§ [Nos. 104 to 114.]
§ Clause 41, page 25, line 28, at end insert ("enactment or rule of law conferring a—").
§ Page 26, line 11, after ("cause") insert (",having regard to section 1 of the Guardianship of Infants Act 1925 (the principle on which questions relating to custody, upbringing etc. of children are to be decided)").
§ Clause 42, page 26, line 35, leave out ("applying for") and insert ("making an application relating to the").
§ Clause 42, page 26, line 41, leave out ("may be revoked") and insert ("discharged").
§ Page 27, line 3, leave out ("any application, other than one") and insert ("an application relating to the custody of a child, other than an application").
§ Page 27, line 5, leave out ("for custody of a child").
Clause 45, page 28, line 5, at end insert—
("(1A) In any case where subsection (1) applies, and
§ Clause 45, page 28, line 6, leave out ("this section") and insert ("subsection (1)").
§ Clause 45, page 28, line 9, leave out ("£100 ") and insert ("£400").
§ After Clause 45, insert the following new clause:
§ Return of child taken away in breach of section 45
§ .—A court in which an application for custody of a child is pending may—
- (a) on the application of a person from whose custody the child has been removed in breach of section 45, order the person who has so removed the child to return the child to the applicant;
- (b) on the application of a person who has reasonable grounds for believing that another person is intending to remove the child from the applicant's custody in breach of section
1255 45, by order direct that other person not to remove the child from the applicant's custody in breach of that section.
§ Clause 46, page 28, line 18, leave out from beginning to ("direct") in line 21 and insert "applicant is a person qualified to apply for custody of the child, and the court is of opinion—
- (a) in the case of an applicant who is a relative of the child or a husband or wife of the mother or father of the child (whether applying alone or jointly with his or her spouse)—
- (i) that the child's welfare would not be better safeguarded and promoted by the making of an adoption order in favour of the applicant than it would be by the making of a custody order in his favour; and
- (ii) that it would be appropriate to make a custody order in favour of the applicant; or
- (b) in any other case, that the making of a custody order in favour of the applicant would be more appropriate than the making of an adoption order in his favour, the court shall").
§ Clause 46, page 28, line 22, leave out ("in such a case") and insert ("where such a direction is made").
§ Lord WINTERBOTTOM
My Lords, as your Lordships will recall, the House has completed its consideration of the Amendments made in another place to the provisions of Part II of the Bill dealing with custodianship in England and Wales. With leave, I should like to move Amendments Nos. 104 to 114 which relate to custody in Scotland. At this point I should perhaps apologise on behalf of my noble friend Lord Kirkhill for his being unable to be with us today. May I also apologise because my noble friend Lord Wells-Pestell, whose expertise in this matter is well known, is unable to be present due to his duties abroad—which leaves me carrying the baby, which I suppose is the object of this Bill.
Before referring to Amendments Nos. 104 to 114 in more detail, I should explain that all these Amendments are of a relatively minor nature. They serve simply to clarify the existing provisions, to extend certain ancillary powers of the Scottish courts in custody proceedings, and to effect improvements which are in line with what your Lordships have already agreed in relation to Clauses 30 to 40 on custodianship.
Amendments Nos. 104 and 105 are designed in their separate ways to make clear how the Scottish custody provisions in this Bill relate to the existing law on 1256 custody in Scotland. They make it clear that the new statutory rights of application by relatives, step-parents and foster parents, contained in Clause 41, are entirely without prejudice to existing rights of application under Scots law. They also make it clear that the essential discretions of the Scottish courts, which they exercise on the basis of the welfare of the child, are preserved. Certain doubts have been expressed on these points in another place. The Amendments to which I have referred were designed to clarify the situation. They have been welcomed by those in another place who had previously expressed reservations about the provisions.
Amendments Nos. 106 to 109 extend the ancillary provisions of Clause 42 to apply these provisions not only to the making or determination of initial custody applications but also in relation to any subsequent proceedings involving custody of the child—for example, applications for variation or discharge of the custody order, or for access or maintenance.
Amendments Nos. 110 to 114 are Scottish equivalents to Amendments for England and Wales which have already been agreed by your Lordships. Amendment No. 110 restricts the removal of a child by a local authority from the care of an applicant who has had possession of the child for three years or more. Amendment No. 112A provides that where such a child is removed illegally the person from whose custody the child is removed may apply to the court for an order requiring the return of the child. Amendment No. 112 is a penalty Amendment. Amendments Nos. 113 and 114 require that the court shall not make an adoption order in the case of an application by a relative or step-parent unless it is positively satisfied that adoption is the better course in the particular case. My Lords, I beg to move.
§ Moved, That this House doth agree with the Commons in the said Amend. ments.—(Lord Winterbottom.)
§ Baroness ELLIOT of HARWOOD
My Lords, I have listened with great interest to the noble Lord, although he speaks so fast that it is very difficult to follow him. There are many Amendments and they have been introduced, as my noble friend said on Thursday 1257 night when unfortunately I was unable to be present, very much at the last moment. Nevertheless, I have studied the matter very carefully and realise that these Amendments are designed to clarify the situation and to bring the Bill into line with Scottish law.
I have very little to say, but I want to be quite sure that when there is any question of a custody order the interests of the child are put first. When a parent, guardian or relation is involved with the child the same safeguards should remain and the child's interests should always come first. Amendment No. 112A deals with the return of the child who is taken away in breach of Section 45. I take it that in this Amendment the interests of the child come first and foremost and that it was something which fitted into the concept of the Bill when it left your Lordships' House to go to another place. So far as Amendment No. 113 is concerned. I take it that it is for the court to decide that the child's welfare would not be better safeguarded and promoted by the making of an adoption order. Is that the duty of the court or of the applicant? I imagine that it is the duty of the court. So far as I can see from my study of these Amendments in relation to the Bill as it affects Scotland, they are simple and straightforward, but I should like to have the assurance of the noble Lord. Lord Winterbottom, that there is nothing in them which alters in any way the purpose of the Bill that the interests of the child should be paramount.
§ Lord WINTERBOTTOM
My Lords, I accept the reproof of the noble Baroness and will try to speak more slowly. The problem is that I am just coming out of my corner and as a result the adrenalin is flowing rather freely! I hone that the noble Baroness will tell me if I continue to speak too fast. Amendment No. 105 was designed to clarify the situation which the noble Baroness has mentioned. In all cases the interests of the child are the first consideration. It is the duty of the court to consider what is best for the welfare of the child. These two points are firmly established and are part of the guiding principles of this Bill. I hope that this explanation will satisfy the noble Baroness.