HL Deb 20 February 1975 vol 357 cc460-532

5.50 p.m.


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 Winter-bottom.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Viscount GOSCHEN in the Chair.]

After Clause 49.

Lord ELTON moved Amendment No. 66Q:

Insert the following new clause:

Amendment to s. 1 of the Children and Young Persons Act 1969

. In section 1 of the Children and Young Persons Act 1969 after subsection (3) there shall be inserted the following new sub-section— (3A) A court which makes an order referred to in paragraph (a), (c), (d) or (e) of subsection (3) of this section shall forthwith send a copy of that order to the Director of Social Services, the Director of Education, the Medical Officer of Health and the Chief Constable of the area of the local Authority named in that order."

The noble Lord said: In my view, we come now to a crucial point in this Bill, Amendment No. 66Q, which, with the leave of the Committee, I shall couple with Amendment No. 66P, since they are interdependent and designed to achieve the same objective. They are intended to remedy a situation the arising of which was largely responsible for the drafting of this Bill in the first place. I refer to the Maria Colwell case, which must be written upon the hearts of all those who have read the Report upon it. Those who have so read will be aware that this tragedy could have been easily averted, were the various branches of the Social Service and the local authority aware of each other's actions, commitments and knowledge.

Had the policeman who was called to the fracas at 119, Mersfield Road, known that the child was subject to a supervision order, he would, perhaps, have voiced his opinion in stronger terms; and I may say he came out of it with great credit, since he recommended that this information be passed to the welfare branch and his recommendation, perhaps since he was only a temporary detective constable, was not taken up. Had the schoolteacher known the situation of the child, I cannot believe that she would not have visited in person, or ensured that the health visitor had visited, or at least made certain that the education welfare officer received a satisfactory answer to her visits to the house. But the detective constable did not know the circumstances, the schoolteacher was not aware of the supervision order, the doctor had not been informed of the circumstances; thus the small pieces of this great tragedy never fell into place until the whole puzzle had been upset on the floor. These are probing Amendments, but only in the sense that I am quite prepared to accept that the object which they seek to achieve can be achieved by other cleaner, more efficient methods; and nobody will welcome this more than I. They are not probing Amendments in the sense that we are prepared to withdraw them altogether in default of a satisfactory alternative.

If I may now turn to them in detail, your Lordships will see that they are Amendments to the Children and Young Persons Act 1969, that one of them, the second one, Amendment No. 66P, deals with supervision orders only, and that the other deals with orders of the other kind which courts may impose. The reason for this is simply that it follows the drafting of the 1969 Act. The supplementary provisions in Section 18 of the 1969 Act regulate the dispersal of information about supervision orders, the distribution of copies of supervision orders, whereas, so far as I can find in the somewhat limited time I have had to research this matter, the bulk of the orders are dealt with en masse only in Section 1 without supplementary provisions.

My contention is that it is not enough, after what we have seen go wrong, to assume that if a local authority, as some nebulous and impersonal organisation, receives a copy of any order, it is aware of that order in all its parts; that is to say, some branches of the service—quite clearly, many branches of the service— may not be aware at all. This has happened; it is fact. I quite expect the Minister to say that circulars have been circulated, that instruments have been instrumented, that directives have been directed, and that everybody's attention is now focused upon the dangers of lack of communication within the local authority. But I submit that this is not a sufficient discharge of the enormous responsibility which Parliament and this Committee bear as a result of this tragedy.

If your Lordships will forgive me for persisting about this, I think I must say that I regard the two functions of Parliament to be the defence of the integrity of the Realm and the protection of the weakest of its individuals against the strongest. If we do not do this, there is no point in having a Parliament. If we do not protect the Maria Colwells, the 7 year-old children, from the appalling horror story which their lives can become at an early age, then we have no business in politics or government at all. I do not think it sufficient, therefore, to delegate this responsibility to authorities, however responsible, however experienced and with whatever integrity. That is why I have suggested in these Amendments that copies of the orders be sent to the individual agencies within the local authorities concerned, so that each of them separately—as well as severally and jointly—are aware of the circumstances of the defenceless persons under the care of one or other of their branches.

I have spoken long enough for your Lordships to have run your eyes over the Amendments, and, perhaps, it would be as well now if I was to hear what others have to say on this matter. This matter is central to the whole Bill and we must deal with it with great care. I beg to move.


May I ask the noble Lord whether it is possible to do what the Amendment says. The Amendment says: the Medical Officer of Health and the Chief Constable of the area of the local authority named in the order ". Under local government reorganisation— I use Birmingham from my own knowledge—it would be the Birmingham district council that would be the local authority concerned with the making of the order, but the chief constable would be of the West Midlands Metropolitan Authority and not of the local authority concerned. I am not very sure about the Medical Officer of Health; I think he comes under the area health authority now. It is on the technicalities—how one interprets these people as being subject to the local authority named in the order—that I wonder how it would work.


I am much obliged to the noble Baroness for her intervention. As I said, it is the principle I am after. This is a drafting question. Drafting is made much more difficult by local government reorganisation. I think this is partially covered by the next subsection in Section 18 of the 1969 Act— I speak from memory—because it refers to other authorities who otherwise would not have been informed and would not have received a copy. This is a point which can certainly be taken in drafting. It is the principle which I wish to preserve.


I should like to support this Amendment. I think it reveals what can be a great weakness in the organisation of this work. The larger the area, the greater the number of people involved, the more difficult is it for the key people in these various departments to know what is happening. It is not so difficult if one has a small authority, but even then one can find oneself in trouble. It happened to me not so very long ago in regard to a case of a problem family. If the three depart- ments concerned—the social services, the education department and the Medical Officer of Health—had all known about the case, probably we would not have got so tangled up with it as we did.

The fact is that although they often live in the same building, some may be above or below and some horizontal, and one does not know anything. Very often, they are in the same building and yet, somehow or other, the information does not get passed from one department to another. They are all overworked, extremely busy, and it is a question of the file going to one place and not another. This is where you get the muddle. If you could be quite sure—certainly in those difficult cases that one has to deal with—that they were known to these people, the Director of Social Services, the Director of Education, the Medical Officer of Health and the Chief Constable (in my case the Chief Constable was not involved, but of course he could be), that would be very valuable. I hope that the Government will consider this, and see whether something of the kind can be put into the Bill.


In order to avoid wasting your Lordships' time by making frequent interjections, perhaps I may echo what has been said, that from the point of view of the children's work with which I am associated this is the nub of the purpose of the Bill; namely, to make sure that things do not slip. I would not wish in intervening to make any comment on the places to which information should go, but it certainly is of the greatest importance, not only from our point of view but from the point of view of the nation, that something does not go wrong for lack of information being available in the right places.

Perhaps I might add one more point, which the Minister will forgive me for making at this moment. It may be a criticism of my own homework, but I am not absolutely clear whether we have hitherto dealt with the other way in which things can go wrong; that is, where it is nobody's job to begin the circulation of information. Everybody hesitates when faced by everybody else. Perhaps the Minister could make a comment on that point. I apologise for raising it in commenting on this Amendment. However, I wish to support the Amendment on this general basis.


I shall not detain your Lordships for long. I wish to raise only one point in supporting this Amendment. The noble Baroness, Lady Fisher of Rednal, made a valid point in saying that there is some doubt in these cases as to who is responsible. The whole problem in the case of Maria Colwell, or Shaw/Drablow, or whatever the case, is that of communication. If there is somebody at the beginning whose responsibility it is to start the ball rolling, then there might be some negative proceeding by which when people are circulated, and if people are not responsible they should reply to the person who sent out the initial order.

6.3 p.m.


May I say that, of course, none of us can be unconcerned about the problem we are facing, which was so starkly illuminated by the Maria Colwell case. In fact, at some point in my reply, I intended to touch upon the point made by my noble friend Lady Fisher. Unfortunately, titles have changed and the Medical Officer of Health is now called the Community Physician. All that changed through the reorganisation of local government legislation. What we are talking about, however, is the principle and not the detail. On the point that the noble Lord, Lord Redesdale, made as to who is responsible, I would say that fundamentally we are all responsible. The noble Lord, Lord Elton, mentioned that the whole case was brought to light by a young detective constable. He discharged his responsibility.


He tried to bring it to light, but being a junior officer he was ignored and it did not come to light until after the child's death. We must have a system, and not rely on the hazards of the "best will in the world ", or inter-communication between neighbours and police, and anybody else in a haphazard fashion. This is not good enough. We must have a system.


I am not arguing about that, and I will answer the noble Lord. We are all our brothers and sisters and children's keepers, and this young man discharged his responsi- bility, and in my view others failed to discharge theirs. If everybody had been as alert as he was, this situation would not have arisen. Indeed, we should not have to legislate in this great detail if we all did our social duty.

May I repeat what I said earlier that in this House we must all be in full agreement with the principle which this Amendment tries to state, and I think that the Government are no less sensitive to it than is your Lordships' House. The problem we are facing is the problem of administration. May I turn to the point made in Amendment No. 66P, which the noble Lord has kindly offered to include with Amendment No. 66Q. This is a question of the mechanics of circulating supervision orders, and we shall come back to the general mechanics in a moment. The supervision orders cover not only the problems of children, but a much wider range of situations. During the 12 months ending 31st December 1973. 2,200 supervision orders or orders made on variation of supervision orders were made in the area of care and related proceedings. But an additional 18,000 supervision orders were made as a result of criminal proceedings, to which Section 18 of the 1969 Act applies. If we follow the letter rather than the spirit of the Amendment, we might drown the organisations in paper and make their work intolerably burdensome and, as a result, ineffective.

The Department of Health and Social Security have accepted the need for a multi-professional approach to the problem of child abuse, which is the reasoning behind the present Amendment. Guidance has already been issued to local authorities, Regional and Area Health Authorities and others concerned with children, stressing the need for close co-operation and notification, diagnosis, and treatment of non-accidental injuries to children. The Department do not accept that the proliferation of copies of orders, by requiring courts to send them to the officials named in the Amendment —either correctly or incorrectly—would result in any greater measure of co-operation between the agencies concerned, if this is the underlying purpose of the Amendment. Indeed, there would be the risk—and I agree with this— that copies of orders not directly of concern to the agencies receiving them would be regarded as routine notifications, and would merely be filed away for possible future reference. There is this danger if you have too much paper floating about.

The Amendment proposes that the Medical Officer of Health—now the Community Physician—should be one of the officials to receive copies of orders. As I said earlier, the post has ceased to exist. But in carrying out their social services responsibilities local authorities still require someone to turn to for medical advice. I think that the noble Lord, Lord Gore-Booth, made this point. This is now given by a community physician on the staff of the Area Health Authority who, as part of his responsibilities, is the named medical adviser to the local authority in the social services field There is a complete machinery for linking his work with that of the local authority.

The Department can see that there might be advantages if this Community Physician were to receive copies of certain types of orders made on grounds of child neglect or ill treatment—certain types of orders, not all (I believe that Section l(2)(a) and (b) of the Children and Young Persons Act 1969 applies to this)—but does not consider that such arrangements would be appropriate for legislation. If the noble Lord who has put down this Amendment would agree to seek leave to withdraw it, my right honourable friend the Secretary of State would undertake to see whether the spirit of the Amendment—and that is really what we are talking about—could be achieved by administrative means. I must point out at this stage that the Amendment can, and will, raise issues of confidentiality which might not be easy to resolve. I can repeat that the Governwill observe the spirit of the Amendment.


Of course I accept the humanity of purpose of noble Lords opposite, and" indeed of the Government and the Department, I do not call that into question. I also accept with gratitude the indication that the noble Lord has given that an attempt will be made in this direction. I am not happy with the word "administrative" which crept in, because this is different from "legislative" and I feel that the responsibility for preventing this kind of thing happening again rests with Parliament. Had Maria Colwell not been killed we might never have heard of her case. I repeat that it became a horror story—I think a worse horror story than it was in the last week—quite early in her life. Therefore, we are not seeking to legislate retrospectively to prevent something which is unlikely to happen again. I think it is likely to go on all the time.

In his researches before the Report stage, I should be glad if the noble Lord would bear in mind that what is necessary to satisfy this point is the conviction of this House, or of this Committee, that the education authority in the person eventually of the teacher, the medical authority in the person eventually of the GP and the police in the person of the station officer, shall be aware when a child or young person is at risk in this kind of way. He has himself said that the proliferations of the social services are now such and the unit is so large that there is a likelihood of a breakdown of communication within them if the organisation as a whole is informed at some specific point. I find it difficult, therefore, to imagine a rubric or subsection which can satisfy us if it does not directly name at least these three agencies. I think we can take it that the social services will be aware of any variation, because they will be represented at the court.

If I may leave that on record, I should like to say that some note should be taken—and one hopes that education authorities read reports of debates such as this—of the breakdown of the inter-school information that took place in the case we are considering at the moment. Maria Colwell's medical card is, so far as I can understand, almost innocent of inscription except dates, and vital information was not passed on in her record card when she went from the infants to the junior school. This is, of course, a matter for the procedure of the local education authority and, indeed, of the individual teachers concerned. But I hope that as well as the guidance which the noble Lord the Minister, predictably and kindly, said had been circulated to local authorities on their care searches, some similar circulation has emanated from the Department of Education and Science to see that children are labelled. The school that we are speaking of was not a big one. We are all aware that there are some very big schools and in those it is essential that proper records be kept. Confidentiality may be an important matter, but I think it better to be rescued in public than to drown in private.


I have a great deal of sympathy with what the noble Lord has said, but may I go back to the starting point. If the schools had done their duty as well as the young constable this matter might not have arisen, but my noble friend the Secretary of State is seeking, as far as possible, that we put this in legislative terms. I am certain that this will be done, and I will ensure that it is considered before we come to the Report stage of this Bill. But I ask that we do not sneer at administration. Unfortunately, we have to administer these vast and expensive machines and, at the end of the day, circulation of information depends on individuals. Unless individuals do their duty, the necessary circulation of information does not take place. We must not choke those individuals with too much paper; otherwise, they will throw up their hands and do little or nothing. We have to strike a balance between a superfluity of paper circulated and the need for wide disposal of information.


Far be it from me to sneer at administration. I merely suspect it, because it is something that easily goes wrong. I accept the noble Lord's under-taking. I hope it is clear that I reserve the right to come back at Report stage in the light of whatever I may find the Government have put down as an alternative Amendment. I beg leave to with-draw the Amendment.


Before the Motion is moved, may I say that the Department of Education and Science have been given the details.

Amendment, by leave, withdrawn.


My Lords, it might be for the convenience of the House if I announce that we will be adjourning at seven o'clock for twenty minutes so that supper can be taken by people in the. Committee.

6.17 p.m.

Lord ELTON moved Amendment No. 66N: After Clause 49 insert the following new clause:

Addition to Children and Young Persons Act 1969

".The following section is inserted after section 20 of the Children and Young Persons Act 1969: —

Directions as to placement of children in care.

20A.—(1) Where a court commits any person to the care of a local authority under section 20 of this Act it shall be lawful for the court to make a further order specifying a place or places at which the relevant local authority is precluded from placing that person. (2) Section 2(12) of this Act shall apply to any order made under subsection (1) above."

The noble Lord said: We now touch on another aspect of the same problem; that is, the problem of care. Some disquiet has arisen from the fact that it is possible for a court to order a child into care and specifically to recommend that the care order be carried out at some place other than the child's home, as defined in, I think, Section 58(3), but for that instruction or advice to be ignored by the local authority, for one reason or another, and for the child to be returned to the place whence he had been brought. We have just seen what can happen to him when he gets there. I realise that this is a slightly contentious Amendment, in that those who take the child into care may well feel—in some cases with justice—that they have a closer view of the circumstances of the child taken into care and the subject of the care order than the court. On the other hand, I think it fair to say that the field workers in this branch of the service are astonishingly overloaded.

We referred just now to the Maria Colwell inquiry, in which it appeared that a caseworker could habitually have between 60 and 70 cases on hand, of which six might be in physical danger. Therefore, these people are working under great pressure and in great difficulty. It may sometimes appear that to return a child to its "home"—for want of a better name for the place—may be administratively, and from a practical point of view, the best thing to do. The court may disagree. It seems to me that the court must be taken as being superior to the service; otherwise the service would not have to apply to the court for permission to have a care order or to make any other drastic changes in the status of a child. One cannot therefore sweep aside the request that the court be made superior in this instance, by saying, "Oh, well, the other people know best". It will also, I do not doubt, be argued that there is such pressure on establishments which can take children into care that if a court is to exercise this power—which is permissive, be it noted—it will throw unbearable strains on limited resources.

I do not wish to widen the debate too far from the present grounds, but we have at some stage to consider the primacy of ends or means. In 1969, the approved schools were done away with and it must have been at the back of somebody's mind what could be used to make up the accommodation that was then lost. I do not think we should contemplate legislating in this form for children to be sent into deleterious and possibly even dangerous circumstances on the grounds that there is nowhere else to send them. In those circumstances, I think it is incumbent on the Government to find somewhere else to send them.

Noble Lords will recall that we said earlier in the debate that the financial provisions of the Bill seemed to us in-adequate; and this is one of the reasons why it should be looked at again in another place. But the intention of this Amendment is to enable a court to say that a child may not go back whence he came when he is taken into care; and I think your Lordships will hear shortly that it is not uncommon at the present time for this to happen against the wishes of the court and against the interests of the children.

6.20 p.m.


I am pleased to support what my noble friend Lord Elton has said. If this clause becomes part of the Bill I have no hesitation in saying that it will be welcomed by every magistrate in the country who has the difficult task of dealing with children and young people. Since the passing of the 1969 Act our hands have been tied in so many ways, and in my view it is as a direct result of the passing and implementation of that Act that we have the very alarming increase in juvenile crime today Insufficient plans were made to enable courts to deal adequately with any part of the Act. That applies to court orders as well as to other methods of dealing with children in trouble.

There are many reasons why courts order children to be put into the care of local authorities. They can so order from a very tender age, perhaps from a fort-night old right through to 16 and 17 years of age. We had an infancy case the other day (something of that case has already been quoted to the Committee this afternoon) where another baby was born to a mother who was well known and it was immediately taken into the care of the local authority. Another category concerns those who are brought before the court as being beyond control. Apart from British children who are beyond control, in my view one of our great tragedies is those children who follow their parents here from other countries. Parents come over leaving children with grandparents, and they then send for the children when they are 12 or 13 years old. Children who are brought up in faraway countries and are not used to our way of life, are suddenly catapulted into new laws, new ways which have become part of their own parents' life. Their own parents cannot cope with the children because they cannot conform to the new way of life of the parents; then the children come before our courts as being beyond their control. In many cases the parents refuse categorically to have them home. This is a tragedy because in the first instance, of course, it is the parents' fault for ever having left them behind.

We also make care orders for truanting from school. Sometimes I feel that if more children were caught truanting and put in care for a short time and made to go to school, we should have a better standard of education for some of these children, and, also, less truanting. Truanting, as we all know, leads to crime. We can also put children into care for a number of criminal offences. Then, we can put them into care when it is proved to the court that they are in need of care and protection. There are many other reasons for putting children into care. This clause will enable a court, if it is so minded, to refuse local authorities permission to send a child home on a care order. Having said that, our problem of course is where to put them. As magistrates, we all realise the difficulties that exist, and will probably still exist for some time ahead; but in the main these are due to the shortage of hostels, remand homes, foster homes, staff and money.

I think, too, that the lack of flexibility between authorities and counties at both levels is a problem area. If only they could be persuaded to interchange their charges, and more often accept children from other authorities, the situation might be a little easier. As it is, we make a care order with the express intention of removing a child from home, and this for many reasons. We may feel that he needs a more structured environment. We may want to break up the gang of hooligans who have been taking and driving away cars, or breaking and entering or smashing up buildings. We may even want to take the child away from quarrelling parents. Occasionally we want to take a child away from doting parents who cannot believe that little Willy, who is always such a good boy at home, can and does get into trouble with the law outside home.

So frequently we are dealing with children who have never left home by themselves. This is one of our problems. We sometimes find that if a child has committed a crime and we have remanded him in custody for report, and he is away from mother, it is amazing how mother misses him, although he was a little horror before, while he misses mother. Sometimes they make good their ways. Although usually we in the courts are dealing with care orders from infancy to young adults, I think there could well be a place for the sixteens to nineteens who come before the court, to do community work under a care order. What I envisage is residential community work, not the community work of just going to dig somebody's garden or paint their house.

The other day, on behalf of the League of Friends, of which I am now national chairman, I was speaking at a large psychiatric hospital, and in the audience were six young people, all of whom had been sent to do community work residentially by the Community Service Volunteers. Two of these six persons had been to borstal. I did not know this at the time, but I was informed they were quite different people from when they went in, because they had been put in among people who were worse off than themselves. They had been put into this psychiatric hospital; and, of course, noble Lords can think of other types of institutional care where young people could help such as "subnormals" hospitals. The point I am trying to make is that those young people will be much better people when they come away from perhaps four months in a hospital or home having helped other people, at the same time having had responsibility thrust upon them.

We could not make a court order with the intention of sending them to a place like that if the decision was left entirely to the discretion of the local authorities as to where they should go. That is why I am so particularly keen about this clause. As has been quite rightly said by my noble friend Lord Elton, because there is nowhere to go, these young people unfortunately do go home, get into some trouble, commit the same offences and, in a few months' time, are back in the courts.

There is a Select Committee sitting upstairs on the express wish of the Home Secretary on the non-working of the Children and Young Persons Act of 1969 and I do hope that they will come up with some concrete proposals. But I am afraid that one difficulty they will have to face is the shortage of every-thing that was envisaged in that Bill. But the fact remains that as far as care orders are concerned this clause is vitally important and long overdue, and I commend it.

6.30 p.m.


Listening to what has been said and sympathising—and speaking as a magistrate—I realise the problems the courts have in placing not only children in care but the mentally handicapped who come before the courts; and there are no places in secure prisons. I think that we have to be very careful that we do not use an Act of Parliament of this description— and vest new powers by an Act of Parliament, as is suggested—because the court, whatever it does when it makes the order, will not increase the supply of places available. Whatever the court may do, if it says quite clearly that the child cannot go back to the parent and if there is no other place available, the local authority charged with the responsibility of the care of the child is put in a very invidious position. What do they do with the child then? The more serious consequences might be that it is placed in any kind of accommodation, which might really be against the interests of the child.

While one is sympathetic to the Amendment, it ties the hands of the local authority, who have really got the care of the child vested in them. If we are to look at the Amendment before us, I think that we have to ensure that we do not seek to change the law purely in an endeavour to eliminate problems that arise from a lack of financial resources. We have to do that with the appropriate pressures applied to the Government to provide the money for the places we are talking about. I should feel a little worried that the local authority was being put into an impossible position of not knowing what to do with a child if a court said quite specifically that it could not be returned to its parents, because I think good social work practice (and I do not think this can be written into an Act of Parliament either) could operate to the benefit of the child even if the court itself felt that it did not have to be returned home. In court, very often, in our judicial capacity we are given about 15 minutes to consider what is to happen to the child before us, whereas if one has good social work practice—with multi-disciplinary people deciding on the welfare of the child—perhaps 2 or 3 hours and, perhaps, many days afterwards is given to see what happens to the child. That would be more beneficial in the long run to the child. Therefore, I should hate to see the local authorities' powers being superceded by a court which really makes a decision, but which does not have to take the ultimate responsibility for that decision.

6.34 p.m.


My noble friend once again comes to my aid. I think the Amendment, although well-intentioned, and with whose aims I am sure we have every sympathy, sets about dividing responsibility between the court and the local authority. As a result, the child may fall between these two areas of responsibility, because there is no automatic assurance that someone is reaching responsible decisions. In my experience of life, responsibility must be defined, and this Amendment divides it. If accepted, the Amendment would breach a fundamental principle of the Children and Young Persons Act 1969, which is that the courts should decide whether a child is in need of care or control but a local authority, to whose care a child has been committed, should decide how and where the child should receive the care or control he needs.

My noble friend stated the point very well. Decisions as to whether or not the child should be in care need a comparatively short time to be taken. How is much more difficult. The Amendment would give courts the power to decide that a child should not be left in his home in some cases, but local authorities could not be held responsible for the placement of children if the arrangements for doing so were taken out of their hands, as the clause suggests, and placed in the hands of the court. As I have said, the local authorities have a statutory responsibility under Section 13 of the Children Act 1948 to provide accommodation and maintenance for children in their care. Subsection (2) of Section 13 provides that a local authority may— "may" is the operative word— allow a child in their care either for a fixed period or until the local authority other-wise determine, to be under the charge and control of a parent, guardian, relative or friend". This provision was added to Section 13 of the Children Act 1948 by Section 49 of the Children and Young Persons Act 1969, for the following two reasons: (a) that a local authority might think it right that a child in care should be allowed to be with its family for a short period, for instance, over Christmas or during a family holiday: or (b) that the local authority might wish to restore the child to its family for a longer period while still retaining responsibility for him—the local authority retains responsibility—as a tentative step towards the ultimate goal of restoring the normal family relationship. I believe that those who work in this area call this a period "on trial" at home.

If this Amendment were to be accepted a local authority might be precluded from implementing both of these commendable objectives if the child's home were to be specified by the court as a place to which he could not be sent. For this reason I must resist this Amendment, partly for the reason given and partly because I personally do not believe in divided responsibility.


I am not altogether convinced by the noble Lord's reply, on a number of grounds. If I may take them broadly, and, indeed, anticipate, I shall deal with matters outside his objection. In the first place, I think it is accepted generally, and not just by the noble Lord, that there is a need for some such power to be given to the courts. Evidence of this is the support which the National Society for the Prevention of Cruelty to Children has given to this Amendment and the evidence which they have given of 26 cases where children have recently been returned home while still in care and about whom a complaint has subsequently been received by them. Twelve of those cases involved physical injury or ill-treatment and 11 were of neglect. We are right back to the Colwell syndrome that we were talking about earlier. These were children subject to a care order who were returned in exactly the same circumstances as I described earlier. This Amendment has a considerable body of support. It is the seventh draft—if the noble Lord is interested—and that is why it has the support.

I take the point of the noble Baroness, Lady Fisher of Rednal, but I wish to emphasise that this is a permissive clause. It enables; it shall be lawful for the court to make an order precluding the child from a particular place of care. If we do rot now insert it into the Bill then, when eventually, as one hopes, the day comes when accommodation is available we shall not have the power to put the child in because we have not inserted it into the Bill now. It is a chicken-and-egg situation. I assume the court will be aware of the resources available to the local authority and I assume that, if it is not, the local authority will take instant steps to inform it thereof in the evidence it gives.

I also accept that case workers often hold case conferences lasting upwards of two hours whereas magistrates may have as little as 15 minutes. One of the objects of the case conference is to decide what to put into the 15 minutes of the magistrates' time to ensure that there are the right answers to their plea. So I do not think this is in itself a good enough reason for saying that the magistrates' judgment should be subordinate to the judgment of the case workers.


Perhaps I may not have presented the case very well. After the court hearing, it devolves on the case workers to make their recommendations about what is to happen to the child. I was not thinking of the recommendations that went to the magistrates but of the decisions that had to be made by the multi-disciplinary committees after the court had made its decision.


Yes, I accept that. I suppose that one would also accept that there is a limited extra load placed upon the service by requiring a conference on the subject to be held before the finding of the court, on the assumption that it might be a question of a restricted care order. The noble Lord, Lord Winter-bottom, referred to this as going—though I did not get the exact term—outside the terms of the 1969 Act. It is an amendment of the Act, certainly, and, so far as I can see, it does not fall outside the Long Title of the Bill. So that objection seems to me not to be valid.

We come next to the noble Lord's suggestion that this would in some way preclude the child from having an "on trial" period, and here I think that the noble Lord has made a valid point in the opposite direction to which he intended. We have just been discussing the Colwell case and the failure of information. If we get something on the lines of the previous Amendment which was withdrawn, and for which the noble Lord may provide a substitute on Report, here is a case exactly fitting the Amendment because there is a variation of a care order and the people responsible for the welfare of the child outside his natural home will be aware of the fact that he is in a trial period, which otherwise they would not be, and that is where the breakdown comes.

Finally, I cannot follow the noble Lord on the division of responsibility, because I think that that is usually as is suggested. It is so in criminal law, I believe, and my noble and learned friend Lord Hailsham will correct me if I am wrong. I believe that it is normal for courts to pronounce and for judges to sentence and this is a function of the court which is not divided. Here we are not in a criminal situation but we are giving to a court a function which it normally performs. In addition, we are doing this in a very limited form, because we are not stipulating that the court shall specify the establishment to which the child shall be taken, but only that it shall order the child to be cared for but not by its parents, in whose care the court thinks the child will suffer. I should very much like to hear what the noble Lord has to say to all that before we decide what we shall do about the Amendment.

Viscount ST. DAVIDS

I should like to say a few words on this point because of the number of children whom I have had through my hands at one time or another. I have had a certain amount of experience of this problem. I am afraid that there are a good many cases where a child misbehaves, comes before a court, is handed over to the local authority and where the local authority does not know what on earth to do with him and sends him home. The child was at home in the first place and comes to the conclusion that he has got away with it, so he misbehaves again. He comes before the court again, is handed to the local authority, and the local authority can do nothing with him so they send him home again. This can go on and on endlessly.

It may be impossible to stop this for the simple reason that there is no cash to do anything else. If that is so, I am extremely sorry. I voted for the 1969 Act because I thought that the Government would put their purse where their mouth was. They did not. If one votes for something and then does not provide the cash, one is, in effect, passing the Kingdom of Heaven on Earth Construction Act. That is an Act which everybody would vote for, and which would, no doubt, suffer the most interesting Amendments at Committee stage, but would be of no possible use because the cash to implement it would not be there. This is what was done in relation to the 1969 Act. If this is so and it is utterly impossible to do anything else, it should be perfectly possible for the local authority to tell the court that it is very sorry but it has not got the cash, the resources or the places, and that there is nothing whatever that it can do. However, if the Amendment is passed, the court will be able to say, "Do not send Johnny home". Now that would be a court order but it would be possible for a local authority to say to the court, "We are terribly sorry but there is nowhere but home to which we can send Johnny", though in fact it may have been his home that was causing the trouble in the first place, as it very often is.

If a court can make an order, it can be approached again to revoke that order, to amend it or to change it, on reasonable grounds. If the local authority has any sense at all, surely it will say to the court, "We are very sorry but we cannot do anything else and therefore you will have to say that we can send Johnny home ". On the other hand, if the court makes the order and Johnny is stuck, presumably in police hands, is the local authority not able to turn to the court and say that it cannot find anywhere else but home to send him? Surely the local authority can go to the court again if that happens and, if that is so, why cannot we have this in the Bill?


I think I should mention that, in recent months in London, certain local authorities have been placing teenage children in their care in bed and breakfast hotels or boarding houses for lack of anywhere else to put them. That is one of the reasons why I want very strongly to support the Amendment and to give to the court the discretionary power to say that a child shall not go to certain places. I think that it would be not at all a bad idea if local authorities were in certain cases put, as someone said earlier, in an invidious position. I think that they should publicly be seen to be in that invidious position and should not be able to cover it up by an administrative decision after the court has had its say.


I had not intended to intervene on this point, but I should just like to say that what we are all trying to emphasise is that the most pathetic thing in the world is for a child who has suffered from non-accidental injuries to be forcibly returned home. This is the thing that breaks social workers' hearts. I think it has been very well put that in many cases perhaps there is nowhere else for such children to go but I believe that it can only be helpful in such a case if some brake is put on a too premature decision to give up.


All I can say is that I and my colleagues will take note of what the noble Lord has said. It is common ground that more accommodation is needed, but until it is actually built and in operation the orders proposed in the Amendment will merely increase the difficulties of local authorities without helping the children or anyone else. The Act is often criticised on just this ground; namely, that it lays duties on local authorities without providing the necessary resources, as the noble Viscount, Lord St. Davids, has said. Perhaps if the accommodation were available, there would be no need for the proposed power, but, as I read the Amendment, it seemed at first glance to be a question not of resources but of responsibility that was under discussion, and the suggestion was that the courts were a better judge than the local authority of how the child's specific social and psychological needs were to be dealt with. But that is apparently the lesser of the two problems and the main problem appears to be the question of accommodation.

Having said that, clearly the Amendment has been carefully thought through and all I can say is that I and my colleagues will give it careful study and will note it. But I cannot give any under-takings tonight to introduce or support such an Amendment.


On the understanding that the; noble Lord has left it open to myself to come back with something to answer this Amendment on Report— although at first sight he does not feel so inclined—I suppose it would be in order for me to withdraw the Amendment. But I must clearly seek to claim to be able to restore it at Report if the matter is not met, because it is obviously the sense of the Committee and of a great number of people outside this House that it should be met.

I am only anxious that we should not fall into the trap of appearing to make unfair criticisms of the welfare services, as to their ability to discharge their functions. That is not intended. They are dedicated people and like all dedicated people, including courts, they can make mistakes, but the presence of the courts should help minimise those mistakes. We trust that the courts will not make orders to put children into places which do not exist, and we trust, too, that the Government will rapidly build the places which ought to have existed since they took their stand in 1969—the Heaven and Earth Act, as it has been called—to put the matter right as rapidly as possible.

Let us not be contentious about this. This is a humane, workable, and, on the whole, beneficial Amendment, and I urge the noble Lord to look at it very carefully to see whether he can incorporate it at Report stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 50 [Addition of new sections to Children and Young Persons Act 1969]:

6.52 p.m.

Lord WIGODER moved Amendment No. 67: Page 33, line 12, leave out ("where the Court thinks fit").

The noble Lord said: The effect of this Amendment would be to make it mandatory, instead of discretionary, upon the court to order that in a very limited class of case there should be a person appointed to act as guardian ad litem of the child. It may be that your Lordships would all agree that in an ideal world in any case in which the child's welfare is at issue there should be an independent guardian appointed to act on behalf of the child, and that there should be independent legal representation; but your Lordships will no doubt agree that considerations of manpower and of finance make that quite impracticable. This Amendment deals with only a limited class of case because the new proposed Section 32B refers only to cases where art order is made under Section 32A, which deals solely with proceedings where it appears to the court … that there is or may be a conflict … between the interests of the child or young person and those of his parent or guardian…". I would suspect that certainly in nine out of every ten such cases the court would invariably appoint a guardian ad litem and would take advantage of its discretionary power proposed under Section 32B. But the purpose of the Amendment is to ensure that that power is exercised not only in nine out of 10 cases, but in the tenth case as well. It is for that reason I suggest that if this power is made mandatory it will not be any substantial additional strain upon resources, because the power will in any event be exercised in the overwhelming majority of cases. What leads me to the view that the power should be made mandatory is that it is an unfair burden to put upon the court to seek to detect upon information, which may appear to be perfectly straightforward, that there are in fact stresses or strains, or undercurrents, which require further exploration.

The only other observation I wish to make is that sometimes such applications are not opposed, and a court might be tempted to think that although there is a conflict situation—as in Section 32A— where the application is not opposed it is therefore not necessary that a guardian ad litem be appointed. The short answer to that argument lies in the name Maria Colwell, because in that case the application by the mother for the return of the child by the discharge of the care order, was not opposed, and it is to avoid any possible repetition of that situation that I beg to move the Amendment.

Viscount ST. DAVIDS

I should like to support this Amendment. The reason I speak to it is that further down this clause I have put down an Amendment which is not meant to weaken this present Amendment, but is intended, rather, as a back-up Amendment. I know something about this guardian ad litem business because I got into it rather early. I first entered it at the time of the Denning Report dealing with divorce. I recall that we had a two-day debate in your Lordships' House on the Denning Report. That was at a time when there were no ladies in the House, and we got into the extraordinary position that we managed to hold a two-day debate on divorce without once mentioning children. This could not possibly happen in the House as at present constituted, but it happened then. I rose— Lord Jowitt objecting rather—at the tail end of the debate. I made a three minute speech saying that if Mr. and Mrs. Smith were fighting one another they were not proper representatives of the young Smiths, who ought to be separately represented, and even if the Smiths agreed on what should happen to the young Smiths, that was not necessarily the right thing because it might be collusive.

Lord Jowitt, the Lord Chancellor at that time, was very much in favour of this and he mentioned it in winding up the debate. I gave evidence before the Denning Committee and that Committee in its Report on children reported in my words as stated in this House and in my evidence before the Committee. It was done. Lord Jowitt was not in favour of what I wanted at the time, which was a guardian ad litem in every case. Lord Jowitt was in favour of a representative who could be used if the judges wished; but the judges are not necessarily in favour of every innovation, and for quite a time the judges did not wish. They took that course in 5 or 10 per cent, of the cases, and now and again in the course of the years I put down Questions in this House to find out what percentage of judges so wished. It turned out in the end that 100 per cent, of the judges wished this—they all wanted it—and a guardian ad litem was used in every single case.

I later gave evidence to the Royal Commission on Marriage and Divorce and it became enacted that the children's affairs had to be considered before a judgment could be given in a divorce case; the children's affairs were paramount. For this reason I am entirely in favour of this Amendment, and I am sure that in the end it is what we will get. The answer that the noble Lord will get will be, in my view, that there is not sufficient staff or that the Government cannot afford the proposal. That may be so. They have not got the money for so many things. I should not be surprised if they do not have the staff. But if that is to be the Government's answer, and if the Amendment is withdrawn on those grounds, I then have my Amendment: thus we can say that this is what we are aiming at and, when the money and staff are available, power must be provided to make an order, so that if we cannot take this action now it can be taken later. I support the Amendment and I would prefer that the proposal be accepted now. I shall follow the noble Lord if he with-draws the Amendment, or support him in the Lobby if he wishes; but if we cannot get this Amendment accepted I shall later move my Amendment.


I should like to say a word from these Benches because the names of the noble Baroness, Lady Young, and myself are attached to this Amendment. I cannot claim the same expertise that the noble Viscount, Lord St. Davids, has shown in his previous debate on the Denning Report, but I can claim to have taken a great interest in the guardian ad litem clause, Clause 13. which we debated, if your Lordships will recall. at the beginning of the second day of Committee. My noble friend Lady Young and I put down an Amendment in order to enable precisely this situation to occur. I think that it will be unnecessary to repeat my speech at that stage, but I then went into this in depth. I support this Amendment warmly and shall also speak to Amendment No. 78.


I should like to support this Amendment wholeheartedly. In my view, it is impossible for a child to express its views in court. So far as my court is concerned, always insist upon adjourning to another date so that the child shall be represented. I think that it should be mandatory that they should always be represented on such occasions as the noble Lord has described.


I. too, should like to support this Amendment since these are matters which come up continually. I will not repeat what has been said; but in these cases I think there should be representation for the child. If it is not an officer of the local authority, one could get a social worker, or older people who have had experience, who know the family or the child's up-bringing, and who could represent the child in court. I think that this is most important, because otherwise we shall get just the situation referred to by the noble Baroness, Lady Macleod of Borve, and the noble Viscount, Lord St. Davids. I should like to support the Amendment.


I should like to have shortened my reply, but in view of the fact that five noble Lords spoke perhaps I ought not to do so. I want to say that in the majority of cases of this kind it is highly desirable that these matters should be left to the court's discretion. The courts have the cases before them; they have heard the evidence; they know what this type of case is likely to produce. I should i have thought that it would be much more useful from everybody's point of view if | we did not lay down hard and fast laws as to how the court should conduct itself. We have moved away, year after year, from the definite instructions in dealing with children and young persons. There is no evidence that as a result of this the behaviour of the courts, their decisions and the final dealing with children and young people has suffered in consequence. I think one ought to take into account the fact that in a large i number of these cases there will be a solicitor; and I should have thought that the solicitor involved would have been sufficient to meet the needs.

The proposed provisions of the new Section 32B of the Children and Young Persons Act 1969, which we are talking about and which follows Section 32A, relate only to care and related proceedings in which it appears to the court that there is or may be a conflict, on any matter relevant to the proceedings, between the interests of the child or young person and those of his parent or guardian, and the court has made an order (under Section 32A) that no parent or guardian of his shall be treated as representing him or as acting on his behalf. In deciding, in such cases, whether it is necessary to appoint a guardian ad litem for the child, the court will need to consider whether the child's interests are being safeguarded in the proceedings— and the court has a responsibility to do this—bearing in mind that the applicant, whether police, local authority or NSPCC, will have brought a child to court only because they consider that an order is necessary to protect him because he is being ill-treated or neglected. Where the court is satisfied that the child's interests will be adequately represented in the proceedings— perhaps by the appointment of a solicitor—and that no second social worker's voice is necessary, it is right that they should be able to exercise their discretion not to appoint a guardian ad litem; and so avoid unnecessary duplication of the services of scarce experienced social workers.

I do not want to hang my argument on that. I am grateful to the Viscount, Lord St. Davids, for bringing in his Amendment No. 70 and I hope that what I say now will have some bearing on that Amendment. Where, however, an application is made by the parent on behalf of the child for discharge or variation of a care or supervision order which is unopposed by the local authority concerned—as happened in the case of Maria Colwell—there is a greater risk that the child's interests may not be adequately protected and the arguments for the appointment of a guardian ad litem or a solicitor, or both, will be strengthened, particularly if the child is too young to take part in the proceedings.

The Government therefore consider that even where an order has been made under the proposed Section 32A of the Children and Young Persons Act 1969, the appointment of a guardian ad litem should be discretionary, because I think one must face the fact that in a good many cases a guardian ad litem will not be necessary. I am not concerned with the wastage of manpower or resources, because these are relatively unimportant. What is important is the interest of the child. I would maintain that the interest of the child would be met if the court was allowed discretion in this matter. One must remember that many older children—and they are not all children who are unable to speak for themselves—are sufficiently articulate to be able to make known their views to the court without the need for a guardian ad litem to do so for them. In addition, a court already has power to grant a child or young person legal aid for the purpose of representation by a solicitor and this power does not depend on making an order under Section 32A. With great respect to the noble Lord, Lord Wigoder, and those who supported him, this Amendment is really unnecessary and the welfare of the child will not suffer in any way if the wording remains as it is.


I find it difficult to accept the argument that in many cases it may turn out that the appointment of a guardian ad litem will have proved to be unnecessary. I accept that may be so. What I am anxious to safeguard against is the occasional case where the court does not appoint a guardian ad litem and it would have been necessary. I regard it as far more important that we should be able to cater for that occasional case, than that there should be cases in which a guardian ad litem may be appointed and his services may turn out to be unnecessary. Having said that, and being aware of the fact that there is a further Amendment in the name of the noble Viscount, Lord St. Davids, dealing with a similar matter, I am certainly prepared at this stage not to press the matter further. Clearly, I must reserve the right to return to this again on Report stage depending on the answer given to the noble Viscount; but in the circumstances at this stage I would ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[The Sitting was suspended at 7.10 p.m. and resumed at 7.30 p.m.]

Lord WELLS-PESTELL moved Amendment No. 68: Page 33, line 12, leave out from ("of") to ("person ") in line 13 and insert ("a ").

The noble Lord said: This is a drafts-man's Amendment to make it clear that the court will have freedom of choice in appointing a guardian ad litem under the new Section 32B(1) of the Children and Young Persons Act 1969, which is introduced by Clause 50, provided that a person is a member of the panel of experienced social workers from which guardians ad litem are to be drawn for the purposes of Clauses 13 and 50 of the Bill. It is envisaged that the panel will include probation officers as well as experienced social workers employed by local authorities and suitably qualified retired people.

I should like to make it clear, because we are all much exercised in our minds about the personnel who will go to make up these panels, that they will have a very responsible job. None of us is unmindful of their responsibility, and, obviously, we want to see the best possible people. In order to achieve this, the Secretary of State is taking power by way of regulations for local authorities to set up panels, and he will be working on the recommendations of the Houghton Committee. Perhaps your Lordships will forgive me for not going into the recommendations of the Houghton Committee; I am sure noble Lords will know what those recommendations are. But we want to ensure that under the regulations the sort of people who are to be appointed will be able to discharge this responsibility in the best way possible. I believe I said on a previous occasion that consultations are taking place, not only with local authorities, but with other interested bodies. I feel sure that when the regulations come before your Lordships they will satisfy the needs and the spirit of this Bill. I beg to move.

Baroness YOUNG

I am sure we are grateful to the noble Lord, Lord Wells-Pestell, for explaining the purpose of this Government Amendment. As he rightly said, it follows logically from Section 32B. I am particularly pleased to understand from him that the Government are by regulations going to set out the persons they have in mind to serve on these panels. He will recall that on Clause 1, and again on Clause 13, I was concerned on reading the Financial Memorandum that they might be drawn exclusively from social workers— not that I am against having them from social workers, but I believe it was the intention of Houghton that they should also be drawn from others suitably qualified to perform this job. It is important that we should make the widest possible use of the experience we have. This Amendment does not preclude the fact that we may well come back on Report to the Amendment which we have just debated, about whether or not guardians ad litem should always be appointed. But, given that the clause is drafted as it is, this is a good Amendment and I am glad to support it.

On Question, Amendment agreed to.

7.33 p.m.

Lord WIGODER moved Amendment No. 69: Page 33, line 12, leave out from ("of") to ("to") in line 13 and insert ("a person, not being an officer of any local authority which is a party to the proceedings").

The noble Lord said: The purpose of this Amendment is to ensure that the guardian ad litem when appointed is an independent person free from any possible pressures from the local authority who may be a party to the case. It arises directly out of the Field Fisher Report about the Maria Colwell case, from which it appeared that one of the difficulties was that the social worker involved had to represent the views of the local authority rather than her own independent views on the situation. It does not materially matter whether the Amendment is written into the Bill by way of a clause, or whether it is provided for by the rules which may be prescribed under the subsection. But I would urge upon the Government that it is necessary, indeed vital, to the welfare of the child that the guardian ad litem should be a person totally independent of the local authority. I beg to move.

Baroness YOUNG

I should like briefly to support the Amendment of the noble Lord, Lord Wigoder. My noble friend Lord Sandys spoke to a similar Amendment on Clause 13. I think the impression could be given to the outside world that the guardian ad litem was not an independent person at all, and that it was a case of the social services department being judge and jury in its own case. I hope this is not so, but: this Amendment would make the position absolutely clear.


I am grateful to the noble Lord and the noble Baroness. There is nothing between us at all here. In principle we agree. The underlying purpose of the Amendment is accepted, but it is intended to achieve this by rules of court. We have to bear in mind that we must provide in the rules the procedures for magistrates' courts and for appeals to the Crown Court. This we are proposing to do. In adoption, we have agreed that the guardian ad litem should not be appointed from an adoption society, and I would say that the principle follows in this situation. In view of the fact that we are taking this principle on board, and recognise the validity of the noble Lord's Amendment, would he allow us to provide for this by way of rules and in the circumstances feel he can withdraw his Amendment?


I am grateful to the noble Lord, Lord Wells-Pestell, for that information. I indicated that it is immaterial whether we prescribe for it in the rules or in the Bill itself. In the circumstances, and in view of what has been said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.40 p.m.

Viscount ST. DAVIDS moved Amendment No. 70:

Page 33, line 24, at end insert— ("(3) The Secretary of State may make an order, when satisfied that there is adequate staff for the purpose, that a guardian ad litem be be appointed in all proceedings under section 32A.")

The noble Viscount said: In view of the present position, I think I should move this Amendment. It is purely permissive. The Amendment does not say that the Secretary of State must make an order but that he may make an order, when satisfied that there is adequate staff for the purpose, that a guardian ad litem be appointed in all proceedings. One knows the difficulty about cash; one knows the difficulty about manpower. One knows also that in certain cases it may not be necessary. When the noble Lord dealt with the previous Amendment, he said that it is necessary in nine cases out of ten, but not in the tenth case. However, my feeling is that when one reaches the stage where something is necessary in mine out of ten cases, it is better to do it the tenth time, even if it is not necessary, in order to show the public that everything is correct and in order. If one does not do it the tenth time, one raises queries in people's minds. It is not a question of justice being done; it is a question of justice appearing visibly to be done. Therefore, I think that it is quite important that one should do it the tenth time, even if, physically speaking, it is not necessary. If one needs a decision as to whether or not it is necessary, almost certainly one will be right if one says that it is not necessary, but occasionally one may be wrong. If, however, one is right in the nine cases when one is obviously right, it is far better to do it on the tenth occasion as well. Then it is quite clear, simple and obvious to everybody.

Simplicity is a virtue. Among other things, it is a Christian virtue. Certainly, though, it is a virtue in an Act of Parliament. If one says, "We shall do something nine times, but we shall not do it the tenth time", it is one more complication. It is far better to say, "Very well; if it is right nine times, we will let it pass the tenth time". It is a slight waste of manpower and it is a slightly greater expense, but it looks right and justice appears to have been done. It is that simplification of the law which surely we all demand. If noble Lords on the Front Bench say that it cannot be afforded, that may be true until we get our national production and finances right. There will be very many things which we cannot afford. If, however, we can afford it, if it can be done, and if the people are there—it may be that one will have to wait some years until one can train them all—then we ought to do it now. However, this is a judgment which I cannot make. It can only be made by the noble Lords on the Front Bench who are able to assess the manpower, the finances and the rest.

In my Amendment I am giving them power to say, "If we decide that it should be done, we can do it". Surely, that is right. If they think that it is wrong, they are not forced to use this power. If they think that they cannot afford it, obviously they should not use this power. If the people are not there, obviously they cannot use this power. However, the Amendment is there, so if they think that it is right, when they want to do it they will be able to do so. That is all that I am offering them by this Amendment. I beg to move.

7.45 p.m.


I do not want to go over all the arguments that I went over when dealing with the Amendment of the noble Lord, Lord Wigoder—Amendment No. 67. I can see the force of my noble friend's argument, but I think that one wants to look at it in this way. Why put something on the Statute Book which may never be invoked? The noble Lord is quite right that his Amendment would give the power should one need it at a time when one thinks one can afford it. But surely the best way of dealing with the situation is to see how an Act works and then, if it falls down in any particular, to do something about it.

May I take as an example the working of the Legal Aid Act which subsequently became the Legal Aid and Advice Act. It was envisaged at the beginning that this would be used only in a limited kind of way. I doubt whether there are many cases which come before our courts, either from a matrimonial or from a criminal point of view, where legal aid is not almost automatically granted. I know that it cannot be automatic; I see that the noble Lord, Lord Wigoder, is looking at me! I know that it cannot be granted automatically; means have to be taken into account. However, I wonder how many cases appear before our courts at all levels—not only before the magistrates' courts but also the Crown Courts—where the Legal Aid and Advice Act is not invoked. As I have already said, one finds this in civil and matrimonial cases. It has almost become the order of the day, and I am quite sure that this is what will happen here.

I should like to return to what I said earlier: that I think it is quite unnecessary at this stage. There is no reason to suppose for one moment that the courts will act in a way that will be detrimental to the child who is appearing before it. In fact, accusations have been made against courts that they give too much attention to people who come before them. May I say to the noble Lord that I do not believe that his fears will, in fact, materialise. If they do, there is nothing to prevent the noble Lord or anybody else from coming back subsequently and saying that this must be put in.

Viscount ST. DAVIDS

Put into what?


Every Act can be amended.

Viscount ST. DAVIDS

Yes, but when?


Whenever a Member of either House of Parliament thinks that something should be done about it. There are a good many Amendment Acts.

Viscount ST. DAVIDS

But we know that it is very difficult to find time for an Act. If this Act is not put right now, when will the next Bill on this subject be introduced—in five years' time or in ten years' time? Shall we have to wait all that time? Can we not insert the Amendment so that when the time comes the Government are able to put the matter right by a simple little order? Must we wait all that time? I think I have had rather more experience than the noble Lord has had. If I had seen fit to stay in the Labour Party, I should now be the third or the fourth senior out of a number which is now well over 100–120 or whatever it is. I have a certain amount of age and experience in this House by now, and I know that if one does not get something into the Act at the time, it is a very long time before it becomes law. All Members of your Lordships' House know this to be so. or there cannot be many Members of your Lordships' House who do not know that this is a fact. If this Amendment is ever to be used, surely it ought to be inserted into the Bill now.


I have some age but virtually no experience of these matters. However, I cannot help but see that the Amendment will do nothing but good for the child. Although I have no experience, I should have thought that the incorporation of this Amendment now would have been to the benefit of the Bill.


I think that the parallel which the noble Lord, Lord Wells-Pestell, drew between legal aid for adults and representation for infant children is very far-fetched. If the noble Viscount, Lord St. Davids, wishes to press his Amendment, I, for one, will certainly support him.

Baroness YOUNG

Having listened to the noble Lord, Lord Wells-Pestell, may I say that I found that his answer was not as convincing as usual. I do not really think he can complain about enabling legislation. Almost every Bill that I have had anything to do with has contained clauses of this description which may or may not be implemented as resources and experience suggest. He need look back no further than his Party's Control of Pollution Act, which really is an enabling Act, and I should have thought: that this fell exactly into this type of legislation, which is in fact extremely valuable. Indeed, I thought the most valid argument advanced against the Amendment tabled by the noble Lord, Lord Wigoder, which we supported, was the question of resources, about which I am very worried.

I can see the reality here, and therefore I think there is considerable merit in this Amendment. But if, as the noble Lord says, we can be absolutely sure that everything is for the best in the best of all possible worlds, in considering how the court will act, I suggest we need look no further back than the Maria Colwell inquiry where precisely this situation arose. I think I could find the exact place in the report of the inquiry where it was said that had there been an independent person to speak for the child that tragedy might well not have occurred. Of course we cannot be certain of that; but the other fact about this matter is that it is unrealistic to think that at some stage we could come back and amend this legislation. We all know it is most unlikely that there will be any more children's legislation for another five or six years; that is why we are so anxious to get this Bill right. I wonder whether the noble Lord would consider this Amendment, because I think it expresses the wishes of the Committee and is also in line with economic reality.


Before the noble Lord replies, I see that the Amendment reads, "The Secretary of State may make an order". With due respect, therefore, the noble Viscount, Lord St. Davids, does not want to tie the hands of the Secretary of State too much. The noble Viscount is not asking him to make an order.

Viscount ST. DAVIDS

Not at all.


Listening to the debate, we have heard various noble Lords speaking about resources. I hope that when we have a debate upon public spending they will recognise quite seriously that "resources" means public spending, and when we talk about public spending it does not only mean building Channel tunnels, but also spending money on the social services. We cannot have it both ways; we cannot have noble Lords asking for a cut in public spending in one instance and then asking for resources to be made available in another.


In supporting this Amendment I would only ask the noble Lord, Lord Wells-Pestell, a simple question: what harm can possibly come from accepting the Amendment?


There is a perfectly simple answer to that, in my view. I feel very strongly that this matter could be left to the discretion of the court. I see no reason why we should suspect for one moment that it may be necessary to call upon the Secretary of State to make an order for this purpose. It could be left to the discretion of the court. There is no evidence before your Lordships that the courts which have been dealing with similar matters have strayed in any way or have behaved badly, and I see no reason why we should have on the Statute Book a section in an Act which is permissive and can well be forgotten. It can be resurrected and used if it is wanted. But in my view one should always have in an Act of Parliament a section which is going to be implemented immediately. If necessary, at some later date it can be amended. Our Statute Book is full of Acts of Parliament which finish up with the word "Amendment"— the Criminal Justice (Amendment) Act, for example. There is no reason why we should not see whether the Bill will work in its present form without inserting into it something which is permissive and which may never be used.


Before the noble Lord sits down, and while I appreciate the point he has made, I should like to mention another point. He said that there was no evidence that the courts have failed in this, but, in fact, I can give him evidence of a case where a court has failed in this matter. There was a case in which insufficient evidence was brought before them; the social worker who was putting forward the case did not receive the support that she should have had, and in that case the court definitely made a wrong decision. I say to the noble Lord only that it can happen.


I should also like to support this Amendment. I agree with all that has been said from these Benches in favour of it. I do not like the idea that we are to pass legislation and immediately call for Amendments. I think the legislation we pass ought to be ready for any contingency that is coming. We have the example of the Maria Colwell case, and many of us know of other cases which could have been much better handled if the child in question had been represented by somebody, as suggested by the noble Viscount, Lord St. Davids. In my view, it would be a great pity not now to put it into the Bill; whether tonight, when there are not many people present, or at Report stage, I do not know, but I am sure it should go into the Bill.


I am sorry to press this matter, but I want the Committee to look at this. The essential point is whether Parliament can say that a solicitor alone will never be adequate? Discretion leaves open the possibility of a lawyer alone being appointed, or the child representing himself. If this Amendment is passed the order made under the Amendment could stop a Court appointing a solicitor for the child, because they have to appoint a guardian ad litem. Is this what we want? This is why I say we should leave it to the discretion of the court. The court could appoint a solicitor to act for the child or have the child (if he is old enough) speak for himself or herself; whereas, this Amendment, although it contains the word "may" lays down the kind of person who has to be appointed— a guardian ad litem. It is a great pity to accept this when it would possibly exclude asking a solicitor to watch the interests of the child. If noble Lords feel so strongly about this, we shall look at it, but I really feel that it is quite unnecessary.


But on many occasions a guardian ad litem is, in fact, a solicitor.


It may be in Scotland.


If I may be forgiven for speaking once more on this clause, would the noble Lord consider, before Report stage, the possibility of a

Resolved in the affirmative, and Amendment agreed to accordingly.

suitable Amendment which might ensure that in every case under Clause 32A either a guardian ad litem or a solicitor be appointed?


The Government must obviously always consider what the House wants them to consider, and the answer to the noble Lord is, Yes. But I can see the Report stage becoming almost as long as the Committee stage, which, I think, would be unfortunate because we have gone a long way towards amending this Bill and many valuable suggestions have been taken on board. If this is what your Lordships want, then of course we will look at it.

Viscount ST. DAVIDS

It seems extremely difficult—indeed, I do not see quite how they would do it—for the Government to draw up an Amendment to my Amendment after consideration and put it before the House at Report stage. This would simply waste more time. I am sure the noble Lord will agree with that. On the other hand, I think a further liberty, which is what, in fact, we are giving, might be very valuable in the Bill. So in order to shorten the Report stage— which as the noble Lord, Lord Wells-Pestell, said looks like becoming longer and longer—perhaps we ought now to put this into the Bill, which at least will put him out of his misery. Therefore, perhaps it would be as well if we took this to a Division.

8.0 p.m.

On Question, Whether the said Amendment (No. 70) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 14.

Aberdare, L. Hornsby-Smith, B. Seear, B.
Alport, L. Hylton, L. Simon of Glaisdale,
Brougham and Vaux, L. Kilbrandon, L. Somers, L.
Cowley, E. Lyell, L. Southwell, L. Bp.
Cullen of Ashbourne, L. Macleod of Borve, B. Strathcona and Mount Royal,
Drumalbyn, L. Rankeillour, L. L.
Elliot of Harwood, B. Redesdale, L. Suffield, L.
Elton, L. Robertson of Oakridge, L. Tranmere, L.
Ferrers, E. St. Davids, V. [Teller.] Wardington, L.
George-Brown, L. St. Just, L. Wigoder, L.
Gore-Booth, L. Sandys, L. [Teller.] Young, B.
Davies of Leek, L. Llewelyn-Davies of Hastoe, B. Phillips, B.
Fisher of Rednal, B. Lovell-Davis, L. [Teller.] Royle, L.
Gaitskell, II. Mais, L. Wells-Pestell, L.
Henderson, L. Noel-Buxton, L. Winterbottom, L.
Jacques, L. [Teller.] Peddie, L.

Clause 50, as amended, agreed to.


Baroness YOUNG moved Amendment No. 71:

After Clause 50 insert the following new clause:

Protection of persons or local authorities giving information concerning ill-treatment of child

..—(1) A local authority which, or authorised person who, receives information indicating that the care being given to a child is such that action may be necessary by a local authority under section 1 of the Children and Young Persons Act 1969 or transmits such information to a local authority or an authorised person, will not be liable for damages in any action which may be brought against them, by virtue of their receiving or transmitting such information, notwithstanding any enactment to the contrary.

(2) The Secretary of State may prescribe who shall be considered an authorised person for the purposes of the foregoing subsection.

The noble Baroness said: At this late hour, I do not want to take too long. We have put down this Amendment as a probing one, and it arises partly out of Amendments Nos. 66P and 66Q put down by my noble friends and myself. We are all very much concerned with the issue of battered babies. This is a subject which nowadays reaches the headlines of the newspapers far more often than we would like. The evidence seems to be that we know about only relatively few of the cases. Many of them never come before the courts or social service departments at all. Therefore, when we have an opportunity such as is presented by this Bill to raise these matters, we feel that we should raise them.

Many professional people in social service departments are very worried about the fact that, in the course of their professional duties, they may well have to pass on information about battered babies. A good deal of this information would normally be regarded as confidential, and in the course of their work— if any of it should come out— the social workers could be liable at court for slander or libel. Of course, it is a very difficult situation in which they find themselves, and it is one which the noble Lord, Lord Wells-Pestell, with his long experience in the Probation Service, will understand very well.

One of the suggestions made is that a register should be kept of battered babies. Of course, this would again raise all these difficulties for professional people. This is not a matter which we intend to press this evening, but it is a matter of concern to professional people and it would be very helpful to us all to have the view of the Government on this point. This also gives me an opportunity— i though as it is a slightly different subject I appreciate that the noble Lord may j prefer to write to me about it—to mention that one of the difficulties arising in connection with battered babies is whether or not a professional social worker can see the child in the home. The social worker may well call at the house and the mother will say, "He has gone out to tea" or, "He is at the dentist", or something like that, and the social worker will not have an opportunity to see the child. And even if he suspects that the child is in the house, he cannot see it and therefore cannot get the evidence required. This appears to be a major loophole in the law. I should be very interested to know the Government's view on that matter, although I do not expect to hear it this evening as I have not given notice of this question. However, I hope that we might hear the Government's view on the Amendment now before the Committee. I beg to move.


At a much earlier stage in our Committee proceedings, I mentioned a major deficiency in the Bill concerned; that is, a statutory requirement on those concerned with meeting the child at various points in its daily life, concerned with its welfare, its teaching and reporting injuries. This is a very important point and we consider it a deficiency in the Bill. My noble friend Lady Young is bringing forward a clause which gives protection to those persons I have mentioned who give information, and I heartily support her in that regard.


This is precisely the point to which I ventured to refer in the Second Reading stage. In our playgroup work, we run across the situation where everybody knows there is something wrong, but they all have reason to fear that something may go wrong if they pass this information officially to the appropriate authority. It would seem difficult to make them pass it compulsorily, but I should like to commend the spirit of this Amendment. It would do something to ensure that cases which everybody knows about, but which nobody is brave enough to report can come to notice.


If I may deal with the second point the noble Baroness raised, which does not arise from this Amendment, I think I am right in saying that a social worker has no right of entry. If he or she goes to a house and is refused admission, there is nothing he or she can do about it. I think I am right about that. This is perhaps something that needs looking into, but it raises quite serious problems and difficulties as to whether a person can, unless it is a criminal matter, have a right of access. I think I am right in saying that, as the situation is at the moment, the social worker has no power of entry at all.

With regard to the Amendment, this is an important matter and in some respects I am sorry that I cannot be more helpful than I am going to be. But I am sure that when I give my reasons the noble Baroness will appreciate them. I know that the noble Baroness is not going to press this Amendment tonight. The Government would not wish at this stage to accept an Amendment of this kind, for the simple reason that the Faulks Committee on the Law of Defamation has been considering this rather knotty problem of defamation. The Report has been received and at the present moment it is with the printers. In most cases envisaged by the clause, the local authority, authorised persons would, we believe, have qualified privilege so that the Amendment would protect them only against their own malice.

The noble Baroness was good enough to recognise that this is a probing Amendment. I would ask her whether we could await the outcome of the Faulks Committee on the Law of Defamation, which should be available fairly soon. I think we ought to proceed no further until the Report has been studied. From that I think we shall get some guidelines as to what we ought to do in this matter.

Viscount ST. DAVIDS

One thing has slightly horrified me, and that is why I have jumped to my feet with some speed. The noble Lord seems to have some doubt as to whether a social worker has a right to enter any house without a warrant. Surely the Englishman's home is still his castle to the extent that a social worker cannot automatically enter our houses. I am very much in favour of all possible protection of children, but we really cannot have a state of affairs where on any kind of suspicion a social worker can just walk in. Surely something additional has to be done before that is true. Having said that, 1 personally would not like to see this clause going into the Bill. It seems to me slightly unnecessary. If somebody gives information, it is presumably done in good faith. If it is done in good faith the person is, in any case, protected. If you report what you believe may be a criminal act and it turns out not to be so, the person whom you are accusing of it cannot automatically charge you with libel, slander or anything else. I should have: thought that the clause was unnecessary, although of course, as has been said, the spirit of it is excellent. But I do not see why we need it.

Baroness YOUNG

I am grateful to the noble Lord, Lord Wells-Pestell, for telling us that this is a matter which the Government have in mind. I am bound to say that I do not share the view of the noble Viscount. Lord St. Davids, that this clause is unnecessary. This is a very real worry, and I think it will become an increasing one. I hope very much that, having studied this Report, the Government will be able to look at problems of this kind, which I think are causing great concern to professional people and others in social work. With these remarks, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 51 shall stand part of the Bill?

Baroness YOUNG

I may have misunderstood this Bill, but I wonder whether in Clause 51, which is concerned with legal aid for parents where an order is made under Section 32A, there is any provision at all for legal aid to representatives of children.


I do not know whether I can answer the noble Baroness in the affirmative, but I should have thought, bearing in mind that the parent or guardian will be given legal aid for the purpose of taking part in proceedings, that anybody acting on behalf of the child would be in a similar position. I will check this point and let the noble Baroness know.

Clause 51 agreed to.

Clause 52 [Safeguarding of interests of children before children's hearings etc. in Scotland]:

8.20 p.m.

Baroness ELLIOT of HARWOOD moved Amendment No. 71B: Page 34, leave out lines 4 to 15 and insert (" shall for the purpose of safeguarding the interests of the child in the proceedings, appoint an officer of a local authority or other person to act for that purpose ").

The noble Baroness said: We now come to some clauses that apply only to the Scottish courts. I speak with some diffidence, as we have present here one of the great legal figures in Scotland; namely, the noble and learned Lord, Lord Kilbrandon. I hope that if I say anything which is not in order, he will inform your Lordships of my errors. The Amendment is on exactly the same subject as we have been discussing for some time.

Your Lordships will see that in Clause 52 there are three courts before which cases can go. There are the children's hearings—that is the lowest category—the sheriff court and, of course, the court of session, the court of appeal. All the social workers that I have spoken to and the adoption societies in Scotland—and I myself—are exceedingly concerned with exactly what noble Lords have been discussing; namely, safeguarding the interests of the child in all court proceedings, appointing an officer of a local authority or other person to act for that purpose and to represent the child.

I shall not repeat what has been said. This is exactly the same, except that it applies to Scotland rather than England. The Amendment we have just passed— from the noble Viscount, Lord St. Davids— would apply perfectly well. I hope that in considering the Amendment, Scotland will have the same protection for children coming into court as we have just agreed for the courts of England and Wales. I have taken out two clauses and put only one in, simply because it seemed to me there was no reason to put them in to safeguard the interests of the child only when there is a conflict. I think that the interests of the child should be safeguarded in whatever type of case comes forward in which the child is involved. Therefore, it seems to me that one could reduce subparagraphs (i) and (ii) to one subparagraph, which is printed on the Order Paper. I beg to move.


The Amendment moved by the noble Baroness is, in fact, valuable and interesting. Unfortunately, it is not at this moment relevant because, since the Government have been defeated on Amendment No. 70, certain obligations have been placed by that successful challenge on the Secretary of State, who must consult with her colleague the Secretary of State for Scotland. For this reason, anything that the Government say from this Box tonight could not carry any weight until such time as the two Secretaries of State have consulted on Amendment No. 70, which this House has passed. For this reason, I hope that the noble Baroness will agree to wait for the result of consultations between the two Secretaries of State before she passes judgment on the Government's attitude.

Viscount ST. DAVIDS

I had not intended to interfere with the affairs of Scotland. In my ignorance and diffidence I had not thought of putting down any Scottish Amendments. On the other hand, if the noble Baroness, Lady Elliot of Harwood, assures me that Scotland requires the same kind of thing as we have arranged for England and Wales, I am only too happy to support her in the matter and, if it is required, to put down an Amendment at a later stage of the Bill. We now have it for England and Wales, and I am sure that Scotland will enjoy the same privileges.


Of course, this puts a different light on the Amendment since I put it down. I am sure that the noble Lord is right, that probably I cannot press this at all, but I should like it to be conveyed to the Secretary of State that the social workers, and those who are engaged in this work in Scotland, are very concerned about this, and we hope that, whatever decisions are arrived at in this matter, in Scotland anyway we shall be allowed to have a representative of the child's interests.


I can assure the noble Baroness that the statement that I have made, that consultations will take place, is correct. If the Anglo-Welsh Amendment stands then Scotland will benefit thereby.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 [Amendment of s. 15 of Social Work (Scotland) Act 1968]:


Baroness ELLIOT of HARWOOD had given Notice of her intention to move Amendment No. 71C: Page 34, line 37, leave out ("take full account of") and insert (" regard as the first and paramount consideration").

The noble Baroness said: I took this Amendment from Lord Wigoder's Amendment to an earlier clause, which we discussed at great length on the second day of the Committee stage. I shall not move this Amendment because on the second day of the Committee stage the Government said that they would consider this and would either circulate information about it or discuss it on Report stage. Therefore, I shall not do more than say that I shall wait to hear what happened.

Clause 53 agreed to.

Clause 54 agreed to.

Clause 55 [Making of adoption orders where local authority have parental rights]:

On Question, Whether Clause 55 shall stand part of the Bill?

8.27 p.m.

Baroness YOUNG

I am raising once again the question of staff on Clause 55, and I do so because we have now come through the three principal Parts of this Bill. I raised the question of staff on Second Reading and referred to it when we were discussing Clause 1. I believe that it is the wish of this Committee— and throughout all our discussions it has been absolutely clear that this is the most important part of the Bill—to get the right and properly qualified staff to do the work. We have discussed over and over again different ways of ensuring that the child's interests are the first consideration. This can be met only if there is specialist staff, particularly in the field of adoption. But I am sure that in this new concept of custodianship it is equally important that those who have to undertake this delicate task of arranging for custodial care of a child which has been fostered must be qualified specialists in children's work.

It has been a matter of great concern to a number of us that so often in the new social services departments generically trained social workers are called in to deal with the most intricate, delicate, and complex human situations, without the specialist training that they require. I hope that we shall hear from the Government not only that they accept that— particularly in the field of adoption—we need specialists, but that they are ensuring that there are adequate training schemes, so that those called upon to do this work will be able to do it effectively.

We do not know what the regulations will say in this matter, but we know from Clause 3 that before a voluntary society becomes an adoption agency the regulations will include the approval of the number and qualifications of its staff. It is essential that the same principle should apply to a local authority, and that this should apply throughout the social services department, which is to deal not only with adoption but with custody and with care. I have raised this matter now, although I realise that it is a late hour, because I believe it to be of such enormous importance to the success or otherwise of this Bill.


In fact I think that one noble and learned Lord has ruled that if the State wills the ends it must ultimately will the means. This is a counsel of perfection, because the means, among other things, includes money, and, as the noble Baroness has said, skilled persons. I think it is true to say that since the Government are sincere in the intention lying behind the Bill, having willed the end they will will the means. However, with the present financial problems which this country is facing the means may not be as quickly available as the noble Baroness or most of us might wish. Nevertheless I am convinced that the principle I have stated does in fact motivate the present Government.

Baroness YOUNG

If I may say one word in reply to that. What I am suggesting will, of course, cost some money, but a great deal can be done with our existing personnel provided they are suitably trained. The great worry is that we might have coming in to do this work a young social worker who is supervised by someone whose entire life experience has been either with the mentally handicapped or with the elderly. This is quite possible in a social service department, and it is this kind of thing that we must see is avoided. This is not a question of spending money; this is very much a matter of administrative practice, so I think the two are required. I should like to feel that the Government have understood the importance of this point.


With my noble friend's permission, may I give that assurance to the noble Baroness. We are alive to this problem, and I said previously that it was in the forefront of our thinking. We are having discussions as to the sort of people who should be doing this work. Obviously, in this particular field we cannot let loose on the public people not competent to deal with this matter. We know that people's motives for doing this kind of work are often mixed, and there has to be some selection. There has to be something more than competence; behind this there has to be a considerable knowledge and understanding of people.

I am hoping that we shall put aside this list that everybody seems to have of the great and the good from whom they choose people to do all sorts of social service, and probably get local authorities and other organisations to prepare lists of the committed people in the community. Obviously we must give a lot of attention to this question, which I know is in the Department's mind. To repeat myself, I, for one, would be very unhappy if we introduced something which meant letting loose on the community a large number of people who are not competent to do this particular work. The noble Baroness is quite right and she has come to this conclusion out of her own experience, as have many of us in your Lordships' Committee.

Clause 55 agreed to.

Clause 56 agreed to.

Clause 57 [Legal custody]:

8.33 p.m.

On Question, Whether Clause 57 shall stand part of the Bill?

Baroness YOUNG

I would like to ask a question here which arises from the same question which I asked on Clause 30. On reading the Bill it seems to me that there is a gap in the provisions. If I have understood Clause 57 aright, when legal custody is conferred on a child the parental rights lapse According to Clause 57 … so much of the parental rights and duties as relate to the person of the child (including the place and manner in which his time is spent); remains with a custodial order but the rest of the rights lapse. What becomes of them? Do they revert to the parents, or what happens in this particular case? It seems to me that where the parental rights were vested originally either in the parents or, under a Section 2 order under the 1948 Children Act in a local authority, this clause does not indicate where they go.

I realise that this is a very technical point and it is not one on which necessarily I expect an answer this evening, if there is any difficulty about answering it this evening I should be glad if the noble Lord would write to me before Report stage. This would prevent my having to put down an Amendment—which, I may say, I find an extremely complicated exercise and one of which I should be quite pleased to be relieved. If there is an answer, or if the Government think there is a gap in the provisions and that we do not know what happens to the residual parental rights, would they let me know?


If I say that this is a simple matter, it is only simple in the sense that I think one can give a short answer to it. The parental rights not conferred by custody— and I think that is quite clear— remain with the parents whose right to custody is suspended. That is all there is to it. So far as the custodianship is concerned, the parental rights not conferred by custody remain with the parents. I would think that that would answer the noble Baroness.


May I ask an even more technical question? Both in this and the preceding clause there is a definition— In this Act and any future enactment… That is virtually treating these two clauses as part of an interpretation Act. We very much need a new interpretation Act and I am going to ask the noble Lord whether he will ensure that if we get one, as I hope we will, these sort of definitions will be taken out of this Bill and put into the interpretation Act where they would be much more easily found.


I am much obliged to the noble and learned Lord. I wonder whether he would allow us to look at this matter to see whether it is feasible for us to do it. I am sure it will be.

Baroness YOUNG

I am sure that what the noble and learned Lord, Lord Simon of Glaisdale, has said is absolutely true. I do not think I quite follow the answer of the noble Lord, Lord Wells-Pestell, but I will not pursue this matter now. While I shall read what he has had to say, I should be very grateful if he could write to me about the matter. I should then feel that I have understood this rather complex series of clauses, Clauses 30, 47 and 57, which pertain to this particular point.

Viscount ST. DAVIDS

Surely it is clear, is it not? Custody gives the custodian charge of the child's person and the child's movements. But there are a number of other things. The child might have property, and the parent would be the natural guardian in the matter while the child was an infant. There might be many other interests of the child which would rightly fall into the hands of the parents. Custodianship is merely custody of the child's person. Is that not the position?


The noble Viscount has expressed it very well. I will see whether there is anything more I can tell the noble Baroness. I was trying to avoid writing any more letters arising out of the Committee stage, since there will be a vast volume of correspondence and we shall have the Report stage on us very soon. I will look into the matter and if there is anything more than I can say that has not been said I will let the noble Baroness know.

Viscount ST. DAVIDS

I was only trying to save the noble Lord, Lord Wells-Pestell, from writing more letters. Indeed, my last Amendment, which might have appeared to be against the Government, I thought actually shortened the next stage of the Bill. I was trying to be helpful.

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Clause 60 [Meaning of "child"]:

On Question, Whether Clause 60 shall stand part of the Bill?

Baroness YOUNG

I should like to ask two questions on this clause. It defines a "child" as: a person who has not attained the age of 18 years ". I think I am right in saying that 16 is the legal age of marriage with a parent's consent, so I assume one could be married at 16 and still be regarded as a child, unless subsection (2) is meant to explain that that is not the case when someone is married. Not being a lawyer, I found subsection (2) extremely difficult to understand. Can the noble Lord explain the position?


I do not think I can add anything to what the noble Baroness has said. The word "child" is a new definition of a "minor". You can be a married minor and you will still be a child. I must look into this point to see whether I can give the noble Baroness a better reply. It would appear that one can be a married child because one is a married minor. This situation may raise a complication and I must look into it for my own benefit.


May I ask whether the noble Lord will at the same time look into the question of whether it is necessary that we should legislate in Clause 60 for any future enactment?

Baroness YOUNG

I am grateful to the noble Lord, Lord Wells-Pestell, for agreeing to look at this position. If he thinks, as I do, that it is possible to have a married child, then I am not sure that I regard it as a very happy definition to include within the Bill. I shall await his reply with interest.


I believe that this position is possible, but I am trusting entirely to memory. A person cannot marry until he or she is sixteen but, to the best of my recollection, he or she must get the parents' consent. If someone gets the parents' consent and is married, he or she is therefore a married child and that is not inconsistent. But it is a matter which one ought to study and I shall be happy to do so.


I think that the new efinition will give immense offence to those between the ages of sixteen and eighteen, if it becomes generally known!

Clause 60 agreed to.

8.42 p.m.

Lord KILBRANDON moved Amendment No. 74:

After Clause 60 insert the following new clause:

Legitimation of child conceived by artificial insemination

. A child who is conceived by artificial insemination from a donor, with the consent of the husband of the child's mother, shall be regarded for all purposes as a legitimate child and the birth shall be registered with the husband as father.

The noble and learned Lord said: At this time of the night I propose to be brief. This Amendment appears to be a little out of line with the rest of the Bill. But, on the other hand. I apprehend that it is well within the Long Title of the Bill, because it is an Amendment which is designed to provide for children. It is not an Amendment which is designed to deal with artificial insemination as such, but is to deal with its effect on children. It is of course a simple procedure. When a married woman is impregnated with the seed of somebody who is her husband, that is what we call "AIH", and "AID" is when that is done with the seed of a donor, with the consent of the woman's husband.

I understand that the first time this was done successfully was some time towards the end of the 18th century, so it is a piece of old procedure in that sense. It is called for, as I understand, in three instances: first, when a husband is completely infertile; secondly, when there is some serious rhesus incompatibility between the parents (this is something which I shall not go into, because I am unqualified to do so); and thirdly, when the husband is the transmitter of a hereditary disease, such as haemophilia. I have information from the extremely skilled quarters of the University of Edinburgh which deal with these matters, that in the United Kingdom and the United States of America about 12 per cent, of married couples have a fertility problem. In 10 to 15 per cent, of those cases, it is the man who is responsible for this problem. The numbers of people who go in for this procedure are unknown, and I know no authoritative means of finding them out. The only figure I can give is unsatisfactory, because it is so wide. It is from the United States where it is estimated that in 1966 between 5,000 and 10,000 children were born by this procedure. All I can add about the United States is that in the State of California the Supreme Court has held that a child conceived by artificial insemination from a donor and with consent is legitimate, which is the question I ask the Committee to decide upon.

I want to keep right off the merits of AID itself, because that is not the subject we are discussing. It is much less controversial than once it was, and I know that at one time the Roman Catholic Church and the Jewish faith were against it, although I have never understood the Anglican Church—though I speak subject to correction—to be against it as such. I am certain that it is not unlawful in this country, and I would say it is a merciful procedure because it is designed to make a family possible, with at least one natural parent, within the framework of the married home.

We are really concerned with the legal consequences this evening. The only legal consequence I need to consider is that a child which is known to be born of artificial insemination by a donor is undoubtedly illegitimate. That must be so, because the husband is not its father. This has caused many misgivings. The CIBA Foundation held an international conference in 1972 to discuss the law and ethics of AID and the embryo transfer, and I was happy to be its Chairman. At the conference were doctors, scientists, lawyers and one distinguished theologian. The matter arose in this country, because at a conference the year before in the United States, at which I was present— it was run by the Institute of Society Ethics and Life Sciences— this question was raised and the misgivings first came to the surface. I can say that at those two conferences the unanimous opinion was that the legal situation of such children was not in a satisfactory state.

It may be that in a large number of such cases the child is registered as legitimate, because of course the father and mother are living together as a family. But this is regarded by many people who have considered the position as unsatisfactory. In almost every case, the parents will know that the registration—if the child is registered as legitimate—is wrong as the law now stands. There is always in the background the danger that at some time or other this will be disclosed; to the child who will thereupon, in a sense, become bastardised, although it had thought itself to be legitimate.

The old legal presumption that the father of a child is displayed by the husband is not. adequate, because that presumption must give way to the fact that the husband is not the father if that is the case. It is a presumption of the law which is useful only in certain circumstances. This presumption could operate only where the husband's fertility was in some doubt, and the fecundation might have been by him or by the donor, and that must be very common.

This problem was discussed and considered by a Departmental Committee in 1960, and although 1960 does not sound such a long time ago social matters of this kind develop so quickly, and it is really a very long time ago. The Fever-sham Committee was really set up to investigate the question, which had come up in the courts, as to whether AID without the consent of the husband was, in fact, adultery. The courts have held that it was not. That is a matter we do not need to trouble ourselves with now; certainly, in England I think it could be regarded as conduct which could give rise to divorce. The Feversham Committee was against the proposal which I am recommending to your Lordships this evening. They gave four reasons, which I shall briefly look at, if I may.

First, they said that while the proposal would relieve the child of the stigma of illegitimacy, it would not give him complete security, because he would still be liable to discover that he was probably not biologically the child of his supposed father. That, I think, must be the weakest of their reasons, because it amounts to no more than this: that we cannot give the child completely normal status so we will perpetuate the stigma of illegitimacy. I can hardly think that is an acceptable argument.

The second reason was that it would bring the child certain material advantages, but it might be a serious encroachment on rights of other members of the husband's family and would interfere with the principle of hereditary succession which is at the basis of our society. I doubt whether, 15 years later, it would still be said that the hereditary succession was the basis of our society. I know that something could be said about succession to honours and dignities, but I shall say no more about it than that it would have a mean look if we were to deny justice to children on as narrow a basis as this. But it would be very unlikely to occur, and I cannot believe that the material interests of collaterals and siblings should prevail in cases such as this.

Then they said it would constitute a degree of official encouragement of AID. I see why they said that, because they did not like AID. They were asked whether they ought to recommend that it be criminally illegal, and they said, No. They wore asked to say whether it ought to be regulated, and they said, No. "So what they said was: do not make it criminal, do not regulate it, but— in so many words—" AID is undesirable. We therefore wish to discourage the practice "Your Lordships are not discussing this evening whether the practice should be discouraged, but I say it would be wrong, if you wanted to discourage the practice, to do so by being unjust to children.

The last reason they gave was that it would involve an unprecedented change in the concept of legitimacy. At the CIBA conference, there was a distinguished American theologian who was in favour of an even more unprecedented change, and he was rather indignant with us that we did not recommend that the whole status of illegitimacy should be abolished, root and branch. I am bound to say that I have a good deal of sympathy with that view, but it was outside our terms of reference. Certainly, it is not a question that is before your Lordships this evening. As for precedents, I am a lawyer of sorts but I have never worshipped very devoutly at the shrine of precedents. When I was at the Bar, if I thought the judge would not know what the reference was—it is A. P. Herbert, of course—when he asked me if there was any precedent I would say, "There is no precedent for anything until it has been done for the first time ". That is a very good answer on those occasions. But if you bring a new procedure into the lives of men and women, you may have to make unprecedented arrangements for the children who are the result of those procedures.

There is one further possible objection that I ought to refer to. It is said that this is falsification of registers, that you are registering as legitimate a child who is not really legitimate. That is a sort of historiographer's objection. There are two answers to that. The first is: how reliable is the "father" column in the register now? One has to remember that maternity is a question of fact, but paternity is only an inference from facts: that is the distinction between them. There was a very strange incident which was disclosed to us by a distinguished consultant gynaecologist at the CIBA Foundation conference. At a large maternity hospital in England, for some routine reason—I cannot remember what it was; it was nothing to do with the social question we are discussing at the moment—it was found necessary to make blood tests of the children and their parents, and the gynaecologist told us that the blood tests showed that 30 per cent, of the children could not have been the children of their mothers' husbands. That does not mean that 70 per cent, of them were; it means that 30 per cent, of them were not. So much for the reliability of registers.

But I do not think that is the best answer. I would say that the best answer is that you can use the word "father" in two senses. It may be the biological or the physiological father, but very often it means something which in some respects is more important— what the Romans used to call pater familias. One cannot now call him the head of the household, as it used to be, but at least the "man of the family", is a meaning for "father" which in many ways is at least as important as the biological meaning. I think that the complete answer— and this is the last thing I have to say—to the objections of the Feversham Committee, is in a Minority Report of the said Committee. Two members dissented and they said in the course of their Minority Report: One of our witnesses representing the Law Society, which accepted the provision of full legitimacy for the child, on being asked whether his position was that a community which was prepared to tolerate AID had a duty to protect the interests of the resultant children, answered that it was as simple as that.

That is how I would like my Amendment to be looked at—as a simple measure of justice. I beg to move.

8.58 p.m.

The Lord Bishop of SOUTHWELL

I hesitate to rise and speak on this subject, especially when I take issue with the noble and learned Lord who proposed the Amendment, but I do take issue with him, and I must speak about a lot of the things he has mentioned. I have deep sympathy with an infertile father who seeks to enable his wife to conceive a child, which can be brought up within their own marriage relationship as their own. I have deep sympathy with the desire that such parents should not have to parade their infertility by recourse to such a practice as adoption. I have deep sympathy with the suggestion that a child conceived by AID should be ignorant of any sort of illegitimacy that should be his. And yet, having said this, there are consequences to this Amendment which I think would be undesirable, and I think my view turns out to be the opposite of that of the noble and learned Lord, on much the same evidence.

First, there is this question of truth. At present, as has been pointed out, the legal status of a child conceived by AID is contestable. The child is not in law legitimate. Even if in practice the child is accepted as such, in litigation over the terms of a will the legal status of the child would have to be ruled illegitimate, and, as I understand it, this Amendment could not make the child legitimate. Facts still remain facts. What it does is to declare a child to be deemed legitimate. The law would then be allowing itself to connive at a process which accepts and approves a fundamental falsification, designed to deceive the child and society as to the facts relating to the child's parentage. As things stand, the law seeks to protect the right of a child to know his own identity and parentage, and the right of society to identify children and to protect them from offences against their personal integrity. I ask whether it is right to embody in our law a deliberate deception, however desirable that deception may be.

The noble and learned Lord has drawn attention to the Feversham Committee and to the decision taken by that Committee. I do not need to say more about that, except to ask whether the passage of 15 years has altered the situation sufficiently to make such a judgment inadmissible. Your Lordships must be aware that the practice of AID is at variance with the declared pronouncements of many religious bodies, as has been pointed out. No Christian Church in the United Kingdom has explicitly favoured the practice, and the judgment of Jewish orthodoxy remains hostile. The Roman Catholic Church has pronounced authoritatively against AID for married as well as for unmarried women, and two Commissions of the Established Church have expressed adverse judgments, though I admit that they have not been as definite as those of the Roman Catholic Church. However, the passing of this Amendment, would, I believe, be regarded by many religious people as a step in the wrong direction. I hope that I may be permitted to say this, though I appreciate that the Amendment seeks to deal with a situation in which AID exists and where people who have no religious objections are involved.

I should like to comment upon one or two difficulties which might result from acceptance of the Amendment. First, it makes the work of genetic research and counselling more difficult. It is odd that at a time when genetic research is becoming more scientifically and socially significant, we are increasing rather than decreasing the area of uncertainty between genetic and social identity. Some area of uncertainty is inevitable, as the noble and learned Lord has already pointed out. It is perpetuated every time a child begotten by a father other than the mother's husband is; registered and brought up as a child of the marriage. Social policy represented by the system which interlocks a register of adoption with a register of births would appear to be aimed at diminishing the uncertainty about a child's real identity. Research interests and social interests alike require that public records be reliable. Genetic counselling depends to a large extent on the assumption that reputed parents and grandparents are genetic parents and grandparents;. If that assumption cannot safely be made, prediction becomes more uncertain; and if it is invalidly made, the consequences of an erroneous prediction can be serious. I submit that at the present stage of medical research it would be unwise to make this area of genetic uncertainty still more uncertain.

Secondly, there is the question whether we are going in the right direction by extending the laws of legitimacy. The noble and learned Lord referred to an eminent theologian—of whom he was, as I am, aware—who has made the interesting suggestion that the laws of legitimacy should be replaced by a system which would provide a concept of acceptance and approbation. This would give the status of affiliation to any child accepted into the family by husband and wife, however begotten and conceived, and would ensure to him all rights, privileges and duties attaching to that status. A register of affiliation would record the social recognition of a child. A separate genetic register would record his genetic descent, on the model of the adoption register, and it would be open to inspection only by those who could prove a just and compelling interest in its content. Such a provision would help a child born as the result of AID by giving a proper social status and security while ensuring that the genetic records were not falsified or made unavailable. I believe that to be a far better system.

I have intervened in this debate as one who has every desire to help infertile parents and the children they desire to introduce into their marriage and home. For them and for all children who are the victims of illegitimacy, I have, as a Christian, a profound concern, but it is possible to do a bad thing for a good reason. While our hearts may approve the Amendment, our heads might in the long term come to disapprove of it. Clause 2 of the Bill rightly states that our duty is to do the right thing for the welfare of the child and, in this instance, I believe that the right action is not so clear as the noble and learned Lord has sought to make it out to be. I think that we should be wise to be very cautious about accepting the Amendment.


Before I attempt to deal with this matter, I should like to draw attention to the fact that I believe that the right reverend Prelate the Bishop of Southwell has just made his maiden speech—

The Lord Bishop of SOUTHWELL



I am sorry. I was about to say that if that had been his maiden speech it could not, in the circumstances, have been a better one. I had not previously heard the right reverend Prelate, and I am sure that he does not mind my congratulating him on this occasion.

The noble and learned Lord, Lord Kilbrandon, has been very fair in his presentation of this matter. He drew attention to the Committee who considered this question in 1960. Eight members of that Committee came down very much against what he himself is now advocating, and two of the members published a Minority Report. With great respect, I do not want to enter into the discussion which has taken place —or, if I may put it rather more strongly, the controversy which exists between the noble and learned Lord and the right reverend Prelate. I have my own views on this matter, but they are unimportant at this stage.

However, I ask the noble and learned Lord if he would not mind considering whether we should accept an Amendment of this kind at this stage. Looking round the Chamber, I see that there are only about twenty Members present, and I wonder whether that is too small a number for us to consider what is a revolutionary Amendment. I do not want to express any view about the merits of the proposal one way or the other, but the noble and learned Lord quite rightly pointed out that the Departmental Committee on Human Artificial Insemination reported in July 1960, and that since then almost 15 years have passed. It is an appreciable time, and the interesting point is that during those 15 years neither House of Parliament, so far as I know, has pronounced upon this question; nor has any other body, outside certain religious bodies, pronounced upon it— although they did so at the time.

I understand that the English Law Commission is shortly to consider this matter. The noble and learned Lord is himself, I believe, an ex-chairman of the Scottish Law Commission and will know the importance and value of the contribution which Law Commissions have made both in Scotland and here in England. I should have thought, with great respect— and here I go back to the fact that there are so few Lords present in the Chamber—that we are being asked to take a decision on behalf of your Lordships' House. Of course we are competent to do that, but I wonder whether it would be right for us to do it, at this time of night, with so few of your Lordships present. I consider that we ought to have the view of a very competent body of legal opinion. We have religious opinion. What the right reverend Prelate said is perfectly right. I have read many things on this matter from the various religious bodies, but we have no really competent legal opinion that has gone into this question in great depth.

We ought to await the outcome of the English Law Commission. I understand that the Commission will be discussing this in the fairly near future. I wonder whether the noble and learned Lord would initiate a debate in your Lordships' Chamber on this subject? It would attract a number of learned Lords and a fair number of right reverend Prelates. Further, even we who are in the middle—no, perhaps we are not in the middle—we lay people, who perhaps have to live with these matters on a much lower plane, might have a contribution to make from the social point of view. I am sure that this would be the right course.

I use the word "revolutionary", because I regard this Amendment as some-what revolutionary. If we are to introduce a provision of this sort into a Bill we, as a House, ought to be fully possessed of all the facts, the repercussions, and the legal aspects. This could be done— it will be done—by a Law Commission, and I hope that the noble and learned Lord feels that he could invite this House to express its opinion by initiating a debate. I hope that he will accept this suggestion. If he does, it would necessitate the noble and learned Lord withdrawing the Amendment, and in doing so he would be rendering a great service, not only to this House but to society.


After that appeal there is little more that I can say. I only want to make some rather disjointed remarks in reply and I do not want to detain your Lordships. I want to emphasise that I was making my remarks from the social point of view rather than from the legal point of view. I was trying to speak as somebody who has. been concerned on the social side of this matter for some little time. The right reverend Prelate rightly, if I may say so, with respect, reported what the learned theologian had said at the conference to which I referred. He and I agreed that we went further than the right reverend Prelate; because my suggestion was that in all cases, it did not matter what the child was, they should all be registered in the same way and at the head of the "father" column should read "Father or Accepting Husband" on the view that there is no real reason why you should not regard a child as legitimate if it is the child of a woman whose husband has accepted it as a member of the family. These are only my views. I feel the force of the observation that there are fewer than twenty Members present; although I would observe that that is not altogether my fault. I do not think that one could get an authoritative decision from your Lordships at this juncture and at this time of night. I did not know, although perhaps I should have known, that the Law Commissioners were actually considering this very point. I am glad to hear that they are—


I am grateful to the noble and learned Lord. It suddenly occurred to me that I would not like later to be accused of misleading your Lordships. I should have said that the Law Commission is going to consider the whole question of children; and this must come into it, so I am informed. I should like to have that on Record before the noble and learned Lord makes a decision.


The last thing I want to say is that I brought this up perhaps a little trailing my coat because I feel very strongly about it. I was reminded of something said in the House about an hour ago to the effect that if you do not take the opportunity, it is many years before the opportunity arises again. We are talking about children now and this is something I feel very strongly about. When children will be next discussed in your Lordships' House I would say, "Heaven knows". I hope it will be soon. I would accept the suggestion by the noble Lord, and if I were permitted to do so I should willingly initiate a debate on this subject. I can say that this Amendment, which I am now asking leave to withdraw, may have alerted people to the importance of this topic.

Amendment, by leave, withdrawn.

Clauses 61 to 63 agreed to.

Clause 64 [Courts]:

9.17 p.m.

Lord WINTER BOTTOM moved Amendment No. 75: Page 43, line 22, at end insert (" and any other county court to which after the application has been made the proceedings are transferred in accordance with rules made under section 102 of the County Courts Act 1959;")

The noble Lord said: A number of earlier paving Amendments have been moved before the Committee leading up to this particular clause, the clause providing jurisdiction for the Bill as a whole. The reason why this Amendment has been put down by my noble and learned friend the Lord Chancellor is that the word "is" which appears in Clause 64(2) is much too restrictive. It merely means that any application must take place in the court where the original ruling was made. This Amendment enables the various proceedings to be transferred from one county court to another, under a number of provisions of the county court rules; for instance, this may be made where the parties have moved to another part of England and Wales. It is fortunate that no such Amendment is required for the magistrates' court because they seem to have wider rulemaking powers than the county courts. I should add that the general question of conflicts of jurisdiction in custody cases is under examination by the two Law Commissions. My noble and learned friend has tabled this Amendment in order to give the county courts more flexibility in the arrangements covering proceedings relating to children. I beg to move.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 75A: Page 43, line 22, at end insert (" and, in the case of an application for an order under section 12, the county court within whose district the office of the agency is situated, or the parent resides").

The noble Baroness said: I should like to speak to Amendments Nos. 75A and 75B, because they both make the same point. They are designed to meet the convenience of those who will be concerned with adoption, whether local authority adoption agencies or voluntary agencies. It will simply make it possible for applications for adoption to be heard in county courts in areas where the adoption agency is situated or where the parent resides. It should, I hope, prevent the practical difficulties which can arise where either the social workers or the parents have to travel some distance for the hearing. I do not think it involves any point of law or any departure from what seems to me to be sensible practice, and I hope very much that the Government will consider both these Amendments. I beg to move.


The Government are in considerable sympathy with the Amendment moved by the noble Baroness and agree with it in principle. I should, however, like to make a couple of points before asking her to withdraw it so that we can give her proposals deeper consideration. We are in full agreement that Amendment No. 75, which I have just moved, goes only part of the way to meet the purpose of these Amendments. As I understand it, the purpose of the noble Baroness's Amendments is to provide specific additional authorised courts for applications under Clause 12. Not only has the noble Baroness made this appeal, but representations have been received from the Association of British Adoption Agencies. The Government are considering Amendments to meet the points which have been raised.

The general principle behind the Amendment is accepted, and the Government can assure the noble Baroness that a Government Amendment to meet the need for greater flexibility in Clause 12 applications will be considered in due course. In this context, the Government are considering whether the provision for alternative jurisdiction should be made directly in this Bill or in rules (as in the case of Amendment No. 76B which we are about to debate shortly), or both; and if it is in the Bill, what the test should be, since it may be that the court in whose district a parent of the child resides would provide a simple test which would meet the needs of the situation— not necessarily both parents, but a parent of the child. For this reason, I wonder whether the noble Baroness would agree to withdraw her Amendment, with which we are in agreement in principle, subject to the undertakings I have given.

Baroness YOUNG

I am glad to have those undertakings and, with them, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.23 p.m.

Lord WINTERBOTTOM moved Amendment No. 76B:

Page 43, line 36, at end insert: ("(6) Subsection (2) does not apply in the case of an application for an order under section 31 or 32 relating to a child who is subject to a custodianship order but for the purposes of such an application the following are authorised courts—

  1. (a) the court which made the custodianship order;
  2. (b) if that court is a county court, any other county court prescribed by rules under section 102 of the County Courts Act 1959;
  3. (c) where the application is made under section 32 and the child's mother or father or custodian is the petitioner or respondent in proceedings for a decree of divorce, nullity or judicial separation which are pending in a court in England or Wales, that court.").

The noble Lord said: This Amendment is a substitution for an Amendment that has not been moved; namely, No. 76A. The reason for the change is a simple one. The only change in fact is that the proposed subsection (6) now disapplies only subsection (2) and not subsection (3) which was mentioned in Amendment No. 76A. The Amendment was fully explained with paving Amendments Nos. 42 and 44 to 47 on the third day of the Committee stage. It is, as I said, simple in so far as the Amendment now reads:" (6) Subsection (2) does not apply …"instead of:" (6) subsections (2) and (3) do not apply …" It is for this reason that I beg to move this Amendment.

On Question, Amendment agreed to.

Clause 64, as amended, agreed to.

Clause 65 [Appeals etc.]:

Lord WINTERBOTTOM moved Amendment No. 77: Page 44, line 3, leave out subsection (2).

The noble Lord said: With the permission of the House, in moving Amendment No. 77 I should like to speak to No. 89. The effect of these two Amendments is to provide in all proceedings under the Bill for appeals from the county courts to lie to the Court of Appeal. This will preserve the existing avenue in adoption. It seems to me right that there should be uniformity in adoption and custodianship proceedings in a matter of this kind. The clause at present follows the precedent of the guardianship legislation, but Her Majesty's Government hope shortly to be able to introduce an Amendment to bring those Acts into line with this Amendment We spoke earlier in our discussions about harmonising legislation. That is the reason for these two Amendments which I hope will be approved by this House. I beg to move.

On Question, Amendment agreed to.

Clause 65, as amended, agreed to.

9.27 p.m.

Lord WINTERBOTTOM moved Amendment No. 78:

After Clause 65 insert the following new clause:

Panel for guardians ad litem and adoption officers

.—(1) The Secretary of State may by regulations make provision for the establishment of a panel of persons from whom guardians ad litem and adoption officers are to be appointed for the purposes of section 13 of this Act and of section 32B of the Children and Young Persons Act 1969.

(2) Regulations under subsection (1) may provide for the expenses incurred by members of the panel to be defrayed by local authorities.

The noble Lord said: The purpose of this clause is to enable the Secretary of State to make Regulations for the establishment of panels of experienced social workers, from which the court may appoint guardians ad litem and adoption officers in adoption applications, and also in care and related proceedings where there may be a conflict of interest between a child and its parents. My noble friend Lord Wells-Pestell spoke earlier on this point. It arises from certain proposals which have been made by the Houghton Committee and it has already been covered by the points which have been made by my noble friend. I beg to move.


We support this Amendment, except that we do not feel that it goes quite far enough. Inevitably, we feel that the word "may" should be replaced by the word "shall". We have support for our view in paragraph 254 of the Houghton Report. Paragraph 254 contains this reference which, if I may be permitted to repeat it to your Lordships, reads as follows: … We consider that the court should appoint the guardian from a panel of officers, approved by the court, comprising senior social workers drawn from the staffs of local authorities, the probation service, or other social work organisations in the area. It is worthy to note here that the noble Lord, Lord Wells-Pestell, drew attention to the need to draw on a quite wide number of officials of various bodies and also on the local fund of good will of those who are not necessarily affiliated with any particular organisation. But to establish a panel, we feel that the word "shall" should be included. We hope that the Government will look at the Amendment with renewed enthusiasm after the debates we have had this evening, following what the noble Viscount, Lord St. Davids, had to say about the same matter.

For the sake of tidiness, may I make a further suggestion? I cannot understand why this Amendment has been put down in Part V, which is, after all, the oubliette section of the Bill. The fact is that, if possible, we must make this Bill easier of interpretation and sensible to read in a logical formation. It appears to me to be almost Byzantine that this should be placed right at the end, when it could so easily have been placed immediately after Clause 13 or, indeed, after Clause 50, prior to the Amendment moved by my noble friend Lady Young this evening. This is a small point but for ease of interpretation I would most strongly recommend this to your Lordships. Perhaps it is a small matter of arrangement, but such small matters count. Those who are to interpret this Act at a later stage would find it helpful if all the parts were related to each other and so placed together.


May I ask whether it is envisaged that the panel of persons should also include solicitors, because, in view of our previous vote, the guardian ad litem could be a solicitor. So if solicitors are on the panel that would be a possible way out.


Two points have been made and I should like first to take the second point. In the process of our passage through the Bill, we have already regrouped clauses in order to make them more intelligible. I shall certainly bring the matter to the notice of my noble and learned friend, and it strikes me as an extremely sensible arrangement. Incidentally I like the term oubliette—a part which I hope will soon be forgotten this evening at least.

With regard to the question of the social groupings from which members of the panel of experienced social workers will come, the noble Lord, Lord Sandys, referred to the large source of individuals of good will; I should like to add "of good sense." Good sense is not confined only to solicitors, as I am sure the noble Baroness, Lady MacLeod of Borve, will agree. If we are to have a number of advisory panels, we must strike roots into areas where we know the human qualities are available for the work of such panels.

On Question, Amendment agreed to.

Clause 66 agreed to.

Clause 67 [Regulations and Orders]:

Baroness YOUNG moved Amendment No. 79:

Page 44, line 27, at end insert— ("(3) Any instrument containing any regulation or order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

The noble Baroness said: I hope again that the Government will favourably consider this Amendment. A great deal in the Bill is left to regulations. We have been promised that there may be an opportunity to hear something of some of the regulations before the Bill completes its course through both Houses of Parliament, but if this Amendment were accepted by the Government it would give your Lordships an opportunity to look at them, and it seems to me that the great interest that this Bill has attracted from all parts of the House means that Members of the House very much want to know what is to be in those Regulations.

For example, we do not know what will be the criteria under Clause 3 for the approval of a voluntary adoption agency. We do not know anything about staffing and the qualifications of staff. We do not know anything about the Government's thinking on changes in time limits which at a later date can be brought in by order. We must accept the important rules of court in Clauses 13 and 15, but one thing is certain: as a general rule we cannot legislate for social work practice. However, it is helpful to know what the Government have in mind by way of these important regulations. For this reason we have tabled these Amendments so that the Committee may have an opportunity to see what the regulations are and, if necessary, to debate them. I beg to move.


Before I reply to the noble Baroness I should like to draw her attention to a fact which I have no doubt she already knows, that rules made by the Lord Chancellor will be laid and will be subject to the Negative Resolution procedure. Having said that, the Amendment cannot be accepted in its present form, because on the subject of the alteration of the time limit set out in the Bill it is intended that any proposal to alter such time limits shall be made subject to the Affirmative Resolution procedure. We have agreed to Affirmative Resolution, and therefore that cuts out the Negative Resolution procedure. I can give the House a number of examples, but I am sure your Lordships will remember them. It is the view of the Government, as it seems to be also the view of the noble Baroness, Lady Young, that there may be a case provided that some of the regulations might be made subject to annulment procedure. In this case, we suggest the regulations establishing panels of experienced social workers, and providing for payment of their expenses. I can give an undertaking to look at the point made by the noble Baroness, Lady Young, but I should warn her that it will not be as simple an Amendment to draft as that provided by the noble Baroness. But if she agrees to withdraw this Amendment, I hope I may be able to provide a Government Amendment in its place.

Baroness YOUNG

I am most grateful to the noble Lord for that assurance, and beg leave to withdraw the Amendment

Amendment, by leave, withdrawn.

Clause 67 agreed to.


With the permission of the Committee may I make the following proposal to accelerate business? We are now reaching a point when we have: a series of definition and drafting Amendments to put before the Committee. With the exception of Amendment No. 98, the remaining Amendments are Government Amendments of a minor drafting or consequential nature. I take it that Amendment No. 98 will not be moved, since the Committee have already moved a new clause into the Bill by means of Amendment No. 9, which was moved by the noble Baroness. The new clause deals with religious conditions, and replaces Section 4 (2) of the 1958 Act which Amendment 98 would have saved from repeal. I am informed that if no noble Lord objects, it is possible to move Amendments in groups within a particular Schedule. May I inform the Committee that Amendments Nos. 87 and 101A are not now needed, and I do not propose to move them.

Clauses 68 and 69 agreed to.

Clause 70 [Financial provisions]:

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


I beg to move that Clause 70 be left out of the Bill.

On Question, clause disagreed to.

Remaining clause agreed to.

Schedule 1 [Approval etc. of adoption societies in Scotland]:

Lord WINTERBOTTOM moved Amendments Nos. 82 to 84:

Page 47, line 38, leave out sub-paragraph (6) and insert— ("(6) If not withdrawn earlier under paragraph 3, approval given under this paragraph shall last for a period of three years from the date on which it becomes operative, and, unless renewed on a further application under sub-paragraph (1), shall then expire.")

Page 48, line 26, leave out (" sub-paragraph (2)") and insert ("sub-paragraph (1) or (2) or expires,").

Page 48, line 33, leave out (" paragraph 3(1)") and insert ("paragraph 3 or has expired,").

The noble Lord said: With the permission of the Committee, I beg to move Amendments Nos. 82 to 84 en bloc.

On Question, Amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

Schedule 3 [Minor and consequential amendments]:

9.40 p.m.


I beg to move Amendments Nos. 85A to 87A en bloc.

Amendments moved—

Page 49, line 25, at end insert (", as defined by section 57 of the Children Act 1975 ").

Page 50, line 41, leave out paragraph 10.

Page 51, line 11, leave out ("and sections 34 and 35") and insert ("Part III and Part V").

Page 51, line 13, leave out paragraph 12.

Page 51, line 15, at end insert—

(".In section 11(2), for "this Part of this Act" in each place where it occurs there is substituted "the relevant provisions", and at the end there is inserted— In this subsection 'the relevant provisions' means this Part and Parts III and V of this Act and Part I of the Children Act 1975.".")—(Lord Winterbottom.)

On Question, Amendments agreed to.


I beg to move Amendments Nos. 88A to 96 en bloc.

Amendments moved—

Page 52, line 17, at end insert— ("(c) for the definition of" guardian "there is substituted" "guardian", in the case of an illegitimate child, includes the father where he has custody of the child by virtue of an order under section 9 of the Guardianship of Minors Act 1971, or under section 2 of the Illegitimate Children (Scotland) Act 1930;"").

line 17, at end insert—

("The County Courts Act 1959 (c. 22)

23A. In section 109(2) the following paragraph is inserted after paragraph (g)— (h) any proceedings under the Guardianship of Minors Acts 1971 and 1973 or the Children Act 1975."").

Page 53, line 12, at end insert—

(" (xvii) the Children Act 1975.")

line 38, at end insert—

("(xviii) the Children Act 1975.")

Page 54, leave out lines 11 to 14 and insert—(" 30. In section 10—

  1. (a) in subsection (1), for the words from "with his functions" to the end there is substituted "with—
    1. (a) his functions;
    2. (b) the functions of local authorities,
      • under this Act or under the enactments specified in paragraphs (b) to (e) and (h) of section 2(2) of this Act, in circumstances where it appears to the Secretary of State that such grants or loans should be made."
  2. (b) after subsection (3) there is inserted—

"(3A) In subsection (3) above," voluntary organisation the sole or primary object of which is to promote social welfare" includes an adoption society approved under Part 1 of the Children Act 1975.".")

line 39, at end insert—

(" The Administration of Justice Act 1970 (c. 31)

34A. In Schedule 1 —

  1. (a) after " Appellate Business" there is inserted the following paragraph—
  2. (b) at the end there is inserted the following paragraph—

Page 55, line 3, leave out (" Part II and ").

Page 55, line 4, at end insert—

(" (1A) In section 9—

  1. (a) in subsection (2) for "any person (whether or not one of the parents)" there is substituted "one of the parents" and the words "or either of the parents" are repealed;
  2. (b) in subsection (3), the proviso is repealed;
  3. (c) in subsection (4), the words from "or (before or after the death of either parent)" to the end are repealed;
  4. (d) the following subsections are inserted after subsection (4)—

"(5) An order shall not be made: under subsection (1) of this section giv- ing custody to a person other than the mother or father.

(6) An order shall not be made under subsection (1) of this section at any time when the child is free for adoption." ")

line 9, after (" except ") insert (" in Part II and ").

line 20, leave out (" adoption order under section 7(1)") and insert (" order under Part I ").—(Lord Winterbottom.)

On Question, Amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Further repeals]:

Baroness YOUNG

I beg to move Amendment No. 98.

Amendment moved— Page 56, column 3, leave out line 3 and insert (" Section 4, except subsection (2), and sections 5 to 7 ").—(Baroness Young.)

On Question, Amendment agreed to.


I beg to move Amendments Nos. 99 to 101 en bloc.

Amendments moved—

Page 56, column 3, line 5, at end insert— ("Section 10.")

Page 56, column 3, line 17, at end insert— (" Sections 30 and 31.")

Page 56, column 3,line 22, at end insert (" and the words "but is not a foster child within the meaning of Part I of the Children Act 1958".").—(Lord Winterbottom.)

On Question, Amendments agreed to.


I beg to move Amendment No. 101B.

Amendment moved—

Page 56, line 40, at end insert—

"1966 c. 19. Law Reform (Miscellaneous Provisions) (Scotland) Act 1966. Section4.")

—(Lord Winterbottom.)

On Question, Amendment agreed to.


I beg to move Amendment No. 102.

Amendment moved—

Page 57, column 3, line 4, at end insert— ("Section 65(2).").—(Lord Winterbottom.)

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

House resumed: Bill reported with the Amendments.