HL Deb 20 October 1981 vol 424 cc691-3

2.44 p.m.

Lord Jacques

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government whether they will bring into force the whole of Sections 64 and 65 of the Children Act 1975 so as to put an end to the injustice to parents of meagre means not being properly represented in court in care proceedings.

Lord Elton

My Lords, the Government recognise the desirability of enabling parents to be represented in care proceedings and intend to implement Section 64 of the Children Act in full as soon as sufficient resources become available. Section 65 is already in force, but its effect is limited until Section 64 is fully implemented.

Lord Jacques

My Lords, I thank the Minister for his reply. Will he bear in mind that, in the opinion of many magistrates who hear these cases, there are occasions when there are grave injustices? Is the Minister aware that the cost of eliminating this injustice is so small and that the cost of keeping children in care is so great that there might actually be a saving in total expenditure?

Lord Elton

No, my Lords, I am not aware of that hypothetical situation. I do not think that we should be justified in authorising certain expenditure by the Legal Aid Fund on the basis of a saving which it has not yet been found possible to quantify with any certainty at all and which would in any case accrue only gradually over a number of years.

Lord Jacques

My Lords, is the Minister aware that it is really impossible to have certainty when forecasting future income and expenditure?

Lord Elton

Yes, my Lords.

Lord Wells-Pestell

My Lords, in view of the fact that it does cause very grave dissatisfaction that a certain number of people are in some way or other debarred, is it not a fact that to put this matter right would not cost at the very most more than about £1 million a year?

Lord Elton

No, my Lords, I would not give that figure with confidence. However, I should like to say to the noble Lord, whose concern I largely share, that where solicitors are aware of a conflict of interest between parents and child they are advised not to take instructions from the parents. Parents can get virtually every assistance, short of representation in court, from their own solicitor under the legal aid and advice scheme, and some of them may also have recourse to law centres. For the child, the solicitor is advised to obtain an independent assessment. Increasingly in practice this is made by an independent social worker and is used by the solicitor who will make the child's case in court to determine what will be in the child's best interest.

Lord Hooson

My Lords, leaving aside the question of cost, is it not wrong in principle that the decision whether or not the child is put in care is often determined by a court without the parents having legal representation? If they happen to be inarticulate parents, it does not matter what advice they have obtained beforehand. They cannot put over the case. Is this not a glaring example of an injustice which should be put right?

Lord Elton

My Lords, the case to which I have been referring is one where there is a discrepancy between the interests of the parents and the interests of the child. The provision I have described is relative to that case. I do not think that the noble Lord has made a case beyond that.

Lord Elwyn-Jones

My Lords, is the child represented in the case to which the noble Lord has referred or is it merely a question of a report—I am not dismissing it as being valueless—from somebody in the social services department?

Lord Elton

My Lords, what happens is that, if there is an apparent conflict of interest between parent and child, it is clearly not right that the solicitor should take instructions from the parent on behalf of the child. The child is not capable of giving instructions. The solicitor therefore has to have an independent assessment of the case—not very often from the local authority social workers because they are parti pris, if that is the term. He therefore goes to an independent social worker for an assessment. That assessment will show to him what he believes to be in the best interests of the child and he will make the child's case accordingly.

Lord Elwyn-Jones

My Lords, would it not be much simpler and better for the child to be represented by a solicitor? This second-hand procedure, this hearsay procedure, does not seem to be very convincing.

Lord Elton

My Lords, it is not a hearsay procedure. The child does have the benefit of representation by the solicitor who makes his case in the courts but I share, as do we all, the noble and learned Lord's anxiety that we should proceed to full implementation. But I cannot give a date for that while the resources are not available.