HL Deb 06 March 1975 vol 357 cc1360-443

4.5 p.m.

Lord WELLS-PESTELL

My Lords, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that this Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Wells-Pestell.)

On Question, Motion agreed to.

Clause 51 [Substitution of s. 2 of Children Act 1948]:

Baroness YOUNG moved Amendment No. 47: Page 32, line 45, leave out from ("made,") to end of line 2 on page 33.

The noble Baroness said: My Lords, I do not wish to speak at any length on this Amendment or to take up the time of the House at this stage. When we were discussing this Bill in Committee I raised the problem which arises on the new Clause 51(8)(c) as to what happens to the residual parental rights which have been assumed by a local authority under Section 2 of the Children Act 1948 and which, under Clause 15(8)(c), lapse when a custodianship order is made.

The problem arises because if we turn further into the Bill and look at Clause 60, at the definition of "parental rights and duties", it means as respects a particular child (whether legitimate or not), all the rights and duties which by law the mother and father have in relation to a legitimate child and his property; and references to a parental right or duty shall be construed accordingly and shall include a right of access and any other element included in a right or duty.

If we look at Clause 61 "legal custody" is defined as follows: as respects a child, 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);". It will therefore be clear that if Clause 51 stands as it is drafted when, as is proposed under subsection (8)(c), the Section 2 rights now belonging to a local authority over a child—that is the parental rights over a child—lapse when a custodianship order is made, there is no means of saying what shall happen to these residual rights and where they will go. This Amendment is designed to meet this problem, because if we take out paragraph (c) from Clause 51(8); that is to say the custodianship order, the effect is that the Section 2 rights will not lapse and therefore the gap is met. As this is meant to be a constructive Amendment to fill what appears to be a loophole in the provisions of the Bill, I hope that the Government will feel able to accept it. I beg to move.

Lord WELLS-PESTELL

My Lords, the noble Baroness is quite correct in saying that when she raised this matter on 17th February last, I undertook to consider whether the Bill required the Amendment which she had then moved. I wrote to the noble Baroness on the 26th February to say that the Government would like to give further thought to the matter to see whether it was necessary to frame an Amendment. I hope the noble Baroness is sitting firmly on her seat because what I want to say is that the Government accept this Amendment. I think the House should know that the noble Baroness has put her finger on what I think is called a "lacuna", although I would prefer to say a gap. She is the only one who has seen it, and if she does not think I am being presump- tuous I think she ought to be congratulated.

Several Noble Lords: Hear, hear!

Lord WELLS-PESTELL

My Lords, the Government are very happy to accept this Amendment.

Baroness WOOTTON of ABINGER

My Lords, I should like to congratulate the Government, not only for not having fallen into the lacuna, but for bridging it in a most satisfactory way. But what happens to the residual rights? A large part of the parental rights have gone to custodians, and the rest have been taken away from the local authority. Apparently, the remaining rights would be suspended in mid-air. So I congratulate the Government on having accepted the admirable suggestion of the noble Baroness, Lady Young.

Baroness YOUNG

My Lords, it only remains for me to thank the noble Lord, Lord Wells-Pestell, and the noble Baroness, Lady Wootton of Abinger, for their very kind remarks. I am very pleased that we on this side have been able to be of help in this matter. The important thing, as it has always been, is that the interests of the child will have been served.

On Question, Amendment agreed to.

Lord WELLS-PESTELL moved Amendment No. 48: Page 33, line 14, at end insert ("(or the period which, by a previous order under this subsection, was substituted for that period)").

The noble Lord said: My Lords, I beg to move Amendment No. 48. It is a tidying-up Amendment, which makes the wording of this clause consistent with the wording of the other provisions of the Bill enabling the Secretary of State to alter time limits by Affirmative Order. I hope your Lordships will accept this Amendment.

Lord SANDYS

My Lords, from this side of the House we are happy to accept this Amendment. I think the noble Lord, Lord Wells-Pestell, will once again acknowledge the fact that it is partly due to the noble Baroness, Lady Young, that this has been brought about, as my noble friend proposed Amendment No. 61 on Committee to bring this to light by means of a probing Amendment This seems to be a happy way of solving the situation which had occurred with this clause, and I do not think we need say more on it.

Lord WELLS-PESTELL

My Lords, with the permission of the House, may I say that we acknowledge the help which has come not only from the Opposition, but from all sides of the House. We are not unmindful of it. Probably it has not always been apparent from me, but we do recognise the help we have received. As I said earlier, I know that the concern of everyone in your Lordships' House is to get this Bill right. I acknowledge what was said by the noble Lord, Lord Sandys.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 49:

Page 33, line 19, at end insert— ("(12) If throughout the three years preceding the passing of the resolution the child has been in the care of a voluntary organisation, or partly in the care of a local authority and partly in the care of a voluntary organisation, and if the voluntary organisation is an adoption agency then the case committee of the said organisation shall be empowered to act under subsection (1) of this section if the other conditions of this section apply to the child." ").

The noble Baroness said: My Lords, I have put down this Amendment again. It is one that we discussed in Committee on 17th February. In preparation for my remarks today, naturally I reread what was said on that occasion, in particular by the Government. I should like to say that I understand the position of the Government in this matter, and their very clear explanation that a local authority cannot assume Section 2 rights on one of its children unless it has already assumed Section 1 rights under the 1948 Act.

The reason for putting down this Amendment is because I think there is another gap in the provisions, which is this. It is often the case that a local authority has placed one of its children in the care of a voluntary society, and wishes to assume parental rights over that child. Under this Bill, it is able to do that. The position is slightly different in the case of a child in a voluntary society, and not in the care of a local authority, where the voluntary society feels that Section 2 rights should be taken on that child for the good of the child. It is possible for the voluntary society to ask a local authority to assume Section 2 rights on that child to meet this difficulty. But local authority practice varies from one authority to another, and there is a very wide interpretation by authorities on the meaning of the circumstances under which parental rights may be assumed by a local authority on a child.

My Lords, it might well be the case that there could be a child in the care of a voluntary society, and that the society feels it ought to have Section 2 rights taken on it because it is in the best interests of the child, but the local authority has declined to do so because it does not feel that it can incur that particular responsibility. My Amendment asks that a voluntary society, which is an approved adoption society under Clause 3 and therefore is one which is approved by the Secretary of State, when the circumstances are right—as they would be for a local authority—should be able to assume parental rights over that particular child. The entire purpose of the Amendment is to meet these cases of children in the care of a voluntary society, cases where the voluntary society thinks it should assume parental rights over the child because the local authority in that particular place is unwilling or unable to do so. I beg to move.

Lord WELLS-PESTELL

My Lords, I had thought that the noble Baroness, Lady Young, might withdraw this Amendment in view of the correspondence that has passed between us on this particular matter. Discussions took place yesterday with the Association of Directors of Social Services and the National Council of Voluntary Child Care Organisations, and we are in the process of considering the whole of this matter. I can go on at some length, but am wondering whether, in view of that, the noble Baroness would think it is necessary for me to do so. I should like to have her observations on what I have just said.

Baroness YOUNG

My Lords, by leave of the House, I wish to make it clear that I do not intend to press this Amendment. I am most grateful for the correspondence, but thought it would be helpful to all concerned to have it on the Record. If the noble Lord, Lord Wells-Pestell, wishes to leave the matter there, I do not intend to press it this afternoon.

Lord WELLS-PESTELL

My Lords, with the permission of the House, I should like to repeat what I have said. Discussions took place yesterday with the Association of Directors and the National Council of Voluntary Child Care Organisations. We are all alive to what was said previously by the noble Baroness, and I hope something useful will result from it.

Baroness YOUNG

My Lords, with that assurance, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 53 [General duty of local authority in care cases]:

4.15 p.m.

Lord WIGODER moved Amendment No. 50: Page 33, line 31, leave out ("take full account of") and insert ("regard as the first and paramount consideration")

The noble Lord said: My Lords, I beg to move Amendment No. 50, conscious as I am that the wheel is now coming full circle and is beginning to creak somewhat repetitively.

Lord WELLS-PESTELL

My Lords, would the noble Lord, Lord Wigoder, allow me to intervene? Is he proposing to take No. 59A with this Amendment?

Lord WIGODER

My Lords, with the leave of the House, I would be glad to take Amendment No. 59A with this one. Amendment No. 59A is a similar Amendment, but refers to the position in Scotland. I think there are no distinctions to be drawn on this particular matter between the position in Scotland and that obtaining outside Scotland.

My Lords, I was saying that this discussion was perhaps getting a little monotonous to your Lordships, because on several occasions so far your Lordships have had to consider just what emphasis should be placed on the welfare of the child in the various Parts of the Bill. I think this is the last occasion on which this matter will come before your Lordships in connection with this Bill.

Your Lordships will remember that under the Adoption Part of the Bill, an Amendment was carried which made the welfare of the child the first consideration. Under the custodianship Part of the Bill an Amendment was accepted by the Government which made it abundantly clear that the welfare of the child was to be the first and paramount consideration. What is now proposed in this Amendment is that in the care Part of the Bill, where local authorities are making decisions about a child in their care, they shall again make the welfare of the child the first and paramount consideration and not merely, as the Bill says, take full account of the need to safeguard and promote the welfare of the child.

My Lords, it is my suggestion to your Lordships that this Amendment gives, as we have sought to do all through the Bill, very much greater protection to the child, greater emphasis on the welfare of the child, without prejudicing in any way the proper claims of the natural parents. May I refer for a moment to Clause 53, which it is sought to amend. As your Lordships will see, this clause asks the local authority to "take full account of the need to safeguard" the welfare of the child in reaching any decision, but then goes on to say in subsection (2) If it appears to the local authority that it is necessary, for the purpose of protecting members of the public, to exercise their powers in relation to a … child … in a manner which may not be consistent with their duty under the foregoing subsection, the authority may notwithstanding that duty, act in that manner. I refer to that only because it would appear that altering the test in subsection (1), so that the local authority should make the welfare of the child the first and paramount consideration, does not affect the operation of the following sub-section; it will still be open to the local authority to say, "It is necessary to protect members of the public, and we must therefore disregard our duty under sub-section (1) and make an order notwithstanding that duty."

This Amendment was moved originally on Committee stage. It was withdrawn at that stage because it was indicated that it was proposed to circulate various observations over the name of the noble and learned Lord on the Woolsack, and many of your Lordships will no doubt have seen those observations. I hope it is a fair summary of them to say that the opposition to the paramountcy test disclosed in those observations was very vigorous in relation to the adoption Part of the Bill; indeed, it was never suggested, certainly not by me, that it should be applied in that Part, but that the first consideration there should be the test. But the opposition to introducing paramountcy as the test in Clause 53 was really somewhat halfhearted in the observations of the noble and learned Lord the Lord Chancellor.

Three grounds were raised for querying whether this was appropriate. First, it was pointed out that the local authority has, of course, to return a child to its parents if it is in care, unless the local authority has grounds for assuming parental rights. The noble and learned Lord the Lord Chancellor wondered rather hesitantly whether, in those circumstances, paramountcy would be the appropriate test. I would venture to suggest that in fact, paramountcy is a highly appropriate test in those circumstances, because it will encourage the local authority to assume parental rights in appropriate cases, it will encourage them to see whether there are the appropriate grounds available, and it will encourage them to plan for the long-term welfare of the child, which can be done in many cases only by a resolution for assuming parental rights. Your Lordships, of course, will know that that is effective only either with the consent of the natural parents or upon the order of the court, so that I do not think that the rights of the natural parents would be, in any way, unfairly prejudiced by introducing the paramountcy test here.

Secondly, the noble and learned Lord the Lord Chancellor suggested that, if paramountcy were the test, it would hardly be necessary to have Clause 51 of the Bill setting out the various grounds upon which a local authority might resolve to have vested in them the parental rights and duties with respect to any child in their care. That clause is discretionary for the local authority; the local authority may look to see whether certain grounds exist and may then resolve. It is equally possible for the local authority to do that while taking full account of the child's welfare, since it is for the local authority to regard the child's welfare as paramount. Again, I would suggest there is nothing in Clause 51 of the Bill which makes the paramountcy test in any way inappropriate.

Thirdly, the noble and learned Lord the Lord Chancellor wondered whether the introduction here of the paramountcy test might make too serious an inroad into parental rights. I venture to hope, for the reasons I have suggested, that the position of the natural parents would still be properly safeguarded. We are all, in this Part of the Bill, acting, to some extent, in the shadow of the Maria Colwell case, but it is necessary to repeat to your Lordships what your Lordships know already; that is, that that case was, perhaps, notorious but in no way unique, since there have been many other cases in which children have been too readily handed back by local authorities into the care of their parents, with disastrous results. If the duty of the local authority towards a child in its care is to regard the child's welfare as paramount —as the overriding consideration—it would, I venture to hope, eliminate, to a substantial extent, the risk of any such similar cases in the future.

The only other observation I would make in moving this Amendment is this: having decided, in Part I of the Bill, the Adoption Part, that first consideration is to be given to the welfare of the child, having decided, as have your Lordships, in Part II of the Bill, custodianship, that the child's interest is to be paramount, it would now be highly illogical if we were to leave this clause as it stands. In care cases, where the welfare of the child is so very much at issue, it would be illogical, also, to leave the local authority to apply a very much weaker and less emphatic test than your Lordships thought fit to ensure should be applied in Parts I and II of the Bill. For those reasons, I beg to move.

4.28 p.m.

Lord SANDYS

My Lords, it is possible to dwell at some length on this subject, which the noble Lord, Lord Widoger, has previously brought before your Lordships. If I might pick up the thread at the point where Lord Widoger left off, he considered it illogical for the House to accept paramountcy in Parts I and II of the Bill and to differentiate for Part III. I regret, especially in opposing Lord Widoger's case, that we take a different view. We feel that it is possible to differentiate in Part III because here we are dealing with care, a somewhat separate subject. My noble friend Lady Young and I have benefited greatly from a Memorandum dated 19th February circulated by the noble and learned Lord on the Woolsack, and a further very interesting Memorandum circulated on the same subject by the noble and learned Lord, Lord Simon of Glaisdale, on the 25th February. Both Memoranda dealt in depth with the question of paramountcy and primacy, and I am quite sure that all those who benefited from receiving and reading them felt that they illuminated a difficult point of view.

It is certainly possible to take the opposite view; I think it is a perfectly respectable point of view, if I may say so to the noble Lord, Lord Wigoder. One could differentiate, taking the view of Part III that it is a separate affair. Why is it a separate affair? The situation of care is fundamentally different. It is possible to say that, where cases of adoption are concerned, the change of relationship is fundamental and permanent. In the case of custodianship—or what we used to term guardianship—it is long term. But in the case of care it could be for a fortnight, it could be for quite a brief period. Therefore, in the context of care, a time-scale of that nature must necessarily enter into the situation, should one consider that the child's interests for this period should be paramount, in all that that word has been construed to mean?

We feel that in this respect paragraph 28 of the Lord Chancellor's memorandum was especially valuable. Perhaps the House will bear with me if I quote from that paragraph on page 11. He said: Where a child is received into care under section 1 of the Children Act 1948, there is a duty to keep him in care so long as his welfare requires it, but the child has to be returned to his parents on request unless the local authority has grounds for assuming parental rights. Furthermore, local authorities have a duty to work towards the child's return to his family where this is consistent with the child's welfare. Parental rights thus normally continue to be effective. It seems doubtful whether paramountcy would be appropriate in cases where the authority is obliged to conduct itself with a view to the return of the child if possible. This adds considerably to the argument and I would further bring out a final point in this regard. Looking at Clause 53 in this Bill, one sees that the new subsection (1) is followed immediately by subsection (1A), but if the principle of "paramountcy" were applied it would seem inconsistent that the following sub-section should immediately conflict with it.

If your Lordships will allow me, I will quote subsection (1A): If it appears to the local authority that it is necessary … to exercise their powers in relation to a particular child in their care in a manner which may not be consistent with their duty under the foregoing subsection, the authority may, notwithstanding that duty, act in that manner ". If your Lordships decided to make the interests of the child paramount, it would seem to us quite illogical to deny it immediately by not altering the following subsection.

Lord REDESDALE

My Lords, I venture to disagree with my noble friend Lord Sandys, and I should like to support the noble Lord, Lord Wigoder, in his Amendment. On Second Reading I spoke on the importance of "paramountcy", especially as regards care and although my noble friend Lord Sandys was saying that in some cases "paramountcy" is not effective when a child is soon to be returned to its parents, I know of a number of cases—and I am perhaps more aware of them—of long-term fostering, and on those grounds I would support the Amendment of the noble Lord, Lord Wigoder.

Lord SIMON of GLAISDALE

We have discussed the test of the welfare of the child in many connections and on many occasions on this Bill. Although I argued throughout in the memorandum, to which the noble Lord so kindly referred, for the "paramountcy" case, as I have considered it further I have felt strongly the arguments that were urged against it by the noble and learned Lord, Lord Hailsham of Saint Marylebone, and the noble Lord, Lord Wells-Pestell, in connection with Clause 11. But I suggest, Clause 2 having been amended, that Clause 53 cannot stand In its present state, and even if the Amendment of the noble Lord, Lord Wigoder, is not accepted those two clauses ought, in the interests of draftsmanship and understanding of the language of this Bill, to be brought into line.

Baroness ELLIOT of HARWOOD

My Lords, I am no lawyer but I have read the two memoranda that have been sent round, one by the noble and learned Lord, Lord Simon of Glaisdale, and the other by the noble and learned Lord the Lord Chancellor. I spoke about this matter in Committee, and I remain of the same opinion as then; namely, that it is still of paramount importance that the interests of the child should be the first concern of the local authority, social worker or whoever may be dealing with a case. I was impressed with the memorandum of the noble and learned Lord, Lord Simon of Glaisdale. It seemed to me to answer conclusively the legal points that had been put forward against the use of the words "first and paramount consideration". I am afraid I do not agree with my noble friends on this side of the Committee about the Amendment. I believe that the Bill would be improved and would become more definitive if that phrase were inserted. As I have taken it on myself to speak for Scotland, I would say that if your Lordships divide on this Amendment and it is carried it will also apply to Scotland.

I do not think we can underestimate the importance of the welfare of the child being the first and paramount consideration. We all know the tragic case of Maria Colwell, and there have been others since. There was one in Perthshire, a little while ago which was a bad case, too. One cannot sufficiently underline the importance of putting first things first, and in this matter it is the child and its welfare which is the first priority. So on this occasion I support the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Simon of Glaisdale.

4.36 p.m.

Lord WELLS-PESTELL

My Lords, the Government would not find it possible to accept the Amendment in the names of the noble Lord, Lord Byers, and the noble Lord, Lord Wigoder. To some extent the noble Lord, Lord Sandys, has made the points that I wanted to make, as has the noble and learned Lord, Lord Simon of Glaisdale. But we have to ask ourselves whether it is appropriate to have these words in this section of the Bill which deals solely with care. I do not want to go over all the arguments again, but Clause 53, which governs Part III relating to care, provides in subsection (1) that: In reaching any decision relating to a child in their care, a local authority shall take full account of the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding ". It also provides in subsection (1A) that: If it appears to the local authority that it is necessary, for the purpose of protecting members of the public, to exercise their powers in relation to a particular child in their care in a manner which may not be consistent with their duty under"— subsection (1) of the new Section 12 of the Children Act 1948— the authority may, notwithstanding that duty, act in that manner. For reasons which the noble and learned Lord explained, in paragraphs 28 and 30 of the document circulated on 19th February, the Government consider that the "paramountcy" principle is clearly inappropriate in a situation in which it may be in the interests of the welfare of the child that he should not be confined in "secure accommodation", but if the child is of an anti-social disposition it may be necessary to do so for the protection of the public. We have to bear in mind, even if we do not have it in the forefront of our minds, that there are about 7,600 children in care as a result of quite serious criminal offences. I think it could be argued— and this is a point that is sometimes argued by professional social workers with whom I have discussed various aspects of the Bill—that a child could come from a very good home with loving and indeed devoted parents who want to do everything they can for him and one might be able to argue very successfully that it is of paramount importance that the child goes back there; but it would not be in the interests of the public. If the child's interests were paramount—that is, if they were over-riding or given priority—the public's interest would make no difference. Clause 53 is therefore similar to Clause 2 (before that clause was amended) and in addition it reproduces Section 27(2) of the Children and Young Persons Act 1969 which was designed to safeguard the public.

Your Lordships' House appeared to accept during the debate on Clause 2 that it would be inappropriate to apply the consideration of "paramountcy" of the welfare of the child to adoption, and the Government do not consider that a case has been made out for applying this in principle in relation to children in care, partly for the reasons which I gave. Paramountcy would create difficulties of the kind discussed in relation to adoption. Where a child is received into care under Section 1 of the Children Act 1948, there is a duty to keep him in care for as long as his welfare requires it, but the child has to be returned to his parents on request unless the local authority has grounds for assuming parental rights. Furthermore, local authorities have a duty to work towards the child's return to his family where that is consistent with the child's welfare. Parental rights thus normally continue to be effective and it seems doubtful whether paramountcy would be appropriate in cases where the authority was obliged to conduct itself with a view to the return of the child if possible.

My Lords, in considering whether to pass a resolution under Section 2 of the Children Act 1948, a local authority has to base itself on one or more of the statutory grounds set out in Clause 51 of the Bill. If "paramountcy" were to be the test, there would be no room for particular statutory requirements and the local authority would have to be given a general discretion to pass a resolution if it thought it would be in the interests of the child to do so. It may be thought that this would be too serious an inroad into parental rights and that it would be inconsistent with the duty of the local authority to take account of the position of parents as well as of children. Further, the impact of the change on the procedure established under the Children and Young Persons Act 1969 would need to be fully worked out. Paramountcy in the case of children in care would thus give rise to difficulties, I submit, much of the kind that it would have created in relation to adoption. I therefore hope very much that the noble Lords will not press their Amendment.

My Lords, if I may say so, I believe that the same arguments would apply to Amendment No. 59A, which relates to Clause 57. I do not think I need to say anything more, other than that I feel that we should ask ourselves whether the paramountcy test is appropriate in matters of care, bearing in mind, as I say. that there are a large number of children in care who are there as a result of criminal action. If one were to apply the test, one might say that they ought to be at home, but if they were, they could to some extent be a menace to the community. I am sorry that we cannot accept the Amendment and I leave it to the noble and learned Lord to decide what he proposes to do.

Lord SIMON of GLAISDALE

My Lords, before the noble Lord sits down, or at any rate before he settles down, I wonder whether he would be kind enough to say what are his views on the point I ventured to make to him that the clause as it now stands is in discrepancy with Clause 2 since your Lordships amended it, so that we have three separate tests in the Bill.

Lord WELLS-PESTELL

My Lords, I am grateful to the noble and learned Lord. I had made a mental note of the point. I looked at the clause this morning but the point in question did not occur to me nor to any of my advisors, but if we may take it and have a look at it, perhaps I can let the noble and learned Lord know our reaction to it.

Lord WIGODER

My Lords, with your Lordships' leave, may I say that I am grateful to the noble Lord, Lord Redesdale, and the noble Baroness, Lady Elliot of Harwood, for their support on this matter. I believe that it indicates a real depth of feeling on the part of noble Lords that it should be ensured that the welfare of the child is properly emphasised. I recognise the difficulties indicated by the noble Lords, Lord Sandys and Lord Wells-Pestell, and I would propose, if I may, to deal with the matter in the following way, having regard particularly to the observations of the noble and learned Lord, Lord Simon of Glaisdale.

It is clearly undesirable that there should be three separate criteria in the various parts of the Bill. I would invite the Government to do as I think they have indicated they will consider doing by harmonising Clause 53 with Clause 2, perhaps by means of an appropriate Amendment on Third Reading. I would ask the noble Lord, Lord Wells-Pestell, to consider whether it might be possible to bring about that harmony by introducing into Clause 53 not the words, "shall take full account of", but, "shall give first consideration to". That would then bring the two Parts of the Bill into harmony, I hope without any of the ill effects indicated both by the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Sandys.

My Lords, in anticipation that that point might be considered on Third Reading, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.48 p.m.

Lord HYLTON moved Amendment No. 51:

After Clause 53 insert the following new clause:

Substitution of section 1 of Children Act 1958.

" . The following section is substituted for section 1 of the Children Act 1958:— Prohibition of private fostering.

1.—(1) It shall be unlawful for any person to accept a foster child or to permit the acceptance of a foster child save as provided by this section. (2) A local authority or an approved agency may permit a child to become a foster child by the granting of a licence in writing permitting the person pro posing to maintain that child. An approved agency that grants such a licence shall, within 14 days, notify the local authority that appears to the approved agency to be the local authority within whose district the person proposing to maintain that child lives. (3) It shall be the duty of every local authority to satisfy themselves as to the well being of children within their area who are foster children within the meaning of this Part of this Act and, for that purpose, to secure that, so far as appears to be the authority to be appropriate, the children are visited from time to time by officers of the authority or representatives of an approved agency and such advice is given as to the care and maintenance of the children as appears to be needed both by the persons maintaining such foster children and by their parents with the object of ensuring that when and if reasonably practical such foster children can live with their parents or one of them. (4)It shall be the duty of the local authority or the approved agency to undertake a review when it seems appropriate to the local authority or the approved agency, but in any event within one month of the anniversary of their grant of licences it has granted under subsection (2) of this section. In connection therewith the local authority or approved agency is under a duty where it is practicable to interview both parents and the person maintaining such foster child as well as the child itself. At such review the local authority or approved agency may if it appears appropriate to them to do so revoke the licence. Such revocation shall take effect 14 days after service of written notice of revocation on the person maintaining such a foster child and (where the revocation is done by an approved agency) on the local authority. (5) An "approved agency" means an agency approved, for the time being, in writing for the purposes of this Act by the Secretary of State who may revoke such approval in writing if it seems to him to be appropriate to do so, but such revocation shall not affect the validity of any licences under subsection (21 of this section but the obligations therefor shall be transferred to the local authority notified thereunder."

The noble Lord said: My Lords, I think that it would be for the convenience of the House if I spoke to Amendment No. 52, which is consequential, at the same time. My Lords, this is a major Amendment, to ban privately arranged fostering and to bring in a system of licensing to enable fostering to take place without children technically coming into the care of the local authority. The Amendment seeks to remedy the very unsatisfactory situation revealed by the researches of Professor Holman and others, a situation which was described by my right honourable friend Sir Keith Joseph as "shocking". He said that in 1973, when he was the responsible Minister. At Committee stage, the noble Lord, Lord Winterbottom, gave a very long and detailed reply at a very late hour, but I felt that he had by-passed the arguments I was trying to put forward then. I should therefore like very briefly to summarise them now.

My Lords, we are faced with a total lack of investigation of the background of private fosterers; therefore, there is a high rate of unsuitability among these people. Secondly, the Amendment follows the spirit of the Houghton Report and it runs parallel to what the Bill does in implementing Houghton by making illegal privately arranged adoptions.

On the question of cost, I submitted that I thought it would be cheaper to make proper arrangements for private fostering in the first place rather than to come along much later and pick up the pieces of emotionally disturbed children who have been deprived over a period of years. The best, most educated guess which has been put to me of the cost of applying this Amendment is £450,000 per year. If one divides that by the number of children thought to be privately fostered at present, it comes out at at least £45 per year per child and this is roughly equal to the weekly cost of keeping one child in a borstal, prison or psychiatric hospital. I submit, therefore, that it is quite a good insurance policy.

I also argued in Committee that private foster parents are at present under-paid compared with local authority foster parents, and that there is therefore a risk of financial under-provision for the children in their care. A number of your Lordships will have received a document from the Association of Directors of Social Services arguing against the Amendment, but I would point out that their submissions are not supported by the views of another body which must clearly have a strong interest in the matter; namely, the British Association of Social Workers. However, the Directors of Social Services reinforced the point I was trying to make earlier this week, that day care is one of the key matters in this situation and that if there were adequate day care there would be very much less private fostering. The Directors of Social Services went on to argue that the existing powers are sufficient to exclude un-suitable persons and unsuitable premises, but this is not confirmed by Professor Holman's research and evidence. The Directors of Social Services said that many existing private foster parents would already be known to local authorities. But if that is the case, why is it that these parents do not take up local authority fostering, for which there is an unsatisfied demand, and thereby gain a considerably higher reward for doing approximately the same job? The Directors of Social Services argued that my Amendment contains no criteria for the licensing process. My answer to that is that these criteria could easily be set out in regulations when the Bill becomes law.

Coming to the text of the Amendment, some may say that it is too widely drawn in that it does not exclude very short-term arrangements. That I accept as a possible criticism. On the other hand, I maintain that the Amendment is rather too weak because it does not provide for identical social work services for, on the one hand, local authority arranged fosterings and, on the other, privately arranged fosterings. In my view where subsection (3) of the Amendment speaks of visiting from time to time, it really should say that visiting shall be at least as frequent in the private case as it is now in the local authority case. Nevertheless, I commend it to the House and beg to move the Amendment.

4.53 p.m.

Lord WELLS-PESTELL

My Lords, I assure the noble Lord, Lord Hylton, that we have looked into this matter very carefully. A similar Amendment was moved in Committee and since then we have given the subject a great deal of thought. I have before me literally pages of information, but I will not burden your Lordships with the complete details. The Government are as anxious as all in this House to send this Bill to another place in the best possible form, and we are, generally speaking, very good at doing this. But on reflection, and having given the matter further consideration, we do not find ourselves able to meet the noble Lord in this matter. I am tempted to say that there is not a great deal that I can add to what my noble friend Lord Winterbottom said in Committee.

I must emphasise that there is a very wide range of private fostering arrangements covered by the Children Act 1958. The definition of "foster child" in Section 2(1) of the Act was, following discussions between the Home Office and local authority associations, amended by the Children and Young Persons Act 1969, to omit the words "for reward for a period exceeding one month". This has the effect of bringing fostering undertaken without reward within the scope of the 1958 Act, and the reason for it was the need to provide for supervision of long-term arrangements which amount to de facto adoption. Some of these arrangements may prove quite satisfactory, but there are others in which a person or couple who would not be considered suitable adopters obtain possession of a child in this way. The 1958 Act therefore covers, and properly so, such arrangements as exchange visits by children to this country and holidays spent by children with friends if they last for more than 27 days. It would be wrong, if not impossible, to distinguish in legislation between one type of arrangement and another, as some short-term casual arrangements could give rise to real concern about the welfare of a child. But local authorities need to be able to make such distinctions in deciding on the degree of supervision needed.

I will give your Lordships two examples to help make this point clear. In the case of older children who are left from time to time with friends of the family for a few months while their parents are abroad, it may be apparent at the initial visit that there is no cause for concern about their welfare. It would be wrong in such a case, because it would be both a waste of public money and an unnecessary interference with a private arrangement, to require a licence to be issued for each child every time he or she went to stay with friends, and this is what the noble Lord's Amendment would, in the last analysis, require. One visit may be all that is necessary in this kind of case, and anything else would not only be superfluous but would be seen as unnecessarily officious, if not offensive. At the other extreme is the case of small children placed without a great deal of thought with foster parents who may not in any sense of the word be ideal. In such a case the present law allows the local authority to prohibit such an arrangement. If not prohibited, the 1958 Act allows the local authority to visit the children regularly, to give the foster parents advice and guidance about the care of the children, to request the foster parents to give details of the children and their arrival and removal, and to contact and discuss the arrangements with the natural parents. In extreme cases it allows them to seek a court order should it be felt necessary to remove the children.

It is hard to see how the issue of licences could bring about any improvement, even in the cases about which we are all concerned. When the noble Lord and the noble Baroness, Lady Young, moved an Amendment in Committee to Section 1 of the 1958 Act, the noble Baroness and the noble Baroness, Lady Elliot of Harwood, both referred to a very bad case in Scotland and, if the noble Baroness, Lady Elliot, will allow me, I will use her words. She said that that case had arisen because somebody had not taken the trouble to find out the circumstances. That was no doubt a reference to the tragic case of Richard Clark, but as the recently published report of the inquiry into that case shows, the local authority was aware of the fostering arrangements and was in close touch with both the foster and natural parents right from the start. Once a local authority is aware of a child being privately fostered —and of course it can do nothing if it is not—it has considerable powers, as the local authority had in the Richard Clark case, to inquire into and supervise the arrangement and, if there is thought to be any danger to the child, to prohibit the arrangement and remove the child from the foster parents.

A requirement to issue a licence would not add to these powers in any way. By deflecting effort into the issue of licences to all and sundry it would make effective use of the powers much more difficult. My noble friend Lord Winterbottom said previously, when considering this matter, that the Government were not complacent about the welfare of all privately fostered children. He told your Lordships that my right honourable friend the Secretary of State for Social Services is to explore with local authorities ways of using their existing powers more effectively. The study will look at how local authorities are carrying out their duties in this field and how the supervision of private fostering could be improved within the existing resources.

In addition, my right honourable friend the Secretary of State for Social Services has just approved a grant of £20,000 a year for the next two years to the Commonwealth Students' Children's Society to further its work in this field with the children of West African students, who form a large part of the private fostering problem. I do not think it necessary—at least I hope that your Lordships will feel that it is not necessary—for me to go beyond this point. We recognise the concern of the noble Lord, Lord Hylton. We are not unmindful of the gaps and pitfalls that are to be found, but we do not feel, in the circumstances, that it is necessary to accept these Amendments, nor to advise the House to do so.

Baroness YOUNG

My Lords, before my noble friend replies on these two Amendments, I wish to say that my noble friends and myself have considered them most carefully. It is extremely useful that my noble friend Lord Hylton has raised them and that we now have the Government's reply in full on the Record. My noble friend Lord Hylton has put the case very well and he has no doubt received even more memoranda than I have on this subject, indicating cases of private fostering where there appear to be various loopholes in the law. In particular, I have read the articles by Professor Holman, who I know is very concerned that this Bill did not include any provisions about private fostering.

The reply from the noble Lord, Lord Wells-Pestell, has shown that though the powers exist to help in cases of private fostering, unfortunately it appears that they are not being used or understood by local authorities. This is a point to which I shall return when dealing with another Amendment which I have put down. The reason why I think that the noble Lord, Lord Wells-Pestell, is right in saying that we cannot accept these Amendments is not because I think there has been a case proved against them—I am not at all satisfied that there has—but because I personally think that the major extension of work that would be involved in carrying them out would require so much money that I would feel great difficulty in making a proposal which would cost a great deal more when I have already criticised the amount of money available for the provisions in the Bill as it stands.

However, I hope that the Government will take note of what my noble friend has said and of the points he has made. I hope that when the Government have their discussions with local authorities they will at any rate try to ensure that those provisions in the law are being carried out, and that before too long perhaps we may make some progress on the other matters raised by my noble friend Lord Hylton, which I think deserve urgent consideration.

Lord HYLTON

My Lords, if I may speak again on this matter, I should like to thank the noble Lord, Lord WellsPestell, for his reply. I particularly welcome the news he gave of the Government's study into this matter, as well as the news of the grant he mentioned. It is good to hear that the Government are not complacent in this matter. The noble Lord repeated and emphasised that. I freely admit the difficulty of drafting any Amendment to this particular Bill that in any way goes far enough, or near enough, to providing a solution. Two matters have been mentioned—short-term fostering arrangements, and the difficulty that local authorities sometimes have in knowing that an arrangement has been made. Nevertheless, having said all that, I do not feel that I should withdraw this Amendment, mainly because while the Government are not complacent I do not think that they have quite taken on board the full seriousness of the situation, and I will leave it to the House to negative the Amendment if it so wishes.

On Question, Amendment negatived.

5.7 p.m.

Lord HYLTON moved Amendment No. 53A:

After Clause 53 insert the following new clause:

Substitution of s.37 of Children Act 1958.

".The following section is substituted for section 37 of the Children Act 1958:— Prohibition of advertisement offering or offering to undertake care of children.

37.—(1) No advertisement indicating that a person will offer a child for care and maintenance will undertake or will arrange for care and maintenance of a child shall be published unless it has been approved by the appropriate local authority. (2) A person who causes to be published or knowingly publishes an advertisement in contravention of this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding £100 or both. (3) In England and Wales, a local authority may institute proceedings for an offence under this section. (4) Subsection (1) shall not apply to advertisements for children's exchange visits between countries nor to advertisements placed by schools certified as efficient by the Secretary of State for Education and Science."".

The noble Lord said: My Lords, I beg to move Amendment No. 53A which deals with the question of advertisements. When I moved a similar Amendment in Committee the noble Lord, Lord Winterbottom, said: I find it difficult to argue against this point …"—[Official Report, 17/2/75; col. 160.] He undertook to ask the Secretary of State to consider the matter. This gives me some hope. It will be noticed that the wording of this Amendment is very slightly different from the previous Amendment, in that it requires the approval of the local authority to all advertisements dealing with private fostering. This has come about largely as a result of a detailed and helpful letter I received from the noble and learned Lord the Lord Chancellor, for which I am most grateful. Also excluded from the Amendment, by the new subsection (4), are exchange visits of children between one country and another, and advertisements placed, usually by boarding schools, where, for example, parents are abroad during the holidays and some special arrangement has to be made for the child. I beg to move.

Lord WELLS-PESTELL

My Lords, I should like to turn to the proposed Amendment to Section 37 of the 1958 Act. Section 37 prohibits anonymous advertisements offering to undertake care of children. The Amendment, as we understand it, would prohibit, with certain exceptions which are somewhat loosely defined, all advertisments offering to undertake the care of children and all advertisements seeking people to foster children, unless the advertisements had been approved by the appropriate local authorities.

Following the debate on a similar Amendment put down by the noble Lord, Lord Hylton, when we discussed this in Committee on 17th February, he wrote to me about this and I hope he will not mind my repeating what I said in my reply to him, much of which is still relevant, though he now proposes to make these advertisements subject to approval by the "appropriate" local authorities rather than to prohibit them altogether.

Practically all advertising—apart from some which I shall mention in a moment —in the private fostering field is by natural parents seeking foster parents. As foster parents are in short supply, they do not have to advertise. I think that the effect of the restrictions he now proposes would be far from what the noble Lord hopes will result. It seems to be his intention, in effect, to force all natural parents seeking to foster their children to seek the sanction of local authorities to do so. Presumably, the noble Lord would expect the local authority's social services department, on receiving a request for approval of an advertisement by a natural parent seeking a foster parent for her child, to make some inquiries; possibly to interview the natural parent and see the child; and, if the authority considers it appropriate, to try to make arrangements for the child to be placed in the care of acceptable foster parents or of a suitable voluntary organisation.

This would work, I submit, only if the supply of foster parents acceptable to the authorities exceeded the demand. As the supply is insufficient to provide placements for all the children that have to be taken into care, the authorities would be unable to help. In such circumstances, it might be difficult for the local authority to refuse to allow the natural parents to advertise. If the authority did refuse, however, the parents might well turn to other methods of finding foster homes. These methods, being more haphazard, might be very much less satisfactory than advertising. I think we must take this possibility into account.

Even without the restrictions proposed in the Amendment, advertising at least provides a means of identifying natural parents who are seeking to foster their children. It is hoped that the Department's grant to the Commonwealth Students' Children's Society, to which I have already made reference, will enable it to further its work in contacting such advertisers who are West African to advise them on what fostering in this country involves for their children and thus try to prevent harmful and unnecessary fostering. Robert Holman found that 36 per cent. of the children in his sample had been placed as a result of advertising and that most were West African.

Unlike the Amendment tabled in Committee, the Amendment now proposed would not prohibit advertising seeking exchange visits between children of different countries and advertising by boarding schools seeking foster parents for children during the holidays. However, such a distinction could well be said to be unfair and appear to be socially divisive and aimed particularly at immigrant students. Noble Lords might like to note that those who could afford it could continue to advertise for nannies and au pair girls without restriction.

To sum up, a system of vetting by local authorities of advertisements by natural parents seeking foster parents for their child would not, in itself, seem likely to improve the supply of acceptable foster parents; and such controls could be counterproductive by driving natural parents to resort to less open methods of finding foster parents. Moreover—and this is of critical importance—the duty to vet all such advertisements would place yet another additional burden on hardpressed social services departments to very little real effect. I hope that in the light of the explanations I have tried to give, coupled with my assurances that the problem is being studied—and this is so—the noble Lord, Lord Hylton, will accept the Government's view that progress towards the objectives that both he and the Government seek will be hindered rather than helped by this Amendment and that the additional demand on resources would not be justified, having regard to the other more effective ways in which the time of social workers ought to be used. If he agrees, and I feel that he will. I hope that he will not press this Amendment.

Lord HYLTON

My Lords, the noble Lord, Lord Wells-Pestell, is in general correct in the way he summarised my intention in moving this Amendment. On the supply of foster parents, I would say that I doubt very much whether anything like enough has been done, or as much as could be done, to recruit more by all possible methods, by the use of the media and of publicity. I also doubt whether anything like enough has been done on the training of foster parents. I would bring to the noble Lord's attention something of which I am sure he is aware; County Council has just brought out for that is, the new scheme which Kent paying foster parents very large sums per week in order to get properly fostered those particularly difficult teenage children who would otherwise be in institutional care.

Finally, the noble Lord said that if advertising was made illegal, or subject to strict control, private fostering arrangements would happen by much more informal means, perhaps by grapevine or bush telegraph. That would not be quite such a bad thing as it might appear. At least, the contact between the actual parents and the foster parents would be more personal and face-to-face and less remote than it is at the present time. However, I beg leave of the House to withdraw this Amendment.

Amendment, by leave, withdrawn.

5.18 p.m.

Lord ELTON moved Amendment No. 54:

After Clause 53 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 subsection— (3A) A court which, upon any of the grounds set out in paragraph (a), (b) or (c) of subsection (2) of this section, 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 and the Chief Constable of the area of the local authority named in the order and to the Area Medical Officer of the area in which the court is satisfied that the person named in the order will reside."

The noble Lord said: My Lords, your Lordships will recall that Amendments similar to Amendments Nos. 54 and 55 on the present Marshalled List appeared at the Committee stage as Amendments No. 66P and 66Q. With your Lordships' leave, I will speak to Amendments Nos. 54 and 55 together as I then spoke to Amendments Nos. 66P and 66Q. Because I am treating them in the same way, I would not wish your Lordships to assume that these Amendments have not changed in the interim since the last discussion. I withdrew my Amendment at Committee stage for two specific purposes. The first was in order to give the Government the opportunity—which I imagine, in view of the strength of support which it appears to me was given to the two Amendments which stood in my name, they would wish to take—to put down an Amendment of their own with similar intentions. No such Amendment has appeared on the Marshalled List; and I am therefore glad that, immediately after that debate, I set about trying to improve it in the light of the criticism which the Government made of its terms.

The principal criticism voiced by the noble Lord, Lord Winterbottom, who at that time was carrying the banner for the Government, was of the numbers of orders which might be circulated as a result of this Amendment. Perhaps I should refresh your Lordships' memories a little as to what we are dealing with. The Amendment seeks to avoid by legal, as opposed to administrative, means the failure of intercommunication between different branches of the welfare services at local authority level. The case which brought this so much into the limelight was that of Maria Colwell. As I said previously, and believe to be true, no one who has read the Report on that case can have closed its covers without her name being engraved upon his heart. There was a great danger in those days— and I think it has since been increased by administrative changes—that the left hand of the charity or caring services of the State would not know what the right hand was doing. It is the intention that by Parliamentary Act the left hand shall now be informed of what the right hand is doing.

It is in this context that we must look at the remarks of the noble Lord, Lord Winterbottom, on Committee stage. He said: 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.'"—[Official Report; 20/2/75, col. 466.]

The figure of 2,200, your Lordships will agree, is not excessive administratively for the United Kingdom or even for England and Wales. He went on to say: 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 … ".—(Col. 466.)

I therefore looked at the letter and changed it. Your Lordships will see that the Amendment we are now considering excludes specifically a large number of the orders to which the noble Lord took exception. In particular, by not including orders made under Section 1(2)(f) of the 1969 Act, we remove those arising from criminal acts; and those supervision orders were the ones which gave the greatest cause for concern to the noble Lord who spoke for the Government.

There have been other changes specifically in the naming of the people who ought to be given copies of the orders. The noble Lord, Lord Winterbottom, said: 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"— I am quoting the noble Lord— 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."—(Col. 467.) So I looked at this problem, also, and I must acknowledge the wealth of advice I have had from the relevant services. It appears that there is a genuine administrative difficulty, in that the community physician, whereas superior to, is not, as it were, in command of, the Area Health Officer. That is why the latter is named in this Amendment. It seems to be accepted that if copies or orders are to be sent to a medical authority, that is the person to whom they should be sent.

May I remind your Lordships of the burden only of what I said at Committee stage. I asked the noble Lord, Lord Winterbottom, in his researches before the Report stage, whether he would bear in mind that what is necessary to satisfy this House is the absolute conviction that, where a case of care which may develop into such a case as that of Maria Colwell is concerned, the education authority in the person eventually of the teacher, the medical authority in the person eventually of the general practitioner, and the police authority in the person eventually of the station officer shall be aware when a child or young person is at risk in this way. I shall not weary your Lordships with a longer speech than this, but I would not wish your Lordships to misjudge the depth of feeling and conviction from which I speak. I do not think that my conscience would be quiet, and I doubt whether the conscience of this House would be quiet, if we did not take a positive step, other than relying upon administrative reform, to ensure that so dreadful a case as that to which I have alluded—and the many others which regrettably also take place but do not, because they do not result in fatality, come to our notice—cannot happen again. This must be prevented and we are the people to do it.

Baroness ELLIOT of HARWOOD

My Lords, I support this Amendment. This matter concerns the difficulties of having complicated cases. In the country-side, very wide areas are covered by the social services, while in the towns there can be so many cases that it is sometimes difficult for a person in one department to know what a person in another department is doing. That has been the case many times, as the noble Lord, Lord Elton, has just told us, and it could happen again. Possibly in the case of a well-organised department, with close liaison between the medical officer, the police, the social worker and so on, this situation would not arise. But, in my opinion, such liaison is seldom well organised. It is difficult to achieve close liaison except in a small authority, and most of. the authorities we are dealing with are large. There is much to be said for information being passed automatically to the people who are concerned in these cases, so that everyone knows about the cases and who has responsibility for them. I support this Amendment.

5.28 p.m.

Lord WELLS-PESTELL

My Lords, I want to give your Lordships the assurance that we have looked at this matter carefully. As a result of the case which has been mentioned and which frequently crops up in our deliberations here, we recognised that a number of gaps remained. But a good deal has taken place since that case occurred. The purpose of Amendment No. 54 is, as I understand it, to introduce a new sub-section (3A) to Section 1 of the Children and Young Persons Act 1969, which would require a court making an order under subsection (3) to send a copy of the order to the Director of Social Services, the Director of Education, the chief constable of the appropriate authority, and to the Area Medical Officer of the area in which the person named in the order will reside. Amendment No. 55 would insert a new subsection after sub-section (3) of Section 18 of the Children and Young Persons Act 1969, which is concerned with the distribution of copies of supervision orders made under the 1969 Act. The Amendment proposes that, in addition to the person already named in subsection (3), the following people should receive copies of such orders; namely, the Director of Social Services, the Director of Education, the chief constable for the area of the relevant local authorities and the Area Medical Officer with the responsibility for the place in which the person will reside.

If I may refer to subsection (3A) of Amendment No. 55, there is some doubt in my mind because, as I understand the situation, one does not vary a supervision order on the grounds set out in paragraphs (a), (b) and (c). Section 18(3) of the 1969 Act lists the persons who are to have a copy of the order. They are the supervised person; the parents or guardian; the person who is to undertake the supervision; the local authority; and, if there is a condition of residence or treatment, a copy has to be sent to the individual concerned. One copy also has to be sent to the petty sessions area if it is a different area. If I may say so, the position seems to be very adequately covered.

Contrary to the suggestion that one hears from time to time, that communications have become worse since the Maria Colwell case, we have to be fair and recognise that much has been done to improve them. It is fair to say that social services departments, health authorities, the police, school-teachers and all whose work concerns children are much more aware today of the situations that we have discussed from time to time than ever before, and of the need to identify and protect children who are at risk. My right honourable friend is by no means complacent about this matter and is keeping the machinery for achieving this objective under continuing review.

If I may say so with the greatest possible respect, it might be too soon to lay down hard and fast rules— "procedures" is perhaps a better word —on this matter until we have been able to get the measure of the field involved. During the discussion in Committee on Amendments Nos. 66P and 66Q, the noble Lord, Lord Elton, made it clear that the purpose of his Amendments was to ensure that copies of orders made by juvenile courts in care proceedings should be sent to the individual agencies named in the Amendments, so that eventually a child's school-teacher, his general practioner and the police, in the person of the station officer, would be made aware of the fact that a child or young person had been made the subject of an order. The Government gave an undertaking to see whether the spirit of the Amendments could be achieved by administrative, rather than by legislative, means. I am advised that orders made by a juvenile court under Section 1 of the Children and Young Persons' Act 1969 are specific directions to an individual or authority named in the order, requiring them to discharge duties placed upon them by the Act in relation to a child, and that the distribution of copies of those orders to persons other than those charged with the responsibility of complying with the directions contained in them could raise issues of confidentiality. I think that this is a point which we must take into account.

Nevertheless, the Government believe that this difficulty could be overcome and the spirit of the Amendment achieved if the fact that an order had been made and the grounds upon which it was made could be transmitted to the child's school-teacher and general practitioner by administrative means without sending copies of the orders themselves. As was pointed out in Committee, the mere proliferation of copies of orders is unlikely to achieve the purpose of the Amendment. I can say to your Lordships that the Government are considering possible ways in which this information could be transmitted to the people concerned. I hope the noble Lord will not expect me to tell him now how this will be done, because whatever arrangements are decided upon will have to be agreed with the local authority associations and any other bodies having an interest in this matter.

The noble Lord will note that I have not referred specifically to the police. This is because a care order is itself a direction to the police to deliver a child forthwith to the care of the person authorised to act for the authority named in the order. It would therefore be for the police to consider whether and how the fact that a care order had been made should be transmitted to the station officer. Apart from measures now being considered, the Government have already taken steps to bring home to the authorities and agencies concerned with children the need to improve communications between those responsible for the care of children. In announcing the publication of the Maria Colwell Report on 4th September 1974, my right honourable friend the Secretary of State drew attention, and I quote from her words, to: … the vital need for all the persons concerned with the welfare of children to work together to exchange information; and made a special plea to them to take that lesson to heart. In addition, circulars containing guidance on the diagnosis, care and management of cases of non-accidental injury to children, and the need for improvements between the agencies concerned with children, were issued by the Department of Health and Social Security to local authorities and area health authorities on 22nd April, 2nd October and 6th November of last year. Furthermore, the Home Office issued instructions to the probation and after-care committees and to chief probation officers on 26th April 1974, 11th October 1974 and 3rd January 1975, and the Department of Education and Science issued instructions to local education authorities on 4th September 1974. The Department of Health and Social Security did not leave the matter there. It issued its own circulars on communication, as did the Home Office and the Department of Education and Science. The Department of Health and Social Security is collecting reports on the subject and considering the outcome of them.

To sum up, may I say that I think that good practice is better than good paper work. Again, I think one must take into account—here I make a special plea to the noble Baroness, Lady Young—that there is in existence a very effective, a very efficient and a very competent Social Work Service which is established on a regional basis. The officials working in the Social Work Service are experts in this field. These officials are available for consultation; they are in touch with local authorities; they can give help and advice.

With very great respect, may I ask noble Lords, particularly the noble Lord, Lord Elton, to accept this explanation of the existing arrangements and the action which has already been taken by the Government, and my assurance that the Government will take further steps as seem to be necessary, in consultation with the local authority associations and other concerns, to achieve the object which the noble Lord, and I am sure everybody else, not just noble Lords on his side of the House but the whole House, wants to achieve. But it is possible to do these things in too much of a hurry. The noble Lord might draw attention to the dates of the Maria Colwell case, but one cannot go into these situations and consider the results stemming and flowing from one's inquiries and investigations and then find the right kind of formula that might be imposed—either written into an Act or upon people who have to deal with these situations. It takes time. With the greatest possible respect, I would say, let us have more time to consider the implications of the noble Lord's Amendment.

Lord SANDYS

My Lords, notwithstanding the very strong arguments which the noble Lord, Lord Wells-Pestell, has advanced—and we acknowledge all he has said in this regard, especially the remarks relating to the social work department and the arrangements which are in the mind of the Government to reinforce the existing position—we feel that the Maria Colwell case has alerted the situation which exists today. But surely there is an important duty placed upon your Lordships, that in regarding legislation as a whole we should have an effective long-stop in the background, some effective statutory procedure which should be flexible but one which makes it abundantly clear and incumbent on the authorities concerned to act in a particular manner. I am well aware—and I very much agree with what the noble Lord, Lord Wells-Pestell, has said in regard to good social work practice—that we can only achieve the perfect result in stages, and it is advanced by my noble friend Lord Elton that, having in mind this terrible tragedy, we ought to take a particular line of action. In his view— and it is a united view on this side of the House and I think in other parts of the House as well—there should be a total reappraisal of the system whereby authorities are put in touch with a situation.

The noble Lord, Lord Elton, referred on Second Reading or in Committee to the fact that one of the tragedies was that the record card of Maria Colwell, transferred from one school to another, bore no information. This is a communications problem. We have had demonstrated to us the failure of an existing system, and it is our view that the noble Lord, Lord Elton, is more than justified in bringing to your Lordships' attention a new system whereby all these authorities should be alerted on a statutory basis.

Baroness MASHAM of ILTON

My Lords, before the noble Lord, Lord Elton, replies I would add my support to this Amendment. For some time I have been thinking of putting down a Question in your Lordships' House about the School Health Service, because I have discovered that there is no follow-up of a child who is not present on the day of a school health check. Therefore, I should like to support the noble Lord, Lord Elton.

Lord ELTON

My Lords, I am very grateful to the noble Lord, Lord Wells-Pestell, and I should, at the outset, like to repeat what I said on these Amendments at Committee stage; namely, that there is no question in my mind but that his heart, and the hearts of those who disagree with us (who I believe to be few), is in the right place. We are discussing the way that this is done and when it should be done, not what should be done. I accept his assurance that Clause 54 contains weakness of drafting. I do not set myself up as a great drafts-man and, as this is my own handiwork, I am not surprised to find cracks in it. Therefore, with one exception, I shall speak only to Amendment 54. The one exception embraces both Amendments because in one statement in the noble Lord's reply there was an apparent assumption which I cannot share. He was talking about the arrangements under Section 18 of the 1969 Act for notification of supervision orders, and he said that he thought they were well enough covered. I do not think that the history of the administration of this field is such as to make one share that view, and therefore I do not accept it. I do, however, accept that Amendment No. 55 has its weaknesses.

Let us now leave that aside and see what the noble Lord had to say about the other Amendment. He said, in part that there was an administrative solution to informing the individuals concerned other than by the circulation of copies of an order. He said again—and I accept this—that too many pieces of paper are counter-productive. But for some reason he suggested that a letter, which needs to be written separately from an order, was something less obstructive and also less time consuming than a mere carbon copy or photostat of the order itself. I do not accept this, nor do I think that it is fair to go on talking about the proliferation of orders or copies of orders that would result from the passage of this Amendment. The Amendment has been so changed since the Committee stage that three times 18,000 copies would be removed from circulation. Therefore I do not think that is a fair consideration.

I am glad to hear that the Government are considering further action. I do not think it is too soon to act, if only because it is very rarely that we get a Bill for children, and if we wait for the next one a great deal more will have gone wrong. I said earlier that there were many cases that we do not hear about. I do not want to pluck at the heart strings of the House, but I cannot get out of my mental retina the picture of a child of seven years of age at a quarter to eight in the morning, having had no breakfast, in T-shirt and jeans and nothing else, bare-footed and with the rest of his belongings under his arm, in tears on his auntie's doorstep. That

is what impels me to move this Amendment. I think it would be as well, without revealing the source, to say that I have had some correspondence, including a letter from a lady who, as she says, was herself a "Maria Colwell". She wrote— I was just such a child as Maria, but miraculously I lived, and there must be many like me.

I will not recapitulate what she has said except in the postscript, and I ask your Lordships to take very careful note of that: PS. I do not mean this letter to be a hymn of selfpity. What I am trying to say is that while, after a time, one ceases to notice the visible physical scars, the wounds of the heart and mind have a thousand facets, and all children who are subjected for any length of time to intense cruelty receive, in effect, a life sentence.

My Lords, every child who is not taken in under the shelter of this Amendment between now and the next Children Bill will be exposed to the risk of a life sentence. That is what would not let me rest quiet at night if I did not move this Amendment. I accept that it could be improved. I accept that Amendment No. 55 could perhaps be brought forward by the Government in a better guise if we accept Amendment No. 54. They have, after all, other Amendments on this Bill which they propose to move on Third Reading, so there is no reason why that should not be done, or, if the time is too short, there is the wisdom of the other place to be brought to bear upon it. I am afraid I cannot withdraw Amendment No. 55.

5.48 p.m.

On Question, Whether the said Amendment (No. 54) shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 30.

CONTENTS
Aberdare, L. Craigton, L. Gore-Booth, L.
Alexander of Tunis, E. Daventry, V. Goschen, V.
Alport, L. Denham, L. Gowrie, E.
Amherst of Hackney, L. Deramore, L. Greenway, L.
Amulree, L. Drumalbyn, L. Grenfell, L.
Auckland, L. Dundee, E. Grimston of Wesbury, L.
Barnby, L. Dundonald, E. Hailsham of Saint Marylebone,
Barrington, V. Ebbisham, L. L.
Beaumont of Whitley, L. Eccles, V. Hanworth, V.
Belstead, L. Elliot of Harwood, B. Harvey of Tasburgh, L.
Byers, L. Elton, L. [Teller.] Harvington, L.
Cathcart, E. Emmet of Amberley B. Hornsby-Smith, B.
Clinton, L. Falmouth, V. Hylton, L.
Colwyn, L. Ferrers, E. Hylton-Foster, B.
Cork and Orrery, E. Gainford, L. Inglewood, L.
Courtown, E. Garner, L. Lauderdale, E.
Cowley, E. Geoffrey-Lloyd, L. Long, V.
Loudoun, C. Ogmore, L. Somers, L.
Lucas of Chilworth, L. Pender, L. Strange, L.
Lyell, L. Platt, L. Strathspey, L.
Macleod of Borve, B. Rankeillour, L. Strathcona and Mount Royal,
Mancroft, L. Redesdale, L. L.
Mansfield, E. Reigate, L. Strathspey, L.
Masham of Ilton, B. Rochester, L. Swansea, L.
Massereene and Ferrard, V. St. Aldwyn, E. Swaythling, L.
Merrivale, L. St. Davids, V. Swinton, E.
Meston, L. St. Helens, L. Verulam, E.
Monck, V. St. Just, L. Vickers, B.
Mowbray and Stourton, L. Saint Oswald, L. Vivian, L.
[Teller.] Sandys, L. Ward of North Tyneside, B.
Northchurch, B. Seear, B. Wigoder, L.
Norwich, V. Selkirk, E. Young, B.
Nugent of Guildford, L. Sempill, Ly.
NOT-CONTENTS
Birk, B. Houghton of Sowerby, L. Royle, L.
Campbell of Eskan, L. Jacques, L. [Teller.] Sainsbury, L.
Cooper of Stockton Heath, L. Janner, L. Shepherd, L. (L. Privy Seal.)
Douglass of Cleveland, L. Llewelyn-Davies, L. Shinwell, L.
Elwyn-Jones, L. (L. Chancellor.) Llewelyn-Davies of Hastoe, B. Snow, L.
Fisher of Rednal, B. Mais, L. Stow Hill, L.
Greenwood of Rossendale, L. Melchett, L. Strabolgi, L. [Teller.]
Hale, L. Noel-Buxton, L. Wallace of Coslany, L.
Harris of Greenwich, L. Pannell, L. Wells-Pestell, L.
Henderson, L. Ritchie-Calder, L. Wynne-Jones, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

5.55 p.m.

Lord ELTON had given Notice of his intention to move Amendment No. 55:

After Clause 53 insert the following new clause:

Amendment to s. 18 of the Children and Young Persons Act 1969

" . In section 18 of the Children and Young Persons Act 1969 after subsection (3) there shall be inserted the following new subsection— (3A) Notwithstanding anything to the contrary contained in the preceding subsection a court making a supervision order or an order varying or discharging a supervision order upon grounds set out in paragraph (a), (b) or (c) of section 1(2) of this Act shall forthwith send a copy to the Director of Social Services, the Director of Education and the Chief Constable of the area of the local authority named in the order and to the Area Medical Officer with responsibility for the place in which the court is satisfied that the person will reside."

The noble Lord said: My Lords, I do not wish to delay long over this but I commend to the noble Lord the course of action which I suggested to him might be appropriate if we did—as we now have—accept the Amendment which we have just voted on. It seems to me that it would be an extension of the same principle and that this would be an entirely felicitous thing to do. Therefore I do not move the Amendment.

Lord ELTON moved Amendment No. 56:

After Clause 53 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: My Lords, in moving this Amendment I should like to remind your Lordships briefly of the considerations which we had in review at Committee stage. This Amendment has not changed since I put it before your Lordships in Committee, and it was with-drawn in the hope and expectation that the Government, in the light of the wide body of support which it received at Committee stage, would see fit to introduce an Amendment of their own. At Committee stage I acknowledged the objections which there might be to it on the grounds that it was setting the authority of a court higher than that of the agencies whose duty it was to look after children in these circumstances. I said that it seemed to me there was a certain logic in this since those agencies had to apply to the court for permission to take what they deemed to be the appropriate action. The principal objection to this Amendment was, however, as the noble Lord, Lord Winterbottom, agreed at the end of the debate, not on these grounds at all— which I think would be unfortunate grounds for the Government to stand upon because to do so implies a contentiousness between the judiciary and the administration of the children's services which does not exist—but on the shortage of accommodation into which children might be put.

At this point let me remind your Lordships that the intention of the Amendment is to see, where a child is brought before the court and it is to be put in care, that the court, in putting it in care, may say that there are some specific places in which it may not be cared for; that is to say, if it appears to the court in its wisdom that the reason the child has been brought before that court is that it is living in a specific place under specific conditions, then it is reasonable for the court (and in fact courts often do this) to say that the child shall not be instantly returned, albeit under the care of the local authority, to the same place and the same conditions. This seems to us to be an entirely logical provision and, as I have said, courts in fact do it; but unfortunately, courts at present are in a position where their direction can be set aside or ignored by the local authority, for a number of reasons, one of which may be that there is no other suitable place available. We are here dealing with the economic implications of the Bill, because, obviously, the provision of places, other than places in which children already live, costs money. We are in this difficulty. If we say the places do not exist so we must not give power to the courts, then when they do exist the courts will not have the power to say that they shall go there. Equally, if on the other hand, the courts must provide that they shall go to a place other than their present home, and there is no suitable place, then they are in an impossible position. But the Amendment—your Lordships will notice—is permissive; that is to say, it shall be lawful for the court to make a further order. It does not say the court must make a further order. The court, therefore, being aware of the shortage of other places—and goodness knows!, the local authority will inform the court if there is such a shortage and it is not aware of it already—in its wisdom, will not, we feel, so direct.

In the meantime, there is the permissive power to make such a direction, and the knowledge thereof may be some incentive to local authorities and to Government spending agencies to ensure that such places are provided. I do not want to expatiate now upon what we said on Second Reading, on what we regard as the inadequate financial provisions of the Bill, which provides the strongest arguments against the Amendment. But then, one can say that the money to purchase anything is in such short supply at the moment that one can do nothing. That is a counsel of despair. I shall be very interested to hear whether the noble Lord, Lord Wells-Pestell, has had any further thought on this matter since it was dealt with at the Committee stage.

Lord HYLTON

My Lords, in supporting the Amendment of my noble friend, I should just mention two submissions made while the Bill was before your Lordships. They were made to the Expenditure Subcommittee of another place. The first submission came from the Police Federation, which called for the restoration to courts of the power to decide where children in trouble should be sent. That is the obverse—the other side of the coin—of this Amendment. Secondly, the Mind campaign said that it more secure units and custodial sentences were necessary, they should be provided by the Home Office, not by the Department of Health and Social Security. Children should not think they were being treated, when, in fact, they were being imprisoned.

Baroness MACLEOD of BORVE

My Lords, I should like very briefly to say that I support this Amendment. With regard to orders made by the court, as the noble Lord, Lord Elton, made clear, we want to be able to say the child shall not go home. I am now able to say only that an interim care order in custody shall be made, and that is all I can do. If an ordinary care order is made, it is within the power of the local authority to take that child straight back to its home, as was said by the noble Lord, Lord Elton, although no court— and I must specify this—would make the order unless it was assured there was a home. It is very important that a court should have this power. Therefore, I support the Amendment.

6.5 p.m.

Lord WELLS-PESTELL

My Lords, we have given a good deal of thought to this since the 20th February, and I fear I shall not be able to meet the points raised by the noble Lord, Lord Elton. It is a fundamental principle of the Children and Young Persons Act 1969 that the court should decide whether a child is in need of care and control, but the local authority should decide how and where the child should receive the care or control he needs. This is a basic fact. In view of that situation, I do not think I can permit myself to argue with the noble Lord, Lord Hylton, and the noble Baroness, Lady Macleod of Borve, because this is the point at which one is starting. The Act thus places on the local authority a single, undivided responsibility for treatment. But if a local authority has to keep coming back to the court, the responsibility for care and treatment is clearly divided between the two bodies, and the child could well become a shuttlecock between two bitterly opposed authorities, with his interests totally submerged in the struggle between the two.

The Government is aware of the criticisms of the workings of the 1969 Act; some of us are very disturbed about them. I should remind the House that, as was announced in another place on 9th December last, my right honourable friend the Secretary of State for the Home Department and the Secretary of State for Social Services are conducting a joint review of the operation of the 1969 Act. This review is still in progress, and while the proposed Amendment may not fall outside the Long Title of this. Bill, I submit it would be premature and, indeed, inappropriate, if I may say so, by such an Amendment to this Bill to seek now to alter a fundamental principle of the 1969 Act, when a review of this Act is still in progress. I believe this to be so. It would be unfortunate to use this Bill as a means of modifying or altering the 1969 Act.

I suppose I am not in a position to speak as an individual, but if I were— and I realise I am not—I should like to see a very drastic revision of the 1969 Act. With great respect I suggest to the noble Lord, Lord Elton, that the fact that we know that two Secretaries of State are very disturbed by a number of points and are considering this matter, means that this is not the time to seek to alter the Act by amending the Bill; rather, we should wait until we are in a position to do something fundamental to that Act. That is what I hope. There are two main types of case which may give rise to difficulties at present. There is a small number of cases where the local authority, in the light of its experience, considers that the child should be left at home in its own interests, but where the Justices do not share this point of view. I am sure I have the noble Baroness, Lady Macleod of Borve, with me on this point.

The Amendment would breach this principle by dividing responsibility for care and treatment between the courts and the local authority in an as yet unspecified number of cases. This is not merely a question as to whether or not one likes the Act. This is a fact of life. If the Amendment were accepted, the court would have power, where it thought that a child should not be allowed to stay at home, in effect to order the removal of a child from home. I recognise that the power sought in the Amendment is only permissive. Also, the local authority can come to the court and ask for revocation or variation if accommodation away from home cannot be found, or if the local authority wishes to send a child home for Christmas, or during the holidays, or if they wish to restore the child to his family for a longer period, as a tentative step towards restoring him to a normal family relationship.

I submit that the decision of the local authorities in such cases is a proper exercise of the statutory discretion given to the local authority, which, after all, is responsive to the feelings of the local community, and can be expected to use this discretion, one hopes, in a responsible way. There is the far more common case, where the local authority would agree with the magistrates that the child should be taken from his home and placed with foster parents or in a community home but is quite unable to find a place for him. And again, some of us in your Lordships' House know the problems: the non-existence of community homes; the unreasonable behaviour of some that do exist which were formally called approved schools. There is, as was indicated on 20th February, a general shortage of some of the more specialised types of residential accommodation for children, particularly that suitable for the more persistent and difficult members in our community, of which there are quite a number. Given this situation, the authority finds itself in a position of having to leave the child at home until suitable, alternative accommodation becomes available.

I must stress the point that I am making here, about accommodation being suitable for the child in question. Noble Lords may say that anywhere else, any vacant place in a community home, is preferable to leaving the child at home. But, with respect, the local authority must have regard to the interests, and indeed the safety, of the other children in their care, and they must therefore have the right to decide that a vacant place in a particular home is or is not suitable for a particular child.

It is common ground that more accommodation is needed; there can be no dispute about that. But until it is actually built and in operation there is little point in empowering courts to specify as a child's home a place to which he cannot be sent if there is no suitable place available at the time to which he can be sent. Again, some noble Lords will know that appalling things have been done when courts have made a care order and the local authority has not been able to put the child in a community home or in some other suitable place; it has sometimes had to be put in a hotel, in some areas and this is highly undesirable. Indeed the orders proposed in this Amendment will merely increase the difficulties of local authorities without helping the children or anyone else.

The Act itself is often criticised on the ground that it lays duties on local authorities without providing the necessary resources. If suitable accommoda- tion was always available for any child who should not be left at home, then obviously there would be no need for the proposed power. The House may then ask what is being done to remedy the shortage of accommodation. The local authorities' building programme for 1974–75 eventually amounted to a total of £10.2 million, covering 227 projects, which together provided 1,109 places. The programme provisionally approved for 1975–76 comes to something like £24 million, which will cover 191 projects, providing, we hope, 2,326 places, including about 1,000 places in observation and assessment centres, some 500 places in homes with special facilities, and some 600 places in ordinary community homes. But we have not got them as yet. Provisional approval has also been given for 74 additional secure places in such homes. This amounts to a very substantial increase in the resources being made available to local authorities to enable them to implement the 1969 Act, and also indicates very clearly the authorities' eagerness to expand their children's services for this purpose. The homes represented by these plans will, when completed, provide nearly 40 per cent. of the additional places proposed in regional plans. They should, therefore, go a long way to help authorities to meet the criticism now levelled against them and against the 1969 Act.

The House will wish to know that my right honourable friends received a deputation from the Magistrates' Association and the Justices' Clerks' Society on 18th February; so that is fairly recent. They had a very full discussion which covered a wide range of subjects relating to the operation of the 1969 Act, and the views expressed by the deputation will be taken into account in the course of the current review of the Act. Furthermore, I can tell noble Lords that any points that they make will also be noted for consideration in the course of this review. I can assure your Lordships that at the same time as the Government are ready to announce the result of the review the House will be informed. In view of the current review of the 1969 Act and the assurances which I am permitted to give, I hope noble Lords and the noble Baroness will find it possible to withdraw this Amendment. I think it would be proper to do so in the light of the Government's attitude, which does not really differ from that of noble Lords opposite.

Lord ELTON

My Lords, as I said earlier, and I am glad to see it borne out, we are on common ground; we have the same aims and our hearts are in the same places in this matter. One is never too happy with a reply which begins by saying that there is an inquiry in progress, because it is such a well-known delaying tactic for Governments in difficulties. But in fact the noble Lord went very much further than that. I think this may be because he has already taken on board what perhaps I should have said earlier, that right across the board there is a very considerable weight of support for something of this sort among the people actually working in the field. If it is an expression of discontent with the principles of the 1969 Act, then doubtless I can join the noble Lord in the public secrecy, if I may so put it, of his own discontent with that Act. I am glad to hear that its provisions are under careful consideration.

In particular, I should like to welcome the figures which he has just given us. I had been going to say that he had my sympathy because he was caught, as Ministers always are, between the upper millstone of financial expediency and the nether millstone of impending reform; but it seems that the gap between the two has been slightly widened and there is room for him in between, because of the increased amount of money being spent on local government building projects in this area. May I make one small observation in that connection. If my calculations are correct—and I must admit that; very often they are not in these circumstances—the 1973–74 programme of just over £10 million produced 1,109 places and the 1974–75 programme of £24 million, which is more than twice as much money, is expended on a smaller number of projects. In the previous year there were 227 projects and in this year 191 projects. But the programme produces more than double the number of places. As the volume of money and the volume of places have gone up more or less pan passu but the number of projects has declined, I take it that this means that the institutions are getting bigger. This debate is not the place for anything but an observation upon the fact that "bigger" when you are talking about homes means less homely, but I am very glad to hear that an effort on this scale is being made. In that knowledge, and in the knowledge that there has been much paper work circulated which can be studied in another place if it is wished to pursue the matter further, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 54 [Addition of new Sections to Children and Young Persons Act 1969.]:

6.20 p.m.

Baroness MASHAM of ILTON moved Amendment No. 57: Page 34, line 2, leave out (" sections arc ") and insert (" section is ")

The noble Baroness said: My Lords, Amendment No. 57 is a paving Amendment for Amendment No. 58, Therefore, I should like to speak on Amendment No. 58 before moving Amendment No. 57. First, may I say how grateful I am to the noble Baroness, Lady Young, and the noble Lord, Lord Wigoder, for putting their names to this Amendment. Also I should like to apologise to the House for not putting down this Amendment at Committee stage. I had not realised that some children were being left out of this Bill; nor did I not realise the very great concern felt throughout the country. This Amendment; is an up-dated version of what was Clause 51—" Representation of minors in court proceedings"—in Dr. David Owen's original Bill. Great concern throughout the stages of this Children Bill, has been shown by your Lordships over the fact that the child should be considered first and foremost. Also, several people, including some QCs dealing especially with children's cases, have told me of their worry that the present Clause 54 is not flexible enough. It may treat a child as an independent person needing independent legal representation only in limited cases. This Amendment gives the court discretion to add the child as a party to the case wherever it thinks that the child ought to be separately represented. The child can then be represented by whomsoever the court thinks best in the child's interests. Before the Division on Amendment No. 70 to Clause 50, moved by the noble Viscount, Lord St. Davids, at the final day of the Committee stage, the noble Lord, Lord Wells-Pestell, said: If this Amendment is passed the order made under the Amendment could stop a court appointing a solicitor for the child, because they would have to appoint a guardian ad litem".—[Official Report, 20th February, 1975; col. 497.]

I suggest to your Lordships that this Amendment would cast away all these fears and would make it possible for the child to be represented by the person or persons most suitable to do so, however complex or simple the case might be.

If, because of the present economic crisis, it would be impossible fully to implement this Amendment immediately, it is surely better to have a first-class Bill for children rather than second-class legislation. At least, if the needs are written in, they will not be forgotten and when the country recovers we can then represent our children in the very best way possible. Are we to have another Bill which works like the 1969 Children and Young Persons Act, with all power to the social services and hardly any say for the courts? During the passage of this Bill through your Lordships' House, some noble Lords and noble Baronesses have had to go to important dinner engagements. Maria Colwell and other children like her cannot even eat their tea today —they are dead. Had they been independently represented in court, and had their cases been expertly presented, they would very likely still be alive today. I have been fortunate in being able to travel to many countries, and I have often heard people from all parts of the world say that Britain is well known for its concern for animals, rather than for its caring for children. I love animals, but I also love children. Today the Government could really demonstrate their concern for children by accepting this Amendment. My Lords, I beg to move.

Baroness MACLEOD of BORVE

My Lords, I support the noble Baroness, Lady Masham of Ilton, in what she has said. It is of vital importance that every child should be represented in these proceedings. Of course one is not, I gather, taking into consideration criminal proceedings where, obviously, it is impossible for every child to be represented, but where there is a conflict of interest be- tween the parent and the child it is vitally important—and, if I might say so, it is always practised in my court when we adjourn—for the child to be legally represented at some level. I am glad to see that the noble Baroness has specified the levels at which there can be representation and we have used all those methods of representation for the child. I think that the Amendment is absolutely vital and I support the noble Baroness.

Baroness YOUNG

My Lords, I should like to support the noble Baroness, Lady Masham of Ilton. I added my name to the Amendment because, like so many Members of your Lordships' House, I have had a long memorandum from Dr. Mia Kellmer-Pringle of the National Children's Bureau who is particularly interested in this matter. But it also seemed to me that it was valuable to have a full debate on this Amendment, particularly as it appeared in the original draft of Dr. David Owen's Bill and, for some reason, has been withdrawn from this Bill.

There is no doubt that there is immense public concern that there should be effective representation for children in court. Obviously, this concern arises from cases such as that of Maria Colwell, to which the noble Baroness, Lady Masham of Ilton, has referred, but it also arises from many other cases of battered children. As the evidence appears to be that there are increasing numbers of battered children, it is therefore a matter of great public importance. But it is not simply a matter of certain cases. What very much concerns those of us who have the interests of children at heart, is that we tend to get a Bill such as this because there has been some appalling case of child neglect.

However, it is all the on-going cases which we do not hear about—fortunately, no doubt, because many of them have a satisfactory outcome—with which we should be concerned, and because there is no pressure group to speak up for children, as there is for other groups in society, it is all the more necessary that they should have this representation. Further, as has been said many times in the course of debates in this House, we cannot legislate on social work practice, but we can try to put into a Bill what we believe to be the best framework so that the best practice can be carried out. I recognise that the weakness of this argument is the possible extension of work and the possible cost. My attention has been drawn to one of the leading articles in the Guardian today, where this point is made very forcibly. The leading article makes the point that we are all making—that what the noble Baroness, Lady Masham of Ilton, is suggesting in her Amendment—is ideal. For this reason 1 have put my name to it. and it has the support of my colleagues. What would be helpful for us to know is whether or not what seems to me to be the noble Baroness's most useful suggestion might be incorporated in the Bill, and brought in at a later stage as funds allow? In that way we will have the benefit of the principle, which I think we would all support, while accepting the fact that although funds may not allow it to be carried out now it will be brought into force immediately it is possible. The point is that we are unlikely to get another Children Bill for some time, and the better we can make this Bill now the better it will be for children generally.

Lord WIGODER

My Lords, might I venture to support this Amendment as being not only far more comprehensive but far more comprehensible than the original draft in the Bill? If for a moment your Lordships can imagine the problems of a Chairman of a Bench of lay magistrates, with perhaps a not very experienced clerk, seeking to put the clause into effect or, alternatively, the proposed Amendment, you will see at once the immeasurable difference between them. Under the clause, the magistrates would first have to look to see if the proceedings came within one of the paragraphs (a), (b) or (c). If it does not, the magistrate is on his own. There is no help or guidance anywhere in the Bill as to whether legal representation ought to be made available to the child. If, for example, there is—as there might well be—a contested case involving the revocation of a custodianship order, there is nothing throughout the Bill that gives any guidance at all to the courts as to whether legal aid ought to be made available. If, however, it is one of these three particular limited classes of case, the magistrate has to follow the clause through. He has to decide, first of all, whether there may be a conflict. If there may be such a conflict, he has to say to himself that he may order that the parent is not to be treated as representing the child in the proceedings. Alternatively, the magistrate has to say that, if there is no conflict and the application is unopposed, he must order that the parent is not to represent the child unless there are reasons to the contrary.

Having surmounted all those discretionary obstacles, the magistrate then proceeds to the new Clause 32B and has to ask himself whether to appoint a guardian ad litem. For that, he must look at the Rules of court. He then has to go on to ask himself whether, if he makes an Order under Clause 32A that the parent is not to be treated as representing the child, he must ask himself whether he should exercise his further powers by appointing a guardian ad litem or by giving legal aid. The court, having solved all those problems in one way or another, has somehow to make up its mind as to whether a guardian ad litem or legal aid should be granted.

My Lords, if one compares that with the wording of the present Amendment, the difference is vast. It begins: In any proceedings relating to a minor in any court, the court shall consider whether it is in the interest of the minor that he shall be separately represented and if it so decides shall, if the minor is not already a party, add him us a party…". It is so simple, straightforward and helpful that it is almost astonishing to find it included in a Bill and I venture to suggest that it would be of infinite assistance to courts in considering this problem.

My Lords, I know that there are certain circumstances in which courts can order legal aid at the moment but, without any guidance to the extent to which they are prepared to do so, it is quite clear that they will be unwilling or unable to exercise their powers adequately. I venture to think that the Amendment is a perfectly simple and straightforward expression of a principle that will commend itself to all your Lordships. If it involves additional staff, either by way of social workers or by way of lawyers, it may be that, as the noble Baroness, Lady Young, has suggested, it might be desirable to postpone bringing the provision into effect for a year or two until the necessary resources are available. In any case, I believe that the Bill is not liable to come into force imminently, This is the only opportunity we shall have of getting this matter right for years to come and I venture to think that that Amendment puts it right in a far more satisfactory way than does the clause. I therefore support the Amendment.

6.34 p.m.

Lord GORE-BOOTH

My Lords, it is not for me, after all that has been said, to make a long intervention. However, this is a point to which I drew attention on Second Reading and I am very glad that the noble Baroness, Lady Masham, has put into the kind of language that I am not used to the sentiments to which some of us gave expression then. I think that we have made some progress this afternoon in filling in gaps in a very complicated piece of legislation. This is particularly complicated and particularly important in a matter in which one does practical work among children and, certainly, those with whom I have had contact in this matter would, I know, attach particular importance to getting the clause right. It is in that spirit that I, too, should like to support the Amendment. I hope that the Government may be able to help us.

Lord SIMON of GLAISDALE

My Lords, may I also intervene to give general support to the Amendment. I venture to say "general support" because, though I entirely agree with the noble and learned Lord, Lord Wigoder, that the clause, as drawn, is unsatisfactory for the reasons which he gave, I myself think that the new clause is too stringent in subsection (2). I think that it unduly ties the hands of the court. I also thought that there was a great deal to be said for the suggestion made by the noble Baronesses, Lady Masham and Lady Young, that the clause might be redrawn so that it could be brought into effect at a suitable opportunity.

My Lords, during an earlier debate, the noble Lord, Lord Elton, made a most moving reference to the Maria Colwell case and the noble Baroness, Lady Elliot of Harwood, reminded us of the uncomfortable and unfortunate truth that that case is by no means isolated. I myself believe that the trouble lies considerably before the court proceedings, although I think that the emphasis in the new clause will help a great deal. I think myself that the trouble lies with the dual role imposed on the social worker. He or she really starts with the parent as his or her client—and quite rightly so. The whole initial role of the social worker is to strengthen and socially to support the parent in discharging his or her duty to his or her child. Then, unfortunately, comes the time when the social worker realises that the interests of the child may be in conflict with the interests of the parent. The relationship between parent and social worker cannot survive a head-on clash in which the social worker takes the side of a child against the parent. However, what the social worker can do is to say to himself that he must put the case in the hands of the court. The perfect proceedings for that, in my view, are wardship proceedings, but in any case to my mind the new clause proposed goes far in the right direction, in that the social worker will know that the interests of the child will be separately represented so that he can continue in his role of general social support, knowing that the interests of the child are independently represented before the court.

My Lords, as I said, my own view is that subsection (2) ties the hands of the court unduly, but I have no doubt that the new clause is an improvement on the clause as it stands in the Bill. I therefore —though, as I said, generally only—wish to give support to the Amendment.

Lord HYLTON

My Lords, I should be very surprised if the optimism of the noble and learned Lord, Lord Wigoder, about this being a simple clause is borne out in practice. Nevertheless, I should like to record my support for the Amendment, having spoken in that sense on Second Reading.

The Earl of SWINTON

My Lords, I too should like to support my noble kinswoman's Amendment, first, because if I do not I know that I shall get stick when I get home tonight and, secondly, because I am one of the few Members of your Lordships' House who knows how to pronounce her name correctly. It is in fact "Massam". Thirdly, I think that it is marvellous to find that she has done anything simply. However, the point that I should like to make—and I make it very humbly in your Lordships' House where I know that many Members have far greater experience of the bench and court work generally than I have—is about the cost of legal aid and of bringing in this provision. I am sure that your Lordships are aware, as I am, of the number of inveterate rogues who appear daily in our courts. They get away with enormous sums of legal aid and they come without any intention whatsoever of telling the truth. Yet the State gladly pays for them to be defended. How much better it would be to spend that money or a greater part of it towards protecting innocent children. I hope that that will have the greater priority.

Lord GEORGE-BROWN

My Lords, would not the noble Lord agree that many honourable Members of another place, and possibly quite a number of Members of this House, come without any intention of telling the truth and still draw public money?

The Earl of SWINTON

My Lords, I would not care to answer that one. I feel that the younger the child, the greater the chances that he or she, or at any rate his or her advocate, will be telling the truth.

Lord WELLS-PESTELL

My Lords—

Lord GEORGE-BROWN

My Lords, the noble Lord, Lord Wells-Pestell, will, I hope, now tell the truth.

Lord WELLS-PESTELL

My Lords, I was surprised to hear from the lips of a very distinguished lawyer that this is a simple and straightforward Amendment. I never for a moment thought that any learned member of the legal profession would say that about anything, and this is certainly far from being simple and straightforward. What we have to ask ourselves is whether, if this Amendment is made, there will be any possibility of its being effective. If it is possible for it to be effective, that is all right. But we should not insert in a Bill a provision which there is no possibility, so far as I can see, of implementing adequately.

The Amendment would extend the scope of Clause 54 to all proceedings involving a child. Let us examine what this would mean. This would embrace proceedings in the High Court, county courts, Crown Courts and magistrates' courts, including proceedings in juvenile courts. What would this amount to? I believe that there are in this country—and I am open to correction—about 100,000 divorces every year. The latest statistics show that the average British family has 2.2 children. Leaving aside the 0.2 of a child, with 100,000 divorces a year there could be involved 200,000 children. I say "' could be" but there would not be, because some of them would no longer be juveniles, but the number would be very substantial. There are about 20,000 proceedings under matrimonial legislation in magistrates' courts, and this could mean another 20,000 or more children being involved. There are nearly 3,000 guardianship proceedings, but when one considers that the Amendment as drafted would also involve criminal proceedings under the Children and Young Persons Act 1969, that alone would provide an additional 130,000 cases in which a guardian ad litem might be needed.

We could have, taking into account the High Court, county courts, Crown Courts, magistrates' courts, juvenile courts and criminal proceedings, a measure which applied to upwards of 300,000 children. I see the noble Lord, Lord Wigoder, shaking his head in disagreement, but I assure him that this is the situation as I see it. What the Government are being asked to do is to put on the Statute Book something which—this is a fact which noble Lords must face—we may not be able to implement, because we should have a vast army of social workers and others locked in battle from which they could never disengage. They would be doing nothing but this kind of work and the rest of their social work responsibility could not possibly be undertaken. I urge noble Lords to look at the Amendment from that point of view.

Leaving aside the practicality of the matter—and I doubt whether it would be practical, when one considers the vast area which the Amendment would cover —let us consider the demand that would be made on the services of guardians ad litem. The need for the appointment of a guardian ad litem in care and related proceedings to which Clause 54 as now drafted has been restricted is not expected to exceed, at the most, 2,500 cases a year. Bearing in mind the importance of protecting children who may be at risk, this is regarded as a tolerable burden to place on a panel of experienced social workers from which guardians ad litem will be drawn for the purpose of Clauses 19 and 54. But it would be quite impractical to expect this panel to be able to cope with what I would consider to be a very large number, well into six figures, of children who would be brought within the scope of Clause 54 if the Amendment were accepted.

Local authorities will bear much of the cost of Clause 54 as now drafted, because of their statutory responsibilities for children at risk. There are obviously only a limited number of social workers who are highly experienced and skilled enough in dealing with children, and if they are to be used unnecessarily to participate in court proceedings other children in the community who need their skills will be at considerably increased risk. On Second Reading the noble and learned Lord, Lord Hailsham of Saint Marylebone, said that while some people might think the Government's proposal to be relatively unambitious compared with the more general proposals which were made at one time, he was satisfied that this was not so. He said categorically that he did not see how, in the present undermanned state of both branches of the legal profession, if separate representation were required in every case, it could be universally provided. The Government agree that this is another practical reason for limiting the scope of the new provision to care and related proceedings.

I say with respect that subsection (2) of the Amendment as tabled is seriously defective in that it does not cover proceedings under Sections 15(1) and 21(2) and appeals against orders made as a result of those proceedings. And the reference to Section 28 of the 1969 Act as a means of directing attention to Section I is inadequate because, first, it excludes proceedings on the ground that the child is guilty of an offence; and, secondly, proceedings under Section I are not necessarily consequent upon an order having been made under Section 28.

Lord ELTON

My Lords, may I ask the noble Lord for clarification on that point? He appeared to say that there is a defect because the Amendment excludes proceedings under which a child might be brought to court suspected of having committed a criminal offence. But surely the law already provides that a child who is suspected of committing a criminal offence and who is brought before the court is represented.

Lord WELLS-PESTELL

My Lords, I said that subsection (2) of the Amendment as drafted is defective, in that it does not cover proceedings under Sections 15(1) and 21(2) and appeals against orders made as a result of those proceedings.

The purpose of subsection (3) of the Amendment is to give a court discretion to add as a party to the proceedings any parent, guardian, stepparent, foster parent or other person whose participation in the proceedings would, in the opinion of the court, be in the child's interests. The Maria Colwell report drew attention to the fact that the magistrates' courts rules make no provision for foster parents to be served with notice of proceedings or to be given any status at the hearing. The committee observed in paragraph 228 of its report: It is not for us to seek to pronounce generally upon matters which may go beyond mere procedure rules into more complex questions of status and rights, but we feel justified in pointing out that not only was great distress clearly caused by the foster parents' total inability to influence events but also that in a case which was submitted to be a close run issue, the court might have been greatly assisted by their presence …". The House will wish to know that the Government have decided to amend the court rules governing care and related proceedings, to ensure that foster parents or others who have had the care of a child shall be given notice of the proceedings and thus be given an opportunity to make known their views to whoever has been appointed to represent the child.

For the reasons I have given, I am sure that—at least, I hope I can be sure —the noble Baroness, Lady Masham of Ilton, and the noble Baroness, Lady Young, will appreciate that it would be totally unrealistic at the present time to extend the scope of these provisions in the way proposed in the Amendment. This is so, particularly—if I may say to the noble Lord, Lord Wigoder—for the reason I gave at the very outset, and especially because its wording does not provide the protection afforded to the child in unopposed applications for discharge of care or supervision orders that is provided by subsection (2) of the new Section 32A as now drafted.

May I say, with great respect to the noble Lord—and I should like, but am not permitted, to also call him the learned Lord—that, for the reasons I have given, it would be really quite unrealistic to include this Amendment. I do not think it is practical as things are at the moment. I know it can be argued: "Well, let's put it in, and don't let us implement it for X number of years, or for one year". But I do not think that that would be a highly desirable exercise. If we are to put a provision into the Bill, let us be absolutely certain that it will be workable right from the start. I feel that this would create—I do not say this in a dramatic way—a good deal of chaos and confusion.

Resolved in the affirmative and Amendment agreed to accordingly.

7.4 p.m.

Baroness MASHAM of ILTON

My Lords, I beg to move Amendment No. 58.

Amendment moved— Page 34, leave out from beginning of line 4 to end of line 20 on page 35 and insert—

Baroness MASHAM of ILTON

My Lords, I should like to thank all noble Lords who have supported this Amendment so well and so strongly. I think that the noble Lord, Lord Wigoder, meant that it was simpler than the present clause, Clause 54. I should like your Lordships to decide for yourselves. The feeling is so high in the country that I should like this provision to be written into the Bill when it leaves this House, and I should like it to go to another place and. let the country decide what to do. If the Government can find enough money to pay for bread subsidies, surely they can find money to pay for our helpless children. Therefore I ask your Lordships to clear your own consciences and go into the Lobby.

6.54 p.m.

On Question, Whether the said Amendment (No. 57) shall be agreed to?

Their 'Lordships divided. Contents, 58; Not-Contents, 16.

CONTENTSs
Aberdare, L. Hanworth, V. Redesdale, L.
Amherst of Hackney, L. Hornsby-Smith, B. Rochester, L. [Teller.]
Auckland, L. Hylton, L. St. Aldwyn, E.
Brougham and Vaux, L. Inglewood, L St. Just, L.
Carrington, L. Lauderdale, E. Sandys, L.
Colville of Culross, V. Long, V. Seear, B.
Cork and Orrery, E. Lucas of Chilworth, L. Selkirk, E.
Courtown, E. Lyell, L. Simon of Glaisdale, L.
Cowley, E. Macleod of Borve, B. Somers, L.
Cullen of Ashbourne, L. Mansfield, E. Strange, L.
Daventry, V. Masham of Ilton, B. Strathcona and Mount Royal
Deramore, L. Massereene and Ferrard, V. L.
Drumalbyn, L. Monck, V. Strathspey, L.
Elliot of Harwood, B. Mowbray and Stourton, L. Swaythling, L.
Elton, L. [Teller.] Swinton, E.
Falmouth, V. Northchurch, B. Terrington, L.
Ferrers, E, Norwich, V. Vivian, L.
George-Brown, L. Pender, L. Ward of North Tyneside, B.
Gore-Booth, L. Pike, B. Wigoder, L.
Greenway, L. Rankeillour, L. Young, B.
NOT-CONTENTS
Beswick, L. Llewelyn-Davies of Hastoe,B. Stow Hill, L.
Cooper of Stockton Heath, L. Melchett, L. [Teller.] Strabolgi, L. [Teller.]
Douglass of Cleveland, L. Pannell, L. Wallace of Coslany, L.
Elwyn-Jones, L. (L. Chancellor.) Royle, L. Wells-Pestell, L.
Harris of Greenwich, L. Shepherd, L. (L. Privy Seal.) Wynne-Jones, L.
Janner, L.

(" "Representation of minors in court proceedings

32A.—(1) In any proceedings relating to a minor in any court, the court shall consider whether it is in the interest of the minor that he be separately represented and if it so decides shall, if the minor is not already a party, add him as a party and shall in any event make provision for his representation by an officer of a local authority or a solicitor, or both, or a solicitor and counsel and may at any stage of the proceedings order that the costs of such representation be paid out of central funds or otherwise as may appear to the court to be just. (2)Notwithstanding the provisions of sub-section (1) above, in any proceedings relating to a minor and being either—

  1. (a)contested proceedings relating to the adoption, guardianship, custodianship, custody or upbringing of a minor; or
  2. (b)proceedings consequent on an order under subsection (1) of section 28 of this Act,

(3)In any proceedings relating to a minor in any court, whether or not the minor is or is made a party to these proceedings, the court may in its discretion add as a party any parent, guardian, step-parent, foster-parent or other person whose addition as a party would in the opinion of the court be in the interest of the minor or whose own interest or reputation might be adversely affected if he were not so added."")—(Baroness Masham of Ilton.)

On Question, Amendment agreed to.

Clause 55 [Legal aid for parents where order made under new section 32A of 1969 Act]:

Baroness MASHAM of ILTON

My Lords, this Amendment, No. 59, is consequential on the Amendments which have just been agreed to. I beg to move.

Amendment moved— Page 35, line 30, after (" guardian") insert (" or person appointed to act on behalf of the child or young person").—(Baroness Masham of Ilton.)

Lord WELLS-PESTELL

My Lords, I am not sure that this matter is consequential. The intention of this Amendment is to enable a guardian ad litem appointed under the proposed Section 32B(1) of the Children and Young Persons Act 1969 to be given legal aid for the purpose of providing the child with legal representation in the proceedings.

The Amendment is unnecessary because legal aid is already available to a child or young person in care and related proceedings on the application of the child or his parents; the court may also order legal aid without application. May I make it clear that the child or the parents can apply or the court may also order legal aid without application. The Children Bill does not affect this existing right but it does, by virtue of the addition of Clause 32B(2) to the Children and Young Persons Act 1969, require the court to consider whether to grant legal aid when making an order under Section 32A. In addition, Clause 55 gives the courts a discretion, where an order has been made that the parent or guardian is not to be treated as representing the child, to give legal aid to the parent or guardian for the purpose of taking such part in the proceedings as may be allowed by Rules of the Court. This is an extension of the present law relating to legal aid. Where the court appoints a guardian ad litem under Clause 32B the guardian ad litem will be able to apply on the child's behalf for legal aid and will instruct any solicitor appointed to act for the child. With respect, I suggest this Amendment is unnecessary.

Baroness YOUNG

My Lords, I should like to thank the noble Lord for that reply. I have put my name to the Amendment and I am glad to have had clarification of this point. I raised at an earlier stage the question of whether or not legal aid is available for children and the Government have given this very satisfactory reply. I would say to my noble friend Lady Masham of Ilton that in view of that answer, I do not think it likely that she will press this Amendment.

Baroness MASHAM of ILTON

My Lords, I agree with my noble friend Lady Young and thank the noble Lord, Lord Wells-Pestell. for clearing up this point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 57 [Amendment of s.15 of Social Work (Scotland) Act 1968.]:

Lord WELLS-PESTELL moved Amendment No. 60: Page 37, line 22, leave out (" to substitute ") and insert (" by substituting ")

The noble Lord said: My Lords, this is a Government Amendment. It is merely a drafting Amendment and serves to clarify the meaning of this clause. Under subsection (3B), a different period of notice for removal of a child—different, that is, from the 28 days mentioned in the Bill—may be substituted by order of the Secretary of State under Section 15(3B) of the Social Work (Scotland) Act 1968 as amended by the Bill. I beg to move.

On Question, Amendment agreed to.

Lord WELLS-PESTELL

My Lords, I explained this Amendment, No. 61 when moving Amendment No. 45, which was accepted by your Lordships. I beg to move it formally.

Amendment moved— Page 37, line 23, after ("of") insert ("28 days or of")—(Lord Wells-Pestell.)

On Question, Amendment agreed to.

7.8 p.m.

Baroness YOUNG moved Amendment No. 61A:

After Clause 59 insert the following new clause:

Application of s.58 of Children and Young Persons Act 1969

. Section 58 of the Children and Young Persons Act 1969 (inspection of children's homes etc. by persons authorised by the Secretary of State) shall apply to Parts I, II and III of this Act.

The noble Baroness said: My Lords, although time is getting on and we have discussed this matter at considerable length on the third day of the Report stage, I wish to raise again the important question of inspections. I raised this, first, on Second Reading and again on the first day of Committee. When I first raised it I was not as fully appraised of the facts of law as I think I am now. I was under the impression, quite rightly, that the relevant sections of the 1948 Act and the 1933 Children and Young Persons Act had been repealed; but what I did not appreciate is that in the 1969 Children and Young Persons Act under Section 58 the powers of inspection are there and they have not been repealed. What has happened is that they are simply no longer operated in the way provided for in the Act. My Amendment says that this part of the 1969 Children and Young Persons Act which has not been repealed shall apply to Parts I, II and III of the Bill before us.

As I have said on many occasions, we cannot legislate for good social work practice but we can do our best to see that it ensues. I should not have returned to this matter had I not had the support of a great many people practising in the field and, notably, the British Association of Social Workers who would like to see some form of inspection re-introduced or, perhaps more accurately, operative once again. Only last week I had a deputation from people in social work in London; and the very first issue that they raised with me was the need to come back to the principle of inspection.

Naturally, in preparation for this debate I reread what the noble Lord, Lord Wells-Pestell, said on the first day of the Committee on 4th February. He indicated that, although some of the inspections had been useful, there were times when this had caused "nothing but hostility and sometimes aggression". He went on to say: … I think that the attitude of people in the local authority social service towards such an arrangement today"— this is in reference to the present practice of the Department of Health and Social Security having social work advisers— is far more welcoming than it was at the time of the i nspection."—[Official Report; 4/2/75, col. 805.] Of course one is always glad to hear that the present system is welcome to departments of social service. I hope they will not feel that in any remarks I am making I am tending to criticise either those who are operating this system or, equally importantly, those who arc taking part in the practical work of social service departments.

The fact is, however, that when inspections were carried out, and when children's departments were under the aegis of the Home Office—this was a fact—a great many things ensued. The inspectors, and in this way the Home Office, had overall comprehensive pictures of what went on inside a children's department, and in particular what were the needs of the authority. They had a general knowledge of the needs of the department. And the inspectors were in touch with not only the senior staff and the heads of departments but a great many of the junior members of the staff. Indeed, one has only to read the provisions of the 1969 Act to see that anybody carrying out this task would inevitably meet junior members of the staff, because the 1969 Act refers to inspections and lists the various matters— any community home provided by a local authority, any voluntary home, any other premise at which one or more children in the care of a local authority are being accommodated or maintained. When an inspection was carried out, those inspecting would have the opportunity to meet the staff. I believe it to be a most important function that relatively junior members of the staff should feel that they have access to people in central Government, in the Civil Service, who are in a position to influence matters. I think that the inspectors, by getting to know people, were in touch with the grass roots of social work and conditions in the area. The inspectors were reliable channels of information and could hand on good ideas from one to another.

There has been considerable criticism of the position of children in social service departments today. I am not suggesting that this is by any malice on anybody's part. When the social service departments were set up they were an amalgamation of children's departments under the Home Office and welfare departments and mental health departments operating under the then Ministry of Health, where a very different form of social work took place. The consequence has been that this part of the 1969 Act has been superseded by a circular from the Department of Health and Social Service which the noble Lord, Lord Wells-Pestell, most helpfully quoted on 4th February, but which does not seem to be as effective as was the former system of inspection. We do not know what are the criteria that are established by these circulars. We do not know whether any of the suggestions are carried out. We do, however, know that a number of the junior staff feel they are entirely excluded from consultations, and that when someone goes down from the DHSS to a local authority social service department he frequently talks only to the director, or perhaps the deputies, or, at most, the third-tier people; and many others feel quite out of touch.

I would submit that it is extremely important on these delicate matters of human relationships, not only within the service itself but from the point of view of public support for it, that there should be the very best situation that we can provide. The public need to feel reassured about the standard of service they are getting; that the qualifications of the staff who are employed are adequate. I withdrew my Amendment to Clause 1 because I felt that this was not a matter to press at this stage, but it is a matter on which I feel very strongly: that whatever standards are to apply to voluntary adoption agencies to be approved by the Secretary of State, they ought to apply equally to local authorities—local authorities which, in quite a number of cases, will not have done any adoption work before but may well be required to do it by this Bill.

When in an earlier debate we heard the noble Lord, Lord Wells-Pestell, saying to my noble friend Lord Hylton that the law prescribes many ways in which private fostering may not take place, but local authorities either are unaware of their powers or do not carry them out, we had yet again grounds for concern that Acts of Parliament which we believe to be right and in the best interests of children are not being fully carried out, and that we have no sense of check. I would conclude my remarks by saying that they are not to be taken as a major criticism of social service departments, the Department of Health and Social Security or anybody involved in this work. I am concerned only to find a method of ensuring that we get recognition for the best of practice—and, after all, if an authority is good it has nothing whatever to fear from an inspection—and, I hope, an improvement of those authorities which are not as good as the best. My Lords, I beg to move.

Baroness MASHAM of ILTON

My Lords, before supporting this Amendment I should like to congratulate the noble Lord, Lord Wells-Pestell, on the amazing amount of work he is doing, especially this afternoon. On this Amendment I should like first of all to speak to the "et ceteras". While we have been discussing this Bill in your Lordships' House a child, which lived a few miles from where I live in Yorkshire, has been killed; the mother is charged. That child had already been in hospital. Neighbours had made complaints. But the same old story comes out: the cruelty to children's officer had called, and others had called, to find the door locked and no answer. They just go away. Does this fact not illustrate that there ought in each area to be someone who could take responsibility and get permission to enter if a child's life is at risk? This permission could be granted by a magistrate; and I would think that the senior child officer should be given the same permission as the police, but only when non-accidental injury is suspected. This would stop the buck-passing which occurs at present. The Guild of Service in Scotland have stated they would like to see the provision of an officer to safeguard the interests of children. If this can be established, I would suggest that the social services and the Area Review Committees have a concerted publicity campaign so that the public know whom to advise when they have real fears about children at risk.

7.19 p.m.

Lord WELLS-PESTELL

My Lords, I have felt strongly on a number of matters during the passage of this Bill, because for many years I have had some kind of direct responsibility in this wider field, but I have not felt quite so strongly about anything as I feel about this matter. Having said this, I would add that there is nothing between the noble Baroness and I. We both want to achieve the same end and I believe, if I may say this to the noble Baroness alone, that her Amendment is the wrong way of achieving her objective. We have moved in the field of professional social work and voluntary social work away from inspection to consultation. The word "inspection" frightens the life out of me and it will frighten the life out of professional social workers at every level.

I spent some years in what was then known as the London Probation Service, now the Inner London Probation Service, which has the largest number of probation officers in any area of the United Kingdom—something like 400. The Home Office was responsible for regularly inspecting probation officers and their work. The result was that the atmosphere between the probation officer and the Home Office inspector could be cut with the proverbial knife, because it was an inspection: "Why did you do this? Why didn't you do something else?" In the field of social work, we got away from that a long time ago. The attitude now is: "What are your difficulties? How do you deal with them? What do you think can be done? Is there any way in which I can help?"

My Lords, I want to get away from this word "inspection". It is the bugbear of professional social work. We shall never establish the kind of relationship that should exist between people working in the social service department of a local authority and the people who come down and presume to inspect them, and we shall never maintain the relationship which exists today between local authority social workers and the Social Work Service of the Department of Health and Social Security if we say to them, "You must now swing over from free discussion and consultation to inspectorship." It would be an unmitigated disaster. I say this with some feeling, having been at one time an inspector of social workers; I was viewed with suspicion and tolerated because I was an inspector.

I want to change the image, and I am sure that the noble Baroness, who has had a great deal of experience in this field, does not want that kind of image to be maintained. That is why I do not want inspectors; the name sticks and the history sticks. I think that we should move away from this image, not by having inspectors but by encouraging local authorities to carry out their own internal inspection—if I must use the word; it will please the noble Lord, Lord Hylton—in the same way as the internal audit of local authorities is carried out by people within the local authority, as the noble Baroness knows. Having been a member of three local authorities in my time, I believe that the internal audit works extra-ordinarily well. We ought to be encouraging directors of social services to have their own internal inspection, if that is the word which everybody wants to use.

As a Department, we should be providing experts. We have a fair number of them in the field. I meet social workers. They have a very healthy respect for the skill, competence and expertise of our regional people to give guidance and advice, if you like, although "advice" is not a word that I care for, to the people working on the job. However, to a very large extent we must put the responsibility upon local authorities themselves for the day-to-day overseeing of the work that is being done, for the way in which it is being done, and for the standard— which is much more important—which is being maintained. It is the responsibility of the Department of Health and Social Security to provide skilled and expert people to come along in a consultative capacity.

That is precisely what has happened in the Probation Service. As a result, the relationship between the Probation Service and those who are known as Home Office inspectors could not be better. They do not come to say what you ought to have done and what you ought not to have done, but to discuss why you have taken that line of action, because in the last analysis it is only the social worker who can say why he or she has acted in a particular way. Nobody from outside can come in and say that the social worker was wrong. You can only question the wisdom of certain actions if you come in to discuss them with the person concerned. That is why I think that it would be an unmitigated disaster—I do not say this unkindly—to have this type of inspection. I do not think that it would be appropriate, nor would it be practicable, for these powers of inspection to be applied en bloc, as proposed in the Amendment, to cover everything—Parts I, II and III. It would go far beyond residential accommodation or even local authority field work practice. It would embrace court work. Indeed, it would embrace a great deal of the activity of local authorities.

Without a shadow of doubt in my mind, the main underlying purpose of the Amendment is a sincere attempt on behalf of the noble Baroness to ensure that the standard of the adoption service which local authorities will have a duty to provide is as high as can be expected and compares favourably with approved voluntary adoption societies. May I say to the noble Baroness that I am not sure that we ought to be singling out the local authority social services. There will be other bodies doing adoption work; namely, the voluntary organisations. Is one to suggest that they are more competent and more efficient than the local authorities? I do not think that we ought to make cheese of one and chalk of the other, and I am sure that was never the intention of the noble Baroness. I feel that this would not be a step in the right direction; indeed, it would be a retrograde step. As the noble Baroness knows, the services for children are no longer inspected. Secondly, in the case of the new adoption service, lower standards will not be accepted, simply because we are not going to make this provision.

The Social Work Service Division of the Department of Health and Social Security has exactly the same powers as were previously available to the former Home Office Children's Department Inspectorate and the Social Work Service Division of the Department of Health and Social Security. The powers of entry and inspection relate, and have always related, to residential accommodation. Reviews of field work services were in the past, and still are, carried out with the voluntary agreement of the local authority departments concerned, and the Social Work Service is one important element in the guidance which local authorities will have to be given in the development of this service. They have powers to inspect, and they do inspect. In a recent review of residential provision across a wide range of services, the Social Work Service Division visited some 60 establishments in one authority alone. However, in their methods of work they have developed wider dimensions than the old, narrow, regulatory functions which I call inspection, because so often inspection is negative. We need people who can go round and discuss the difficulties on an almost equal footing with the people in the field. Surely their job is the promotion and consultative approach which they now use in their active joint participation with the authority itself.

I am sure that this is the right way of doing it. I have made many appeals to the noble Baroness, but I have never felt so strongly about anything—as probably your Lordships gather—as I feel about this. It would not be even standing still; it would be a step backwards. Some noble Lords might like to know that the total complement of the Social Work Service at present stands at about 130 officers, including the director and deputy director and senior officers, and 11 members attached to the Welsh Office; some 70 Social Work Service officers in nine regional offices in England and 27 at the headquarters. Scotland has a similar but separate service. I am so concerned that if we are going to widen the net of social work in this country and ultimately create a vast and comprehensive network of social services we have to see, first, that only the right people are let loose on the community, and, what is much more important, to see that people who are going to oversee them, to have some responsibility for making judgments of what they are doing, are people who are not going to appear in the role of an inspector, but rather coming as a friend and consultant with whom they can discuss their problems and difficulties. This is not a new thing. This has been tried in a good many fields, as I am sure the noble Baroness, Lady Young, knows. I am asking that we should not adopt this particular Amendment, worded as it is, because I think it would be a step backward rather than a step forward and that is the last thing that the noble Baroness would want.

Lord HYLTON

Perhaps I should declare a rather remote kind of interest because a relative of mine, who is now retired, was one of Her Majesty's inspectors of schools. I should like to ask the noble Lord, Lord Wells-Pestell, why it is that inspectors of schools never created this kind of frisson of horror which he has described in the Probation Service. I can bear witness to that in my own experience, having briefly been a governor of a secondary school. The inspectors came and went; they sat in at interviews for new teachers and they were most helpful. None of us was frightened of them. Be that as it may, I feel that the noble Lord did not really answer my noble friend's point about getting the standards equally good in voluntary homes and in local authority homes. Neither did he answer the point about access and communication between representatives of Central Government and the junior grades of staff.

Baroness YOUNG

My Lords, I should like to thank the noble Lord, Lord Wells-Pestell, who has had a very long afternoon and has answered so helpfully so many of the debates, for his explanation as to why he cannot accept this Amendment. It has been useful to have the discussion to find out some of the statistics on the numbers of social workers and the areas that they cover. I am sure he will appreciate that I cannot accept his argument. It may well be true that inspectors in the Probation Service were disliked intensely, though I find that very difficult to accept. Not having been a probation officer myself, I cannot speak from first-hand knowledge, but I can assure the noble Lord, Lord Wells-Pestell, that I have a quite close relative who is a probation officer and this is not at any rate his impression. I can speak from years of experience on a children's committee and I can only say that the impression created by inspectors was not as he described.

However, this is not a matter which I intend to debate at length this evening. I should not have had the temerity to put down this Amendment if I had not had the support of a great many social workers who would like to see this principle introduced. It will be interesting, in the coming years, to see whether the noble Lord is right in his interpretation of the way events will go, or whether I am right in my interpretation of the way I think events will go. I suspect that we shall find that the principle will be tightened up somewhat in the future—perhaps a more relaxed method of evaluating social work might be the better way to put it. What gives rise to this is that it is now impossible for a social services committee to know in detail the cases before them. This is a major weakness of the new set-up for which no one is to blame. Nobody, therefore, can know whether all the procedures are being carried out. One likes to think that they are, and one hopes that the directors of social service see that they are, yet one has only to read something like the Maria Colwell case to see that the procedures are not being adhered to. One cannot help but wonder whether something much stiffer than the present system ought to be reverted to. I think it may well be so. Voluntary adoption societies will be subject to inspection because, of course, they will have to be approved by the Secretary of State. I accept that. That is why I wanted a similar case for local authority adoption societies.

My Lords, I do not intend to press this Amendment this evening. We have had a very good discussion on it and, as the noble Lord has said, he and I are both agreed on the ends we want to achieve and we must respect each other's differences of approach. I beg leave to with-draw the Amendment.

Lord WELLS-PESTELL

My Lords, will your Lordships allow me to put the Record right? I was not referring to the position at present in the Probation Service; I was talking about the past. It does not occur now, and has not occurred for a good many years. I am very grateful to the noble Baroness for the decision she has made.

Amendment, by leave, withdrawn.

Clause 60 [Parental rights and duties]:

7.37 p.m.

Lord WELLS-PESTELL moved Amendment No. 62: Page 41, line 14, leave out subsection (4).

The noble Lord said: My Lords, I am wondering whether your Lordships will allow me to take Amendments 62 and 62A which are both on page 41, the first in line 14 and the second in line 32. These Amendments are consequential on a decision taken by your Lordships' House on the second day of the Report stage to insert a new clause into the Bill after Clause 38 providing machinery by which disputes between people having a parental right or duty jointly vested in them by a custodianship order can be resolved by a court.

I explained when moving the relevant Amendment on that occasion, that it went too far, in that it would have replaced Section 7 of the Guardianship of Minors Act 1971—which relates to disputes between joint guardians—and would have limited the scope of that provision by imposing on it the new jurisdictional requirements contained in Clause 68(2). Amendment No. 62 therefore deletes subsection (4) from Clause 60. The Amendment to leave out sub- section (8) of the clause is consequential on Amendment No. 62. I beg to move.

On Question, Amendment agreed to.

Lord WELLS-PESTELL

I beg to move Amendment No. 62A:

Amendment moved— Page 41, line 32, leave out subsection (8). — [Lord Wells-Pestell.]

On Question, Amendment agreed to.

Clause 65 [Registration of births of abandoned children]:

Lord WELLS-PESTELL moved Amendment No. 63: Page 43, line 24, at end insert (" (as originally enacted) ").

The noble Lord said: My Lords, again, this is a drafting Amendment to make it explicit that the reference to the proviso to Section 1 of the Births and Deaths Registration Act 1953 is a reference to that section as originally enacted. I beg to move.

Lord SANDYS

My Lords, while we acknowledge and accept the Amendment as drafted, it appears to us to be a somewhat "belt and braces" activity. Nevertheless, at this late hour I do not think we wish to dispute the matter further.

On Question, Amendment agreed to.

Clause 68 [Courts]:

7.40 p.m.

Lord WELLS-PESTELL moved Amendment No. 64: Page 46, line 2, leave out (" or 35") and insert (", 35 or (Disputes between joint custodians)").

The noble Lord said: My Lords, this Amendment is consequential on the decision taken by your Lordships' House on the second day of the Report stage to insert a new clause into the Bill after Clause 38 providing machinery by which disputes between people having a parental right or duty jointly vested in them by a custodianship order can be resolved by a court.

It is designed to enable application to be made under the new clause not only to the court which made the custodian-ship order but also, if the court is a county court, to any other county court prescribed by rules under Section 102 of the County Courts Act 1959. The same effect can be achieved for magistrates' courts by use of the existing rule-making powers. I beg to move.

On Question, Amendment agreed to.

Clause 70 [Panel for guardians ad litem and adoption officers]:

Lord SANDYS moved Amendment No. 64A: Transpose Clause 70 to after Clause 20.

The noble Lord said: My Lords, this is a purely drafting Amendment. I made the suggestion to Her Majesty's Government during the Committee stage that it would be for the benefit of good drafting if this clause were transposed and brought into the Bill after Clause 20. I had the assurance from the noble Lord, Lord Winterbottom, when he was good enough to say—and I quote his words: 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."—[Official Report; 20/2/75, col. 527.] My Lords, it has not happened. I feel sure that the attention of the noble Lord has been drawn to this fact, but we desire that this regrouping should take place. I beg to move.

Lord WELLS-PESTELL

My Lords, I am grateful to the noble Lord. I think I can satisfy him that there is a very good reason for not doing what he is asking. If I may say so with the greatest respect, I am advised that the correct place for this provision is in Part V of the Bill, the reason being that it relates to more than one provision in. different Parts of the Bill. Therefore it should be in Part V and not following Clause 20 as suggested by the noble Lord.

As Clause 70 itself makes clear, guardians ad litem will be needed for Part III of the Bill, relating to care, as well as Part I which relates to adoption. Clause 54 provides for the appointment, where the court thinks fit, of guardians ad litem in certain care proceedings to safeguard the interests of the child or young person. If we leave Clause 70 where it stands there can be no argument about whether Part I or Part III of the Bill has a greater claim to it. We have gone into this quite carefully, as we promised, and this is the advice that I have been given.

On Question, Amendment negatived.

Clause 73 [Interpretation]:

Lord WELLS-PESTELL moved Amendment No. 64B: Page 47, line 16, leave out ("other").

The noble Lord said: My Lords, this is a. drafting Amendment. Clause 73 as it stands defines a British adoption order as "an adoption order, or any other provision for the adoption of a child effected under the law of any British territory outside Great Britain". The word "other" appears to exclude adoption orders made under the law of any British territory outside Great Britain when the intention of the definition is to include them. By leaving out the word "other" as the Amendment proposes, any ambiguity in the definition is removed. I beg to move.

On Question, Amendment agreed to.

Lord WELLS-PESTELL moved Amendment No. 65:

Page 47, line 39, at end insert— "guardian", in relation to the adoption 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;".

The noble Lord said: My Lords, the purpose of this Amendment is to extend the definition of guardian for the purpose of agreeing to adoption so as to include a putative father who has obtained an order for custody under section 9 of the Guardianship of Minors Act 1971 in England and Wales, or under section 2 of the Illegitimate Children Act 1930 in Scotland. Its purpose is accomplished in conjunction with Schedule 3 paragraph 22(c) which substitutes a similar definition in section 57 of the Adoption Act 1958. At Committee stage the noble and learned Lord the Lord Chancellor said he would look at the question of the effect of an application for adoption order if the father of an illegitimate child were to obtain custody under section 9 of the Guardianship of Minors Act 1971, bearing in mind that such a father is not a "parent" within the meaning of the term as used in Part I of the Bill or in the Adoption Act 1958.

It is correct, as the noble Baroness, Lady Young, stated, that in adoption law, the term "parent" does not include the father of an illegitimate child, though this is because of case law, and is not expressly stated in legislation. Further-more, Clause 60(7) of the Bill provides that, except as otherwise provided by or under any enactment while the mother of an illegitimate child is living she has the parental rights and duties exclusively. This point will be resolved by this Amendment to Clause 73. Clause 11 of the Bill provides that an adoption order shall not be made unless the child is free for adoption, or the "parent or guardian" has agreed, or the agreement of the "parent or guardian" is dispensed with on one of the grounds specified in the clause. If this Amendment is accepted, the agreement of the father of an illegitimate child, who is given custody of the child by an order under Section 9 of the Guardianship of Minors Act 1971 or the relevant Scottish provision, will be required to a subsequent adoption, unless his agreement can be dispensed with, or unless the custody order is revoked. I beg to move.

Baroness YOUNG

My Lords, I should just like to thank the noble Lord, Lord Wells-Pestell, for that explanation and to say that I welcome this provision.

On Question, Amendment agreed to.

7.50 p.m.

Lord WELLS-PESTELL moved Amendment No. 66:

Page 48, line 1, at end insert— (""relative" has the same meaning as in the 1958 Act;").

The noble Lord said: My Lords, this also is a drafting Amendment. Section 57 of the Adoption Act 1958 defines "relative" in relation to a child as meaning a grandparent, brother, sister, uncle or aunt, whether of the full blood, half blood or by affinity, and includes the natural father. Clauses 7 to 25 of the Bill make various fresh provisions in relation to adoption orders, and the word "relative" is used in several of these. The effect of this Amendment is to insert the 1958 Act definition of "relative" into Clause 73, thereby settling any doubts which might otherwise arise as to the precise meaning of the expression in these provisions. I beg to move.

Baroness YOUNG

My Lords, once again I should like to thank the noble Lord, Lord Wells-Pestell. I hope he will forgive my ignorance, but is a step-parent included in the definition of "relative"?

Lord WELLS-PESTELL

No, my Lords, it is not.

On Question, Amendment agreed to.

Baroness ELLIOT of HARWOOD moved Amendments Nos. 67 and 68: Page 48, leave out lines 16 and 17. Leave out Schedule 1.

The noble Baroness said: My Lords, I should like to move Amendments Nos. and 68 together, but Amendment No. is the really important one. First, I must apologise to the noble Lord, Lord Wells-Pestell, because I was not here on the first day of the Report stage to move a series of Amendments, of which these were only two. I was engaged with the noble and learned Lord the Lord Chancellor at an important occasion outside this House, and therefore I could not be present. But I should like to speak to these Amendments, because they deal with something which we in Scotland feel very strongly about.

The approval of adoption societies is included in Clause 3, but under Schedule 1 the adoption societies in Scotland are left in the same position as they are in today, which voluntary adoption societies greatly dislike. The voluntary adoption societies in Scotland, of which there are nine—and one, I may say, is the Church of Scotland which does a lot of work with adoption societies—are all anxious to be recognised by the Secretary of State as national bodies, in exactly the same way as the Secretary of State for England and Wales recognises the adoption societies there. The reason for that is that the adoption societies in Scotland have to work only through local authorities, and in nine Regions. It means that those working in the adoption world have to go to their local authority before they can operate in that area. This is very inconvenient and takes up a great deal of time. It also means having a lot of extra people.

In any case, from the point of view of the right honourable gentleman the Secretary of State for Scotland and of the Scottish Office, it would be infinitely more simple if the adoption societies were recognised. The adoption societies would then be able to operate in all areas of Scotland with no additional machinery, so to speak. In my opinion, they would be more free and more able to fulfil the tasks which are before them today. The relationship between the voluntary adoption societies and local authorities is excellent; I am not saying it is not. But the fact is that in Scotland the national adoption societies and their headquarters have a different status from that in England. It would therefore be much easier for them, and would make a tidier picture, if the adoption societies were recognised by the Secretary of State, and worked through their own machinery in any area where they were being asked to carry out a job, or anywhere in the adoption sphere.

My Lords, at the Report stage, the noble Lord, Lord Wells-Pestell, in answer to my noble friend Lady Young, said that this matter was under discussion at the Scottish Office, and that I would receive a letter on the subject from the noble Lord, Lord Hughes. I received a letter from the noble Lord, Lord Hughes, about three days after the Report stage. I have not had an opportunity of talking to the noble Lord because he has not been available. The letter simply said that on the one hand some people think it is better done this way, and, on the other hand, other people think it is better done in another way. He said that at the moment the subject is under discussion, and he could give me no lead of any kind. I thought that was very unsatisfactory. I feel very strongly, as do the adoption societies, that what we want is to have the same as in England.

Having consulted the Public Bill Office here, 1 find it would be a mistake if I were to move these two Amendments tonight —Amendment No. 68 being the crucial one—because there are other Amendments which would make the Bill apply to the whole of the United Kingdom, without any special arrangements for Scotland. Therefore, I do not propose to press these two Amendments to a Division tonight. But on Third Reading I shall have my Amendments ready to put forward, which will enable me to move to leave out Schedule 1, to move the various small drafting Amendments which are affected by Schedule 1, and then to move that the adoption societies in Scotland should be dealt with in the same way as those in England. Therefore, I beg to move Amendments Nos. 67 and 68, hoping that I may hear from the noble Lord, Lord Wells-Pestell, more than I have heard from the noble Lord, Lord Hughes.

Baroness YOUNG

My Lords, I intervene briefly in this discussion, because I think we are in some procedural difficulty here. My noble friend Lady Elliot of Harwood will understand the position completely. I understand from the Table that the position is that the earlier Amendments have not been withdrawn and, these two being consequential, strictly speaking they should be moved at this stage. The correct procedure, because the Amendments are important, would be for my noble friend to move the whole lot and then withdraw them.

Baroness ELLIOT of HARWOOD

My Lords, I apologise to the noble and learned Lord the Lord Chancellor if I was out of order. I was not aware of that. I was speaking to these two Amendments, but I will withdraw them and move them on Third Reading.

Lord WELLS-PESTELL

My Lords, I am most grateful to the noble Baroness. As I understand the situation, my noble friend Lord Hughes will get in touch with her again, and will let her know the outcome of a meeting to be held on 10th March. So the noble Baroness should be getting some more official information, and it should be received in time for her to take whatever action she thinks appropriate. I am most grateful.

Amendments, by leave, withdrawn.

Lord WELLS-PESTELL

My Lords, I wonder whether I may crave the indulgence of the House. As I understand the situation, every Amendment from now on stands in the name of my noble and learned friend the Lord Chancellor. I am wondering whether I can move them en bloc. That would mean taking Amendments Nos. 69 to 92A, subject to the consent of your Lordships' House, and subject in particular to the consent of the noble Lords and the noble Baroness on the Opposition Front Bench.

Baroness YOUNG

My Lords, there are points which we should like to raise on three of these Amendments, but with that proviso, I am very happy to take these consequential and technical Amendments as quickly as time will allow.

Schedule 2 [Transitional and commencement provisions]:

Lord WELLS-PESTELL moved Amendments Nos. 69 to 92A en bloc:

Amendments moved— Page 52, line 2, after (" 6,") insert (" 24 ").

Schedule 3, page 52, line 27, at end insert— ("1A. In section 3(8) for the words "twenty pounds" and "two months" there are substituted respectively the words "£100" and "three months".")

Schedule 3, line 34, leave out paragraph 3 and insert— ("3. In section 3(1), after the words "shall be required" there are inserted the words "unless the infant is subject to a custodianship order, when the consent of the custodian and, where the custodian is the husband or wife of a parent of the infant, of that parent shall be required" ").

Page 53, line 6, at end insert— ("4A. In Schedule 2 in paragraph 2(b) after the words "deceased parent", there are inserted the words "or by the court under section 3 of the Guardianship of Minors Act 1971".")

line 19, at end insert—

("(2A) In section 14(l)(a) after "section 10" there is inserted "or 10A".")

Page 54, line 16, leave out ("form") and insert ("the form").

Page 54, line 23, leave out from ("and") to end of line 24 and insert ("for the words "re-registration of the birth of legitimated persons" there are substituted the words "re-registration of births in certain cases".").

Page 55, line 13, after ("under") insert ("section 1 of this Act or").

Page 55, line 13, leave out lines 30 to 32 and insert—

("24. In section 23 (adopted person to be treated for purposes of succession etc. as child of adoptor)—

  1. (a) in subsection (3) (property devolving along with a title, honour etc.), after "this section" there is inserted "or in section 7(4) of the Children Act 1975";
  2. (b) in subsection (5) (meaning of "adoption order"), after "means an order made" there is inserted "under the Children Act 1975 or under the Adoption Act 1968 or".

24A. In section 37(1) (exclusion from Act of matters relating to titles, etc.), after "nothing in this Act" there is inserted "or (as respects paragraph (a) of this subsection) in section 7(4) of the Children Act 1975".").

line 39, at end insert—

("Adoption Act 1964 (c. 57)

25A. In section 3(4) after the words "is re-registered under section" there are inserted the words "10A or", and for the words "re-registration of birth of legitimated persons" there are substituted the words "re-registration of births in certain cases".")

line 39, at end insert—

("Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)

25B. In section 54(1), paragraph (d) is repealed.")

Page 57, line 41, at end insert—

("Adoption Act 1968 (c. 53)

32A. In section 8(2)— (a) for the words "form set out in Schedule 1 to the Act of 1958, as modified by this subsection" there are substituted the words "form specified for the purposes of this subsection in regulations made by the

("1970 c. 42. Local Authority Social Services Act 1970. In column 2 of Schedule 1, the words "Making etc. arrangements for the adoption of children; regulation of adoption societies.")

Secretary of State under section 21 of the Act of 1958"; and

(b) the words from "and for the purposes "to the end are repealed. 32B. In section 8(4)—

  1. (a) after the words "re-registered under section" there are inserted the words" 10A or";
  2. (b) for the words "the re-registration of the birth of a legitimated person" there are substituted the words "re-registration of births in certain cases".

32C. In section 8(5)—

  1. (a) for paragraph (b) there is substituted—
  2. (b) paragraph (c) is repealed;
  3. (c) for paragraph (d) there is substituted—

Page 58, leave out line 30 and insert—

("Children Act 1975 (c.)

Part I—Maintenance of Adoption Service; function of local authority as adoption agency; applications for orders freeing children for adoption; inquiries carried out by local authorities in adoption cases.

Part II—Application by local authority for revocation of custodianship order; inquiries carried out by local authority in custodianship cases.")

Page 59, line 7, at end insert—

"(2A) In section 16—

  1. (a) in subsection (1) for "the High Court shall" there is substituted "the High Court may";
  2. (b)in subsection (4) for "the magistrates court may" there is substituted "the magistrates' court shall".")

Schedule 4, leave out lines 34 and 35.

Page 60, line 8, column 3, leave out from ("Sections") to end of line 10 and insert ("1 to 8")

Page 60, line 26, column 3, at end insert— ("In section 32(3), the words from "children" to the end")

Page 60, line 27, column 3, at end insert ("and")

Page 60, line 28, column 3, leave out ("and") and insert ("of")

Page 60, line 28, column 3, leave out lines 52 and 53 and insert ("Section 1(1)")

Page 61, column 3, leave out line 6 and insert (""17(3), 19(1)".")

Page 61, line 16, column 3, at beginning insert ("Section 15(6)")

Page 61, line 19, at end insert—

Page 61, line 22, column 3, leave out ("Section 7") and insert ("Section 16(2)")—(Lord Wells-Pestell.)

Baroness YOUNG

My Lords, I should like to ask a question on Amendment No. 76, which I did not understand. It refers to Section 1 of the Adoption Act 1958, but when I look at the repeals on page 60 I see that Section 1 of the 1958 Act is being repealed. This is a technical point to which there may be a completely satisfactory answer. If the noble Lord does not have the answer immediately, I should be perfectly satisfied if he would write to me. As it is, it does read in a rather curious way.

Lord WELLS-PESTELL

My Lords, I do not know whether I can give a satisfactory answer. My understanding of the situation is that it is continuity of interpretation. The purpose of this Amendment is to provide that the definition of an adoption order given in Section 57 (1) of the Adoption Act 1958 shall apply to adoption orders made under that Act as well as to adoption orders made under Part I of this Bill. I do not know whether the noble Baroness would like to look at that in Hansard tomorrow, and if it is not clear to her perhaps she and I could get together on this and resolve it in that way.

Lord SANDYS

My Lords, with the permission of the House, I should like to raise one further question. It arises out of Amendment No. 71. On looking through the Marriage Act 1949, Section 3 (1), again, we are, to some extent, in the same difficulty to which the noble Baroness has referred. I wonder whether the same course might be followed. From this side of the House, we should be quite satisfied with a written explanation of the wording, because it is not clear from the Amendment and the Act.

Lord WELLS-PESTELL

My Lords, I wonder whether I might be in a position to clarify that now, on the understanding that if it does not satisfy the noble Lord, Lord Sandys, he will say so quite frankly, so that perhaps I can get him a different form of words. This is a draftsman's Amendment to retain the provisions relating to the consent to the marriage of a person under the age of 18, as set out in the second Schedule to the Marriage Act 1949, but at the same time overriding those provisions where the person concerned is the subject of a custodian order. Where a person under the age of 18 who is the subject of a custodian order wishes to marry, the consent required to his or her marriage is that of the custodian or custodians (to the exclusion of the natural parent or parents), or of the custodian and the custodian's spouse (to the exclusion of the other parent) in a case in which Clause 40 (2) applies.

It is important that the second Schedule to the 1949 Act should stand to enable a superintendent registrar or a surrogate to refer to a statutory provision applying to the circumstances of a person under 18 who is not the subject of a custodianship order and who wishes to marry. I never think this is a very satisfactory method if there is a doubt in one's mind: it is one thing to read it; it is another thing to take it in. If the noble Lord will feel disposed to look at Hansard tomorrow, if it is not clear, I hope I can be of some assistance.

On Question, Amendments agreed to.

Baroness MACLEOD of BORVE

My Lords, is it in order to ask a question on Schedule 3?

Lord WELLS-PESTELL

My Lords, with the permission of the House, if the noble Baroness is in any way exercised in her mind about Schedule 3, perhaps we could have a word about it later. It is important, I think, that these matters should be dealt with. As we have come to the end of the Report stage—perhaps I am jumping my fences and I may regret this on Third Reading—I should like to thank particularly the three occupants of the Government Front Bench at this moment for their help—

Several Noble Lords: Opposition!

Lord WELLS-PESTELL

Opposition. They have been so helpful I thought it was a Government Bench—and all others who have stayed to take part in this Report stage. I hope the Third Reading will be just as agreeable.

Baroness YOUNG

My Lords, I should like to say thank you to my noble friends Lords Sandys and Elton, and the noble Baroness, Lady Elliot, and to say that we have found it most agreeable to be working on this Bill. We believe that jointly we have made this a better Bill than it was at the outset. We should particularly very much like to thank the noble Lord, Lord Wells-Pestell, who has worked so hard, unceasingly and so very helpfully to us all.

Baroness MASHAM of ILTON

My Lords, from the Cross-Benches, may I thank the noble Lord, Lord Wells-Pestell, and everyone else for the help they have given, especially on the Amendment which was passed today. I hope that fact will not cause too much chaos.