CHILDREN BILL [H.L.]

HL Deb 17 February 1975 vol 357 cc60-160

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 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 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 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 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— 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, 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 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 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 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 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 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 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 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 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 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:—

1. (a) a care order made under section 20 of the Children and Young Persons Act 1969, or
2. (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 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 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 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 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 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,

1. "(a) the custody or upbringing of a minor; or
2. (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; 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- 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 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 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 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- 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 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.

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 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 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 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 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 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—

1. (a) a child of both those parties; and
2. (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.

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 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 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 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 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 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 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 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 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 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, 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 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 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 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 offer, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.5 p.m.

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 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 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 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 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. 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 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 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 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 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 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 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- 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 moved Amendment No. 56E:

Page 27, leave out lines 4 to 6 and insert— (" made unless the applicant—

1. (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;
2. (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 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 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 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 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 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) 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 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 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—

1. (a) the child resides in Scotland; and
2. (b) the child is domiciled in England and Wales; and
3. (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—

1. (a) the Court of Session; or
2. (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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 "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 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 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 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 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 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 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 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 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 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 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 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 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 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 "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.

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 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 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 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 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 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 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 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.