THE CHILDREN ACT 1975

HL Deb 30 April 1980 vol 408 cc1359-80

8.6 p.m.

Lord GIFFORD rose to ask Her Majesty's Government when they intend to bring into operation those provisions of the Children Act 1975 which enable parents to be represented and to obtain legal aid in care proceedings relating to their children in juvenile courts. The noble Lord said: My Lords, may I declare an interest as a member of the Bar who has been involved in cases of child care. The Question which I ask concerns the rights of parents to have proper legal representation when their children are to be taken away by the order of a court and put in the care of a local authority. May I begin by sketching the legal background to what I shall he suggesting is a deplorably unjust state of affairs.

On the last available figures, there were a total of just over 100,000 children in the care of local authorities. Of those, some 48,000 were in care following an order made by a juvenile court under Section 1 of the Children and Young Persons Act 1969. That provides that a care order can be made mainly in two cases; either when a child has committed a criminal offence or when a child has been proved to have been neglected or ill-treated, and that comprises a total of some 15,000 children in those figures. Those are cases where the conduct, behaviour and actions of the child's parents are directly in issue, and very frequently the cases are concerning young babies or infant children.

Sometimes the cases concern evidence of direct physical injuries to the child, the child battering cases. These are probably only a minority of the neglect and ill-treatment cases. There is often a much more general allegation of neglect or inadequacy by the parent, and a failure to bring up the child in a proper and adequate way. These are cases which of course go to the very heart of family life. They raise the rights of people to raise their children without interference by authority unless the necessity for that has been very clearly proved.

The extraordinary thing about these proceedings in the juvenile court is that the parents, whose conduct is so directly in issue, are not officially parties to the proceedings at all. The child is a party; the child may have legal aid. The child may appeal if someone is dissatisfied with the decision. But the parents have only a very limited right to answer any allegations made against them. They do not have any possibility of obtaining legal aid and they do not have any right of appeal. One can compare the procedures in the High Court when a child is a ward of court and often very similar issues are canvassed. There the parents are fully parties to the case. They are represented; they can have legal aid and the child is only a party who may be represented by the Official Solicitor in very exceptional cases.

The experience of those involved is that that is much more just, but the result in the juvenile court is confusion and injustice. There is confusion because the child's lawyer is in a dilemma. You cannot take instructions from a baby or a four-year-old. Therefore, the solicitors involved, if they are conscientious, sometimes bring in an outside expert to advise on the matter, but many rely on their own untrained judgments of what is in the best interests of the child. What they do not do is to put forward and have tested by the court the parents' case on the allegations which have been made. The parents are effectively shut out unless either they can pay for a lawyer to represent them—which is a rare case, because we are dealing mainly with those without the means to pay—or they have the good fortune to have a law centre or other kind of free legal service in their neighbourhood.

The same problem arises if a parent wishes to apply to revoke a care order. The parent can do that only in the name of the child. A lawyer is appointed to represent the child, and if the lawyer thinks that the care order should not be revoked the parent has no possibility of making the application. This inevitably results in grave injustice. I do not think I can do anything more apt than to quote from the most recent report of the Lord Chancellor's Legal Aid Advisory Committee for 1978–79, paragraph 43: We cannot help expressing our very considerable concern at the present unsatisfactory state of affairs. It cannot be right that parents should be denied full opportunity to put their side of the case where their capacity to discharge their parental responsibilities is in question and where the court has power to sever their relationship with their child. Local authorities instituting such proceedings are invariably represented by solicitors and produce technical evidence from social workers and other child care specialists. It is hard to see how justice can be seen to he done when the parents are denied legal representation to test the evidence supporting the allegations against them. We also believe that the present solution is contrary to the best interests of the children involved. In some cases solicitors may unwittingly fail to represent the best interests of the child through attempting to represent both the parents and the child. In other cases the solicitor representing the child may pay insufficient attention to the parents' view of past events and future prospects. We have no doubt that local authorities always act in what they consider to be the best interests of the child, but it seems unduly sanguine to assume that their view is always right".

I have quoted in full the very informed and authoritative view of that committee.

In relation to the last sentence of that paragraph, the experience of those organisations which have to deal in this field—the Family Rights Group, the Law Centres Federation and the Justice for Children Organisation—is that local authorities, perhaps over-reacting to child tragedies that have occurred, are these days coming to the court too often with flimsy and unjustified cases. The experience is that where the parents can be represented and where they can have their answers put properly before the court and tested, the drastic solution of a care order can frequently be avoided.

The next remarkable fact is that Parliament sought to remedy this state of affairs five years ago. It provided in the Children Act 1975 that an order could be made by the court granting separate representation to the child and the parents, and that legal aid could be granted to the parents. Those provisions have not been brought into force, except in a very small minority of cases. This is not just a denial of justice; it is a denial of parliamentary democracy that it should take five years without action being taken to bring into force something which has been passed in to law.

There is said to be a complicating factor, in that the Act also provided for a network of guardians to act on behalf of children. It is said that that provision is difficult to operate and may need review; but that need not hold up the bringing into force of the powers to grant legal aid to parents to answer the case which is made against them in these proceedings. That would not be the ideal solution, but it would remedy the worst injustices which take place.

The estimate made by the Government themselves is that would cost about £1 million, and the noble and learned Lord the Lord Chancellor—I am sorry he is not to be the person replying to this debate, because it is from his department's Vote that this money should be coming—has said in a letter to the Family Rights Group: I am sorry to say that there are no resources available".

This is a pathetic excuse. We are talking about a mere million pounds against which should be offset the incalculable but considerable savings that would result to local authorities, because less children would be put into care if the cases of their parents were to be adequately presented to the court. But, quite apart from that, surely there are few kinds of case in which it is more important for justice to be done than for the persons involved to be represented. The consequences of a wrong decision are devastating and irreversible to the parents, to the children and to the community at large, and a Government with any decent sense of priorities would have seized upon this as a glaring need.

I fully accept that the predecessors of this Government have neglected this problem and that they did not implement those provisions; but this Government are now responsible and I would ask them: When are they going to act?

8.18 p.m.

Lord HOOSON

My Lords, it is amazing that the noble Lord, Lord Gifford, has to ask this Question at the present time, because I was on the committee in another place in 1975 when the Children Bill, as it was then, was going through. There was no dispute as to the right of the parents to be represented in care proceedings. It was only then put as a question of doubt whether the economic circumstances of the country would allow the provisions of Sections 64 and 65 of the Act to be implemented.

Now we are in the position that no one can doubt that a parent should be represented in care proceedings. If one is charged with stealing a can of beans from the shelf of a shop, almost as a matter of course one is entitled to legal aid; yet if one is faced with an application by a local authority which could break up a family—an application for a care order—then no provision exists for legal aid to be given to the parents involved. It is really a ludicrous state of affairs. Our sense of priorities is wrong somewhere along the line, and the sole question for the House is not the justice of the representation of the parents in proceedings of this kind, but a matter of whether the economic excuse justifies a refusal for implementing fully the provisions of Sections 64 and 65 of the Children Act.

I entirely agree with everything that the noble Lord, Lord Gifford, put so very well, and I am grateful to him for his brief historical review, which obviates the need for a repetition. But I could not help thinking that though I have no cause for thinking that I have an interest to declare, in that I have never been briefed so far as I recollect in a care order before a court of this kind, I have often appeared in wardship cases. The contrast between the enormous care which the High Court takes in wardship cases, with adequate representation always available for the parents, and the provisions for representation before magistrates, really beggars description. When one hears that there are over 100,000 children in care, 45,000 of them as a result of proceedings under the 1969 Act, it becomes a high priority for any Government to implement fully those provisions to which reference has already been made.

The last Government were greatly to blame, in that they postponed full implementation of Sections 64 and 65, but, as the noble Lord, Lord Gifford, rightly observed, the onus of implementing these provisions is now firmly in the court, as it were, of this Government. Surely nobody can dispute that the true nature of care proceedings by a local authority involves a clash of interest between the parents, usually, and the local authority. How is a solicitor who is briefed to appear for a child who is not in a position to give him instructions, to act? Is he to take upon himself a quasi-judicial role and implement his duty according to his own inclination? Some of them, as I understand it, feel inclined only to go to the local authority for the facts and ignore the parents. Others take it for granted that, because the instructions were originally given by the parents, they should follow the instructions of the parents, though the child's interest and the parents' interest may be in conflict. Or are they simply to go around to everybody, like a bee going to each flower and sucking from each flower, deciding for themselves what are the merits of the case and thus taking upon themselves a judicial capacity? The position of the advocate in this kind of situation is impossible.

In view of the great importance that this country has always attached to family life, the enormous rift which takes place in a family if a child is put into care, and the recently and eloquently expressed modern views doubting the efficacy of care, very often, in this kind of situation, surely the time has come when this Government, and any other Government, must acknowledge that the highest priority should be given now to the legal representation of parents in care proceedings and to the implementation of these sections.

8.23 p.m.

Baroness FAITHFULL

My Lords, I rise to support the noble Lord, Lord Gifford, in his Unstarred Question to the Minister. The Children Act 1975 has 109 sections, of which 35½, if I may so put it, have not yet been implemented and it is not known when they will be. It is now 1980. All of the 35½ sections are important, but there are some which are more important than others, and I suggest that, in the interests of justice, this is one of the most important which has not been implemented. I had intended to talk about the legal aspect, but as that has been so ably done by the last two speakers I shall leave that out, and perhaps as a social worker I may turn to the human aspect.

Twenty years ago, the battered baby syndrome was not understood or appreciated. It was first written about and investigated by Professor Kemp in Canada. It was then taken up by paediatricians, doctors and psychiatrists in this country notably at the Park Hospital, and it has now been fully identified, though. not always understood. In this country at the moment, social workers are in a terrible dilemma and I have been in that dilemma myself. A case is reported of a child who has sustained an injury. You visit the home and appear to find loving, caring parents, and yet the child has an injury. The mother or the father will give you a good explanation of that injury—"He fell down the stairs", or "He was alone in the room", or "I just went out for a moment". You think that you will leave the child in the home and you go away, but two days later the child sustains another injury so you then remove the child. Alternatively, you remove the child and go home and wonder whether you should have removed that child.

The media—and the media may be quite right—have so emphasised these cases in the Press, because, sadly, in our Press bad news is good money-making news and there have been many inquiries into the battered baby which I need hardly enumerate. Unfortunately, it is always seen that blame must be apportioned to somebody. This is how the inquiries seem to take place. Because of the growing number of inquiries—probably quite rightly—because of the growing feeling that blame should he apportioned, there has been a swing towards removing children in order to be on the safe side. This is very important, because it means that some parents may well be suffering when they should not be. On the other hand, we should not blame the social workers, because they have stood to be corrected by so many inquiries and by so many people in the media, that they have come to feel that they must remove the child. Therefore, it is vitally important that this section, to which the noble Lord, Lord Gifford, has referred, should be implemented, so that parents have separate representation from the children.

It is a tragedy that we in this country have so many children in custodial care. According to the rules and regulations, those cases of children in care should be reviewed every six months for a plan to be made. But, sadly, this is often not done and children remain in care for far too long, thus being deprived, ultimately, of parents and family life. I realise that there is a lack of resources and I am sure that this will be one of the reasons given by the Minister. Therefore, would it not be possible, perhaps, to implement Section 32A if not Section 32B as a first step? Obviously, we should all prefer both sections to be implemented. But if there is said to be a lack of resources, could we not implement Section 32A, allowing for separate representation? The present position is not in accordance with justice as we understand it in the United Kingdom.

I wonder whether the Minister will forgive me, if I improve the shining hour and save your Lordships another Unstarred Question in the House, by asking about some of the other sections which have not been implemented. Can the Minister say when it is likely that Section 1(2), providing for a comprehensive adoption service in this country, is likely to be implemented? I appreciate that this involves the approval of voluntary agencies by the Department of Health and Social Security, and that it therefore has manpower implications for the Civil Service. But it is estimated that there are in this country 8,000 children with special needs who are awaiting adoption. The cost of 100 children remaining in care in institutions for five years is £2 million. Surely, with the very good work that is being done at the moment by local authorities, voluntary adoption agencies, the Adoption Resource Exchange, one could look to implementing Parts I and II and thus saving the country £2 million.

Furthermore if this section is not implemented in the very near future, a number of voluntary agencies will go out of business, if I can put it that way. It is the policy of my right honourable friend the Secretary of State to support voluntary agencies. From the point of view of the pathos and sadness of a woman giving up her child, we would hope that the Minister would look at Sections 14 and 16 which cover the freeing of a child for adoption. It would cost nothing, or very little, to prohibit private placements under Section 28.

I make no apology for bringing in some other points under this Act which have not been implemented but which would give a family to children who have no family, and would give parents who have been unjustly treated—as Lord Gifford said—hope that they may care for their own children.

8.31 p.m.

Lord MELCHETT

My Lords, we have had a contribution from the noble Baroness from the point of view of a social worker, and from two noble Lords who have spoken the legal point of view. I should like very briefly to add my voice from the point of view of somebody who was responsible for the Department of Health and Social Services in Northern Ireland for two and a half years. In that period I certainly became very much aware of the sense of injustice, the sense of frustration and the sense of bewilderment that many parents who had had their children taken away from them and placed in care felt because of the lack of legal representation to which my noble friend has drawn attention in this Question.

I was also going to stress, but I will not repeat it at length because the noble Baroness has put it better than I would have done, the twin contradictory pressures which the social services are under. On the one hand there is a growing body of evidence about the inappropriateness of institutional care, or indeed fostering, as opposed to children remaining at home except in cases where it really is justified by the most extreme circumstances at home. All the evidence shows that placement in care is likely to lead to appalling problems in the future for the children who are placed in care. On the other hand, as the noble Baroness said, there are the ever-increasing pressures under which the social services are placed, in my view largely because of quite unrealistic expectations that social workers are able to prevent every child in the country being physically damaged or attacked in any possible way by its parents.

The noble Baroness mentioned the lengthy, long drawn-out and very well publicised inquiries which take place when the social services are alleged to have made the wrong decision. It seems to me that that latter point must inevitably, as the noble Baroness said, increase the pressure on social services to play it safe and to apply to have children placed in care if they feel that there is some risk involved. I regret that; I am sure social workers regret that. I certainly do not blame them. They are under-resourced, under-financed, under-staffed and facing enormous pressures. Nevertheless, it seems to me to give added urgency to the point which my noble friend has raised.

I have the feeling in this debate that a number of us feel that the case that has been put to the Government is so strong that there is no great need to emphasise that but rather that it is necessary to meet the financial argument which I suspect we all feel is going to come from the noble Lord when he replies to my noble friend's question.

A number of points have been made about that. Maybe I could also try a point on the noble Lord. I am well aware that the argument that if you spend some money on X it will save money on Y does not go down particularly well with the Treasury, and even more so when the savings are on one department's Vote and the expenditure on another department's Vote. But in this case it seems to me that the potential savings are so far out of scale with the likely expenditure that that really should not be a stumbling block.

As I understand it—as I am not sure if my figures tally with those of the noble Baroness, and I did not have time to work it out as she was speaking, perhaps the Minister could confirm this for me—and as far as I have been able to calculate it, the cost of keeping the 46,000-odd children who are in care under this particular section was about £115 million in 1978. I say "about"; I wonder whether the Minister has a more up-to-date figure than that because, as I say, that was for 1978.

It seems to me likely on previous evidence of the outcome of court cases where defendants are or are not legally represented that one could expect really quite a substantial change in the outcome of cases. Evidence from previous research into the effect of legal representation on the outcome of cases I do not have at my fingertips, but one would expect the change to be of the order of 10 to 20 per cent.—something of that sort. Assuming it produced simply a 2 per cent. drop in the number of children put into care under this section, there would be a saving of £2.3 million at 1978 prices in a full year—double the estimate of the likely expenditure. That is taking the most modest possible implications of implementing the proposals which my noble friend has put forward. It really does seem to me on that basis that any financial argument which the noble Lord might have been asked before the debate to put to your Lordships really should not be advanced, because it will not hold water.

The financial points are obviously important, and I hope the noble Lords will have been convinced by what I have said on that. It does seem to me that there are other arguments: the argument of natural justice and the other arguments that have been put forward by noble Lords and the noble Baroness are of far greater importance. This is a vitally important decision. The decision to place a child in care will give a local authority complete control over the parents' access to their child. It seems to me to be a growing problem. I heard a representative of the NSPCC say recently that they expected far more cases of children having to be taken into care under this section because of the growing problems of poverty, of unemployment, and because of the cutbacks that have been made in areas like housing and the social services.

It seems to me that fundamentally the system of justice, the delivery of justice would be enormously improved were the local authority to be properly questioned, expertly questioned, about their reasons for wanting to take a child into care, the sorts of benefit they thought would be derived from that step and the sorts of risk which they thought would be taken by leaving a child at home, particularly as I have said because of the overwhelming evidence of the damage that placing children in care tends to do to their future lives.

Also, of course, for those involved—and this was very much my experience as a Minister dealing with complaints, letters and individual cases in this field—the allegations that are made against parents by local authorities are of the most serious kind: allegations that parents are likely to kill their child if the child remains with them. It really does seem to me an appalling denial of natural justice that in those circumstances the parents should feel not only that they have no right to legal representation themselves, but very often that there are two lawyers in the court—the local authority's and the child's—who are actually speaking against them.

For those reasons, and not for the economic ones which may weigh with the Government but which I must confess do not seem to be the most important ones, I would hope the noble Lord would be able to give us a positive reply to what has so far been, and will continue to be, a unanimous debate this evening.

8.40 p.m.

Lord WELLS-PESTELL

My Lords, I recognise that I am in a very vulnerable position because I am sure that the noble Lord the Minister, and I shall not altogether blame him if he does, will have to say to your Lordships—I found myself in this position several times when I was in the department—that it is not possible to implement a large number of the sections of the Children Act 1975. I am not unmindful of the situation because I introduced the Children Bill, as it was then, into your Lordships' House when I was in the department. One often has to take the Government's view, which often is contrary to one's own view. It is no secret among my friends that I experienced a great deal of disappointment when the Government of which I was a member were unable to implement this particular section.

I do not want to deal with the legal aspects because they have been so admirably dealt with, first by my noble friend Lord Gifford and then by the noble Lord, Lord Hooson. What I want to do is to remind the Minister, if it is necessary to do so, that during the passage of the Children Bill we had a long drawn out discussion in your Lordships' House as to what was the most important part and the most important thing. I cannot remember the actual words, but after much discussion there was general agreement in both Houses that the Bill was concerned with the interests of the child. I think the final decision was that the interests of the child were of paramount importance. I want to ask the Minister—it is not that I have been converted; as I have said, it is a view which I have always held—to concern himself with the one important factor: that the interests of the child are of paramount importance.

There is a good deal of anxiety on the part of social workers who are familiar with care proceedings in juvenile courts. Obviously statistics upon this particular matter to which I want to make reference will not be kept, but if the parties were represented in both criminal cases and care proceedings I am sure that there would not be so many convictions and that there would not be so many care orders. Many, many social workers know from personal experience, as I know from personal experience, that if a person is represented then at least the whole of the thoughts and feelings of that individual are put before the bench, or are put before the magistrates.

There have been a good many acquittals in criminal cases which would not have happened if the person had not been represented. I am equally prepared to say, because I believe it to be true, that fewer care orders would have been made if the parents had been represented. But because they were not represented orders were made, often on the grounds that the noble Baroness mentioned—that is, the dilemma facing social workers who feel that they have got to bring these cases because there is an element of doubt in their minds. But it is the court which makes the decision, and the court often makes the decision on evidence that is not all that strong. We are, and have been for years, removing children from their homes far too readily and far too easily.

Different conclusions are arrived at when children or parents are represented. As things are at present, there is a real risk that justice will not be seen to be done; nor will it have been done in some instances where the parents are not legally represented. In care proceedings, the child himself, not the parents, is the respondent. In the normal way, the court would consider the parents as having the child's interests in the forefront of their minds. In care proceedings, however, the issue may well be, and often is: are the parents good, responsible parents? Where the parents' behaviour, attitude and conduct towards the child are in question, then there might be a conflict of interest so far as the child and its parents are concerned.

As we have been told, the child is entitled to legal aid, but unless the parents themselves are in a position to brief and pay for a solicitor and so are in a position to question, challenge and disprove some if not all of the allegations being made about their competence as parents, the court very often has not the best evidence before it upon which to make a judgment. In a letter which I received recently I was told—and I quote: At one time a solicitor representing a child in care proceedings automatically took his instructions from the child's parents, thus ensuring their views were made known to the court. Now lawyers are conscious that they represent only the child. Frequently they will not seek instructions from the parents but will make their own assessment of what case should be put to the court in response to that brought by the local authority". Few parents can afford legal aid, and as yet they are not eligible for legal aid. Parents must of necessity, as things are at the moment, feel at a considerable disadvantage.

My noble friend Lord Melchett made some reference to cost and the Government's attitude towards it. I do not seek to defend the last Government who in this matter were wrong time and time again. If this Government are going to take the same line, I think that they will be equally wrong. We have 100,700 children in care—at least we did on 31st March 1978; I have been unable to get any more recent figures—at a cost of something over £199 million. It means that it costs upwards of £2,000, and in some cases £3,000, a year to keep a child in care.

One could talk about the harm that can be done by taking a child into care. Harm is often done. Professional social workers with many years of experience behind them will say that very often a bad home is better than no family home at all. Of course, some children have got to be removed, but over the years there has been a tendency to take children away because, if something dreadful happens, like a Maria Colwell, there will then be a public outcry and people will be pilloried for not taking some kind of action at a particular time. I think it is important that we should ask the Government to look at this matter.

What is a million pounds in a budget of I do not know how many tens of thousands of millions? I believe it would make justice be seen to be done; I think it would mean that parents would at least feel that their point of view had been put fairly and squarely and fully and frankly to the court. I do not think my noble friend Lord Gifford will mind my saying that I do not think the solution to the problem rests solely with the granting of legal aid to parents, important as that is—and I believe that to be very important indeed. After all, it is their child. They have a right to express an opinion, and if they cannot do it themselves they have the right to have somebody to do it for them. I think we need to look at the care proceedings process as it is at the present moment and what in fact actually happens in court.

The provision in the Act for the appointment of a guardian ad litem has, I believe, not yet been implemented, and I believe the guardian ad litem should be an experienced social worker. I believe I am right in saying that this was envisaged in the discussions that we had in 1974 and 1975, that the guardian ad litem would be a qualified—and I really mean qualified—social worker who would be able to assist the court by producing an independent report. I should prefer to see the two things go together, but if I have to choose I come down on the side of providing legal aid for parents, for the reasons that everybody who has spoken tonight has given.

I lay myself open now to a charge of being political. That is not unknown so far as I am concerned. I do not intend this to be a political criticism but I was reading The Times yesterday and I read this: More children are likely to be physically ill-treated by their parents because of tensions caused by Britain's increasing economic difficulties. That is the view of the National Society for the Prevention of Cruelty to Children". It goes on to say this: The threat of an economic recession, high unemployment, fears of redundancy, rising prices, diminished support from public funds—all these factors add to family tensions and to the risk of children becoming scapegoats". I ask my noble friend opposite not to interpret this as a political criticism, but this is the situation that has been happening, not just since this Government have been in power. It happened long before we had economic difficulties. Very often certain families can stand so much and then there is a crack-up. Sometimes it is only a temporary crack-up but the children suffer.

That is not, in itself, a good enough reason for whisking up children, taking them out of their home and putting them in care. What it needs is for somebody to be able to assess the situation and, what is even much more important, is for the parents, if they should find themselves in that position, to be able to be legally represented, so that the court may be made perfectly clear that this is not something that is general within that family but is a situation which has been caused by some kind of emergency.

I am not concerned with just saving £2,500 a year, although of course that is important, but if we can keep children in their own home they will perhaps get a far better basis and understanding of companionship and family life. I have been in some awful homes when I was a professional social worker—places in which I did not want to spend more than a few minutes; but there was an awful lot of love in between the clouting and the walloping, and I think we must be very careful that we do not remove children unnecessarily. I believe there is that danger unless the court is fully informed of the situation. The court can only be fully informed either if the parents can speak for themselves—and many of them are not articulate enough to do it, but that does not mean that they are bad parents—or if they cannot do it themselves, through the services of a competent lawyer who can do it for them.

I do not know, but I think the noble Lord may well be in a position where he cannot give any undertakings today. I have been impressed by the small number of people who have spoken in this debate, but I have also been impressed by the fact that we are a cross-section. It so happens that we represent the three major parties in your Lordships' House, and I wonder whether the noble Lord will have a word with his right honourable friend the Secretary of State and ask him whether he would be prepared to meet the five of us who have taken part in this debate tonight. He may well feel that it will not serve any useful purpose, but I am sure that if we could meet him we might get the £1 million that we need to do this.

8.56 p.m.

Lord CULLEN of ASHBOURNE

My Lords, I think that was a very interesting suggestion made by my noble friend Lord Wells-Pestell, and I will certainly put it to my right honourable friend and see what he has to say. I am also sure that he will read with very great interest what I think have been extremely interesting speeches from all sides of the House on this matter. The fact that I am not going to make a very encouraging reply is, of course, another point. It might be helpful if I were first to explain the present position with regard to Sections 64 and 65 of the Children Act 1975, the provision which, when fully implemented, will enable courts to grant legal aid to parents so that they may be separately represented in care proceedings.

Section 64 was the subject of much discussion in this House five years ago. Your Lordships may recall that it enables a juvenile court in care proceedings to make an order which will prohibit the parents of a child from representing him or otherwise acting on his behalf in the proceedings if it appears to the court that there is a conflict of interest between the child and his parents. Courts are likely to find that such a conflict of interest exists in any proceedings brought on grounds of ill-treatment or neglect or exposure to moral danger. The order made by the court is sometimes referred to as a separation order or an exclusion order.

Where a court has made a separation order, it may appoint a suitably qualified independent person—a guardian ad litem—to act for the child in the proceedings. Such a person would be expected to bring to bear social work expertise in deciding where the child's best interests lie. When the Act is fully implemented, there will be power under Section 103 for local authorities to establish panels of persons from which courts will be able to appoint guardians ad litem in both care and adoption proceedings. I should make it clear at this point that the appointment of a guardian ad litem to act for the child would not preclude the court from granting the child legal aid so that he may also be represented by a solicitor in appropriate cases. Where both a solicitor and a guardian ad litem have been appointed to act for the child, the guardian ad litem would be expected to give instructions to the solicitor on the conduct of the child's case. After the court has made a separation order, whether or not it appoints a guardian ad litem for the child, it may then, under Section 65 of the Act, grant legal aid to the parents so that they may be represented by a solicitor in the proceedings. It will be clear from this brief explanation of the working of Sections 64 and 65 that the two sections are interrelated in so far as the power to grant legal aid to parents is restricted to cases in which the court has already made a separation-order under Section 64.

This is how the separate representation provisions of the Children Act 1975 would work if Section 64 were fully implemented. However, although Section 65 came into force on 26th November 1976, it has only been possible to bring into force that part of Section 64 which enables parents and children to be separately represented in proceedings arising from unopposed applications for the discharge of care or supervision orders; that is, applications made by the parents which are not opposed by the local authority.

These are proceedings of the kind which led to the return of Maria Colwell to her mother and where the Government of the day felt that there was the greatest danger that the child's interests might not be fully protected because of the local authority's decision not to oppose the application by the parent for the discharge of the relevant order. If I may now direct myself to replying to the noble Lord's Question, Her Majesty's Government do not have any immediate plans for bringing into force the remainder of Section 64 so as to enable parents and children to be separately represented in all care proceedings, including those where the application is opposed. I realise that this will be depressing news, particularly for those Members of this House, who, five years ago, welcomed with such enthusiasm the separate representation provisions in the Children Act.

This House may well ask why we have been able to make so little progress since 1975. The answer lies in the fact that Section 64 has appreciable resource implications for local authorities and the probation service who would be expected to provide from their staffs most of the members of the panels from which courts would appoint guardians ad litem and also because the granting of legal aid to parents would place an appreciable burden on the legal aid fund.

Lord MELCHETT

My Lords, perhaps I may interrupt the noble Lord if he is leaving that point. He spoke of an appreciable burden on the legal aid fund. Would he care to quantify that more clearly?

Lord CULLEN of ASHBOURNE

Yes, my Lords; I will be coming to that. When the 1975 Children Act was passed, the Government of the day made it clear in another place that many of the Act's desirable provisions could only be implemented when additional resources became available. It was recognised that the separate representation provisions involved high cost and that it would only be possible to make a modest start by bringing into force the low-cost provision relating to unopposed proceedings to which I have already referred.

The Government are committed to the main aims of the Children Act and are anxious to bring into force any remaining provisions which do not have resource implications for local authorities, the probation service and the courts. My noble friend Lady Faithfull asked what we might be doing in that respect. The Government have stated that their aim would be the speedy introduction of any of the provisions which are identified as needing no extra resources. They hope that these might include the provisions for approval of voluntary adoption societies freeing children for adoption and approved adoption allowances, because these provisions have frequently been mentioned in representations we have received. No decisions have been made about the timing or order of implementation of other provisions which have resource implications for local authorities.

This must be considered in the context of the Government's overall strategy of controlling the growth of public expenditure.

With this end in view my right honourable friend has set up a joint working party—which includes representatives of the local authority associations—to cost the unimplemented provisions of the Act. The working party is expected to report by the summer and their report will include an estimate of the cost of implementing the remainder of Section 64. But it will come as no surprise to this House to learn that the financial situation of local authorities has worsened since the Act was passed in 1975; and that the prospects of local authorities being able to undertake the work of establishing panels of guardians ad litem is even less favourable now than it was in 1975.

The problem is not simply one of money. Guardians ad litem will need to be persons with a high level of social work skills; persons who will need to examine their social work colleagues' records and possibly question their practice and judgments in particular cases. They will need to have advocacy skills and may have to cross-examine others or stand up to cross-examination themselves, particularly if they disagree with the line taken by the local authority in the case. The number of professionally trained social workers and probation officers with these skills is likely to be limited; so it is not just a question of money but also one of manpower and training.

Then, of course, there is the question of legal aid for the parents who are made the subject of separation orders. The overall cost of providing legal aid in this way would obviously depend upon the number of cases in which courts made separation orders. It is estimated, on the basis of the present number of care cases dealt with in the courts, that such orders might be made in about 4,500 to 5,000 cases a year. In that event the cost of legal aid might very well be of the order of £1 million a year. If it was necessary for parents to be represented separately from each other in some cases, the cost would be correspondingly greater.

My Lords, unpleasant as these facts are, they are facts that we have to face and I must tell this House frankly that, in the light of current constraints on public expenditure, there is little prospect of our being able to bring into force the remainder of Section 64 in the foreseeable future: officials of the departments concerned are, however, considering whether a further partial implementation of Section 64 would be feasible and effective in achieving the objectives of this section, subject of course to the necessary financial resources becoming available in due course.

The fact that parents cannot normally obtain legal aid to be represented in care proceedings does not mean that no help at all is available to them. In the first place, they may obtain legal advice and assistance under the so-called "green form" scheme. Under that scheme a solicitor can advise the parents and prepare their case for them, but he cannot represent them in court. Secondly, I am pleased to say that many law centres help to meet this gap in the legal aid scheme by representing parents whose children are the subject of care proceedings. However, no one would pretend that those sources of help are fully adequate substitutes for legal aid, and I am sure that the House will join me in hoping that, resources permitting, a way will be found to resolve this problem in the not too distant future.

I was asked a question by the noble Lords, Lord Gifford and Lord Melchett. The Lord Chancellor accepts that as a matter of natural justice parents should have legal representation to meet allegations made against them. He has said before that as soon as resources permit he would like to make provision for legal aid to be made available to parents in such circumstances.

Lord GIFFORD

My Lords, before the noble Lord sits down, may I ask two questions for clarification? First, can he confirm clearly that it would be perfectly possible and lawful to implement the provisions of Section 64 regarding legal aid without implementing the guardians ad litem provisions, which could then be deferred to a further date? Secondly, in relation to the mention of a study by officials of the department into the partial implementation of Section 64, is this concerned with legal aid, and how long is this particular study going to take?

Lord CULLEN of ASHBOURNE

My Lords, we should have the study by this summer. I am not sure that I can answer the noble Lord's first question; I think so, but I am not absolutely certain.

Lord JANNER

My Lords, before the noble Lord sits down, may I ask him whether he is taking steps to discuss with the Magistrates' Association the implementation of Section 64, keeping in mind the fact—if he is thinking about the financial aspect—that the magistrates in this country are saving millions of pounds because they give their services free, and the fact that the juvenile panel is very anxious to see that Section 64 is brought into full effect?

Lord CULLEN of ASHBOURNE

My Lords, I am grateful to the noble Lord. I am now able to answer the question that I was asked by the noble Lord, Lord Gifford. It is possible to implement legal aid without guardians ad litem.