COMMONS AMENDMENTS (Hansard, 31 October 1975)

§ Lord WELLS-PESTELL
My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 79 to 84. I think it will be for the convenience of your Lordships' House if I speak on all the Amendments to Part II—I am sorry, I had forgotten that we had reached Part II. What I want to do—and I hope it will not confuse your Lordships—is to move the whole of the Amendments to Part II, from Nos. 79 to 103.

§ Lord ELTON
My Lords, we agreed that it should be No. 100, did we not?

§ Lord WELLS-PESTELL
My Lords, I am informed now that it would be very much better if we were to finish at No. 103.

§ Lord STRABOLGI
My Lords, perhaps I may intervene briefly because while my noble friend has been working I have checked on this. If we go up to Amendment No. 103 we go up to the end of Clause 40, which is the end of the English clauses. Clause 41 starts the Scottish clauses.

§ Lord WELLS-PESTELL
My Lords, I will speak to them all but I cannot put them en bloc because in fact I have spoken to certain of the Amendments with the preceding ones, so I shall have to move them separately. For the most part these Amendments are minor or technical or drafting in character, but I wish to draw your Lordships' attention to several Amendments which, in the view of the Government, considerably improve this Part of the Bill, either by providing additional protection for children or by clarifying the intention of the legislation. There are, in addition, a few Scottish points which I may refer to.
The first Amendment I think I should mention is No. 84, which inserts a new clause dealing with care, et cetera of children on revocation of a custodianship order. The Government accepted in another place that the Bill did not accord sufficient protection to children who were the subject of applications for the revocation of custodianship orders and that an Amendment was needed to ensure that the court dealing with a revocation application had adequate information and 849 appropriate powers to make whatever orders it saw fit. The general effect of this new clause is to provide that when determining whether to revoke a custodianship order, the court is to consider what result revocation of the order would produce for the child, having regard to the provisions of Clause 39(1) on the revival of rights to legal custody on revocation, and that, if the court has insufficient information for this purpose it is to be required to call for a report. Where the court considers that the operation of Clause 39(1) would produce results that would not accord with the welfare of the child, or that supervision would be desirable, the court is empowered to commit the care of the child to a local authority or to make a supervision order.
Coming now to Amendments Nos. 85 to 88, I have already mentioned the forward references to Part II of the Bill in Clauses 9 and 10. These forward references are linked with the specific requirement which is laid on the court by Amendment No. 85—and that is No. 113 in relation to Scotland—to give particular attention to an adoption application made by a relative or step-parent of the child, including one made jointly by a step-parent and a biological parent.
Amendment No. 85 goes on to provide, by the insertion of the extra words creating a new subsection (l)(a), that where an adoption application is made by a person or married couple who do not have any relationship to the child the court may still make a custodianship order instead of an adoption order, but that in such a case the presumption in favour of the custodianship order is not so strong.
The effect of these Amendments is to alter Clauses 33 and 46 so as to bring them more closely into conformity with recommendation 20 of the Houghton Committee, which was that, where a relative, including a step-parent applying jointly with his spouse applies to adopt a child, the law should require the court first to consider whether guardianship would be more appropriate in all the circumstances of the case, first consideration being given to the long-term welfare of the child. My Lords, if I may come now to Amendments Nos. 89 to 93, these include Amendments Nos. 91 to 92 which are, under my grouping, designed to ensure 850 that the local authority officer reporting to the court on an application for a custodianship order, includes in his report relevant information relating to the members of the applicant's household. Although the duty in considering an application to take account of the applicant's family and household environment was already covered in Clause 36 by reference to the welfare principle, the Government have accepted that among the many matters to be investigated under this provision, the requirement to take account of other members of the household is of sufficient importance to include it in the factor specified in subsection (3).
Therefore, the Government Amendments provide for regulations to be made which will set out in more detail than at present would be possible or appropriate in the Bill, the kind of information that must be included in the report. These arrangements, therefore, will follow the present practice in adoption proceedings where, under the Adoption Agencies Regulations, the agency is required to ascertain so far as is reasonably practicable, for example, particulars of all members of the proposed adopters' household and their relationship, if any, to the proposed adopters.
If I may pass on to Amendments Nos. 94 to 96, they relate to a new clause dealing with the return of children taken away in breach of the restriction in Clause 37, to which I have already referred in dealing with Amendment No. 77. The effect of this provision is to ensure that where children are taken away from persons whose application for adoption or a custodianship order enjoys the protection afforded by the Bill, those persons can recover the child with minimum of delay and maximum of certainty.
My Lords, Amendments Nos. 98 to 103 are technical Amendments, the most important of which is No. 103, which inserts a new clause dealing with the procedure at the magistrates' courts. It is at that point, at Amendment No. 103, that I propose to stop. Therefore, I beg to move that Commons Amendments Nos. 79 to 84 be adopted.

§ Lord SANDYS
My Lords, I should like to address myself to Amendment No. 81, which I think is an appropriate point to commend to your Lordships the problems which were encountered in your Lordships' House on custodianship, which is a whole new concept in English law. One problem which was encountered in the other place, and spoken to at considerable length both in Standing Committee A and during the later proceedings, was the distinction between guardianship and custodianship. Unfortunately, we have no definition in the Bill of "custodianship".
The only reference in the Official Report that I can find is a very helpful distinction drawn by the noble Lord, Lord Wells-Pestell, in the Official Report of this House on 21st January. I hope that it will not be inappropriate to quote it here, because in our thinking, this is a particularly important distinction, and a very important point. The noble Lord said: … whereas a guardian replaces a parent and has responsibilities relating to both the person and the property of the child, a custodian takes over only his responsibilities relating to the person of the child, usually in a parent's life-time, and has no responsibilities relating to the child's property."—(Official Report; 21/1/75, c. 92 and 93.) We have had difficulty with the concept of custodianship. We have also found in regard to the use of custodianship orders and supervision orders the great advantage of the provision in Clause 31(4) that the two may be used in conjunction. I think your Lordships' House has been much obliged for the elucidation which the noble Lord has given of this wholly new concept, and I would commend him for giving it because it has been very helpful to us.