§ [No. 125]
§ Guardians ad litem and reports in care proceedings
§
Page 33, line 8, at end insert—
("4B.—(1) In any proceedings under section 2(5) or 4(3) or 4A of this Act. a juvenile court or the High Court may, where it considers it necessary in order to safeguard the interests of the child to whom the proceedings relate, by order make the child a party to the proceedings and appoint, subject to rules of court, a guardian ad litem of the child for the purposes of the proceedings.
(2) A guardian ad litem appointed in pursuance of this section shall be under a duty to safeguard the interests of the child in the manner prescribed by rules of court.
3) Section 6 of the Guardianship Act 1973 shall apply in relation to complaints under section 2(5) or 4(3) of this Act as it applies in relation to applications under section 3(3) of the said Act of 1973".)
§ Lord WINTERBOTTOMMy Lords, I beg to move that this House doth agree with the Commons in their Amendment 1267 No. 125. With the permission of the House I would also wish to speak to Amendments Nos. 131, 132, 134 to 137.
§ Lord ELTONMy Lords, if the noble Lord, Lord Winterbottom, will be prepared to take Amendments Nos. 134 to 137 separately as group 10, this will be helpful.
§ Lord WINTERBOTTOMYes, my Lords, I will do just that.
§ Lord ELTONMy Lords, might I suggest that we take Amendments Nos. 125, 131 and 132 together? May I explain to your Lordships that the noble Lord is in a difficulty, because he has been extremely helpful to us in regrouping the, Amendments so that we can deal with the Scottish matters separately. Since we have laid this difficulty upon him and he has taken it uncomplainingly, I hope your Lordships will be patient with the difficulties which arise from this.
Lord WINTER BOTTOMMy Lords, I am most grateful to the noble Lord. The situation is that I am working from two documents, one of which is updated; I was looking at the wrong group of documents. We are now speaking on Nos.125. 131 and 132. These relate to a conflict of interest between the parent and child or young person, and this, I understand, stems from Amendments which were originally introduced by the noble Baroness, Lady Masham, at an earlier stage. Your Lordships will be aware that these provisions have attracted a great deal of interest among those concerned with the welfare of children, because they introduce into court proceedings involving children a new power which enables the court, where there is, or appears to be, a conflict of interest between parent and child, to order, first, that the parents may not represent their child in the proceedings: and, secondly, that a guardian ad litem should be appointed to act for the child.
Since the Bill left your Lordships' House these provisions have undergone a considerable change. Amendments Nos. 131 and 132 have restricted their scope to proceedings in a juvenile court under Section 1 of the Children and Young Persons Act 1969, related proceedings concerning the discharge or variation of care or supervision orders, 1268 and appeals to the Crown Court from decisions reached in the juvenile courts. On the other hand, Amendment No. 125 extends the principle of separate representation to proceedings in a juvenile court or a High Court which are concerned with orders confirming or terminating resolutions passed by local authorities assuming parental rights and duties in respect of a child. This Amendment enables the court, first, to make the child a party to the proceedings—I understand that under the existing law he is not a party—and then to appoint a guardian ad litem to act for him in order to safeguard his interests. The Amendment also enables the court to call upon a local authority or a probation officer for a report on any matter considered relevant to the proceedings.
The need to restrict the scope of the provisions for separate representation to proceedings of the kinds I have mentioned arises mainly from the fact that resources of manpower would not have been available to implement the clause in the form in which the Bill left your Lordships'House. We had a long discussion of this at an earlier stage. Since thatdate, the local authority associations have estimated that to implement the provisions as they now stand will require the equivalent of an additional 70 social workers. Had only one in ten of the proceedings covered by the clause in the Bill as it left your Lordships' House necessitated the appointment of a guardian ad litem, it would have been necessary to recruit an additional 450 social workers. Your Lordships will agree that at this time there would have been no foreseeable prospect of implementing it. This is the reason for the Amendment as it now stands, and I hope it is acceptable to the noble Baroness, Lady Masham. We have attempted, at least, to implement the principles behind her wishes. I beg to move.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Winterbottom.)
§ 8.35 p.m.
§ Baroness MASHAM of ILTONMy Lords, may I ask the noble Lord for some further clarification? Could he classify a guardian ad litem, because in a very complicated case, a tug-of-love case 1269 where the two parents are fighting over the child, it might be very difficult for a young, inexperienced social worker to fight against somebody very much more experienced. Can the guardian ad litem be a solicitor? It does not say who it is to be. Must it be a social worker? I should not like to say anything in your Lordships 'House against social workers, but I think some are young and inexperienced. I was speaking on Monday to a probation officer from Hull. He was a guardian ad litem and he really did not seem to know what he was doing. I wonder, also, how much training they get for work with children in the courts.
Lord WINTER BOTTOMMy Lords, I recognise the concern expressed by the noble Baroness. I remember the discussion that we had earlier on this point. Perhaps I may write to her on this subject, but if my recollection of our earlier discussions is correct we felt that the problem we were facing was that there might not be enough professional people available for this particular purpose. However, I think the noble Baroness would agree that the important characteristic of a guardian ad litem should be experience; and so one would hope that primarily a guardian ad litem would be an experienced social worker; not, as the noble Baroness said, a young, inexperienced person, but someone with knowledge of the hard facts of life behind them. The position is not, as I understand it, totally confined to social workers with professional qualifications; a solicitor could also act on the child's behalf.
§ Baroness MACLEOD of BORVEMy Lords, I, like the noble Baroness, am very unhappy about this clause and the way it has been changed since it left this House. I was one who supported the noble Baroness from my own experience in juvenile courts. In juvenile proceedings, when a local authority wishes to take a child into care, or when the police think that a child should be taken into care, the local authority and the child and the parents are three different parties. I have always put back such cases for at least a week so that the child concerned shall be represented, and I always insist that the child shall be legally represented—this is the point the noble Baroness is making —not by a social worker but by somebody who is legally trained. The parents go to (pull with a highly qualified barris- 1270 ter, and it is quite impossible for a social worker, however well-intentioned, to stand up in court against legal arguments put forward by a barrister. I think this point is very important indeed. At some stage in the not-too-distant future I hope that we shall be able to make it absolutely certain that the child shall be represented by a legally qualified person. In my experience of 22 years this is absolutely vital for the child's welfare, I hope the noble Lord will be able to reassure us about this.
§ Lord SANDYSMy Lords, my noble friend Lady Macleod speaks from great experience in courts and in other fields, and, of course, the noble Baroness, Lady Masham, is uniquely qualified to speak on this particular subject, with her constant interest in this particular field. I supported my noble friend on the question of the guardian ad litem, and we appreciate what has been achieved in another place in discussions. Of course we regret the inevitability of the financial aspect, the narrowing of the commitment. Nevertheless, this will not be for all time; it may be that at a future date it will be possible once again to broaden this aspect. I think we should be pleased with what has been achieved in this particular field, and I should like to add my gratitude to that expressed by other noble Lords.
§ Baroness ELLIOT of HARWOODMy Lords, I was under the impression —but I speak without knowing—that in Scotland the guardian ad item is practically always a solicitor or a lawyer, and that it has been the custom to have a separate representative for the child in the cases which have been described as "tug-of-love". I do not know whether it is statutory or simply a custom that the child has a representative in the court, and that in the event of a quarrel between one or other of the so-called parents or guardians of the child, that person is very often a trained lawyer, or someone with legal experience. I know that social workers have been appointed as guardians ad litem,and that, on the whole, it has been successful because nobody appoints an inexperienced young social worker for a job of this kind, but someone who is more mature and has had greater experience. I should like to know, in regard to the Amendments which we have received from another place, 1271 whether it is obligatory for a child to be separately represented. If that has been deleted, then it is a great mistake. The child ought to be separately represented. Whether or not that can be put back, I do not know, and I do not know whether I am misinterpreting the clause.
§ Lord WINTERBOTTOMMy Lords, may I first reply to the noble Baroness, Lady Elliot? As part of the operation that the noble Lord, Lord Elton, mentioned, we decided to remove the Scottish element from this discussion. I hope to discuss the points raised by the noble Baroness on Amendments Nos. 134 to 137, and 168. That is part of the operation of keeping Scotland separate from England, something which in general I do not particularly want to see, but in this area we have different systems of law.
We are really closer to the noble Baroness, Lady Macleod and Lady Masham, than they think, because what we want is a doughty fighter to look after the interests of the child, and this implies experience. I would rather have an experienced social worker in this case than an inexperienced barrister. The situation is that guardians ad litem will be experienced social workers—there could also be solicitors—and they will be appointed from a panel set up by local authorities. No one can say, "I want to be a guardian ad litem". They have to be accepted as a suitable person by the local authority. The child is entitled to a solicitor as well as a guardian ad litem. The child could be represented by an experienced social worker and a solicitor, if the situation were sufficiently grave to justify that. That is the situation in which we find ourselves. I hope that your Lordships will accept this group of Amendments.
§ Lord ELTONMy Lords, I think I am in order in intervening in the debate. The noble Lord, unlike myself, has the privilege of speaking as often as he likes. There are two points to which I should like to revert here. The first is part of a recurrent theme, which is the availability of resources. It must be clear that not every social worker is an experienced social worker, and that even an experi- 1272 enced social worker is not equipped to represent a child in court or, indeed. to detect how the interests of the child may best be represented in court, even if that task is entrusted to somebody other than himself or herself. This, in turn, implies a fairly extensive system of retraining, or in-training, of social workers.
In so far as I can unravel the complexities of Amendment No. 210, which embodies the dates and stages at which different Parts of this Bill shall become effective, this is one of the provisions which rests with the Minister to decide when the time is ripe. I will be asking the noble Lord about other provisions, but I should now like to ask him when he thinks the time will he ripe in relation to this provision, bearing in mind the fact that it is no good declaring a campaign, rather like the King of Morocco, and sending totally unarmed troops into the field.
The other question which it occurred to me to ask in parenthesis—and in the asking of which I may reveal my ignorance—is whether, if you have a worthy and experienced social worker who finds his legal task beyond him, it is within his power and within the means of the service to retain qualified counsel to act for him in court. I apologise for not giving notice of that question. The noble Lord might like to write to me on the second one, but I should like him to say something now about the first one.
§ Lord WINTERBOTTOMMy Lords, this is, of course, a key question. We are living in troubled times, resources are limited, and I would be dishonest if I stated a fixed date for various stages of this Bill to operate. But I can at least give a statement of intent. My honourable friend the Minister of State is at this moment discussing with local authority associations the possibility of partial implementation in 1976–77 of the provisions for separate representation now embodied in the Bill. Implementation would probably be restricted to unopposed applications for discharge or variation of a care or supervision order that is, cases such as the Maria Colwell one. My honourable friend has expressed the view that full implementation of these important provisions should be a high priority for 1977–78. Let us hope 1273 that the country's financial position is such that these proposed dates will be possible.