 50 or Amendment No. 51. It appears to me that Amendment No. 51 is by far the more elegantly drafted and if I may, therefore, I shall not move Amendment No. 50. Amendment No. 49 by itself is meaningless. Only if either Amendment No. 50 or Amendment No. 51 is carried has Amendment No. 49 any effect. Therefore I shall not move it at this stage.
Baroness YOUNG Baroness YOUNG moved Amendment No. 51:
Page 23, line 20, at end insert ("; and
(d) the wishes of the child having regard to his age and understanding ").
The noble Baroness said: It will be apparent to the Committee that the purpose of this Amendment is that when the custodianship order is being considered that not only the matters stated in sub-section (3) should be taken into account, but also the wishes of the child, taking into consideration his age and understanding. The noble Lord, Lord Wigoder, was good enough to withdraw his own Amendment which has exactly the same purpose as that which we have down, and we have simply taken the language from
98
Clause 2 and inserted it here. All the reasons were so well stated on Clause 2 why a child who is of an age to be able to do so should express an opinion about an adoption, and the same principle should apply to a custodianship order. We feel that this is very important. Clearly, it must depend upon the age and understanding of the child, but that the child i should have this right is a matter of importance. I beg to move.
Baroness ELLIOT of HARWOOD: I should like very strongly to support this Amendment. I feel that it is vital. A large part of the Bill is designed to operate first and foremost in the interests of the child, and I think that it would be most unfortunate if the Government were not to incorporate the words suggested because this is the heart of the Bill. I hope very much that they will accept the Amendment.
Lord WELLS-PESTELL: I think that to some extent we must examine and consider the real meaning of the words which are being used. We are talking about the "wishes" of the child. I do not know what we mean by a child's wishes, nor at what stage we would ascertain what those wishes were. A child's wishes will change, and a child's wishes are one thing but its welfare is another. Its wishes could well be in conflict with its welfare. I see very grave difficulties in this. I could speak at some length on it, but I do not wish to do so. However, we must be quite clear in our own minds whether we are really to provide facilities and arrangements whereby the wishes of the child are to be taken into account and set against the welfare of that child, which may be something very different, or whether we shall say that the wishes of the child are of supreme, almost paramount, importance. If we do that, we may be pursuing a course which will be to the detriment of the child so far as its welfare is concerned. These Amendments would require a local authority charged with preparing a report in connection with an application for custodianship to ascertain the child's own wishes. As I say, that is one thing; but what we ought to concern ourselves with is welfare, and very often the welfare of the child will not be on a level with his wishes. Perhaps I have oversimplified and possibly I should have spoken in

99
much more detail and taken longer over this matter, but, even if I had, I do not think that I could have put it any differently in the long run and it is because of the factors that I have mentioned that I hope the noble Baroness will not press the Amendment.
Lord WIGODER: I should like to ask the noble Lord, Lord Wells-Pestell, if it is relevant on a decision relating to adoption under Clause 2 to ascertain the wishes and feelings of the child and to give due consideration to them, why it should not be equally relevant on an application for a custodianship order?
Lord WELLS-PESTELL: In the instance given by the noble Lord—that is, the wishes of the child when adoption is concerned—the final decision has to be made by a court and, in making that decision, the court—and I think a number of noble Lords will have found this when sitting in a matrimonial court— can take into account the child's wishes; but, in the last analysis, those may have to be overridden because the court must be concerned with the child's welfare. In adoption, I think that this is precisely what the court will have to do.
Lord DRUMALBYN: In an application for custodianship, is it intended that the child should appear before the court if it is of sufficient age to understand? Is it intended that the child should appear at any time before the court?
Lord WELLS-PESTELL: I should have thought that it would have been the responsibility of the social workers to ascertain the wishes of the child in an environment outside the court. I hope that that would be so. I should be unhappy—though I emphasise that I speak personally in this matter—if this were not so, and I should have thought that it was a function of the social workers to obtain the wishes of the child as they do now, rather than that the child should be brought before the court to say what it really feels.
Lord DRUMALBYN: Perhaps I could put my question in a different way: is it intended that, under Clause 2, the court shall ascertain the wishes of the child directly? Will the real wishes of the child be reported to the court?
Lord WELLS-PESTELL: With great respect, I should have thought that this would depend on the age of the child. A child has to be of a certain age to be able to formulate and express wishes. So far as I know, it would be very difficult to lay that down in terms of years. Some children are far more articulate than others. So far as I know, this has not been done, but it would depend on whether the child was of an age to appear in a court without being overawed or overwhelmed.
Lord DRUMALBYN: I am sorry to pursue this, but Clause 2 says that the court,
"shall so far as practicable ascertain the wishes and feelings of the child ".
If it is practicable for the court to ascertain the feelings and wishes of the child directly under Clause 2, why should it not also be practicable in the case of custodianship?
Lord WELLS-PESTELL: I should have thought that the question of practicality would depend on the age of the child. What would be practicable with a child of six or seven would not be so with one of two or three. However, I thought that the noble Lord was referring to a personal appearance in the court. I should have to take advice on this, but I should have thought that it would depend very much on the age of the child and whether it would be in the child's interest to bring it into the court or to do this through the normal functioning of the social worker.
Lord DRUMALBYN: Could I simply say that I am concerned only that the same consideration should apply in both cases in the same way. That is all.
Viscount ST. DAVIDS: I should have thought that, in general, it was a bad thing to bring a child into the court in person. A face to face appearance in a court for a child of almost any age would not be the easiest way of determining its wishes. That is best done in quiet conversation among those with whom the child is in a position of confidence. Nevertheless, whether or not it is done in court, I should have thought that it was most important to discover the child's wishes.
I have seen a great many children by now. I have seen them express wishes and I have seen parents express wishes,

101
and I have frequently come to the conclusion that the child is probably right. There must be something in nature which allows a child to make very confident and sensible decisions. If it is left to a child to decide what it will eat, it will start oft by eating extraordinary things, but in a very short time it will settle down to eating a properly balanced diet. This applies to a great many other things in nature and in a child. Given a little confidence and support, I think that most children are capable of making remarkably good decisions about their future, and if it came to a balance between them and myself I would usually back the child.
Lord SIMON of GLAISDALE: May I suggest with great respect that the Minister might care to reconsider this matter? If the courts have only the direction to consider the paramount welfare of the child, which is the consideration under subsection (3)(a), they habitually have regard to the wishes of a child if it is capable of expressing a wish. If the child has reached a certain age, it is rare for a court to make an order against the wish of a child because it is a self-stultifying order. One might leave the matter there were it not for paragraph (c), where wishes of other parties are expressly referred to. In those circumstances, it might be desirable to consider, in order to avoid a wrong emphasis that the courts might take, some such Amendment as has now been moved.
Lord GORE-BOOTH: May I make a layman's suggestion on this present discussion? I think that perhaps the difficulty may partly lie in the fact that we are trying to consider three questions at once, if I can get my articulation as clear as my mind on the point. There is the question of whether the child should appear in court; the question of whether it would have wishes; and the question of whether its wishes should be deemed superior to its welfare as considered by other people. I should think that the question of whether the child should appear personally in court is in a sense another question, not covered by this particular Amendment. But on the others, I should have thought that the whole purpose of the Bill, or one of its deepest purposes, is to make sure that if the child is capable of wishes, these wishes can be expressed somehow. Also, if we go back
102
to Clause 2, my understanding would be that if the child could not express its wishes itself someone else should express them for it. Finally, there would have to be a judgment, presumably by the court, on whether the child was too young or too dislocated to have wishes that could be paramount and that somebody else would have to decide on its welfare. If I am right in diagnosing the three questions, it would be only fair to invite the Minister to reconsider the whole clause in the light of these three questions, and not just one of them.
Lord HYLTON: This clause deals with notices, and it may therefore be that the Amendment which we are considering is not, strictly speaking, necessary. The whole of the discussion so far has brought us back to the point of the representation of the child, and I would urge the Government most strongly that in custodianship cases if there is the slightest possibility of a conflict of interests between the child and the parent, or the child and the custodian, the child should be represented.
Baroness MASHAM of ILTON: Before the noble Lord rises to answer, may I ask him whether, if somebody in authority had asked Maria Colwell her views, she might have been alive today?
Lord WELLS-PESTELL: In reply to the noble Baroness, I just do not know, and I do not think that anybody knows. I think it would depend on how we feel and on the kind of thoughts we bring to that particularly sad case. But I am wondering whether this matter is as difficult as perhaps some noble Lords have said. The Amendment is quite clear. It says:
"the wishes of the child having regard to his age and understanding".
Another element has been introduced— a very important element—that is, whether the child is going to be brought into court to express those wishes. What I said earlier—and without any note at all—is, I am now informed, perfectly right. It is not intended that the child should usually be in court, although it may be that one of the parties would wish to call the child to give evidence. That would depend on the court; whether the court felt that the child was old enough; whether the child could

103
stand up to answering questions, and whether it would be able to understand the situation.
I understand that it is the social worker who will investigate the child's wishes and feelings and report to the court. That is what I said, and it seemed to me to be the only way of dealing with the matter. It would be very difficult for the court to ascertain this matter direct from the child, unless the child was of an age where he would not feel overawed or overwhelmed by the court itself. Certainly in magistrates' courts very few benches of magistrates will see a child personally, but would take the report of the probation officer. I should have thought that this would meet the situation and that the Amendment in the circumstances—I put it rather strongly, perhaps for the first time—really is not necessary.
Baroness YOUNG: I am sure that we are all grateful to the noble Lord, Lord Wells-Pestell, for the great amount of thought that he has obviously given to this Amendment. Having listened to him, I am not entirely happy with what he has said. One must remember the fundamental reason why custodianship orders were proposed in the first instance. It was, as I understand it, because it was considered, generally speaking, undesirable for parents to adopt children following upon a remarriage or a divorce, and this was devised as a way of giving security to children in those particular cases. Obviously, it would apply to other cases as well, but nevertheless it is a kind of half-way house. That being so, I cannot quite see why the same provisions regarding the wishes of the child should not apply in this case as in Clause 2 under adoptions.
One should pay great attention to what the noble and learned Lord, Lord Simon of Glaisdale, said. On looking at this again, the matters which the local authority are required to investigate place the emphasis on the means and the suitability of the applicant, the wishes regarding the application, and the means of the mother and the father of the child. It seems to me that when the court is considering this matter, it really ought to be balanced by something else, and it may well be that my Amendment would be much improved
104
by taking all the words out of Clause 2 and adding:
"as far as practicable ascertain the wishes and feelings of the child ",
which I would be perfectly happy to do if that were better, or indeed, if the Government would take this away and draft it correctly.
My attention has been drawn by the noble Lord, Lord Wigoder, to Clause 49, where a general duty has been conferred on local authorities in care cases. There again we see the words:
"… and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
It seems to me that, apart from anything else, in the interests of consistency a provision like this ought to appear in that part of the Bill which deals with custody. I do not want to press this Amendment this evening, but I very much hope that the Government will consider it and that we can have an assurance that they will look at it before Report stage and perhaps draft an Amendment correctly which meets, I think, the views of every noble Lord who has spoken in this debate.
Lord WELLS-PESTELL: I am sorry to take up your Lordships' time on this matter. It is not that I want to be obstinate about this, but I am wondering whether noble Lords have forgotten that in Clause 33, subsection (3)(a) says:
"the matters relevant to the operation of section 1 (principle on which questions relating to custody are to be decided) of the Guardianship of Minors Act 1971 in relation to the application;".
This deals precisely with what the Amendment sets out to do: it is one of the requirements of the Guardianship of Minors Act. The social worker conducting the investigation should try to ascertain the feelings and wishes of the child—we would use the same words as the noble Baroness—"where this is practicable and reasonable ". However, I think there is a general objection to qualifying in the Bill in this way the matters which the local authority social worker should investigate and report upon, because these are already defined, as I have said, in Clause 33(3). I hope the noble Baroness might feel that that is so, because what she wants is there.
Baroness ELLIOT of HARWOOD: Then why does it appear in Part I and again in the Part III, as the noble Lord, Lord Wigoder, mentioned, which applies to care? It seems quite inconsistent to have it in Part I and Part III, but not in Part II.
Lord WELLS-PESTELL: With very great respect, I have just tried to make the point, that it is in Part II.
Baroness ELLIOT of HARWOOD: But it does not seem to be, to the ordinary person who reads the Bill.
Lord WELLS-PESTELL: No, I think that ordinary people, including many of your Lordships, find it difficult to understand most Bills. But that does not mean that certain things are not in them. We do not recognise them, because we just do not know what is behind them.
Baroness ELLIOT of HARWOOD: I am sorry to argue about this, but why is it put in as a duty to promote the welfare of children in Clause 2?—because that also comes into the Guardianship of Minors Act 1971. The noble Lord said that Clause 33(3) covers all that we are asking for, yet it is in Clause 2 in Part I on page 2.
Lord SIMON of GLAISDALE: I hope that the noble Lord will agree to look at this point again, because it seems to me that the point just made by the noble Baroness has great relevance. I very much fear that a court, seeing this expressly spelt out in two Parts of the Bill, would think that its omission here must be significant—and all the more significant because, as I ventured to point out, under subsection 3(c) the wishes of other people are expressly referred to. I hope the noble Lord will at least consent to consider this matter further.
Lord WELLS-PESTELL: It seems, if I may say so, to be the wish of the Committee that I should do that. I do so not only because the noble and learned Lord has asked me to do it—I would have done it for the noble Baroness. Obviously, in the circumstances, the Government must look at this again and they will do so.
Baroness YOUNG: I should like to thank the noble Lord very much for that
106
offer, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.5 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 51A:
Page 23, line 20, at end insert—
(" and
(e) the views of the local authority or voluntary organisation in whose care the child is.)
The noble Baroness said: This Amendment is consequential on No. 48A, which I understood the noble Lord, Lord Wells-Pestell, said the Government would look at. I beg to move.
Lord WELLS-PESTELL: This follows closely on the previous one, and I think we must treat this Amendment in the same way.
Baroness YOUNG: I am grateful to the noble Lord, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 33 agreed to.
[The Sitting was suspended at 7.6 p.m. and resumed at 7.50 p.m.]
Clause 34 agreed to.
Clause 35 [Custodianship order on application for adoption or guardianship]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 53:
Page 24, leave out from beginning of line 11 to ("is") in line 12 and insert ("by a stepparent whether alone or jointly with another person in any case where the step-parent").
The noble Lord said: This is a drafting Amendment. Clause 35(3) of the Bill as published would have made it impossible for an application for an adoption order, made jointly by a parent and step-parent, to be treated under Clause 35(1) as if it were an application for a custodianship order under Clause 30. The intention is, however, that such an application should be dealt with under Clause 35(1), unless the child in question was named in an order made under Section 41(1) of the Matrimonial Causes Act 1973, in which case the divorce court should deal with the matter. The Amendment gives effect to this intention. I hope that this meets the point which I

107
think the noble Baroness raised when moving an Amendment to Clause 9. I beg to move.
Baroness YOUNG: I am most grateful to the noble Lord for explaining this Amendment. I am not absolutely with him in his reference to a former Amendment of mine to Clause 9, but I will certainly refresh my memory on that matter. I wonder whether I could ask him a somewhat more general question on this clause. It is the view of the Government that in cases like this it would be more appropriate to apply for a guardianship order than a custodianship order, and will the court consider guardianship in all cases before it considers a custodianship order?
Lord WELLS-PESTELL: When moving an Amendment to Clause 9, which the noble Baroness subsequently withdrew, the effect of which would have been to reenact the substance of Clause 35 in another part of the Bill, she said that her object was to remedy an apparent defect in Clause 35; namely, that it did not enable a joint application for an adoption order by a step-parent or parent to be treated as an application for a custodianship order. In reply I said that I thought Clause 35 met the situation, but promised to look at the matter again. The noble Baroness was correct in thinking that Clause 35 of the Bill as published did not meet the situation, but the defect is remedied by this Government Amendment which was already on the Marshalled List. I can quickly summarise the probable effect of the change.
Clause 35(1) by itself allows the court to treat any application for an adoption order as an application for a custodianship order. Subsection (3) of the Bill as published provided that subsection (1) should not apply to an application made jointly by a parent or step-parent. This, however, was a mistake and it is cured by the Amendment which allows a joint adoption application to be treated as an application for a custodianship order, unless the application for joint custody involves alteration of a divorce court order, in which case the application should be made to the divorce court.
I think the noble Baroness asked whether, before considering making a custodianship order, the court would require
108
a fresh report from the local authority under Clause 33. This is not so. Clause 35(1) provides that where the court treats an adoption application as an application for a custodianship order, Clause 33 is not to apply, the reason being that the court will already have had a report from the local authority because of the adoption application. The custodianship order made in these circumstances, or an order made as a result of an application under Clause 30, has the effect of giving custody to the natural parent and step-parent jointly, though it is necessary to name only the step-parent because the natural parent already has custody by virtue of being a parent. This is made clear in Clause 37(2). I do not know whether this answers the question of the noble Baroness.
Baroness YOUNG: I am most grateful to the noble Lord, Lord Wells-Pestell. I think it must have been as a result of the dinner break that I was not quite with him in his reference to Clause 9. I am entirely with him now and am most grateful to him for having met the point, and also for having answered my other question.
On Question, Amendment agreed to.
7.59 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 54:
Page 24, line 19, leave out subsection (5).
The noble Lord said: I wonder whether I may take Amendments Nos. 54 and 94 together as they seem to go together. In the main these are drafting Amendments. Their combined effort is to remove to Schedule 3 the minor and consequential amendments to Section 9 of the Guardianship of Minors Act 1971 which are set out in Clause 35(5) of the Bill. Paragraph (lA)(d) of Amendment No. 94 is, however, new in substance. Its object, which adds a new subsection (6) to Section 9 of the Guardianship of Minors Act 1971 is to ensure that once a child has been free for adoption the parents should not be able to frustrate this by seeking an order for custody under Section 9 of the Guardianship of Minors Act 1971.
Where a court makes an order declaring a child free for adoption, subsection (6) of Clause 12 has the effect of vesting in the adoption agency all the parental rights and duties relating to the child.

109
The subsection further provides that the order declaring the child free for adoption is to be treated as if it were an adoption order and the agency were the adoptors. It follows that the making of the order, while not affecting the parental rights and duties so far as they relate to any period before the making of the order, operates to extinguish any parental right or duty relating to the child which, first, is vested in a person who was the parent or guardian of the child immediately before the making of the order, or, secondly, is vested in any other person by virtue of the order of any court: and any duty arising by virtue of an agreement or the order of court to make payments so far as the payments are in respect of the child's maintenance for any period after the making of the order or any other matter comprised in the parental duties and relating to such a period.
The only other point I need make is that it would be absurd if, despite this wholesale extinction of parental rights and duties which is achieved by subsection (6) of Clause 12 on the making of an order declaring a child free for adoption, it were possible for a parent to apply for and obtain custody of a child under Section 9 of the 1971 Act. This new subsection (6) inserted in Section 9 closes this loophole. I beg to move.
Baroness YOUNG: I am not sure that I followed in all the details what seems to me a most important Amendment that the noble Lord has proposed. There are, it appears to me, and to others whom I have consulted about this matter, a number of gaps in the custody provisions. This is one which, so far as I understand it. the noble Lord's Amendment meets. I raised the question of one of the gaps on Clause 30. When parental rights have been assumed on a child and these are revoked and a custodianship order is placed on the child, what happens to the residual rights? I think the noble Lord has identified another gap in these provisions arising from Clause 12(6). I will read carefully what he has said and see whether there are other matters to which I should like to turn on Report. As it is, there is another point I wish to raise on this Part of the Bill, but it does not arise until we deal with Clause 37.
On Question, Amendment agreed to.
Clause 35, as amended, agreed to.
Clause 36 agreed to.
Clause 37 [Effect of custodianship order on existing custody]:
On Question, Whether Clause 37 shall stand part of the Bill?
Baroness YOUNG: This is another place where it appears to me there could be a gap in the provisions. I think it underlines subsection (1)—the residual powers of parents. What I would ask the noble Lord, Lord Wells-Pestell—again, he may write me on this matter if he prefers to do so—is what happens in relation to a Section 2 resolution under the Children Act 1948 when a custodianship order is revoked? Clause 37(1) says that the right of legal custody is suspended and:
"subject to any further order made by the court, revives on the revocation of the custodianship order."
Clause 47(8) says that the resolution ceases to have an effect and therefore the parents become entitled to legal custody. Does this mean that the original care order ought to be brought back? Ought the local authority once again to assume parental rights? Otherwise, it seems to me that a child could be left not knowing what happens to these residual parental rights in this particular case. I shall be happy if the noble Lord prefers to write to me about this matter, if he does not give me an answer today, but there are one or two gaps in the custody provisions which could seriously affect a child's legal rights, and we ought to be sure that all these points are covered.
Lord WELLS-PESTELL: I am grateful to the noble Baroness. She has raised an interesting point. This is one we should like to consider and return to either by writing to her or by doing something about it if that course seems advisable to us.
Baroness YOUNG: I am perfectly happy with that answer. It would be helpful to the further process of this Bill if the noble Lord could let: me know in good time before Report. We might want to draft an Amendment to try to meet the case ourselves if the Government are not going to do so.
Lord WELLS-PESTELL: We are certainly hoping to do this. There is not a great deal of time before Report and there is a good deal to be read and to be done. But I certainly hope that we shall be able to let the noble Baroness and others know our views on a number of matters which have been raised and which we have said we would examine and write about.
Clause 37 agreed to.
Clause 38 agreed to.
Clause 39 [Granting of custody]:
8.9 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 54A:
Page 25, line 35, at beginning insert (" Except in the case of an application under section 2 of the Illegitimate Children (Scotland) Act 1930,").
The noble Lord said: This is a purely technical Amendment. Clause 39(2) is designed to quantify the statement of statutory entitlement to apply for a child's custody as contained in Clause 39(1) by limiting the circumstances in which the custody of the child can be granted to persons other than the child's guardians or parents. This is in accordance with the policy underlying this Part of the Act in relation to both custodianship in England and Wales and custody in Scotland: that foster parents should require to have had the care of the child for at least 12 months prior to the application, and application should, in general, proceed on the basis of consent on the part of at least one of the child's parents.
As drafted, the present Clause 39(2) would require the father or mother of an illegitimate child applying for custody to satisfy requirements regarding care and possession and/or consent as if he or she were a relative of the child, or else to show cause under paragraph (d) of subsection (9)(2). This ignores the fact that the parent of such a child already has an unrestricted right under Section 2 of the Illegitimate Children (Scotland) Act to apply for his child's custody. Inclusion of the words contained in the Amendment will restore the position by making it clear that applications by parents of legitimate and illegitimate children alike are not affected by Clause 39. As I have said, this is a purely technical Amendment and I beg to move.
On Question, Amendment agreed to.
8.11 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 56A:
Page 26, leave out lines 21 and 22 and insert—
("(a) "guardian "has the same meaning as in the 1958 Act;")
The noble Lord said: Again I hope your Lordships will allow me to take Amendments Nos. 56A and 56B together. The effect of these two Amendments is to provide that the father of an illegitimate child who has previously been awarded custody shall be entitled to give or withhold consent to an application for custody of his child under the provisions of Clause 39(2) as the child's guardian, and thus, in effect, as the parent of the child as legitimately born. As drafted at present, Clause 39(5) would not achieve this effect, since it provides that the terms "guardian" and "relative" should have the meanings assigned to them in the Adoption Act 1958 whereby the father of an illegitimate child is the child's relative. An earlier Government Amendment to the Bill proposes to extend the definition of "guardian" for the purposes of the 1958 Act, and hence the custody provisions of the present Bill, to include the father of an illegitimate child who has custody of the child by virtue of a court order. If accepted, the Amendment will apply only to England and Wales. Equivalent provision in terms in the appropriate enactment relating to custody in Scotland is still required. For the purposes of Clause 39, the obverse of such a provision is one stating that the term "relative" should exclude such a father in the context of a custody application. The first of the two present Amendments applies to the definition of "guardian" in the 1958 Act, as revised under the separate Government Amendment mentioned above.
The second Amendment, Amendment No. 56B, avoids any overlap between the terms "relative" and "guardian" which would otherwise arise from extending the meaning of "guardian" as proposed. I beg to move.
On Question, Amendment agreed to.
Lord WELLS-PESTELL: I beg to move Amendment No. 56B.
Amendment moved—
Page 26, line 28, at end insert (" and
(c) "relative" has the same meaning as in the 1958 Act, except that, where the child is illegitimate, "relative" does not include the father of the child.")—(Lord Wells-Pestell.)
On Question, Amendment agreed to.
Clause 39, as amended, agreed to.
Clause 40 [Miscellaneous provisions relative to custody]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 56C:
Page 26, line 43, leave out (" under section 10 ") and insert (" one to which Part II ").
The noble Lord said: With your Lordships' permission, may i take Amendments Nos. 56C and 56D together. Taken together, these Amendments are designed to remedy defects in Clause 40(3) as it stands at present. The purpose of this provision is to extend the effect of Section 11(1) of the Guardianship Act 1973 by providing additional powers to Scottish courts when deciding upon applications for custody. The powers in question are to commit a child to the care of the local authority or to order supervision of a child by a local authority.
Section 11(1) of the 1973 Act does not apply to proceedings under Part II of the Matrimonial Proceedings (Children) Act 1958, since the additional powers are available already in proceedings to which the Act applies. In amending Section 11(1) to include proceedings deriving from the new statutory rights of application created by Clause 39, it is necessary to retain the exclusion of the matrimonial proceedings. This can be done accurately only by reference to applications to which Part II of the 1958 Act applies. In the clause as drafted, Section 10 is only one of the relevant provisions. I beg to move.
On Question, Amendment agreed to.
Lord WELLS-PESTELL: I beg to move Amendment No. 56D.
Amendment moved—
Page 26. line 44, after ('1958") insert (" applies;").—(Lord Wells-Pestell.)
Lord SANDYS: I feel at this stage that we ought to renew once again the plea in regard to consolidation which was made earlier in the Bill. We were mollified to some extent by the assurance
114
which was given to us by the noble Lord, Lord Winterbottom, that we might await a Consolidation Act in the immediate future. In regard to this clause and, indeed, in regard to Clauses 26 and 27, may I say that there is a very real need for consolidation, in view of the substantial Amendments which have been made to the Act of 1958.
Lord WELLS-PESTELL: There is nothing between us on this matter. As your Lordships have found out in the past, it is desirable to do a good deal of consolidation. I myself made the point earlier on—in point of fact, I think at Second Reading, and my noble friend Lord Winterbottom has made it more recently—that we have in mind the fact that it would be of considerable advantage, if not to your Lordships then certainly to social workers and others who are working in the field of family law and so on. As I have explained, the pressure on Parliamentary draftsmen is such—one must be quite frank about it—that consolidation is not possible at this time. Obviously, however, it is something which must be done before long.
On Question, Amendment agreed to.
8.18 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 56E:
Page 26, line 44, at end insert—
("(4) In section 12(2)(a) of the Guardianship Act 1973, for the words from "Where an application" to "by virtue of section 11 of this Act" there is substituted "Where any application, other than one to which Part II of the Matrimonial Proceedings (Children) Act 1958 applies, is made to a court for custody of a child or for the variation or discharge of any order (including an order made by virtue of section 11 above) relating to the custody of a child".")
The noble Lord said: I beg to move Amendment No. 56E. This Amendment entails the insertion of a new subsection in Clause 40 making further provision of an ancillary character relating to custody proceedings in Scotland. The purpose of this Amendment is to apply to the new range of custody proceedings—deriving from the new statutory right of application created under Clause 39—existing ancillary provisions relating to the ordering of reports by the court from whatever local authority or individual person it may specify for the purpose. Applications made in the context of matrimonial

115
proceedings are expressly excluded from the scope of the Amendment because the ancillary powers to which Section 12(2)(a) of the Guardianship Act 1973 relates are already available under the Matrimonial Proceedings (Children) Act 1958. That is all I need to say because it explains the purpose of this Amendment.
On Question, Amendment agreed to.
On Question, Whether Clause, 40, as amended, shall stand part of the Bill?
Baroness ELLIOT of HARWOOD: I should like to say one word at this point. This part of the Bill applies to Scotland only, as we know, and the law in Scotland is just as complicated as it is in England, if not more. I admired very much the way in which the noble Lord described the alterations which these Amendments will make in the way in which cases will be handled in Scottish courts. I have no comment to make on that at all, because I am no expert and no lawyer. I am quite sure that all that the noble Lord said was perfectly correct.
However, it has been brought to my attention by some of the workers in local government in Scotland that they are concerned with regard to this clause because, unlike what happens in England, it is only in a small number of cases which come before the courts that requests for reports are made by the court of session in custody proceedings. It seems that they are much more concerned with the letter of the law rather than the spirit in which we are all now operating to get something which will be very helpful for children only. The local government association in Scotland is strongly of the opinion that as much administrative action as possible should be taken to ensure that there is an increase in the number of cases where the requests for reports are made by the court of session.
I mention this now, because I was not able to do so during the Second Reading debate, and the people who are to operate this Bill—the social workers and the directors of social work in Scotland—feel keenly that it should not be left to the letter of the law and to the lawyers only but that reports from social workers should be encouraged by the court of session, particularly in custody proceed-
116
ings. They are anxious that this Bill should be a great success and should operate well in Scotland. I hope very much that it will, but I think we must bear in mind that the court of session must use the machinery that is being set up here under the Bill in order to obtain the kind of information they want when dealing with custody cases.
Lord WELLS-PESTELL: I am most grateful to the noble Baroness for the nice things that she said at the beginning of her remarks, but she will realise that I am being very well advised and considerably helped and I am glad that it is of some assistance to your Lordships. The point made by the noble Baroness is, in fact, a valid one. Under Clause 41(1) there will be a report from the local authority in every case, since the effect of the clause is to require the local authority to investigate and report in every case where it receives notification. That will probably satisfy the noble Baroness, because I find myself in some sympathy with what she said.
Lord SIMON of GLAISDALE: I should like to raise a minor technical point on this clause. In line 38 the words "ex proprio motu" appear. We had this earlier in the session in the Joint Committee, where we were given the massive Scottish Criminal Procedure Bill, in which a great deal was in Latin, and the draftsmen stoutly maintained that it was impossible to consolidate Scottish law except with a liberal dosage of Latin. I am sorry to say that he was backed up in that by my noble and learned friend Lord Guest. But I should have thought that the words "ex proprio motu" could, at least, have been put in English and I would ask the Minister to bring what pressure and influence he can to bear on the draftsmen to draft in English wherever that is possible.
Lord WELLS-PESTELL: Whether or not I am allowed a personal opinion I do not know, but I think that the noble and learned Lord is quite right: if it cannot be said in English, it should not be said at all.
Viscount ST. DAVIDS: Could we not put the single English word "itself" instead of these three Latin words?
Clause 40, as amended, agreed to.
Clause 41 [Notice to local authority of certain custody applications]:
8.28 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 56E:
Page 27, leave out lines 4 to 6 and insert—
(" made unless the applicant—

(a) in any case where at the time of the application he resided in Scotland, has, within the seven days following the making of the application, given notice thereof to the local authority within whose area he resided at that time;

(b) in any other case, has within such time as the court may direct given, to such local authority in Scotland as the court may specify, notice of the making of the application.").

The noble Lord said: This Amendment relates to the provision in Clause 41(2) that where a relative, step-parent or foster parent of a child applies for the child's custody, notice shall be given to the local authority for the area within which the applicant resides within 7 days of the making of the application. There is no provision in the existing law of custody in Scotland for a local authority in England and Wales to be directly involved in the procedure for supplying background reports to the Scottish courts in respect of any custody proceedings. The clause as it stands would, however, create such a precedent since in referring to the local authority within whose area the child resides it docs not exclude the possibility that the child is resident in England, as is entirely consistent even with the present arrangement for custody jurisdiction, quite apart from those dealt with in the proposed Amendment to Clause 44.
The Amendment avoids the general arrangements existing at present from being dislocated for the sake of the new category of cases where there will be an automatic and mandatory system of local authority reports to the court. Where the applicant resides in Scotland, notice will be given to the local authority of that area, it being assumed that in the majority of cases this will be the area of the child's residence as well. Where, exceptionally, the applicant resides in England the court is required to specify which Scottish local authority shall receive notice and thus be responsible for collating information. I beg to move.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 56G:
Page 27, line 10, at end insert—
(" (3) Paragraphs (b) and (c) of subsection (2) of section 12 of the Guardianship Act 1973 shall apply in relation to an investigation and report in terms of this section as they apply in relation to an investigation and report in terms of paragraph (a) of subsection (2) of that section.").
The noble Lord said: This Amendment entails the insertion of a new subsection in Clause 40, applying to the investigations carried out by local authorities on receiving notice of custody applications by relatives, step-parents or foster parents, certain supplementary provisions which already exist in relation to the generality of custody procedures in Scotland under Section 12(2) of the Guardianship Act 1973. The provisions relating to the ordering of reports by the court as included in paragraph (a) of Section 12(2) of the 1973 Act are covered in the same way by Clause 40(4). Paragraphs (b) and (c), the subject of the present Amendment, deal with the power of the court to summon the person supplying the report for the purpose of his being examined on oath and with the allocation of expenses incurred in connection with the preparation of reports. The court receiving a report from the local authority for the area in which the applicant resides in accordance with Clause 40(2) may not be satisfied as to the substance of the report, and it is appropriate therefore to provide the same power to examine the provider of the report as already exists more generally. I think it sets out the position rather clearly. I beg to move the Amendment.
On Question, Amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 agreed to.
Clause 43 [Restriction on removal of child where applicant has provided home for three years.]:
8.31 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendments Nos. 58 and 59:
Page 27, line 27, leave out ("a fine not exceeding £200 ") and insert (" imprisonment for a term not exceeding three months or a fine not exceeding £100 or both.")
line 27, at end insert—
"(3) The Secretary of State may by order, a draft of which has been approved by each

119
House of Parliament, amend subsection (1) to substitute a different period for the period mentioned in that subsection."
The noble Lord said: If your Lordships will allow me, I shall take Amendments Nos. 58 and 59 together. The purpose of the Amendments is to bring the Scottish provisions into line with the corresponding English provisions contained in subsections (2) and (3) of Clause 34. The situations to which the two sets of provisions relate are essentially the same on both sides of the Border. Subject to any comments from your Lordships, I do not think I need say anything more. I beg to move.
Lord SANDYS: My Lords, we are now entering a section of the Bill dealing with sentencing. In the absence of the noble and learned Lord the Lord Chancellor and, indeed, of the friends of the noble Lord, Lord Wells-Pestell, from the Home Office, it is a notable misfortune that we do not have an authority representing that Department. Naturally, we should wish to hear the views of the noble Lord, Lord Harris of Greenwich, in this particular regard. I am glad to be reassured by the noble Lord, Lord Wells-Pestell, when he claims that he is well advised. That we do not doubt. But I, too, can claim to be well advised in this particular matter by my noble friend Lord Colville of Culross.
The point I wish to raise is this. In the Bill as at present drafted, there is a fine not exceeding £200, which is to be changed for a term of imprisonment not exceeding three months, or a fine not exceeding £100, or both. With regard to the term of imprisonment, I wonder why the noble Lord's advisers and the Home Office have made this recommendation, because when one comes to consider the term of imprisonment, it will in fact, after awaiting trial, et cetera, probably be about two months. If an offender has committed this particular crime and is sentenced, would it really make very much difference, or be very much better, for him to spend two months in prison? Certain suggestions are being made. I wonder whether the matter is not of sufficient importance that the noble Lord might be willing to withdraw this Amendment, or to give us assurances in regard to sentencing procedure, so that we can know beyond doubt that a very
120
real point is being satisfied in changing from a fine of £200 to the alternative procedure suggested in the Amendment.
There is one further point which is constantly recurring—that is, the question of inflation as applied to fines. I do not know whether Her Majesty's Government have a policy in mind—perhaps they will not be willing to disclose it if they have —but there seems a very real reason for indexing fines at some particular moment in time. Clearly we cannot apply this in the present particular case, but I think there is a valid point in saying why a fine of £100 is of less importance than it was, shall we say, a year ago. It is a very broad matter, and I would not wish the noble Lord, Lord Wells-Pestell, to enter into the whole polemics of the matter in too great detail. But could the noble Lord give us an assurance that the Home Office have regarded this matter as of great concern, and that this is a result of their deliberations?
Lord WELLS-PESTELL: I can give the noble Lord, Lord Sandys, such assurance. I do not want to roam over the wide field, but in the last analysis Parliament fixes maximum penalties. It is for the courts to apply these penalties as they see fit. It would be highly dangerous if Parliament attempted to give directions to courts as to some sort of tariff of penalties. This must be left to the courts. But the noble Lord has an argument.
In these Amendments, we are anxious to bring the Scottish provisions into line with the corresponding English provisions. This means that we have brought down the penalties from £200 to £100. The noble Lord could ask. "Why not increase the penalty to £200?" It may well be that someone has considered that is a penalty—after all, it is a term of imprisonment not exceeding three months or a fine not exceeding £100, or both. So if there is a rather bad case, the penalty can be three months and a fine of £100. If a case is not so serious, the penalty could be three months, and it could be £100. I should have thought the penalty as set out here would meet almost any kind of situation likely to arise, but I will discuss this matter further with those advising me to see whether or not something more should be done. But I know that a good deal of thought has been given to this.
Baroness ELLIOT of HARWOOD: I do not think putting people into prison, certainly for three months, does the slightest good at all. It just puts them in touch with a lot of other thugs, and they may not be of that calibre at all. I would much prefer a far heavier fine. Anything we can do to keep people out of prison is better, and I am sure the noble Lord will agree with me on this. I am not suggesting that these people should get away with anything, or that they should not be heavily punished. I would much prefer there to be a heavier fine and no imprisonment, than three months which is really nothing at all.
Lord WELLS-PESTELL: I am afraid I must not express personal beliefs in this House in a situation of this kind. There are those who take the view that for many, prison is the ultimate deterrent. This is arguable. For me, three days in prison would be too long. Probably it could be argued that a deterrent has to be there. It is punishment as distinct from an act of reformation. There are many who would argue that it serves a useful purpose. I do not think I can take the matter beyond that.
Viscount HANWORTH: The noble Lord will appreciate that there are the third sentences, but there are not the third fines. The two are not wholly interchangeable these days.
On Question, Amendments agreed to.
On Question, Whether Clause 43, as amended, shall stand part of the Bill?
Lord SIMON of GLAISDALE: May I ask a question, although I am sure I ought to know the answer? Who is the "other lawful authority" in line 18 who can order the removal of a child from the custody of the applicant?
Lord WELLS-PESTELL: I am afraid I cannot answer that; I just have not the answer to give the noble and learned Lord. This is a matter on which I must inform myself, and, if he will allow me, I will pass the information on to him.
Clause 43, as amended, agreed to.
Clause 44 [Custody order on application for adoption in Scotland]:
8.40 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 59A:
Page 27, line 35, at end insert:
"; but in such a case the court shall not cease to have jurisdiction by reason only that it would not have had jurisdiction to hear an application by the applicant for custody of the child.".
The noble Lord said: This Amendment is designed to clarify the question of jurisdiction in regard to a Scottish court which decides in terms of Clause 44(1) that it would be more appropriate to deal with an application for the adoption of a child by awarding custody of the child to the applicant or applicants rather than by making an adoption order. Jurisdiction in Scottish adoption proceedings relates at present to the place of residence of the child or of the applicant. Under the Bill this will change to the residence of the child within the jurisdiction of the court. Custody jurisdiction, on the other hand, is dependent partly on the residence of the defendant, and in regard to cross-border cases the domicile of the child.
A court having jurisdiction in the case of an application for adoption would need to have continuing jurisdiction in subsequent custody proceedings in order that Clause 44(1) can operate effectively in all cases. The Amendment provides that once a direction has been made by the court altering the adoption proceedings to proceedings for custody the jurisdiction of the court is continued whatever its jurisdiction would have been in the case of an original custody application. I beg to move.
Baroness ELLIOT of HARWOOD: May I ask the noble Lord a question on this Amendment? This means, I take it, that the application in a custody case will be heard in Scotland if the child is living in Scotland. If the child is not living in Scotland but the person who wants to assume custody is in Scotland, this is not affected by this clause; the case will still be taken in Scotland. Or has it got to be taken in England?
Lord WELLS-PESTELL: Custody jurisdiction is dependent partly on the residence of the defendant, and in regard to cross-border cases the domicile of the child. This means that a court having jurisdiction in the case of an application for adoption would need to have continuing jurisdiction in subsequent custody proceedings in order that Clause 44(1)

123
can operate effectively in all cases. I think this means that the interpretation of the noble Baroness is right.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 59B:
Page 27, leave out lines 36 to 40 and insert—
"(2) In the application to this Part of this Act to any case where a direction under subsection (1) has been made—".
The noble Lord said: This is a drafting improvement for Scotland similar to the position affecting England as in Clause 35. This Amendment contains a substitution for the existing wording of the first four lines of Clause 44(2). In its present form Clause 44(2) requires that certain clauses in the Bill dealing with custody in Scotland shall apply specifically to proceedings resulting from the making of a direction by the court under Clause 44(1) to the effect that proceedings in relation to adoption shall be changed to custody proceedings. By applying the proceedings following the making of a Clause 44(1) direction to provisions relating to normal custody proceedings, the present subsection creates the impression that these will not be custody proceedings in the fullest sense. The intention, however, is that the proceedings should change into custody at this point.
The amended wording removes any possible doubt by omitting the specific application of some of the new custody provisions but not others, referring generally instead to the application of this Part of the Bill to any such case. This is consistent with the proceedings being custody proceedings in the fullest sense, since the purpose of the subsection is merely to provide for the application of the provisions of the Bill generally, subject to certain minor distinctions as indicated in paragraphs (a) to (c) of the subsection as it stands. I beg to move.
On Question, Amendment agreed to.
Clause 44, as amended, agreed to.
8.48 p.m.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 59C:
After Clause 44 insert the following new clause:
Jurisdiction of Scottish courts in certain applications for custody
". —(1) Without prejudice to any existing grounds of jurisdiction, the court shall have jurisdiction in proceedings for custody of a child if at the time of application for such custody—

(a) the child resides in Scotland; and

(b) the child is domiciled in England and Wales; and

(c) the person applying for custody is a person qualified, in terms of subsections (3) to (8) of section 30 of this Act, to apply in England or Wales for a custodianship order in respect of the child.

(2) For the purposes of this section, "the court" means—

(a) the Court of Session; or

(b) the sheriff court of the sheriffdom within which the child resides."

The noble Lord said: The purpose of this Amendment is to provide Scottish courts with additional jurisdiction in custody proceedings so as to avoid any possibility that a person may be unable to apply either for custodianship of a given child in England or Wales or custody in Scotland. Custody jurisdiction both between sheriffs courts in Scotland and the Court of Session and the High Court is so arranged as to ensure that a forum can be found for any custody proceedings in Great Britain, while reducing to a minimum the possibility of parties being able to choose a forum to their own advantage. The same position is now sought in relation to custody and custodianship jurisdictions, bearing in mind that custodianship jurisdiction in England and Wales is to be based, like adoption jurisdiction, on the presence of the child in the area of the court. It is necessary to avoid extending the custody jurisdiction of the Scottish courts except in regard to classes of persons—relatives, foster parents and step-parents—who are to be entitled to apply for custodianship in England and Wales. To provide extended jurisdiction in other cases would create the kind of undesirable choice or overlap which I mentioned previously.
The definition of the new grounds of jurisdiction is threefold. The first test relates to the residence of the child in Scotland. This, allied to the grounds for custodianship jurisdiction in England and Wales, ensures that no child in Great Britain, except in the most unusual circumstances, can remain outwith either

125
jurisdiction or inside both for present purposes. Even in the event of a child being neither resident in England or Wales nor present in Scotland no real difficulty will arise since residence can be acquired with little delay. The existing custody jurisdiction of the courts in both ordinary and emergency cases will be available for dealing with conflict situations involving sudden removal of the child.
The second test requires additionally that the child should be domiciled in England and Wales. This qualification is necessary since the Court of Session, at least, already exercises custody jurisdiction in relation to a child domiciled in Scotland.
The allocation of the new jurisdiction as between sheriffdoms is regulated under Gauss 44(2)(b) by the area of residence of the child. Custody jurisdiction in the sheriff court is related generally to the residence of the defender, but this criterion will not always operate in the kind of proceedings envisaged under Clause 39, where application will in many cases be made with the consent of the natural parents, and thus, as in adoption proceedings, no defender may require to be cited.
The third limitation is in relation to the category of persons whose applications for custody in Scotland will be covered by the extension of jurisdiction now proposed to include relatives and step-parents of a child as well as persons qualified as foster parents by virtue of having the child in their home for at least twelve months. I beg to move.
Baroness ELLIOT of HARWOOD: I have listened with great interest to the noble Lord. This is extremely complicated and I shall read what the noble Lord said with great interest. I assume that this is putting the situation in Scotland on the same terms as the situation in England and Wales, so that there is no discrepancy beyond the fact that the Scottish courts are different: otherwise the arrangements are now the same for the whole United Kingdom.
Lord WELLS-PESTELL: This is how I understand it. If, when the noble Baroness has read in Hansard what I have said, she is not happy about it in some way, or wants enlightenment, I hope that she will not hesitate to let us know.
On Question, Amendment agreed to.
Clause 45 agreed to.
Clause 46 [Restriction on removal of child from care]:
8.52 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 60:
Page 29, line 2, at end insert—
(" (3C) Notwithstanding that children in the care of voluntary organisations are not in care under section 1 of this Act, which relates only to children in the care of local authorities, the parent or guardian of the child in the care of a voluntary organisation must give not less than 28 clays notice to the voluntary organisation of his, intention to withdraw his child from their care." ").
The noble Baroness said: We have now reached the care provisions of Part III of this Bill, and, as I understand it, for the first time the right of a parent to remove a child who is in care under Section 1 of the 1948 Children's Act is prevented because the parent or guardian must now give 28 days' notice of intention to do so. I am not in any way against this provision, which is based on the Houghton Committee recommendations, and I am sure that it would be in the best interests of a child if a parent cannot immediately remove it from care.
The purpose of my Amendment is to prevent parents abruptly removing their children who are in the care of a voluntary organisation. It seems to me that giving the 28 days' notice is good child care practice for a local authority, and the same provision ought to apply in the case of a voluntary society. I hope, therefore, that the Government will be able to accept my Amendment. 1 beg to move.
Lord WINTERBOTTOM: I have the feeling that I am taking part in one of those marathon chess games in which a grand master plays ten promising youngsters. May I say that, whatever the subject of our debate, I admire the stamina of the noble Baroness, and I hope that I can keep up to it. May I answer the noble Baroness on the point she has made.
The effect of this Amendment would be' to place the same restriction on removal of a child from the care of a voluntary organisation as will apply under the proposed new subsection 3A(b) of Section 1 of the Children Act 1948

127
where a child is in the care of a local authority; that is, the parent or guardian of the child must give not less than twenty-eight days' notice of his intention to withdraw his child from their care. However, the Amendment would apply this restriction without the "time limit" in subsection 3A(b), that the child must have been in the care of the local authority throughout the preceding 12 months.
There is at present no legislation controlling the circumstances in which parents may place their children in the care of voluntary organisations. The important point is the word "voluntary". There is no legislation controlling the circumstances in which parents act. This is a matter of parental choice and it is doubtful whether voluntary organisations —this is the view of the Government, and indeed my own view—would welcome control of this kind, or whether it is desirable or necessary. If no control is exercised over the placement of children in the care of voluntary organisations it is questionable whether there can be any justification for imposing conditions which would govern the return of those children to their parents. It would seem illogical to have one without the other.
There would seem to be no grounds for giving a voluntary organisation greater power than a local authority would have. Voluntary organisations wishing to protect children from abrupt removal from care by their parents might be able to do so by arranging with a local authority for the children to be received into the local authority's care under Section 1 of the Children Act 1948. But this could only be done if the stringent conditions necessary for receipt into care under Section 1 of the 1948 Act were satisfied and the parents were willing to allow their children to be received into the local authority's care. If the conditions necessary for receipt into care under Section 1 were not satisfied and the parents refused to allow their children to be placed in the local authority's care, then in a similar situation, and at that point in time, the local authority would have been unable to invoke the safeguards introduced by Clause 46. That is the reason why we must resist the Amendment of the noble Baroness.
Baroness ELLIOT of HARWOOD: I find that answer rather unconvincing, because in point of fact if you are using a voluntary adoption society—which in many cases will be very good but may of course be not so good, just the same as one local authority is very good and another less good—it seems to me that the kind of principle upon which the permission is given should be the same. I cannot see why there should be one law for one, and another for the other. I do not find the explanation of the noble Lord convincing.
Lord GEORGE-BROWN: May I say, as a grandfather of three adopted children and the employer of a secretary who would like to adopt one, that the brief which my noble friend read off at vast speed is totally unconvincing. The local authorities in one of the cases I know about from personal experience are very unhelpful, just because they are local authorities. They have to observe rules, and live up to bureaucratic arrangements —and I am not against that; I understand it. But the voluntary societies, which I understood my noble friend to be arguing about, are a little more flexible. 1 was totally unconvinced as, I repeat, the grandfather of three children adopted in this way. It is much better to let the voluntary society operate.
I doubt whether my noble friend really meant what he read out at such vast speed. Had he taken a little more time over reading it out he would not have believed, any more than I did, that we could have put that little grandchild of mine into care. The great thing about my family is that we did not put them into care. I was looking for my noble friend Lord Brockway, who, I think, is the president or chairman of the society, or my noble friend Lady Wootton who is the moving spirit in it. If they had been put into care we should have lost them; they would have been moved from foster parent to foster parent to foster parent long before they could have been given a good family home.
It so happens, if I may tell my noble friend so, that one of our grandchildren was moved about in this way. He is now a beautiful fellow, but he is still living down the memory of those years when he was moved from this to that and to

129
the other place. I do not know whether there is any Party business in this. I simply know that my family is the more enriched for having these young people as members of it. The sooner we can get them the better. I know that my secretary wants to adopt and keeps getting referred to the local authorities who make it terribly difficult.
Having listened to my noble friend, even at the rate at which he read his brief, I do not see that he really makes much of a case for what is, with respect, a very bureaucratic argument. If you do it in practice, if you are really concerned about children rather than about rules, then it seems to me that the Amendment makes a bit of sense and the argument against it makes very little sense. I should be happy if my noble friend would just take it from me as a grandfather, as an adoptive grandfather, that the present way in which it is done and the way in which it would be done under this clause if it is not changed is exceedingly difficult: the adoptive parents and grandparents suffer and the adopted children suffer. I intervene only to ask whether he would think about that again because, as one who is involved in this situation, I do not think that the brief that he has been given is really very convincing.
Lord WINTERBOTTOM: I apologise to my noble friend for going rather fast. I will go at a speed which suits him if he will stay until we finish Part III of the Bill. If he gives that undertaking, then I will go at a slower speed. I think the noble Baroness, Lady Elliot, was rather closer to the nub of the problem than was my noble friend. The problem is that the common factor in the two alternatives is the parent. The parents' relationship to a local authority is a statutory one; the parents' relationship to a voluntary organisation is a voluntary one. It is for this reason that the procedure for dealing with local authorities or voluntary organisations is different. That is what I tried to stress, even if I read it quickly.
Lord GEORGE-BROWN: I beg my noble friend's pardon—
Lord WINTERBOTTOM: We are rather short of time—
Lord GEORGE-BROWN: My noble friend will forgive me—
Lord WINTERBOTTOM: I will forgive my noble friend, but I will not give way. I was trying to say that this is a matter of parental choice where you are dealing with a voluntary organisation. If you go voluntarily to an organisation as a parent, then you leave it voluntarily. It is different from the statutory relationship with the local authority. That is why I find it necessary to resist this Amendment.
Baroness SEEAR: Surely that is missing the point. The 28 days is not in the interests of the parent or the organisation; it is in the interests of the child. The child's position is identical whether the child is placed with a local authority or with a voluntary organisation. It is not the parent who is being considered— unless I totally misunderstood what the noble Baroness, Lady Elliot, has said.
Lord WINTERBOTTOM: I understood that the children had parents. I think that the noble Baroness, Lady Masham, during our discussions last week brought into clear perspective the fact that whatever you do to the children must affect the parent in some way or another. We cannot say simply that the child's interest is paramount. That is a nice thought, but the parents must also be considered.
Lord GEORGE-BROWN: Since my noble friend insists on not giving way, he must learn some day that in this House, at least, the Whips do not actually control. The point made by the noble Baroness, Lady Seear, is absolutely right. With respect, the: sneer that the noble Lord made at me, that I was not here early enough, did not mean that I was not concerning myself with the merits of the Amendment;. That is why I came in. The sneer about whether I was staying until the end has nothing whatever to do with it. I happen to take the same view as that of the noble Baroness who spoke from the Liberal Benches. We are not dealing with the rights of a parent in this case. With great respect to my noble friend, there comes a point where the rights of a child ride higher than the rights of a parent who may already have abrogated his or her, or the right of both. Since I speak slowly—and I cannot speak any more slowly—may I please make the point that my view is that the noble Baroness speaking from the Liberal

131
Benches put it absolutely clearly? I think that resisting this Amendment is contrary to the interests of the child.
As a Socialist of at least as long standing as my noble friend, I think that in this situation the local authority is not necessarily the better organisation. There are very good, experienced voluntary organisations who can help place children and can help people, who want to do so, to take children. If my noble friend Lord Winterbottom did not hear me, I repeat that in my little family we have great experience of this matter. He just cannot persuade me, by sneering at me that I did not come in soon enough and wondering whether I am going to stay long enough, that his argument is good. I can only tell him that in practice it is not. In my case, my own family's local authorities were of very little use; the voluntary organisations were of very considerable help—and that is how we made my family. I think the noble Lord should listen to the arguments put from the other side.
Before I sit down may I mention a Party point. Every time I come to this House I hear Ministers reading briefs from my Front Bench. They read them fast, because they honestly do not understand them. They trust that whatever happens the other House will support them. If any of us were sent here for any reason at all it was to be a revising Chamber, a halting Chamber, to ask the other place to think again. I wish some of my colleagues on that Bench would sometimes say, "Well, I told you what I was asked to tell you, but having listened to your argument I will now go back and discuss it with my friends in the Lower House." My noble friend Lord Winterbottom will not persuade me, just by acting as though he is the great man. My record will stand against his. I ask him to listen, please, to the argument and have the grace to say, "Well, maybe there is something in your argument. We will go back and think about it again."
Baroness MASHAM of ILTON: Before the noble Lord, Lord Winterbottom, rises, as he brought me into this discussion may I apologise for being late. I think one must find a careful balance. I do not think the Amendment means
132
that. I think the noble Baroness, Lady Young, was just trying to bring the voluntary associations and local authorities into line, so they would have the same meaning. Is that right?
Baroness YOUNG: Yes. May I make the position clear. I am grateful to noble Lords who have supported me, particularly the noble Baroness, Lady Seear. I should have thought it was a simple Amendment. It is designed to put the interests of the child first by preventing its abrupt removal from a voluntary society. I tabled the Amendment because I wholeheartedly support the Bill and I simply want to extend the provisions to voluntary societies in the interests of the child.
I was pleased to hear what my noble friend Lady Elliot of Harwood said, because I think the reason that the noble Lord, Lord Winterbottom, advanced for not accepting the Amendment was unconvincing. The fact that the child is in a statutory relationship with a local authority—and in the course of this debate I have had an opportunity to read again Section 41 of the 1948 Act—does not alter the case, because a parent can at present remove a child immediately under Section 1 if it chooses to do so, as of course it can from a voluntary society. I welcome this provision. I think it prevents this abrupt removal which is not always in the best interests of the child, particularly a young child who has been in care for a year, as it needs to get accustomed to the people to whom it is returning because it has not seen them for some time. I hope, therefore, that the noble Lord will consider this Amendment, because I am sure that it is in the best interests of the child and of good child care practice.
Lord WINTERBOTTOM: It is clear that I have been unable to convince anyone in any part of the Chamber. For this reason, I should be grateful to the noble Baroness, Lady Young, if she would withdraw her Amendment. At the same time, I give an undertaking that I will put it to people more expert than I in the matter of child care, and will bring her an answer, probably at the Report stage of the Bill. It is obvious that the Committee feels strongly on this matter, and I am sorry I was unable to convince noble Lords otherwise.
Baroness YOUNG: I am indeed grateful to the noble Lord, Lord Winterbottom. Perhaps I can tell him that I have had representations from nearly all the voluntary societies, including Dr. Barnardo's Homes, and the NSPCC, so it is something on which a large number of people feel strongly. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 46 shall stand part of the Bill?
9.15 p.m.
Baroness YOUNG: Before we leave this clause may I make one small point in relation to the new proposal? When the relevant regulations are drafted, I wonder whether some kind of written guidance to parents could be included so that, when children are taken into care under Section 1 or go to a voluntary society, they will know that they must give 28 days' notice for their removal? I think that this is the kind of thing which they might not think of: for instance, a mother who has been in hospital may not appreciate that before she comes out she must give this 28 days' notice. I think that it is a matter for regulations, but I should be glad if it could be looked at.
Lord WINTER BOTTOM: I shall certainly bring to the attention of my noble and learned friend the Lord Chancellor the point made by the noble Baroness.
Clause 46 agreed to.
Clause 47 [Substitution of s. 2 of Children Act 1948]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 61:
Page 29, line 36, leave out from ("parent") to end of line 42.
The noble Baroness said: This is another Amendment on time limits, and again it is a probing Amendment to see what the Government have in mind over this new reason for giving a local authority the right to assume parental rights. Under subsection (1)(d), a local authority may assume parental rights if a child has been in its care for three years. This, again, does not make it clear if the care must be continuous or whether these are periods of care in the course of the three years. As I said on Clause 27, on which
134
we discussed time limits, there is always the real fear in the mind of parents that if they allow their child to go into care their parental rights may be removed and taken over by the local authority. I do not think that it is very clear precisely what the subsection means. Does it mean that the parent must never have visited the child at all? I think that we should bear in mind that children come into care for a whole variety of reasons, some of which might be quite outside the control of their parents—for example, homelessness. The difficulties in the way of visiting by parents who may be living a long way from the local authority in whose care the child is and who have other small children may be very great. The fact is that a parent, as a consequence of the subsection, might feel reluctant to allow a child to go into care whereas that child ought to do so to relieve the mother and the home situation. I should like to ask the noble Lord what are the Government's views on this, what is their definition of the three years' care—whether it is continuous care—and what sort of visiting by the parents they expect for the parents to be said to have kept up the connection with the child.
Lord HYLTON: I should like to ask the noble Lord, Lord Winterbottom, whether in any circumstances under the clause there can be a court hearing. If the answer is, No, surely it is possible to think of circumstances when there ought to be a court hearing?
Lord WINTERBOTTOM: Just to clarify one point, what is meant by paragraph (d) is continuous care throughout the three years, although temporary breaks for holidays do not count—that is, there could be the occasional break to visit parents and so on.
The noble Baroness has repeated a point about which I myself felt rather strongly. I have considered in my rather rapid attachment to the Bill the question of how parents know what are their rights and duties. I myself, because of force of circumstances during the war, once had to give one of my sons into the care of a friend and I did not realise that there was any legal obligation attached to this operation. It was a case of force majeure, but I understand that my friend might have been breaking the law because he accepted the child for a time.

135
The point made by the noble Baroness is extremely valid; namely, that when all this goes on—and this does not happen to us more than once in our lifetime; or, at least, very seldom—it would be extremely helpful if the mother or the parent were told exactly what the implications of putting a child into care were. I shall certainly bring this point to the attention of my noble and learned friend.
Baroness YOUNG: I beg leave to withdraw my Amendment and we will look up the Record to see what the noble Lord has said.
Amendment, by leave, withdrawn.
9.21 p.m.
Lord WIGODER Lord WIGODER moved Amendment No. 62:
Page 29, line 36, leave out ("; or (d)") and insert—
(" ( ) Subject to the provisions of this Part of this Act, a local authority shall resolve, unless there are special circumstances, that there shall vest in them the parental rights and duties with respect to any child who is in their care under the foregoing section if it appears to them ").
The noble Lord said: As yet another of the novices facing the noble Grand Master the noble Lord, Lord Winterbottom, I beg to move this Amendment. The effect of this Amendment does not appear very clearly in the form in which it is set out on the Marshalled List. The effect would be that where a local authority had had the care of a child for a period of three years, or where it had been partly the local authority and partly the voluntary organisation, then, in the ordinary course of events and unless there are special circumstances, the local authority should resolve that there should vest in it the parental rights and duties with respect to that child. Such a resolution would not be effective if there were opposition from the parents, unless the court so ordered. But the reasoning behind the Amendment is that without such a vesting of parental rights and duties in the local authority, it is quite impossible for the local authority to make the proper long-term plans for the welfare of the child. The case histories of battered babies are full of instances in which the parents have reclaimed children after they have been in the care of a local authority for a very substantial period, in
136
circumstances in which the local authority has felt reluctant, for one reason or another, to make a resolution that the parental rights and duties should vest in it.
I am sure that the noble Lord, Lord Winterbottom, is fully aware of the research which was carried out with the aid of a small grant from the Department of Health and Social Security, which showed a very wide variety of attitudes by local authorities to this problem. There were local authorities which made such resolutions in only some 20 per cent. of the cases, and there were other local authorities which made resolutions in over 80 per cent. of the cases; and there appeared to be no difference in the facts of the cases in which they were involved. Therefore, the effect of this Amendment would be to encourage local authorities— unless there were special reasons—where they had had the care of a child for a substantial period of time, as a matter of routine to make a resolution that there should be vested in them the parental rights and duties, with a view to the proper planning of the long-term welfare of the child. I beg to move.
Lord WINTERBOTTOM: As I understand it, Clause 47, as drafted, is discretionary in that it provides that
"… a local authority may resolve that there shall vest in them the parental rights and duties with respect to any child …"
et cetera. The noble Lord, Lord Wigoder, feels that this may encourage them to be slack in the exercise of their responsibilities. Am I right in thinking that? If that is so, the noble Lord's Amendment, as I understand it, would make it mandatory for a local authority to assume parental rights in respect of a child who has been in the care of a local authority or a voluntary organisation for three years. I think I understand the noble Lord correctly. The Government's view at present is that while the words, "unless there are special circumstances", seem to be intended to retain an element of discretion for the local authority in the exercise of its powers—that is to say, the special circumstances mentioned—in practice they would seem very likely to have the effect that local authorities would be required to justify not exercising these powers in borderline cases. In the view of the Government, this is a

137
shift of emphasis which goes too far beyond Recommendation 32 of the Houghton Committee which proposed that local authorities should have discretion to assume parental rights.
As I listen to the noble Lord and read the recommendations of the Houghton Committee, it seems to be a question of degree. The noble Lord would wish to go rather further in this matter. As with so much of this Bill, we shall have to see how it works. If I were to accept the Amendment on behalf of the Government, there would be a risk that local authorities might assume parental rights on the "three years" ground in cases where this was not justified; for instance, where a parent, perhaps because of prolonged physical disability or ill health, had been unable to look after the child but had in all other respects been a good parent, maintaining regular contact with the child, and taking a continuing interest in his welfare and upbringing.
I agree this is a delicate matter of judgment but we have been trying to phrase the clauses of this Bill so as to strike a balance between an over-rigid control of the activities of parents and too great a laxity. It is a very delicate matter and, looking at it as a tyro, it seems to me that a series of Acts are necessary, since each produces its own particular problems. No doubt this Bill will do the same as its predecessors. But we have tried to bring about a proper balance, and I hope that the noble Lord will feel able to withdraw his Amendment.
Baroness MACLEOD of BORVE: Before the noble Lord sits down, I should like to say that I, too, find the Bill is going round in circles frequently. I should like to know whether foster parents automatically assume parental rights and duties.
Baroness MASHAM of ILTON: Before the noble Lord gets up, may I say that I was discussing the matter with experts just before coming here, which was why I was late. In health matters, this is a very serious thing, because I heard only on Saturday of a case of foster parents who fostered four children, one of whom had a very severe injury to his leg and had to go immediately to hospital. The foster parent did not know what to do; was he to sign the consent
138
form for the anaesthetic or not? He did, but was very worried about it, because he had not the legal right to do it. Therefore, in health matters, I think something ought to be done.
Lord WINTERBOTTOM: I am informed that, in fact, foster parents do not assume parental rights. Nevertheless, the person mentioned by the noble Baroness obviously acted properly. The problem I find with this Bill is that it is very difficult to instruct individuals how to behave in every conceivable situation which they may face when dealing with children. One can only do one's best in passing legislation and retain the ability to alter it if one later finds that one was wrong.
Viscount ST. DAVIDS: I must say I find myself rather more in sympathy with the noble Lord, Lord Wigoder, but after listening to my noble friend I agree that the Amendment of the noble Lord, Lord Wigoder, goes too far. Nevertheless, I think we need to go a little further than the Bill does. I would not mind at all if the noble Lord withdrew his Amendment, but I would, hope that at the next stage he would try to put down an Amendment which does not go quite this distance and would therefore not come quite so heavily under fire from my noble friend. I should be very happy to support such an Amendment, even through the Lobbies if necessary.
Baroness YOUNG: Before the noble Lord, Lord Wigoder, replies, I have been very concerned with time limits all the way through this Bill. I certainly understand the view of the noble Lord, Lord Wigoder, that perhaps paragraph (d) does not go for enough.
My own feeling is that, in the circumstances, the Amendment goes too far. If I understood him correctly, he was saying that it would be in the interests of the child for the local authority to take Section 2 rights so that it could decide its future the better. The difficulty with this course of action is that it is not necessarily the assumption of Section 2 rights that is required in deciding the child's future. Something else might be needed.
My worry is that, when one considers the interest of the parents, this clause already goes as far as is justified. There would be a great many cases in which a

139
child would come into care because one of the parents was ill, or the father was in prison, or the family circumstances were such that the parents could not look after all the children, but despite that they intended to have the child back. If the local authority is using good child care practice and thinking of the best interests of the child it would not necessarily think that taking Section 2 rights in all cases was the right thing to do. It might be working to achieve the right relationship, so that the child could go back to its natural family. All the time we are trying to balance these two things; so, on reflection, I do not think I could support the noble Lord, Lord Wigoder, in this matter, although I agree it is a difficult one.
Lord WIGODER: I am grateful to the noble Lord, Lord Winterbottom, for the obvious care and thought that has been given to this proposal. I bear very much in mind what the noble Viscount, Lord St. Davids, and the noble Baroness, Lady Young, have said about the matter. I was aware when the Amendment was drafted that it was going a little far. It seems to me very difficult to know how one can find any middle course between going a little too far in the form of some kind of mandatory order and the alternative of relying upon the Government to stress to local authorities the desirability of making such resolutions in the ordinary case. I should like to reconsider the matter in the light of what has been said and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.34 p.m.
Lord WINTERBOTTOM Lord WINTERBOTTOM moved Amendment No. 64.
Page 31, line 26, leave out subsection (11) and insert—
("(11) In this section—
"parent", except in subsection (1), includes a guardian or custodian;
"British adoption order" has the same meaning as in the Children Act 1975."")
The noble Lord said: I beg to move this Amendment standing in the name of my noble and learned friend. This Amendment substitutes for the existing subsection (11) a new subsection (11) which extends the definition of the term
140
"British adoption order", as used in the Children Act 1975, to the amended Section 2 of the Children Act 1948 which is introduced by Clause 47. This extension is necessary because the definition of "British adoption order" in Clause 68 applies only to the term as used in the Children Act 1975 and not to the amended Section 2 of the 1948 Act which is introduced by Clause 47. This is a legal matter and I hope noble Lords will just note what I have said and not press me too hard upon it.
Lord SANDYS: I should like to raise just one small matter. We realise that this is a matter of legal draftsmanship, but there is a point about "1975". I have been at some pains to trace the number of times we have referred earlier in the Bill to "the Children Act 1974", and if your Lordships will be kind enough to give attention to line 13 under subsection (8)(c) you will see that it is referred to as "the Children Act 1974". It is referred to in Clause 71:
"This Act may be cited as the Children Act 1974."
Then we have a series of Amendments. It is rather tedious to mention all of them—87A, 90 and 91—which refer to "the Children Act 1975". I am quite sure that this is purely a matter of draftsmanship, but there is no Amendment down to correct Clause 47(8)(c). I hope the matter will be attended to.
Lord WINTERBOTTOM: The noble Lord. Lord Sandys, is quite right. It will be cleaned up in the next print of the Bill.
On Question, Amendment agreed to.
9.35 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 65:
Page 31, line 27, at end insert—
(" (12) If throughout the three years preceding the passing of the resolution the child has been in the care of a voluntary organisation, or partly in the care of a local authority and partly in the care of a voluntary organisation, and if the voluntary organisation is an adoption agency then the case committee of the said organisation shall be empowered to act under subsection (1) of this section if the other conditions of this section apply to the child.").
The noble Baroness said: I put down this Amendment once again because I think there is a difference in treatment between local authorities and voluntary societies. Under Clause 47, voluntary

141
societies are still not given the power of assuming parental rights over a child in their care. A local authority's social services committee can in certain circumstances assume parental rights over a child in their care under Section 1 of the Children Act 1948. Parental rights are also given to local authorities, of course, under a court order under Section 2. In situations where a child is in the care of a voluntary society and needs legal protection, and has no parent or a responsible parent, the voluntary society must go to the appropriate local authority and ask them to assume parental rights on their behalf. Some local authorities decline to do so for the reason that the child in the care of the voluntary society may not be one whom they themselves would have taken into care and therefore they do not want the responsibility of assuming Section 2 rights over the child.
It seems to me that in this Bill whereby voluntary societies are being made adoption agencies when approved by the Secretary of State, and where they have this great responsibility of arranging adoptions, they should under Clause 47 when they think it right be able to assume parental rights over a child in their care, because this is in the best interests of the child. I beg to move.
Lord WINTERBOTTOM: This debate is similar to the one which the noble Baroness and I had earlier in the evening. As I understand it, the effect of this Amendment would be to equate the powers of voluntary organisations which are adoption agencies with those of local authorities under Section 2 of the Children Act 1948, by enabling them to assume parental rights over children who for a period of three years preceding the passing of the resolution had been in the care of either the voluntary organisations or the local authority. As before, the Government do not accept that they can be so equated for the following reasons. First, local authorities can assume parental rights under Section 2 of the Children Act 1948 only in respect of children who are already in their care under Section 1. Voluntary organisations are free to care for children without being subject to the specific conditions of Section 1. Voluntary organisations which are approved adoption agencies will under
142
Clause 12(6) have vested in them parental rights and duties related to a child on the making of an order freeing the child for adoption. But the parental rights under Clause 12(6) confer wider powers than those under Section 2 of the 1948 Act and are unrelated to children in care under Section 1.
The suggestion has already been made that voluntary organisations should have the same powers as local authorities to assume parental rights in respect of children in their care. The Houghton Committee mentioned in paragraph 158 of their Report that some voluntary societies had suggested that courts should be empowered to confer parental rights on a voluntary society, but in fact the Houghton Committee did not accept this suggestion, because one of the objects of allowing local authorities to assume parental rights by resolution is to avoid court proceedings. To allow courts to confer parental rights on voluntary societies would counteract one of the main purposes of the provision. I hope I have not read this reply so quickly as to make it obscure.
Baroness ELLIOT of HARWOOD: Section 2(1) of Clause 47 applies to local authorities. It refers to:
"… the parental rights and duties with respect to any child who is in their care under the foregoing section ".
If one turns to paragraph (d), one finds that it refers to a child who has been:
"… in the care of a voluntary organisation, or partly the one and partly the other ".
Has this paragraph anything to do with voluntary organisations, since in subsection (1) reference is made only to local authorities? Voluntary organisations are not mentioned.
Lord WINTERBOTTOM: Section 2(1)(d) in Clause 47 as drafted is designed to carry into effect one of the recommendations of the Houghton Committee. Therefore, it may not appear to be totally in harmony with the other sections. However, it is a fairly recent arrival.
Baroness ELLIOT of HARWOOD: Perhaps the Department will look at this matter. I understand that it is a recent arrival, but it does not seem to me to fit in with subsection (1) at the top of

143
page 29. That subsection makes no mention of voluntary organisations. It seems to me to be purely a drafting matter.
Lord WINTERBOTTOM: We have already seen that when this Bill has gone through the Committee stage in both Houses it will be a very different document from the original one. I am certain that those individuals who are responsible for the structure of the Bill in its final form will note what the noble Baroness has said.
Baroness YOUNG: My understanding of the position regarding Section 2(l)(d) in Clause 47 is that it is the local authority which assumes parental rights, and it assumes parental rights over a child in a voluntary society. That point I entirely accept and understand; I said at the beginning that this was possible. Difficulty arises, however, if a voluntary society has in its care a child who has been there for three years, its parents have made no protest to it and the local authority will not assume parental rights over it. What happens to the child? My Amendment is designed to allow a voluntary society to assume parental rights. After all, it might fulfil all the other qualifications on this list. The parents might be dead; they might have abandoned the child, together with all the other reasons which are given for assuming parental rights. All that my Amendment is designed to do is to help a child in that position. That is why I hope the Government will look at it.
Lord WINTERBOTTOM: I can certainly give the undertaking that we shall note what the noble Baroness has said and judge its relevance.
Baroness YOUNG: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 47, as amended, shall stand part of the Bill?
Lord ELTON: I shall detain the Committee very briefly on this, because what I am referring to is a cloud on the horizon the size of a man's hand, and not an immediate tempest. It is the question of the interrelation of subsections (7) and (4). Under subsection (4) notices can be served by post. In the case of a local authority, they will be deemed to be
144
served by post if they are sent by registered post or by recorded delivery service. In subsection (4) we read:
" If, not later than one month after notice is served on a person under subsection (2) of this section, he serves a counter-notice…".
He has one month's delay in which to act. As it happens, on 14th January I received a letter which was posted on 10th December. This is an increasingly common occurrence. It was not sent by recorded delivery or by registered post.
I think we must accept that there has been a steady deterioration in the postal service. At some time we shall have to review the whole assumption that a letter which is posted is received and that it is received within a given space of time. I think it is worth noting also that in the recorded delivery service unless you actually pay extra you do not know whether the letter arrives or not. It is only delivered in certain circumstances. Therefore, I want to put it into the minds of those who deal with these things that this method will not suffice for much longer.
Lord WINTERBOTTOM: I have great sympathy with the noble Lord, Lord Elton, on this matter because I have had similar experiences. I do not know quite what the answer is, but I do not think necessarily we should have a counsel of despair. I believe that in due course the postal service will return to its original high excellence. Possibly this is a case where, since we have so many sub-paragraphs, we might have one more to see whether it would cover the point made by the noble Lord. If he will leave it with me I will see what I can do about it.
Clause 47, as amended, agreed to.
Clause 48 agreed to.
Clause 49 [General duty of local authority in care cases]:
9.46 p.m.
Lord WIGODER Lord WIGODER moved Amendment No. 66:
Page 31, line 39, leave out (" take full account of") and insert (" regard as the first and paramount consideration ").
The noble Lord said: This Amendment really comes back to the discussion which your Lordships originally had on Clause 2 when the Committee stage of this Bill

145
began. I remain of the opinion that to establish as the criteria for the actions of a local authority or of a court simply that it shall take full account of the need to safeguard and promote the welfare of the child, is entirely inadequate and that some guidance must be given to the court, or in this case to the local authority, as to their priorities and as to the importance of putting as the first priority the welfare of the child. I therefore propose that instead of the words, "shall take full account", which are so very unhelpful, there should be substituted the words, "regard as the first and paramount consideration" which come, of course, from the Guardianship of Minors Act which was referred to a comparatively short time ago.
I am aware of the fact, of course, that under the second paragraph of Clause 49, it is open to the local authority to exercise its powers if necessary for the purpose of protecting members of the public in a manner not consistent with their duty under the previous subsection. It seems to me that the powers of the local authority under that paragraph will be in no way inhibited if we strengthen the wording of the first paragraph and require the local authority to take, not full account, but first and paramount consideration of the need to safeguard and promote the welfare of the child. I beg to move.
Baroness YOUNG: I should like to support the noble Lord, Lord Wigoder, in this Amendment. My noble friends and I in fact tabled an Amendment to Clause 2, which we subsequently withdrew, which was designed to have the same effect as this Amendment, and I hope the Government will consider it.
Lord WINTERBOTTOM: The point made by the noble Lord, Lord Wigoder, is well taken, as is the point made earlier by the noble Baroness, Lady Young. The noble and learned Lord the Lord Chancellor has considered the drafting of the Bill and will be circulating a document to cover the points already raised. The document expressing the Lord Chancellor's view will be in the Library in the course of the next week and all who are concerned in this matter in this Committee will receive copies of the document.
I should also like to say in her absence that my noble friend Lady Fisher of
146
Rednal has withdrawn her Amendments Nos. 66A, 66B and 66C and these will also be covered by the Lord Chancellor's document and she will receive a copy of it as well. On that basis, I hope the noble Lord will withdraw this Amendment.
Lord WIGODER: It will obviously be desirable for us to peruse the document circulated by the noble and learned Lord the Lord Chancellor, and it: would not be right to press this Amendment at this stage. Therefore, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
9.50 p.m.
Lord HYLTON Lord HYLTON moved Amendment No. 66D:
After Clause 49, insert the following new clause:
Substitution of section I of Children Act 1958.
" . The following section is substituted for section 1 of the Children Act 1958:—
"Prohibition of private fostering.
1.—(1) It shall be unlawful for any person to accept a foster child or to permit the acceptance of a foster child save as provided by this section.
(2) A local authority or an approved agency may permit a child to become a foster child by the granting of a licence in writing to the person proposing to maintain that child and an approved agency that grants such a licence shall, within 14 days from the grant of a licence notify the local authority within whose district the person proposing to maintain that child lives.
(3) It shall be the duty of every local authority to satisfy themselves as to the well-being of children within their area who are foster children within the meaning of this Part of this Act and, for that purpose, to secure that, so far as appears to the authority to be appropriate, the children are visited from time to time by officers of the authority or representatives of an approved agency and that such advice is given as to the care and maintenance of the children as appears to be needed both by the persons maintaining such foster children and by their parents with the object of ensuring that if and when reasonably practicable such foster children can live with their parents or one of them.
(4) It shall be the duty of the local authority or the approved

147
agency to undertake a review when it seems appropriate, but in any event within one year of the grant of a licence under subsection (2) of this section, and at least once a year thereafter.
(5) In undertaking a review under the preceding subsection the local authority or approved agency shall, where practicable, interview both parents and the person maintaining such foster child as well as the child itself and after such review the local authority or approved agency may if it appears appropriate to do so revoke the licence by notice in writing specifying the date of revocation which shall not be earlier than 14 days after service of the notice on the person maintaining such a foster child and (where the licence is revoked by an approved agency) on the local authority.
(6) An "approved agency" means an agency approved, for the time being, in writing for the purposes of this Act by the Secretary of State who may revoke such approval in writing if it seems to him to be appropriate to do so, but such revocation shall not affect the validity of any licence granted under subsection (2) of this section and the obligations imposed by it shall be transferred to the local authority which has been notified in accordance with that subsection.""
The noble Lord said: I beg to move the Amendment standing in my name and those of my noble friends. At the same time, I wish to speak to Amendment No. 66E, which is consequential. The purpose of Amendment No. 66D is clearly stated in subsection (1). It is to prohibit the present practice of privately arranged fostering, and to make compulsory a system of licensing by which children may be fostered without technically coming into the care of a local authority. Therefore, it is comparable and parallel to Clause 25 which makes private adoptions illegal. Clause 25 gave effect to the recommendations of the Houghton Committee in their paragraphs 64 to 69, and is based on generally accepted reasons.
Subsection (2) of my Amendment deals with licensing; subsection (3) with the welfare and billeting of foster children, in words taken from the Act of 1958. It goes beyond that Act, however, in specifying that advice shall be given to both the foster parents and the natural parents with a view to the eventual reunion of
148
the child and its natural parents. Subsection (4) of the Amendment provides for annual reviews of the fostering arrangement. I believe this is fairly directly comparable with the provision in the honourable gentleman Dr. Owen's original Private Member's Bill.
Subsection (5) provides that the child itself shall be interviewed at the time of the review. The intention is that this review should be done separately and in privacy—separately from any interviewing of the parents. Subsection (6) defines what a private agency is. It could well be a children's society that also has the function of an adoption agency.
Amendment No. 66E, which I mentioned earlier, simply provides for a fine of £100 or six months' imprisonment for offences. If the new clause is agreed, I accept that Section 3 of the Act of 1958 may require further amendment. The law at present requires foster parents to notify their local authority when a child comes into their foster care, and it provides for supervision by the local authority. However, it is likely that some foster parents do not notify as they should. In any case, local authorities usually do nothing unless there is gross neglect, such obvious gross neglect that they are prepared to go to court, which, understandably, they are normally reluctant to do.
Much research has been done into private fostering. Professor Holman of Bath University published a book on this subject in 1973, entitled Trading in Children. He followed this up with a powerful article in The Times on 29th January 1975. The right honourable gentleman Sir Keith Joseph said in Parliament, when the evidence came out, that he was shocked by the research findings. Nevertheless, nothing was done. This may be our last legislative chance to correct the situation for a long time to come.
Briefly, the research shows there are some 10,000 privately fostered children, of whom a high proportion belong to overseas parents who come to this country for the purpose of study, very often without grants or scholarships. Fosterings can be arranged in the most casual way. Private foster parents should, as I indicated, be carefully distinguished from properly approved local authority foster parents. Some private adopters have criminal records, others have had

149
their own children taken into care, many have had their previous applications to foster or adopt refused. Financially, privately fostered children are almost always at a disadvantage. The local authority fostering payments vary between £6 and £8 a week, and there are very strong arguments for saying they should be increased. Private rates, on the other hand, are thought to average about £5 a week in the Home Counties, and it is known that some private fosterers ask only for £2 to £3 a week. The most serious reason, however, is the harm an emotionally disturbed child may suffer if placed with unsuitable foster parents whoso motivation and whole approach to fostering is wrong. It is significant that social service departments estimate that half of those who at present reply to private fostering advertisements are in fact unsuitable.
I am aware that there may be a certain number of objections to this Amendment, and I would try to anticipate some of them. It may be said that we are extending the scope of the Bill unwisely or unnecessarily. In my view, we would be acting in the spirit of the Houghton Committee and doing something which is directly parallel to the ending of private adoption. It may be said that the cost would be too great if this Amendment were accepted. I submit, however, that it will be far cheaper to make proper arrangements in the first place rather than later on to pick up the pieces of emotionally disturbed children. If we do nothing, the costs will come in the courts, in the prisons and on the Probation Service. Finally, it may be said, perhaps, that we are already short of social workers and that the Amendment would impose further duties on them. In reply to that, I think I should point out that there are only some 10,000 privately fostered children in existence. Many of them are fostered for quite a period of years. Therefore, the number of new cases arising each year should not be altogether unmanageable. Alternatively the Government might see fit to make grants to voluntary bodies for the training and supervision of suitable voluntary workers, because I do not think one can argue that for this kind of assessment of a foster parent and subsequent supervision you need a 100 per cent. fully qualified generic social worker. I beg to move.
Lord WINTERBOTTOM: I hope the Committee will be patient with me if I give a somewhat lengthy reply to the noble Lord, who has introduced what is in fact a new clause on an important matter which is obviously a matter of concern both inside and outside the House. He starts with the study of Professor Robert Holman, and this is obviously a study that has had an impact on the national thinking on the problem of fostering children. There is, however, an argument that I want to put forward, that the proposals in this particular draft clause would, in practice, provide lesser safeguards than the greater safeguards which are in the original clause.
First of all, we must ask who are privately fostered children. Section 2 of the Children Act 1958 defines them in some detail. They are not, for instance, children in the care of a local authority or a voluntary organisation. They are not children placed for adoption by an approved adoption agency; nor are they children receiving full time education at boarding school. Broadly, they are children below the upper limit of compulsory school age who have been privately placed by their parents in the care of some other person, not a relative or guardian, for a continuous period of six days or more, or—and this is of particular importance—if the person is not a regular foster parent, for a continuous period of more than 27 days.
In my own case, and perhaps in the case of some other noble Lords, children have perhaps been privately fostered within the terms of the Act when they stayed with parents of friends for more than 27 days during the summer holidays; and, like myself, some noble Lords may have been private foster parents themselves and subject to the provisions of the Act. If so, I wonder how many of us realised it! Very few of us realise the full legal implications of taking children into our home and looking after them for friends or relatives. But I wonder even more how many would take kindly to the need to be licensed by the local authority—with all that that would involve—before they could entertain children for a long holiday, or, perhaps in answer to an advertisement, a child from abroad on an exchange visit. I use these examples not, of course, in any attempt to make light of the very real

151
problems which beset some private fostering, but to highlight some of the difficulties inherent in the noble Lord's Amendment to Section 1. It may be suggested that what is wrong is the definition of private fostering, and that this should be amended; but I am afraid that would not help either. As Robert Holman found, some of the most worrying cases start off as short term informal arrangements.
Local authorities already have extensive powers to supervise private fostering. Under Section 3 of the Children Act 1958, as amended by the Children and Young Persons Act 1969, a person is required to give written notification of his intention to become a private foster parent not less than two weeks and not more than four weeks before he receives a child. If a child is received by a foster parent in an emergency, or becomes a foster child while in his care, notification must be given within 48 hours of the event. Under Section 14, failure to do so is an offence. This is a most illuminating statement, and I think illustrates the depth of ignorance that surrounds most of us. Under Section 4 local authoriites have powers to impose conditions on, or prohibit altogether, the keeping of foster children in particular premises or by a particular person. Disqualifications for keeping foster children are laid down in Section 6. If a local authority does not prohibit a person from being a private foster parent, it then has a duty under Section 1 to satisfy itself as to the wellbeing of the children fostered, and to visit them and give such advice as to their care and maintenance as appears to be needed. Under Section 7, if a juvenile court is satisfied on the complaint of a local authority that a foster child is being kept by any person who is unfit to have his care, or in contravention of any conditions imposed by the local authority, or in any environment detrimental to him, the court may make an order for the child to be removed to a place of safety; and a child thus removed may, if it appears necessary, be received into the care of a local authority under Section 1 of the Children Act 1948 or, in Scotland Part II of the Social Work (Scotland) Act 1968.
There are about 11,000 privately fostered children in 8,000 foster homes known to local authorities—I stress
152
"known"—in England and Wales, and about 200 such children in Scotland. The noble Lord, Lord Hylton, in fact stressed the point about the limits that can be placed on the skilled man and woman power available. The problem is that the present legislation gives local authorities flexibility to concentrate their scarce resources on the children who most need them. This the Amendments to Section 1 would take away. The amendments to the 1958 Act made by the Children and Young Persons Act 1969, as the Home Office Circular (No. 261/1969) issued at the time explains, were expressly designed, following discussions between the Home Office and local authority associations, to increase this flexibility. The requirement for a foster parent to notify the reception and removal of each child was replaced by a requirement only to notify, with certain qualifications, his intention to become a foster parent.
As I read this, I understand that if a child comes to you for a month and the mother falls ill or has a breakdown, you may continue to keep the child. As I understand it, you must notify the intention that you are going to become a foster parent rather than a host. This is the sort of thing that we are trying to probe. The object was to relieve local authorities and foster parents of some of the work of giving and dealing with notifications in cases where the authority is satisfied with the general quality of care foster parents provide and there is no need to require particulars of every arrival and departure. At the same time, local authorities were given powers to require foster parents—at their discretion—to give particulars of any foster child received in the premises, and of any change in the number or identity of the foster children kept there.
Even if the rigorous licensing system proposed in the Amendment could be accepted as realistic, sensible and enforceable—which I hope to have shown it could not—the resources that would be needed to administer it would be good enough reason for resisting it. Social workers should not be required to dissipate their scarce and expensive skills on issuing licences in situations where there can be no question of a child coming to any harm. Legislation must not hinder them from concentrating on those who most need their help.

153
I now turn to Amendment No. 66F. Section 37 of the Children Act 1958 prohibits anonymous advertisements offering to undertake care of children.
Lord HYLTON: I have not yet moved Amendment No. 66F.
Lord WINTERBOTTOM: May I wind up, leaving Amendment No. 66F at this point? I hope that no one in the Committee will think that all I have said should be taken to imply that nothing is being done to try to improve the supervision of private fostering where it is most needed. My right honourable friend the Secretary of State for Social Services intends to explore with the local authority associations ways of using their existing powers more effectively, whether they themselves think that any further legislation is needed, considering how it might be enforced and the possibility of greater publicity about the duty of foster parents to notify local authorities before they take on the role. It also seems that a large proportion of privately fostered children are the children of West Africans temporarily here to study: Holmon found that 60 per cent. of his sample were such children. The Commonwealth Students' Children Society, which is perhaps the approved agency that noble Lords have in mind, has applied to the Department of Health and Social Security for a grant to further its work with these parents and children, and the application is being sympathetically considered. The intention would be to further the Society's work in preventing unnecessary fostering, and, in co-operation with local authorities, in contacting the local parents to help them understand what private fostering in this country involves for their children and to make other suitable arrangements if this is desirable and practicable.
Baroness MASHAM of ILTON: Before the noble Lord, Lord Hylton, replies, may I ask the noble Lord, Lord Winterbottom, a question? He said that many of us—and I am sure this is true, because I can say it of myself—have other people's children to stay. But surely this is different from fostering, because we do not accept money for it.
Lord WINTERBOTTOM: This is probably a valid point, but I am certain there are cases where you take your
154
neighbour's son along and the parents pay for the journey and the hotel. This is a conceivable situation which I am certain must arise. I do not know, but as I twice said earlier in this debate, I have been in the position where I have given one of my children into the care of a friend for a long period, because at that time it: seemed the best and most sensible thing to do for the child. But I had no knowledge at all about the law surrounding a Bill like this, and I believe that is true of many of us.
Baroness YOUNG: It has been extremely useful to have this debate and I am glad that my noble friend Lord Hylton tabled his series of Amendments. If I might suggest a useful way forward on the discussion of this matter, it would be to identify those children who are not included in private fostering. The noble Baroness, Lady Masham of Ilton, has identified one group. The other group, which the noble Lord, Lord Winterbottom, mentioned, were those foreign children on exchanges with families. This type of exchange involves a large number of schoolchildren, and to the best of my knowledge it is a direct exchange. Nobody is paying for their child to stay in a family; it is just a question of paying their fare. I should have thought that such children were excluded from this question of private fostering. What I think very much concerns my noble friend Lord Hylton and myself are cases which have come to our attention, which have been widely reported in the Press, of gross neglect of some of the privately fostered children when nobody knows the circumstances. I believe there has recently been such a serious case in Scotland.
If it is possible to do anything about it in a Bill at this stage, it seems that we should try to do so for the practical reason that we are unlikely to have another Children Bill for five or six years. I entirely see the point about scarce resources and staff. It is very much a question of making the best use of those that we have. I sometimes wonder whether we use all the people we have as well as we could, and I welcome the suggestion from my noble friend that some people, not necessarily highly skilled social workers, could inspect some of these households to see how the children are faring. I think I am right

155
in saying that local authority social services departments, or education departments, have to approve child-minding groups and play groups to make sure that the conditions under which children spend the whole day are satisfactory. I should have thought that if it was possible to have some scheme for these children privately fostered, whom we all agree are at risk, that would be well worth looking into, even if at this stage it can be done only on a small scale.
Lord WINTERBOTTOM: May I make two points in reply to comments made during the discussion? First, to the noble Baroness, Lady Masham of Ilton, I can say that the Children and Young Persons Act 1969 amended the definition of "foster child" so that the element of reward is no longer a criterion. I believe that that explanation covers her point. To refer to the points raised by the noble Baroness, Lady Young, may I repeat the paragraph on which I spoke rather more slowly than is my wont. My right honourable friend the Secretary of State for Social Services intends to explore with the local authority associations ways of using their existing powers more effectively. I think that is the assurance that the noble Baroness wanted. We actually define the problem and then see how the resources available can be applied to solving it more effectively than is the case at the moment. I do not know how rapidly or when this study will take place, or when it will be completed. But I imagine that since it is now announced it will begin soon, and I hope that it will report quickly.
Lord HYLTON: I am grateful to those of your Lordships who have stayed so long to listen to the Amendment. The noble Lord, Lord Winterbottom, in replying, spoke of greater safeguards being available than those which would be provided if the Amendment were accepted. He explained—though we knew about it already—the licensing procedure for existing privately fostered children. Is he suggesting that the Bill itself contains something that goes beyond the existing arrangements, because I should have thought that the research and the evidence that has been produced shows that the present state of affairs is very unsatisfactory? Can the noble Lord give us any hope?
Lord WINTERBOTTOM: I think it is a question of the wood and the trees. We have a limited amount of skilled personnel. If we spread their efforts too thinly and over too large a field and if these efforts are not selective, I should imagine that many serious cases would go undetected. Selectivity is essential with the limited staff available and, if the search were spread too widely, many serious cases would go undetected. Hence, the intention of the noble Lord to achieve a closer and more detailed inspection over a wider field would be nullified by the fact that there would not be the people to carry it out.
Lord HYLTON: I should like to follow that up by asking the noble Lord how he envisages the process of selectivity being put into practice?
Lord WINTERBOTTOM: I find myself at a disadvantage because I have never done social work at grass roots— or front door or back door—level. I do not know how social workers hear of cases—I suppose that it is through the courts, through neighbours, and so on. Clearly, the reports must come in through various channels which the experienced social worker knows how to use. But what we are talking about on the present Amendment are the cases where there is no clear breach of any law, though we know that, from time to time, because of the general looseness of the arrangements, events happen and children suffer because the foster parents, who may have taken on the children almost as one takes on a stray dog, are not really suitable. There is no malice, just incompetence.
Before anything goes severely wrong, there is nothing that the neighbours or the courts can do to indicate that something is not right at No. 37, Acacia Avenue. I do not know how the process works, but from time to time something goes terribly wrong and we are concerned about it. The noble Lord's new clause is an attempt to cover this situation. I may have misunderstood it, but, as I see it, the area of neglect is so wide that unless we are selective we shall miss certain very serious cases which with more selective searching we are likely to discover.
Baroness ELLIOT of HARWOOD: The noble Lord has just made a real case for this Amendment. We could use

157
all over the country voluntary helpers, such as the WRVS, the Red Cross and such bodies, comprising people who live in communities and who are in close touch with communities. We could give the local authority the power to make inquiries to find out where these cases are. As has been said, there has been a case in Scotland, a very bad case which arose because somebody had not taken the trouble to find out the circumstances. We must make provision in the Bill to meet this problem. The Amendment which the noble Lord has put forward may be too complicated or may not work. It may not be right, or it may include more than it ought to do, but there ought to be some provision in the Bill to deal with cases of the kind about which we have read. I admit that such cases may be few in number, but they are dreadful. They should never occur and there should be a real safeguard in the Bill to cover them. Otherwise the Bill will just be a pious hope and the world is full of pious hopes. But I am much more interested in doing something towards putting authority into the Bill.
Baroness MASHAM of ILTON: Before the noble Lord replies, may I congratulate him for admitting that the social services are stretched. I raised this matter previously and the noble Lord, Lord Wells-Pestell, would not admit to this. I now congratulate the noble Lord, Lord Winterbottom, for being honest about this and for backing up what the noble Baroness, Lady Elliot of Harwood, has said—that the community must be brought in to help. It would be a good thing if the Government could do this and really get the community involved, looking at the people next door and reporting cases, where necessary. But people must be able to have somebody to whom they can report such cases. They should know to whom they should report. I know that the. noble Baroness, Lady Young, is to raise this matter at Report stage, but there must be some person available 24 hours a day to whom these cases of disastrous families can be notified.
Lord WINTERBOTTOM: May I try to resolve a slight difference in emphasis between my noble friend and myself? Although I was not here for the previous debate, I am told that the point that my
158
noble friend made at that time was that the social services are not overstretched to the point of danger. But what I have been arguing is that if this new clause were introduced, the social services would be overstretched. There is a slight difference here, but may I say to the noble Baroness, Lady Elliot of Harwood, that we are all at one on this. It is a difficult problem. May I again repeat that the Secretary of State is starting to explore with the local authority associations ways of using their existing powers more effectively, which involves not only, as the noble Baroness has said, the trained social workers, but all the people who are concerned with the society in which they live. I am certain that the discussion we have had this evening will be brought to the notice of my right honourable friend, and that it will be part of the thinking which will determine the terms of reference of the study which is to be carried out.
Lord HYLTON: I am most grateful for the support given to this Amendment, particularly that of my noble friends Lady Young and Lady Elliot of Harwood. This is most encouraging, but I cannot say that I find the Government's reply at all satisfactory. The only encouraging aspect is that negotiations are going on at the moment with the Commonwealth Student's Children's Society. Unless the Government can indicate something much more positive to deal with a very real problem, we will have to come back to this matter in full force on Report stage. Meanwhile, bearing in mind the hour and so on, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.24 p.m.
Lord HYLTON Lord HYLTON moved Amendment No. 66F:
After Clause 49 insert the: following new clause:
Substitution of section 37 of Children Act 1958
. The following section is substituted for section 37 of the Children Act 1958:
Prohibition of advertise-ment offering or offering to undertake care of children.
37. —(1) No advertisement indicating that a person will offer a child care and maintenance or will undertake or will arrange for care and maintenance of a child shall be published.
(2) A person who causes to be lished or knowingly publishes an

159
advertisement in contravention of this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding £100 or both.
(3) In England and Wales, a local authority may institute proceedings for an offence under this section." "
The noble Lord said: This Amendment is quite independent of Amendments Nos. 66D and 66E. It stands in its own right and would, I think, be a useful step forward, even if nothing at all were done under the previous Amendments. There is one small textual printing error for which I apologise, and of which I have already given notice to the noble Lord, Lord Wells-Pestell. In Clause 37(1) on line 2, after the word "child" there should appear the word "for"; that is, between the words "child" and "care".
The purpose of the Amendment is to make it illegal to publish two sorts of advertisement. One is an advertisement indicating that a married couple are willing to take in a foster child, and the other is an advertisement where a natural parent seeks to find a foster home. Both, under the intention of this Amendment, would be prohibited. At the present time under Section 37 of the Children Act 1958, it is already illegal to place an anonymous advertisement offering fostering services. Therefore I think it will be agreed that this Amendment is in line with the present law but extends it in a useful way. I have with me a copy of The Nursery World of May 1973—just one page of it, which I will show to the noble Lord if he wishes. On that page there are no less than 12 advertisements from parents who are looking for foster homes for their children, all of whom are under 3½ years of age.
As has been said in relation to previous Amendments, there was absolutely no guarantee that any investigation would be made of the suitability of the foster home or of the foster parents. The effect of this Amendment will therefore be, even
160
though private fostering may remain legal, to oblige those who wish to have their child fostered to go through correct procedures and the normal channels involving the local authority or the Children's Society. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES: Amendment proposed: After Clause 49 insert the new clause in the terms printed in the Marshalled List, with the correction that the word "for" should be introduced between the words "child" and "care" in line 2 of subsection (1).
Lord WINTERBOTTOM: I hope the noble Lord will correct me if I have misunderstood him, but I understand that the difference between Section 37 of the Children Act 1958, and the Amendment No. 66F would be that whereas Section 37 of the Children Act prohibits anonymous advertisements and prescribes penalties for persons found guilty of publishing them, the Amendment as drafted would prohibit any advertisement for this purpose. That is the difference; it is the difference between "anonymous" and "any". I find it difficult to argue against this point, and I should therefore like to ask my right honourable friend the Secretary of State to consider it. I will undertake to give the noble Lord, Lord Hylton, an answer or a suggested amendment of his Amendment at Report stage.
Lord HYLTON: I am most obliged for that reply, and on those terms I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Baroness LLEWELYN-DAVIES of HASTOE: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-nine minutes past ten o'clock.