HL Deb 18 June 1986 vol 476 cc949-56

9.10 p.m.

Baroness Lane-Fox

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Lane-Fox.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STRABOLGI in the Chair.]

Clause 1 agreed to.

Lord Meston moved Amendment No. 1:

After Clause 1, insert the following new clause:

("Amendment of Child Care Act 1980.

. After section 18 of the Child Care Act, 1980 there shall be inserted:

"Complaints 18A.—(1) It shall be the duty of a Local Authority to make arrangements for dealing with complaints made by or on behalf of a child or children in their care,

(2) The Local Authority shall secure—

  1. (a) that children in the Authority's care and their parents are notified of the arrangements made under subsection (1) above; and
  2. (b) that the said arrangements involve a person or persons independent of the Local Authority, and,
  3. (c) that children and their parents have a right to obtain independent advice and representation when pursuing a complaint under the said arrangements.

(3) The Secretary of State may by regulation make provision for the conduct of arrangements made under this section." ").

The noble Lord said: The intention of the new clause proposed in this amendment is to require local authorities to set up a proper procedure to deal with complaints concerned with children in care. The amendment is suggested by the Children's Legal Centre, and the position is as follows.

At present, there are in most parts of the country no established procedures for dealing with complaints about a large number of matters affecting children in care, ranging from the relatively trivial to far more important issues that can arise. They are issues, even the relatively trivial, which can be of considerable importance to the child concerned and which can indeed become a source of friction, tension and unhappiness, both between the child and the adults involved in his or her welfare and between the adults themselves—the parents, relations, foster parents, social workers, and so on.

I will not give the Committee a list of the matters that can arise but perhaps just some examples. The most serious question that can arise in relation to a child in care is of course abuse of that child. Less extreme matters that quite often arise include complaints by foster parents about the removal of a child from their care and control; complaints from parents about the phasing of a child's return to home on trial; decisions about access that fall outside the court's normal jurisdiction; decisions to split siblings; decisions about education, and so on.

Although there are no generally established procedures, there are in some parts of the country varying ad hoc procedures set up by local authorities to deal with, for example, appeals against decisions made at the child's six-monthly review. Both the social services Select Committee inquiry and the interdepartmental working party report into child care law consider that there should be some form of appeal. I quote briefly from paragraph 9.11 of the interdepartmental working party report as follows: Every local authority should have a procedure for handling complaints and resolving disputes on the way it carries out its responsibilities for particular children. In the first place this will amount to reconsideration by social services management. If this does not resolve the complaint, a further channel for challenging decisions or actions should be provided".

The amendment suggests a clause which is quite loosely drawn. There are only three specific requirements; first, that the parents should be notified of the arrangements; secondly, that there should be an independent element so that the local authority would not be judge and jury in its own case; and, thirdly, that the children and the parents have a right to independent advice and representation. There is no mandatory requirement on the Secretary of State to make regulations; simply an enabling provision.

Finally, I stress that it is not intended that the procedure suggested under this amendment should overlap, or intrude into, the courts' jurisdictions. The vital necessity remains for the really important issues to be resolved by the courts. This procedure will provide a forum for other important issues to be resolved—issues which are outside the jurisdiction of the courts or on which it will be generally inappropriate to require the courts to have to decide.

I suggest that a procedure such as is proposed in the amendment will help to defuse problems, maintain standards and provide a further safeguard for children in care. I do not envisage that it will cause undue expense and I would not expect there to be any undue formality in the procedures to be created. I hope that the amendment strikes a chord with the Government. I beg to move.

Lord Ennals

I totally support the new clause and the words used by the noble Lord, Lord Meston. If on Second Reading the noble Baroness had been able to give some idea of when the Government's major legislation will come forward, I would have been reluctant to be associated with an amendment to strengthen the Bill. However, she has not given any idea and it may be two or three years before we have any child care legislation covering a wide range of issues. This particular issue is felt very strongly by parents and, indeed, by most who have looked into it.

The noble Lord referred to the Short report. I was a member of that Select Committee when it was taking evidence. I quote from it: The risk of abuse of power by social workers and other adults concerned with children in care is however sufficiently serious for there to be a need for some means by which a child can contact, without fear of reprisal, their local authority parent". The Select Committee thought that the formal involvement of elected members might offer the best way forward and recommend only that the Department support efforts being made to reach an agreed model for complaints by clients about social services provision". It is certainly my impression that the Government are in favour of the principle of this, although I must not anticipate what the noble Baroness will say. However, as she will realise, there is as yet no statutory duty to provide a complaints procedure about local authority treatment of children in care in general.

The Children's Legal Centre carried out a study of a number of local authorities. There were 63 local authorities which responded to a question on what sort of appeals procedure they had. Only 22 of those 63 said that they had any form of appeal, and of that number several had very casual and ad hoc arrangements or permitted appeal only by professionals. In fact, only a handful had anything approaching a formal complaints procedure.

The purpose of the amendment, as has been said, is to see that parents have an opportunity of making their complaints. I do not believe that most of the Committee would have wanted to go as far as the Bill originally did in giving more power to the courts, but I believe that if we do not give more power to the courts and we leave these powers with the local authority, it is only right and fair that we should create some sort of procedure. I do not think that either the noble Lord, Lord Meston, or myself has sought to define what should be the nature of the appeal procedure, but we believe that every local authority should have one.

Baroness Trumpington

Although I accept the spirit of the amendment and recognise the concerns which lie behind it, I cannot support it. This is a major amendment which would place on the local authorities a new duty on which they have not been consulted, and we are reluctant to proceed with this subject in advance of our own child care legislation. As my right honourable friend the Secretary of State for Social Services announced on 1st May, the Government intend to publish a White Paper in the autumn setting out proposals for child care law, and this issue will be covered in these proposals. The Government believe that this Bill should meet only the most pressing needs in this area in advance of this planned major legislation.

I agree with the noble Lord, Lord Meston, that each local social service authority should have an established procedure for handling complaints about all its services. In general this is a matter for local government rather than for government prescription. The Lambeth model is a good example of a local government doing its own thing. Local government has recognised the need for general guidance, and the Representative Body for England (the local government body that oversees their ombudsman) and the Commission for local Administration (the local ombudsman) have jointly issued to authorities guidance on complaints procedures. What we shall need to consider is whether the position of children is such as to justify an exception from this general policy.

I ask the noble Lords, Lord Meston and Lord Ennals, whether they will withdraw their new clause in the light of what I have just said.

Lord Meston

I am grateful to the noble Lord, Lord Ennals, for his authoritative support for the amendment. I must admit that I am a little disappointed at the Government's response, although I appreciate the welcome of the noble Baroness for the spirit of the amendment. I venture to suggest that the new clause would not have imposed an onerous duty on a local authority and would simply have provided a general framework. But, as the noble Baroness reminded us, there is an excellent precedent in the Lambeth model, which shows what can be done, and such procedure can be successfully set up. We shall have to await the White Paper. She will understand that this is no more than a probing amendment. I have no wish to overburden or to jeopardise the Bill. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Appeals]:

On Question, Whether clause 2 shall stand part of the Bill?

Lord Ennals

I had not previously heard the date on which the White Paper will be published. I very much welcome the statement that the Secretary of State will be publishing it in the autumn. That will enable many organisations that have concerns about various aspects of child care to be consulted and, if they wish, they will in advance be able to put forward proposals to the Secretary of State, though I know that he has a whole pile already on his desk. I entirely agree that it would be unwise to press an amendment, short of those which are proposed by the noble Baroness, Lady Lane-Fox, but I want to welcome the statement made by the noble Baroness.

Clause 2 agreed to.

Clause 3 [Parties to care proceedings]:

Baroness Lane-Fox moved Amendment No. 2:

Page 3, line 26, at end insert—("and 'grandparent" in relation to a child means a grandparent whether of the blood or by affinity and includes, where the child is illegitimate, any person who would be such a grandparent if the child were the legitimate child of his mother and father." ")

The noble Baroness said: I hope that this amendment will be more welcome to the Government. Under Section 107 of the Children and Young Persons Act 1933 the definition of a guardian is someone, who … has for the time being the charge of or control of the child". It would be unusual for the putative father to be in that position.

Clause 3(2) permits in certain circumstances a grandparent to become a party. I realise that there is no statutory or long-established judicial definition of a grandparent. In whatever way the policy is decided, the Bill should make clear whether it is intended to include grandparents whose relationships derives through the putative father of the illegitimate child.

To avoid ambiguity, my amendment defines "grandparent". And it reflects the policy that the grandparents, even of an illegitimate child, should be included. I realise that it may seem odd to confer the possiblity of representation upon the grandparents when it is not being conferred upon the father through whom the relationship comes. I believe that apparent oddity is justifiable.

I said on Second Reading that I recognised that the question of illegitimacy was complex and one which has been the subject of a major report by the Law Commission. That report proposes major reforming legislation and a draft Bill is attached. Its overall conclusion was that the status of illegitimacy should not be abolished, but that all the legal disadvantages of illegitimacy should be removed so far as they discriminate against the illegitimate child. The Law Commission did not think that parental rights should vest in the father of illegitimate children without prior scrutiny of the child's interests by the courts.

The question of illegitimacy and the rights of the putative father are not only complex but contentious, bound up as they are with such questions as society's attitude to marriage. The Bill therefore should not trespass on to those separate and complex questions. The DHSS working party's review of child care law has made proposals on that point. I hope they will be reflected in the more major legislation which is still to come.

I see no reason why we cannot deal now with the grandparents of the illegitimate child. The Bill makes provision for grandparents, and so that nettle has to be grasped. I understand that many of these cases concern illegitimate children, and grandparents of such children are often just as caring and concerned about them as if they were legitimate. Where parental relationships are not stable, the grandparents on the paternal as well as the maternal side can have a great deal to offer the child, including sometimes even a permanent home.

The Bill gives no automatic right to grandparents to become parties. They can only be joined with leave, on grounds to be presribed by rules of court. The grounds will presumably relate to whether the grandparents are concerned and have had or could have an important role to play in the child's life. If there are such grounds, it seems to me that whether the child happens to be legitimate or illegitimate should not be relevant. I am sure that my noble friend the Minister will agree that no matter what is the situation behind it we are concerned with the reality of the child's life and its welfare. Accordingly, I hope that my amendment can be accepted, and I now beg to move.

9.30 p.m.

Baroness Trumpington

I appreciate the concerns which led my noble friend Lady Lane-Fox to table these amendments. Like my noble friend, I am speaking to Amendments Nos. 2 and 3. One lives and learns. At first, my instinct was to go down the same path as my noble friend Lady Lane- Fox. I am sorry that I cannot do so. My main reason is that at present the natural father of an illegitimate child has no right to participate in care proceedings as a parent unless he qualifies as a guardian. That includes cases where he has the charge or control of his child.

The legislation and case law relating to child care and to adoption and fostering recognise only the mother of an illegitimate child as a parent; the natural father is regarded as a relative. The amendments before us, then, would allow greater rights to the parents of the natural father of an illegitimate child than to the natural father himself. These amendments, in allowing such a situation to arise, would be anomalous and would add extra complexity to the law.

My noble friend Lady Lane-Fox mentioned the future question of the whole issue of illegitimacy that is currently under review. My noble and learned friend the Lord Chancellor has already announced his intention to legislate at the earliest opportunity on the Law Commission report on illegitimacy. It would be premature at this stage to take action which would have implications for a wide-ranging review in this area. Moreover, as my right honourable friend the Secretary of State for Social Services has already announced, the Government intend to publish a White Paper later this year setting out proposals for child care law reform and I hope there will be an opportunity before too long for noble Lords to consider a major comprehensive Bill on child care.

In the Review of Child Care Law, the proposal was made in chapter 14.5 that "parent" should include a putative father who wishes to take over custody of the child and in chapter 14.8 that any other person such as a grandparent should be able to take such part in proceedings as the court directs, including being granted party status. How these recommendations will be handled in the White Paper, I cannot of course now tell the Committee.

I think therefore that it is right that we should avoid introducing complex change to this already very complicated area of law at this time. The Government believe that the Bill, as it received a Second Reading on 4th June, is a worthwhile measure which meets the most urgent needs in this area. More major changes are best left to the comprehensive legislation which the Government wish to introduce as soon as is practicable.

I should like to take the opportunity to say a little more about the rules of court, as I indicated at Second Reading. The detail will need to be worked out but I can say that our intention would be for a grandparent who wished to be joined as a party to make an application to the court in writing stating why it would be in the child's best interests for him or her to be made a party. The criteria would be, first, that the grandparent had had the actual custody of the child or young person for such and such a time; secondly, that the court considered that the grandparent had exercised some or all of the parental rights on behalf of a parent or parental duties as related to the person of the child or young person and had maintained a continuing interest in that child or young person; and, thirdly, that joining the grandparent as a party was in the child's best interests.

I hope that this information will be helpful and that my noble friend Lady Lane-Fox will withdraw her amendment on the principle of reculer pour mieux sauter—another day.

Lord Ennals

Before the noble Baroness, Lady Lane-Fox, replies, I must admit that I had supposed that the noble Baroness, Lady Trumpington, was going to say yes to her noble friend. I suspected that the amendments might not have been tabled unless the noble Baroness, Lady Lane-Fox, expected to get a more positive response. I wish therefore to say that I support the amendments very fully. I know that they will not go through.

One of the great advantages of what is acknowledged as a modest piece of legislation is the recognition of the role of the grandparent. It seems to me that to recognise the role of the grandparent but to deny that same role to the grandparent of an illegitimate child is unfortunate. There are strong feelings and indeed a campaign to deal with many troublesome aspects of illegitimacy. This would have been a very nice, little, inoffensive, but very helpful measure if the noble Baroness could have brought herself to accept the proposal of her noble friend.

Baroness Trumpington

Before the noble Lord sits down may I ask him a question? Would he wish for the grandparents of an illegitimate child to take precedence over the father? That is what would happen as things stand.

Baroness Lane-Fox


Lord Ennals

A direct question was put to me. I believe that an illegitimate child is at a very considerable disadvantage, in most cases, by not having a father able to act in any of the normal ways in which a father can act. That is not always so, but it is very often so. Therefore I would not object to seeing a grandparent playing a father substitute role, which is one of the reasons why I warmly supported the amendment.

Lord Meston

Surely the answer to the question of the noble Baroness, Lady Trumpington, is, yes, in circumstances in which the father is a ship passing in the night and the grandparents are potential mainstays for the child in question.

Baroness Trumpington

I do not wish to proceed with this argument. But, quite honestly, if the noble Lords will read with care what I said, they will see that the answer is no.

Baroness Lane-Fox

I must say I am disappointed, though I understand a good deal that the Minister has said to us tonight. She has suggested that we can look forward with a great deal of hope to what is coming. I am prepared, sadly, to withdraw this amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 3 agreed to.

Remaining clauses agreed to.

The Deputy Chairman of Committees (Lord Strabolgi)

The Question is that I report the Bill to the House without amendment.

Lord Skelmersdale

I hate to interrupt the Lord Chairman, but there are still something like 100 amendments to be discussed.

Baroness Trumpington

My noble friend is on the wrong Bill.

Lord Skelmersdale

I apologise.

The Deputy Chairman of Committees

I think that the noble Lord, as the Minister has said, is on the wrong Bill and it is best if he keeps quiet, if I may say so.

The Question is that I report the Bill to the House without amendment.

House resumed: Bill reported without amendment.