Lords Sitting of 19 December 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.

Unemployment
Baroness Blatch Baroness Blatch asked Her Majesty's Government:
By how much unemployment has fallen since the last general election.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Skelmersdale): My Lords, since June 1987 unemployment has, on the consistent seasonally adjusted basis, fallen by 749,000. It is now at its lowest level for well over seven years.
Baroness Blatch: My Lords, I thank the Minister for that most encouraging reply. However, does he not agree that the problem at present for many employers is that of recruitment and that the challenge is to produce and improve the skills of those who are still unemployed?
Lord Skelmersdale: Yes, my Lords. My noble friend is quite right. That is why we are currently spending £3 billion a year on employment training as opposed to the miserable £750-odd million spent in 1979.
Lord Callaghan of Cardiff: Oh!
Lord Hatch of Lusby: My Lords, can the noble Lord tell the House what would be the figure of today's unemployment if calculated by the methods used in 1979?
Lord Skelmersdale: My Lords, unfortunately I cannot. However, that is immaterial. Since figures are always given on a consistent coverage basis, past figures have to be reworked when changes are made. Therefore, I believe that absolute figures would be misleading. It is important that on that consistent basis the trend is very firmly down.
Lord Callaghan of Cardiff: My Lords, as the noble Lord refers back to 1979 perhaps he could tell us what was the figure of unemployment in 1979 and when he hopes to reduce the present Government's total to that level.
Lord Skelmersdale: My Lords, as the noble Lord, Lord Callaghan, well knows, we inherited a rising figure of unemployment.
Noble Lords: No, no!
Lord Skelmersdale: My Lords, since the noble Lord has asked for that figure, I can tell him that it was 1,089,000.
Lord Callaghan of Cardiff: My Lords. is the noble Lord aware that he is totally incorrect and that in fact he inherited a falling figure of unemployment? Is he not aware that the fall continued until VAT was raised to 18 per cent. in the autumn of 1979?
Lord Skelmersdale: My Lords, I suspect that that is—
Lord Callaghan of Cardiff: Correct!
Lord Skelmersdale: My Lords, to say that that is "misleading" would be to use an unfortunate word. However, I believe that the noble Lord has a faulty memory. I am advised that although the figures were far lower in May 1979 than in July 1986, nonetheless the stoking-up in the economy generally caused those figures.
Lord Callaghan of Cardiff: My Lords, does the noble Lord think that the stoking-up before the 1987 election contributed to the present fall?
Lord Skelmersdale: My Lords, the figure has continued to go down, as I pointed out. My original Answer shows that falls before the election were not temporary as some people claimed. The figure has been going down and, I believe, will continue to go down.
Baroness Gardner of Parkes: My Lords, is my noble friend aware that in the London area it is extremely difficult to recruit staff and that many employers are constantly advertising at great expense and are still unable to find anyone? What can be done to change the regional maldistribution which means high unemployment in some areas and such a shortage of skilled and unskilled people in London?
Lord Skelmersdale: My Lords, there are three steps which can be taken: first, young people's training through the YTS scheme; secondly, employment training for those rather older people who may have been unemployed considerably longer; and thirdly, through employers making sure that the training that is required, both in service and out of service, is provided.
Lord Hooson: My Lords, when do the Government expect the unemployment figure to fall to the 1979 level?
Lord Skelmersdale: My Lords, like their predecessors the Government do not make forecasts. However, there is no reason to suppose that sharp falls in unemployment will not continue, given the strength of our economy. However, your Lordships will note that the Government Actuary's recent report, on which the national insurance fund is based, estimated that unemployment will fall to 1·9 million in 1989–90.
Baroness Turner of Camden: My Lords, is it not a fact that even the Government's own figures show that as regards Scotland the figure of unemployment is 10·7 per cent., in the North it is 11·2 per cent., in Northern Ireland it is 15·9 per cent. and in the North-

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West it is 10 per cent.? Are those not quite unacceptable figures and what is being done about the problem?
Lord Skelmersdale: My Lords, I suspect that the underlying suggestion of that supplementary question is that there is a North-South divide in this country.
Baroness Turner of Camden: My Lords, is there not?
Lord Skelmersdale: But, my Lords, there are many prosperous areas in the North; for example, parts of Cheshire, Cumbria and North Yorkshire and, indeed, part of the computer belt in Scotland. Equally, there are areas of high unemployment in the South. The North's share of unemployment has hardly changed since 1979, and over the past year unemployment rates have fallen most quickly in the West Midlands, the North-West and Wales.
Lord Elliott of Morpeth: My Lords, is my noble friend aware that in the northern region in November the unemployment rate was 11.3 per cent.? Although that is still too high, it is the lowest figure for years. Will my noble friend continue to encourage those policies which have brought about this highly desirable trend?
Lord Skelmersdale: My Lords, yes, most certainly. I was not aware of the precise figure for the north-east of England but I am aware of a garage selling BMW cars in my noble friend's old constituency which over the past 18 months has consistently run out of cars on a month by month basis.
Lord Cledwyn of Penrhos: My Lords, is it not the case that under the Government's new scheme announced last week a man living in Glasgow or in, say, North Wales would be disqualified from benefit if he refused a job in London? Are not the Government reducing unemployment figures without reducing unemployment?
Lord Skelmersdale: My Lords, the Leader of the Opposition is referring to the Social Security Bill which was introduced in another place last week, and we shall have a full opportunity to discuss that. However, I rely on the answer I gave to the noble Lord, Lord Hatch, that, as these figures are calculated on a consistent basis, if there is any change in the underlying entitlement rules to unemployment benefit the effect is worked back over the period of the figures and, therefore, one is interested in the trend at any one time based on consistent figures.
Lord Lloyd of Kilgerran: My Lords, as the Minister thought it necessary to refer to the expenditure of £750 million as a miserable figure, and as it is so helpful to compare like with like, can he say what is the equivalent, at today's figures, of that £750 million?
Lord Skelmersdale: No, my Lords, regretfully I cannot, but clearly £3 billion must be considerably more than £750 million in real terms.
Viscount St. Davids: My Lords, is it not perfectly clear that it is easy to reduce the unemployment figure to zero if it is done by the Labour Party method? That method is to give people useless or feather-bedding jobs. Was not the first rise in unemployment caused by that strange, alien phenomenon of featherbedding coming home to roost?
Lord Skelmersdale: My Lords, I suspect that I am in danger of answering the wrong question in replying to the noble Viscount. However, it has been calculated that there are 700,000 unfilled jobs in the economy at present. I am sure that employers do not advertise those jobs if they do not feel that they are worthwhile jobs which they want filled.
Lord Cledwyn of Penrhos: My Lords, in replying to my question, the noble Lord referred again to the trend. However, has he seen the report of the Unemployment Unit—an independent research body—which stated last week that, if pre-1982 methods of calculation were still in use by the Government today, unemployment would stand at 2,813, 000? What does the Minister have to say about that?
Lord Skelmersdale: My Lords, what I have to say about that is that the figures do not compare with like. If they were fully adjusted it would not matter whether they were adjusted from the earlier point forwards or from the current point backwards. One must look at the steepness of the trend.
Lord Glenamara: My Lords, is the noble Lord aware that those of us who come from the North-East find his remarks on the selling of BMW cars to be obscene? Incidentally, the constituency referred to is now held by Labour, as are most constituencies in the North-East. Will the noble Lord tell the House about unemployment in Sunderland, which is standing at 20 per cent. and the Government are now putting a further 10,000 people on the dole? What does the noble Lord have to say about that?
Lord Skelmersdale: My Lords, regional policy over all governments in recent years has been extremely variable, to say the least. Clearly, I do not enjoy having people out of work, for whatever reason, but my right honourable friends in the Department of Trade and Industry sought carefully to find buyers for those yards but regrettably failed. There was therefore no alternative but to close the yards.
Lord Hailsham of Saint Marylebone: My Lords, is it not true that this rather serious subject is more suited to debate than it is to oral question at Question Time?
Lord Glenamara: My Lords, is the noble Lord aware that last week the House was misled by the noble Lord, Lord Strathclyde, who did not mention that the ferry ships made in Sunderland had been

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sold? Why was the House not told that? It changes the whole picture.
Lord Skelmersdale: My Lords, I really cannot answer that question because, although I have glanced through the Official Report of the debate, I was not in the House so I do not know what was the atmosphere in the House at the time; nor do I know what my noble friend had to say on that issue.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that we fully agree with the noble and learned Lord, Lord Hailsham, that we should have a debate? I hope that the noble Lord will arrange it through the usual channels and in Government time.
Lord Skelmersdale: My Lords, all these matters are for discussion between the usual channels, as the noble Lord the Leader of the Opposition knows full well. Since members of the usual channels are on the Front Benches opposing each other, I am sure that they will have heard the noble Lord's request.

Social Security: Service to Customers
2.50 p.m.
Baroness Blatch Baroness Blatch asked Her Majesty's Government:
What the Department of Social Security is doing to improve its service to its customers.
Lord Skelmersdale: My Lords, the social security reforms that were introduced last April are admitted by claimants and local offices alike to be easier to understand and explain. In the longer term, the computerisation of social security operations will make an increasing impact from mid-1989 onwards in improving service delivery standards.
Baroness Blatch: My Lords, I thank the Minister for a second encouraging reply. Can he suggest when we might see some of the results of the improved efficiency in order that, together with the Government's policy of targeting benefits, those in greatest need also benefit from an improved DHSS counter service?
Lord Skelmersdale: My Lords, as regards accuracy, the improvements are already coming through. As to operational strategy, we are achieving this faster than intended. The completion date has been brought forward by nine months to mid-1991.
Baroness Seear: My Lords, can the noble Lord say what improvements have been made in the training of counter staff who have the very difficult job of face-to-face relationships with people who are often very disturbed and anxious?
Lord Skelmersdale: My Lords, the noble Baroness is absolutely right. As in other jobs involving a face-to-face relationship with the claimant, client or customer, training for those implementing the social security reforms was conducted well in advance. That training is continuous where it can be seen that it will
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be effective in either explaining or utilising the new rules to the fullest extent.
Lord Banks: My Lords, can the noble Lord say what proportion of claims are now being adjudicated within the legal time?
Lord Skelmersdale: My Lords, how long it takes depends on the kind of claim. The fact that the operation is so much simpler both in terms of rules and explanation of the new benefits will mean higher and speedier achievement times.
Baroness Turner of Camden: My Lords, is the Minister aware that many DHSS offices are rather squalid and understaffed places and that poor and underprivileged people often have to wait in long queues for hours before receiving attention and being handed their benefit? Will the Minister give the House assurances that steps will be taken to remedy that situation? Perhaps the Minister himself might make unannounced visits from time to time to offices in some of the more underprivileged areas?
Lord SkelmersdaleMy Lords, that is a valuable suggestion. I have not so far made an unannounced visit. However, I have made various announced visits to social security offices up and down the country. Those will continue. We are increasing our major new works in social security offices at a cost of over £150,000. In 1986–87 we had one such work; in 1988–89 we have 15. There were 11 in the intervening year. We are also more than doubling the capital value of such works from £3 million to £7 million comparing this financial year with the next.

Nurses' Regrading
2.54 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they will arrange for representatives of the Department of Health to meet representatives of the doctors', nurses' and midwives' professions to discuss and agree on the regrading of the nursing services.
Lord Hesketh: My Lords, as my right honourable friend the Secretary of State for Health has made clear on a number of occasions, discussions on this matter are now at an end.
Lord Molloy: My Lords, is the noble Lord aware that the Confederation of Health Service Employees, the Royal College of Nursing, NUPE and all the staff side representatives wanted to go to ACAS to have the whole matter settled but that the Secretary of State forbade management to go there? Is the noble Lord further aware that despite that management has met many of the demands of the nurses but that the Secretary of State has threatened that he will stop the money out of the nurses' Christmas pay packets? Will the noble Lord please comment?
Lord Hesketh: My Lords, a new clinical grading structure has been agreed between the management

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and staff sides of the Nursing and Midwifery Negotiating Council following over two years of negotiations. The Government have honoured their commitment to fund in full health authorities' estimated costs with some £941 million of taxpayers' money. It is now up to the staff side to fulfil its side of the bargain and to deliver what it agreed.
Lord Molloy: My Lords, the Minister has not said why management was forbidden to join in the negotiations at ACAS. ACAS was created to stop the bitter disputes that occur in the National Health Service and in industry generally. Why did the Minister stop the principle and the process of negotiation?
Lord Hesketh: My Lords, the noble Lord, Lord Molloy, earlier mentioned COHSE. I must point out that Ministers are not prepared to meet representatives of those trades unions whose members are taking part in industrial action over the current regrading exercise while such action continues.
Lord Mellish: My Lords, the Minister will be aware that the Ministry lays down that there will be an appeals procedure. Any nurse who is dissatisfied with her grading can appeal. Can the Minister give the House any idea of the number of appeals that have been made, how many were allowed, and what is the present procedure? Are the unions advising their members to use that procedure or not? And if not. why not? Can the noble Lord give more information on this subject?
Lord Hesketh: The noble Lord asks a number of variations on the appeals theme. I shall try to answer simply. We believe that there are considerably more appeals than there should be because a large number of nurses have been encouraged by their trades unions to place appeals regardless. However, we are trying to speed up the process by an arrangement of sifting so that those appeals that clearly concern a case of misadministration can be dealt with quickly and on a priority basis.
Lord Dean of Beswick: My Lords, the Minister said that the present negotiations are at an end. In global terms the settlement appears to be quite generous by any standards. In those circumstances can the Minister tell us how the Government got themselves into such a mess in the negotiations? Is it not a fact that, although the present negotiations may be at an end, in January or February or when next year's award is made the whole procedure will start again? Is it not a fact that my noble friend Lord Molloy has a point in trying to achieve some rationale in the negotiations that will prevent what happened this year happening next year?
Lord Hesketh: My Lords, my initial reply to the noble Lord, Lord Dean, is to say: what a very good question. One of the difficulties that has haunted this problem for the past few months is that quite rightly people possibly have a higher opinion of their own ability than others might judge. I will be the first to admit to suffering from that sensation myself.
Baroness Turner of Camden: My Lords, can the Minister confirm or deny that 14 regional health authority chairmen have been told that most appeals will either fail or be withdrawn? If this is so, does he not agree that such a statement casts doubt upon the fairness and impartiality of the grading system?
Lord Hesketh: My Lords, I am unaware of such a statement.
Lord Molloy: My Lords, does the noble Lord not agree that very often folly is more cruel in consequence than malice is in intent? When the noble Lord reads Hansard tomorrow he will discover that in my first supplementary question I mentioned not only COHSE but also the Royal College of Nursing and the National Union of Public Employees. I now add to that the midwives' association.
Is it not about time that the recommendations of the 1984 review body on nurses' pay were implemented? Is the noble Lord prepared to go to the Secretary of State to ask on behalf of this House for that review to be implemented? That could be the basis of removing the bitterness that has harmed so much of the National Health Service.
Lord Hesketh: My Lords, I can reply to the noble Lord by pointing out that an unprecedented level of increase which equates in real terms after inflation to some 40 per cent. has been the commitment of the Government to the nurses and to the health service.
The Countess of Mar: My Lords, does the noble Lord agree that a great deal of ill will has been generated by both sides, mainly because the definitions in the initial instructions were not clear? I refer in particular to the word "supervision". Would it not be a good idea now for both sides calmly to deal with any appeals as fairly as possible and as quickly as possible?
Lord Hesketh: My Lords, I should like to draw the noble Countess's attention to my earlier answer in which I said that a sifting process has been introduced in order to treat genuine inequality, where it has taken place, as soon as possible. This is part of the process which is now under way.

Coal Mines: Safety
3.1 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What action is being taken to reduce the number of accidents in coal mines.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, in addition to regular inspections by the mines and quarries inspectors, the Health and Safety Commission has begun a programme of revision and renewal of mining safety legislation. Certain new regulations have recently been laid, and work is well advanced on others. While there is no room for complacency, the safety record in British mines is second to none.
Lord Dormand of Easington: My Lords, is the Minister aware that a recent independent investigation of accidents in the North-East coalfield shows that major accidents increased from 1·98 per man shift in 1985–86 to 3·22 in 1987 and that the number of inspectors under the mines and quarries legislation was reduced from 115 in 1979 to 78 in October last year? That is largely a direct result of government action. Does the Minister accept that it is the unreasonable drive for production and profit that is leading to this highly dangerous situation?
Lord Trefgarne: My Lords, I cannot agree with the noble Lord about the general trend which, in regard to accidents in the mining industry, is downwards. I concede that there were two more fatal accidents in the last period than in the previous comparable period. Any number of fatal accidents is too many. But the number is still tiny compared with those experienced in other mining industries around the world. We shall try to improve ours still further.
Baroness Turner of Camden: My Lords, will the Minister ensure that there is adequate consultation with the unions representing the workforce in the North-East to make sure that proper steps are taken to reduce the number of accidents?
Lord Trefgarne: My Lords, yes. The unions are consulted at all appropriate stages in this process, particularly in the drafting of the legislation to which I have referred.
Lord Dormand of Easington: My Lords, did the Minister see the recent outrageous statement by a senior member of British Coal who said, in advocating and recommending longer shifts:
"I see nothing wrong in any man working 10 hours underground"?
As it is 50 years since the last Royal Commission on safety in the mines, and in spite of the information which the noble Lord has given, is it not time for another Royal Commission?
Lord Trefgarne: My Lords, I do not believe that a Royal Commission is the appropriate way forward. But circumstances change, working conditions change and the use of modern technology changes, and it is therefore right that all aspects of employment should be kept under review.

Business
Viscount Davidson: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Trumpington will, with the leave of the House, repeat a Statement that is to be made in another place on assistance to the egg industry.
It may be for the convenience of the House if I announce that the Committee stage of the Children Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Bristol Development Corporation (Area and Constitution) Order 1988 and the Bristol Development Corporation (Area and Constitution) (Amendment) Order 1988 will be taken.

Petroleum Royalties (Relief) and Continental Shelf Bill
Brought from the Commons; read a first time, and to be printed.

Children Bill [H.L.]
3.5 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): 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.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS SEROTA in the Chair.]
Clause 1 [Welfare of the child]:
Lord Meston Lord Meston moved Amendment No. 1:
Page 1, line 15, at end insert ("and whether any improper pressure has been exerted on the child to ascertain his wishes and feelings.").
The noble Lord said: Amendment No. 1 draws our attention to the wishes of children in disputes either between their parents or involving third parties, usually local authorities. Clause 1 provides that the child's welfare shall he paramount. There is nothing new about that. What is new for legislation in this country is that the Bill provides in Clause 1(1) a checklist of factors for the court to consider. That was the recommendation of the Law Commission.
The first factor in Clause 1(2) is,
"the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)".
As the law stands already, the wishes of the child in every case are given due weight according to the circumstances. What is new is the express duty on the court. The purpose of Amendment No. 1 is to protect children from the possible consequences of having the consideration by the court of the wishes of the child being expressly spelt out in this way.
Lawyers discussing with a mother or father client an application or a possible application for residence or contact orders—as we must learn to call them under the Bill—are likely to go through the checklist with the client. The first matter a lawyer will ask about is the wishes of the child. If the parent concerned says that he or she does not know what are the wishes of the child, the lawyer is likely to advise the client to find out what those wishes are. Indeed he may well be tempted to advise the client to make perfectly sure that the child wishes to stay with the mother or father concerned. Even if the lawyer does not give that advice, the client, realising that the wishes of the child are an important consideration, may well be tempted to persuade the child to stay with him or her. The client may well have an ulterior motive, realising that if he or she keeps the child or children he or she may well be able to keep the house as well. One can see the kind of pressure that may be created for the child.
As the law stands, lawyers, courts and welfare offices are already well used to being presented with letters from children (said to have been freely written), tape recordings and even home videos in which the children are said to display their wishes and feelings for the benefit of whoever may be listening or reading. The consequence is that the other parent is likely to allege that the child has been unfairly persuaded or bribed. It is all very common to those who practise in this area
The wishes of the child are important the older the child is. The voice of the child should not be ignored. However, experience shows that children prefer not to have to choose. It has been wisely said that they have a right not to decide between their parents. They want to remain loyal to both parents. Indeed they may well say one thing to one parent and something else to the other parent. They may say one thing in one home and another thing in another home; they do not want to hurt either parent, and what is received is a very mixed message. Many children prefer to say absolutely nothing; they clam up. Some children become very angry at having to choose. Indeed this problem was well put—if I may trouble Members of the Committee by reading an extract from the decision of the Court of Appeal—in the case of Adams v. Adams in 1984. That decision said:
"There was a passage in the welfare report with which I entirely agree, where the welfare officer stressed the importance of not allowing children to feel that they have to take the decision as between the father and the mother, with which of them they shall live. The pressures on children are quite sufficient when the marriage has broken down and one of the parents has left home without putting on them the additional burden of being made to feel that they have to decide their own future. The welfare officer said: 1 think that a decision about custody, care and control should therefore clearly be seen to be made by their parents or the court so that the responsibility does not rest on them.'"
—that is to say, the children.
If the wishes of the children are to be a factor on the face of the Bill, I suggest that there should be a warning in the Bill which prevents anyone being tempted to exert unfair pressure on children. If the balance is struck in that way it will strengthen the value of the child's views and enable the child's views to be communicated to the court through the proper channels; that is, through a welfare officer or a social worker. I beg to move.
Lord Elwyn-Jones: Members on this side of the Committee are in full sympathy with the amendment moved by the noble Lord, Lord Meston. The importance of taking the child's wishes and feelings into account in family and related proceedings has been increasingly recognised by law, and by policy-makers, in recent years. But it is clearly a matter which must be handled with sensitivity and with care. We need to ensure that the children who wish to express their views are enabled to do so, while those who are reluctant are not subjected to pressure.
As a matter of language, I am not sure that I am totally wedded to the language chosen by the noble Lord, Lord Meston—much as I admire his skill in such matters—and perhaps something rather simpler, for example,
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"provided no child should be compelled to express his wishes and feelings",
may cover the point with less complexity.
Perhaps at this stage I should conveniently refer to Amendment No. 7 which provides that:
"Whenever the court is under a duty to have regard to a child's wishes and feelings, or the level of his understanding, Rules of Court shall provide for the procedure to be followed".
That is a matter which the noble and learned Lord the Lord Chancellor may care to contemplate either now or at a later stage of the Bill's proceedings. We fully support the purpose of the amendment, while not being absolutely wedded to the language which has been used therein.
3.15 p.m.
Lord Simon of Glaisdale: Before venturing to comment upon the amendment, perhaps I may disclaim the very kind remarks that were made about me by the noble Lord, Lord Campbell of Alloway, and by my noble and learned friend the Lord Chancellor, on Second Reading. Although of course I have experience of such problems, that was some time in the past and the noble Lord, Lord Meston, is much more conversant with the current practice in such matters.
Certainly throughout my time, and in contradistinction to what was the custom at the beginning of the century, where the child was of sufficient age to be relied upon the courts took into account the wishes and feelings of the child. That is entirely right. However, I venture to think that that kind of matter is much better left to the court without any statutory direction, because circumstances vary almost infinitely.
I entirely agree with the noble Lord, Lord Meston, that there is a danger in all such matters of pressure being brought to bear on the child. I think that that relates especially to Amendment No. 2. I must say that I do not like the amendment. It seems to me impossible that it should go into the Bill as it stands, because what it means is pressure to influence and not to ascertain. As my noble and learned friend Lord Elwyn-Jones said, at present it does not really stand up to examination. Therefore I hope that the noble Lord, Lord Meston, will not press the amendment. I further hope that my noble and learned friend the Lord Chancellor will be somewhat guarded in his response to it.
Lord Renton: The observations of the noble and learned Lord, Lord Simon of Glaisdale, have enabled me to shorten my own remarks, because I agree with what he said. I simply add this. The relevant words in the Bill are as follows:
"A court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child".
Those are fairly widely drawn words. It is unthinkable that the court, in trying to ascertain the wishes and feelings of the child, should not take account of any improper pressure which has been exerted. I agree with the noble and learned Lord in that I do not think it is necessary to write that provision into the Bill.
Lord Kilbracken: This raises an important question upon which I should like to speak for a moment or two. I remember when I was a ward of court, not so long ago as the noble and learned Lord, Lord Simon of Glaisdale, mentioned—namely, at the beginning of the century—but 50 to 55 years ago, when I was 12 or 15. The judge on any important occasion wanted to know what I wanted. To the best of my knowledge on every occasion he made an order in accordance with what I had asked. I found that an admirable arrangement. I must say that neither of my parents ever tried to influence me in any way. I was brought straight from school to the judge's chambers. However that situation does not always apply in the case of every parent.
Although one automatically feels that a child's wishes should be extremely important, I feel that in some cases a great deal of danger can arise. To give an obvious and perhaps foolish example, if you ask a child, "Do you want to go to school this afternoon, or do you want to go to the pantomime?" he will, without doubt, choose the latter.
But more important than that is the fact that a child is enormously influenced, without any improper words from either parent, by the parent with whom he happens to have been most recently. I think that we all agree that a parent who tries to change a child's mind in his or her favour is doing something which is deplorable and is most regrettable. If a child comes from one parent to the court—as he must—he will always be greatly influenced by the parent with whom he has last been. The child's wishes, although highly Important, must be treated with great caution.
I agree with the noble Lord, Lord Renton, who said that the word "ascertain" should be changed to "influence", but I would go further and leave out the word "improper". Any pressure would be improper and should not be permitted.
Lord Campbell of Alloway: I oppose the amendment because it adds words to the Bill without adding substance. That is not a good way to draft legislation. Of course there is a danger, but it is a danger which is well known to the court, and the court is well placed to deal with the danger to which the amendment adverts. In any event, a child is susceptible to his environment and pressure, whether proper or improper, and perhaps that is not entirely the total approach. The child may be influenced, but those are all matters within the competence and expertise of the court. As the noble and learned Lord, Lord Elwyn-Jones, pointed out, there are drafting difficulties with the amendment. However, that is not a problem. I support the concept of the amendment but, having regard to the expertise of judges, surely it is otiose.
Baroness Faithfull: I understand the reason for putting forward the amendment, but like the noble and learned Lord, Lord Simon of Glaisdale, and other noble Lords, I do not agree with it. As my noble friend Lord Renton has said, the Bill advises the court to have regard to:
"the ascertainable wishes and feelings of the child".
First, it is important to know the wishes and feelings of the child; and, secondly, to know that the child has
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been asked. But one matter has been left out. If the court has to go against the child's wishes, it should be explained to the child why the court has done so.
With regard to pressure being put upon a child, in the case of a single parent she or he will fight hard for the child. I give one example, of a small boy whom I removed at the age of six. When he was grown up he told me that for four years he had hated me for removing him from his home, but now that he was 24 he realised that I had done the right thing. Children cannot always say what is the right thing for them. What is important is that they understand.
Lord Prys-Davies: We have great sympathy with the principle of the amendment. What is important however is that the expressed wish of the child should be genuine and freely arrived at. That is one of a number of considerations. I agree with my noble and learned friend Lord Elwyn-Jones that that idea should not be converted into a provision in the Bill. What is important is that when the magistrates or the court come to decide the issue, they should be aware of the child's view, which should be a genuine view. We on these Benches believe that that matter can best be provided for in the amendment tabled by my noble friend Lady David which we shall be discussing later.
Baroness Macleod of Borve: Perhaps I may ask, is it the view that the child should be represented? I know that in most courts the child will be represented separately from either of the parents; but if the child's view is to be known to the court, surely the Committee does not intend that the child should be asked in court what he wants to do. It is important that the child be represented. I believe that separate representation is dealt with later in the Bill. I hope that we do not decide upon the amendment intending that the child himself or herself would have to say what he or she wants in open court.
The Lord Chancellor: The background and reality of this matter was explained by the noble Lord, Lord Meston, when he moved the amendment. There is no doubt that in some cases there is a problem where one parent seeks to influence the child. In practice, there are more forms of influence than pressure; for example, by treating the child well. I have come across cases in which a child has been showered with gifts and other excellent treats shortly before a court case, no doubt in the hope that as a result the child will be favourably disposed towards the person providing the entertainment. That result can be reached by more ways than pressure.
Secondly, as I am sure the noble Lord, Lord Meston, would be the first to agree, the word "ascertain" in the amendment does not fit well with "ascertainable" in the Bill, having regard to the fact that it is proposed that the amendment will follow immediately what is in the Bill at line 15. It would not make a great deal of sense as it stands. Some further drafting would be required.
I suggest that the Bill is best left as it is on that aspect. The Bill does not make the child's wishes absolutely determinative of the matter; it puts the child's wishes at the forefront of the circumstances to which the court shall have regard. That is a valuable

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position for those wishes. It shows how important they are and yet shows that they may not determine the matter absolutely. That has two results. First, the fact that the child's wishes are not made determinative is important. It shows parents that to try to secure the child's support is not a valuable exercise. The less we elevate those wishes the better, from the point of view of making them a goal which a parent seeks to attain by influencing the child by pressure or otherwise. We want the child's free wishes—the wishes of a child as a person in his or her own right in all the circumstances and in as balanced a position as possible as between the parents, if it is the parents who are in dispute.
It is extremely detrimental to encourage the view that a parent who seeks to influence or put pressure upon a child is likely thereby in any way to advance that parent's own interest. The less encouragement for that idea there is the better. I believe that it is damaging and dangerous for the child. We have put:
"the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)",
at the forefront of the matter. I believe that to put in anything of the kind referred to here would be to introduce into the checklist a different kind of consideration. The checklist is intended to draw attention to the matters at which the court should look. I should have thought it was obvious that if the child's wishes (so far as they are ascertained) are in some way improperly influenced, that would be a factor which the court should take into account. But the use of the word "wishes" is quite important in this context. It suggests something fairly deeply held by the child. We have used this phrase in an attempt to underline the point that it is what the child wishes—so far as that is ascertainable by the court—that has to be looked to. The general view which has been expressed by a good number of your Lordships is in accordance with that.
I agree with my noble friend Lady Faithfull that it is important that the child should understand what is going on and what the attitude of the court has been. The experience of the noble Lord, Lord Kilbracken, that the court gave effect to his wishes reflects what would happen very often unless there were some very strong feature in the other direction. The court's practice would be that, where the court was satisfied that these were the child's wishes and that the child was of sufficiently mature years and experience to have wishes, that would probably rule the matter.
I feel that the balance which has been struck in the Bill is a good balance. It takes account of the factors which the noble Lord, Lord Meston, has raised and which I acknowledge are important. They are factors which are quite difficult fully to describe in legislation which takes account of all the possible ways of securing that a child's wishes are in a certain direction. Therefore the matter is best left as it is.
The noble and learned Lord, Lord Elwyn-Jones, referred to Amendment No. 7 on procedure and we shall come to that. I think it may be that a fairly open way of arriving at the ascertainment of the child's wishes is appropriate, depending on what the court
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thinks is best in certain circumstances. As regards representation, we shall come to that also. In many cases I believe that the child's wishes would be ascertained by a reporting officer, a welfare officer or someone of that type who gives an account of what the child has said to him or her. I invite your Lordships not to agree to this amendment. I hope that the noble Lord will feel able to withdraw it.
Lord Meston: I am grateful to noble Lords for their support in this debate, at least of the sentiment underlying this amendment. 1 accept that the wording of the amendment leaves something to be desired and if I come back to the matter at a later stage it will be with improved wording.
The basic proposition which I sought to advance was that if the wishes of the child concerned are to be respected, they are wishes which should not be forced from that child. The pressure and the danger of pressure are well known and they arise in the early stages, before the case gets to court. If the Bill is enacted in its present form, a person looking at it will not necessarily realise that the wishes of the child are not to be determinative of the case. That person will see the wishes of the child as the first in the checklist of considerations for the court. Of course it is unthinkable that a judge would give undue weight to improperly expressed or improperly influenced wishes. But it is not unthinkable that parents will be tempted to exert pressure, as I have suggested.
Therefore with respect to the noble Lord, Lord Campbell of Alloway, I suggest that this amendment or something like it does more than simply add words to the Bill. It adds a warning on the face of the Bill. The child concerned should be spared the pressure to which I have alluded. I hope that this amendment will not distort the checklist, but I accept that the wording leaves something to be desired. I wish to consider the matter further, and for that reason I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Egg Industry: Assistance
3.35 p.m.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, with permission I should like to repeat a Statement about measures to assist the egg industry being made by my right honourable friend the Minister of Agriculture, Fisheries and Food in another place. The Statement reads:
"As I explained to the House on Friday, the Department of Health drew attention this summer to a new and growing problem from salmonella enteritidis phage type 4 linked to eggs, and since August the Chief Medical Officer has been issuing advice to the public. As a result of the Department

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of Health's information, agricultural departments acted immediately with them and the industry to tackle the problem at every point in the production chain. This led, amongst other initiatives, to the publication of codes of practice to apply to commercial and breeding flocks.
"The uncertainty over the implications of salmonella enteritidis has recently caused a sharp decline in egg sales. The Government have decided, in these wholly exceptional circumstances, to introduce the following two short-term measures.
"The first measure will provide a payment to egg packers for the destruction of surplus eggs for a period of four weeks from 21st December. The payment will be at the rate of 30 pence per dozen eggs on up to 1·1 million cases. This will tackle the overhang of eggs in the system.
"A second measure will be introduced to help the industry to reduce the size of the egg laying flock. This will provide for a payment for a bird in the age range 18 to 30 weeks. The scheme will enable up to 4 million hens—roughly equivalent to 10 per cent. of the laying flock—to be called under the supervision of the agricultural departments.
"Taken together, these two short-term measures are designed to assist the egg industry to adjust to the market situation now confronting it. The estimated cost of these two schemes is at maximum £17 million in payments to the industry. There will also be payments which are estimated at £2 million to contractors and local authorities.
"I have been in touch with the European Commission to inform them of the actions we are taking.
"Parliamentary approval for these new measures will be sought in supplementary supply estimates for the agricultural support votes of the agricultural departments, and authority for the payments will rest upon the estimates and the Appropriation Act. Pending that approval, expenditure will be met by repayable advances from the Contingencies Fund. Similar arrangements will be made for expenditure in Northern Ireland. These costs will be found from the reserve, so that there will be no addition to the planned total of public expenditure.
"The Government have been formulating detailed plans for tackling this problem since the new information became available. The two codes of practice were only the start. As I indicated to the House on 1st December and again on Friday, we have been preparing a number of other steps. These will include more stringent bacteriological monitoring of animal protein for animal feed; the registration of breeding flocks and hatcheries for hygiene control purposes; and strengthening the controls relating to imported animal protein.
"I hope that the actions I have announced today, taken with the advertising campaign setting out the advice of the Chief Medical Officer and presenting the facts to consumers, will help quickly to restore order to the egg market in the interests of consumers and everyone working in that important sector of the food industry."
My Lords, that concludes the Statement.
3.40 p.m.
Lord Gallacher: My Lords, I thank the noble Baroness for repeating the Statement made in another place. I agree with her that the hope must now be that the measures she has announced will result for both producers and consumers in the restoration of confidence in the egg industry, and that the unhappy events of the past two weeks or more will soon be behind us. That, as we see it, is as important for consumers as for producers of eggs and those who are working in the industry, for whom the prospects without a restoration of confidence are exceedingly bleak.
On the details of the Statement itself, will the cost to the taxpayer, which the noble Lord Baroness has announced as £18 million, plus £2 million to be paid—
Noble Lords: £17 million.
Lord Gallacher: My Lords, the Statement says the figure is "around £18 million".
Baroness Trumpington: My Lords, I am extremely sorry. The Statement that the noble Lord has received is incorrect.
Lord Gallacher: My Lords, with that correction, is the estimated cost to the taxpayer of around £17 million, plus £2 million to contractors and local authorities, a complete statement in the sense that it includes Wales, Scotland and Northern Ireland as well as England? Is it to be regarded as a finite sum of money? Further, is it finite in terms of time? The essence of this problem is that within the timescale allowed by the Government, the problem should have solved itself.
The noble Baroness made reference to two codes of hygiene for the industry which have been announced and which are on a voluntary basis. In the light of the decision to put this money into the industry, is it still proposed to continue with the voluntary code, or is it intended that at no great distance of time the voluntary code shall become a statutory one?
Turning to the question of public confidence, does not the noble Baroness agree that public confidence in the industry would be restored to some extent if the Government would reconsider their decision to abandon the Institute of Food Research project which has been concerned with just this question—that is, the infection of eggs and poultry by salmonella? I ask the Minister directly whether it is intended to revive this research by way of restoring confidence among the public, or are we to regard it as still being cancelled?
I return again to the point made at Question Time the other day on this matter—namely, the issue of joint statements. We all- accept that where the safety of food is concerned, there is a division of responsibility between the Department of Health and the Ministry of the noble Baroness. We on this side, however, feel that, in the exercise of that responsibility in a very important area where public confidence is of the essence, statements should be of a joint character and we should not be listening to

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statements from one department, which may or may not be wholly acceptable to another department. In a somewhat long career in the food industry, I have had personal experience of going to the Department of Health to hear warnings about the safety of food. Although the trade was represented to a man, the Ministry of Agriculture representatives were conspicuous by their absence. On inquiring why they were absent, we were told blandly that there was not one available given the short notice for calling the meeting. That personal experience illustrates clearly what I regard as the essence of this problem—namely, that public dangers or public warnings should be given jointly so long as the responsibility for food safety is shared.
Can the noble Baroness tell me who is speaking on behalf of the Ministry of Agriculture these days when her right honourable friend the Minister is himself not available to speak? It was perhaps one of the least fortunate aspects of this problem that during the vital two weeks in question the Minister was, quite properly, engaged in Montreal in the GATT negotiations. As there is no Minister of State listed at the Ministry of Agriculture, Fisheries and Food, will the Minister tell me with whom responsibility rests in the absence of the Minister?
Baroness Seear: My Lords, we on these Benches also wish to thank the noble Baroness for repeating the Statement. However, we wish to ask her a number of questions. According to the press, discussions have been going on between the Department of Health and the Ministry of Agriculture for a number of years—long before this particular incident arose—about the whole question of salmonella and health. We are given to believe—the noble Baroness may be able to contradict this—that there have been interdepartmental conflicts on this matter from which the general public is now apparently suffering severely. Can the noble Baroness tell us when the discussions first started to take place, because that must mean that there were people in authority who, long before these recent incidents, were already anxious about the whole question of salmonella?
When did the discussions start? What action was taken as a result of them? If no action was taken, why was no action taken? I support the points already made from the Labour Front Bench. I, too, wish to know the reasons given for cutting back on research in this matter. Will the noble Baroness give us an undertaking that the moneys in question will be restored? Having regard to the £20 million, or £19 million—we understand that the Statement is incorrect and that the figure is £19 million and not £20 million—that is to be spent in compensation, does not the noble Baroness agree that that sum would have been a great deal better used had it been invested in research earlier with the result that these very unfortunate events might never have occurred? Finally, is not this document a quite remarkable example of Civil Service-ese at its most distinguished? What on earth is meant by:
"The scheme will enable up to 4 million hens … to be called under the supervision of the agricultural departments"?
Noble Lords: Culled!
Baroness Seear: My Lords, "called" is what I have in my document. I cannot imagine a more entertaining sight that 4 million hens called,
"under the supervision of the agricultural departments."
Can the noble Baroness please explain that?
Baroness Trumpington: My Lords, I was grateful for the remarks of the noble Lord, Lord Gallacher, concerning consumers and those in the industry. I wish to inform him that the money includes Wales, Scotland and Northern Ireland, as I said, and is finite. We are actively considering making some parts of the code compulsory.
This Statement has already made reference to the Chief Medical Officer of Health. I wish to inform the noble Lord that we are working very closely with the Department of Health. During the absence of my right honourable friend, he charged my honourable friend the Member for, I believe, Central Norfolk with the responsibility for eggs and chickens. I was nominated by my right honourable friend as his deputy. However, as the matter fell directly under the responsibility of the Parliamentary Secretary in another place, and he was dealing handsomely with the matter, it occurred to me that it was best to leave the expert to do the work.
On the question of the registration of poultry breeders, that matter will be statutory. With regard to the situation in Bristol and the work being done there, it has been decided that work on the manipulation of microbial flora of the gut of young chicks should be ceased from April 1989 as the work was at a stage where it was ready for the industry to develop. In other words, the R&D side of the work was over. A small number of companies have participated in collaborative tests with the Institute of Food Research in Bristol. One company is now considering applying this technique commercially. Government financial support for this work will not be lost; it will be diverted to other important microbiological research. The redeployment of the staff involved is being considered by their employer, the AFRC.
The noble Baroness, Lady Seear, asked me when interdepartmental discussions began and what action had been taken. Continuous discussions between MAFF and the Department of Health have been taking place but the specific problem of salmonella in eggs was first raised in June this year.
As regards research into the problem, MAFF commissions around £1 million of research each year into the microbiological safety of food, including salmonella. Studies have been carried out by the public health laboratories and veterinary investigation centres of flocks contaminated by salmonella enteriditis. MAFF, the Department of Health and PHLS have been examining the development of antigens for serological detection of infection in live birds and the effects of different cooking regimes on infected eggs on the basis of scientific information currently available. A working party comprising veterinary surgeons and scientists from MAFF, the PHLS and the industry has been urgently considering what further research might be

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helpful to overcome the problem. Its report is expected soon.
Baroness Seear: My Lords, is the noble Baroness really telling me that there was no discussion and no anxiety about salmonella until this summer? That is not what is alleged in the press. Is she refuting all those press statements?
Baroness Trumpington: My Lords, I hardly ever believe anything I see in the press. Salmonella in poultry has been an on-going problem for a very long time. We are not alone in this country in suffering that problem. Salmonella in eggs is a new problem.
The noble Baroness also asked me what the Government and industry are doing to stop the spread of the disease. Under the zoonoses order salmonella isolates have to be reported to the state veterinary service, which is doing excellent service in investigating every salmonella enteriditis incident and advising the producer concerned how he can best deal with the incident on his farm. We have produced codes of practice for the control of salmonella by poultry breeders and hatcheries and by commercial egg producers. Guidelines for feeding stuff manufacturers are being issued and will be followed by a full code of practice.
Lord Boyd-Carpenter: My Lords, can my noble friend say—
Lord Walston: My Lords—
Noble Lords: Order!
Lord Boyd-Carpenter: My Lords, I think it is the turn of this side.
Lord Belstead: We take questions from the official Opposition and the Liberal Democrats. After that it is a question of whether somebody on my noble friend's side of the House or the side of the noble Lord, Lord Walston, speaks. I think that on this occasion it is the turn of the Conservative Benches and then the SDP.
Lord Boyd-Carpenter: My Lords, in the light of the substantial payment to help the industry in its difficulties and the fact that the problem has been known for some time, can my noble friend say whether or not the industry itself has taken initiatives to deal with the dangerous defects in its product, some of which your Lordships will rather painfully remember arose last May?
Baroness Trumpington: My Lords, the industry has been collaborating with MAFF every step of the way.
Lord Walston: My Lords, I apologise if I was out of order in my intervention, but it was my understanding that after the two main opposition parties had spoken the spokesman of the other opposition party, the SDP, was entitled to speak. However, I bow to the ruling of the Leader of the House. Perhaps I may ask the noble Baroness one or two questions with particular reference to research.
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But before I come to that point I should like to ask whether she can give us any further information other than that which is contained in the large and somewhat expensive advertisements as to just how safe eggs are, and what is the risk for an ordinary person eating an egg cooked in a normal way? Is it something to be very nervous about, to ignore entirely, or to be careful about?
Secondly, can the noble Baroness tell the House how much research is being carried out, and where, into the spread of salmonella in poultry flocks, the method by which it is transmitted from the hen to the egg, forms of protection for the hen and how to prevent the transmission of infection into the egg? How easy is it to find out whether or not an egg is infected without breaking it open?
Finally, can the Minister tell us what expenditure there has been over the past few years—five years, three years—on research into poultry diseases in general and salmonella in particular? Can she also tell us whether research has been increased, particularly since the events of last June to which she referred, or diminished, and if so by how much?
Baroness Trumpington: My Lords, if the noble Lord had seen our advertisement in the newspapers he would have the whole picture regarding the safety of eggs. For the average person the risk is very small indeed, particularly when one considers that 30 million eggs are eaten—
Noble Lords: Were eaten!
Baroness Trumpington: Quite right, were eaten, every day, totalling 9 billion per year. If you are very old, very feeble, a small child or not well, more care should be taken: the cooking of eggs should be thorough and raw eggs should be avoided. In the event, the eating of eggs by the general public will, I hope, continue as it has in the past.
Investigations carried out recently have shown that enteriditis has the potential for trans-ovarian transmission. I have already spoken at length about what we are doing in terms of research and the fact that £1 million a year is spent on microbiological research, which includes work on eggs and poultry. I also said that discussions were taking place between various bodies at the moment to see what further research could usefully be done. It would be premature for me to announce anything while discussions are continuing.
Lord Rea: My Lords, does the noble Baroness remember that we held a debate in this House in January 1984, nearly five years ago, in which the subject of salmonellosis in man and animals was discussed. Her noble friend the Leader of the House will doubtless remember rather better than she does, since he answered in the debate. In that debate a number of us suggested that controls for protein feedstuffs—one of the main problems in salmonellosis in poultry—should be tightened up.
Do the Government not feel that a lot of money might have been saved, quite apart from the unpleasant illnesses throughout the country and in your Lordships' House which might have been

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avoided, if the Government had heeded the advice of some of those experts who spoke in that debate? This House contains a number of people who are eminent in their field, and I believe that the government of the day ignore their advice at their peril.
4 p.m.
Baroness Trumpington: My Lords, it is possible that home produced or imported feedstuffs can be contaminated with salmonella. Producers should demand that feedstuffs be prepared in a way that minimises the risk of salmonella contamination. The Diseases of Animals (Protein Processing) orders and the Importation of Processed Animal Protein orders require that protein derived from animals and intended for inclusion in feedstuffs be free of salmonella. Discussions are taking place between the MAFF and feed manufacturers, integrated poultry producers and the rendering and feed supply industries with a view to agreeing and implementing a code of practice aimed at reducing the risk of contamination of final feedstuffs by salmonella. Preliminary guidelines will be put out shortly and a full code of practice will follow.
I do not wish to comment on what happened five years ago. I prefer to answer about what is happening now.
Lord Nugent of Guildford: My Lords, I thank my noble friend for the announcement of the measure of compensation that has been offered to the poultry industry. However, is she aware that a cull of 10 per cent. of the existing laying flock is unlikely to be sufficient to bring supply and demand into balance? It is much more likely that a cull of 30 per cent. will be needed. Will she be good enough to take back to her right honourable friend the Minister the view that greater compensation will be needed than that which she is proposing on the cull of the flock if the poultry industry is to be saved from disaster?
With regard to the action that it is proposed to take, is the noble Baroness aware that it must start with the grandparent stock? Most of the laying birds in this country come from hybrid crosses, which are mainly from American hatches, and the grandparent stock is quite a small base. Blood testing of all that stock is needed so that it can be discovered which birds are genetically affected with salmonella. Is that possible? Is she satisfied that the blood test that can be done for salmonella is satisfactory? Can that measure be put in hand? If so, it would quickly eliminate the main source of the salmonella, which is obviously genetic, and would put us well on the road to recovery.
With regard to the animal feeding stuffs, does she agree that it is now essential to prohibit the use of poultry offal and poultry deep litter in feeding stuffs, as clearly that is one of the main sources of continuing infection in the laying flock? Can she tell the House whether she has put measures in hand to ensure that that happens?
Baroness Trumpington: My Lords, of course I shall report to my right honourable friend the noble Lord's
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remarks concerning the 10 per cent. I am well aware of his expert knowledge in this matter. We very much hope that the demand for eggs will rise quickly.
With regard to the blood test, I shall report the noble Lord's remarks. Tests, however, take time and while they may be very admirable, we are trying to do something urgently. As my noble friend is probably aware, there is no simple and sensitive blood test for enteriditis in individual birds. The test would only be of value on a flock basis.
As for the prohibition on poultry to which the noble Lord referred, I am not sure that it is practicable. It is used in feedstuffs of varying kinds and protein processing kills all salmonella.
Lord Hylton: My Lords, the noble Baroness referred several times to continuing research in microbiology. Will that include research into the incorporation of antibiotics not only into poultry feed but also into the feeding stuffs of other livestock? I believe that it is essential for that kind of research to be independent and therefore presumably government-funded. It should not be dependent on the vested interests of either chemical and antibiotic producers or farmers.
Baroness Trumpington: My Lords, I have already mentioned the group that is now looking into the varying ways in which it believes that research can be helpfully used. I point out to the noble Lord that we have a statutory duty to undertake basic and strategic research and work of a public good which includes the health of people as well as of animals.
Lord Paget of Northampton: My Lords, if I understood the Minister aright, the object of the exercise is to rescue the poultry industry from the jam which it has got us into. Why do we have to be so gentle about it? We should not be the broad givers; we are the injured party. We find that the eggs which were sold to us were poisoned eggs. That has been going on for a long time. What is going to be done about us?
Baroness Trumpington: My Lords, the transmission of salmonella to eggs is relatively new in poultry. In duck eggs it has been an established fact for a long time. However, the egg industry has suffered a loss of half of its market in a matter of days. Producer-prices to packers have dropped in a fortnight by 20p per dozen to 17p per dozen this morning. That is an unprecedented collapse of the market which the industry cannot be expected to weather without assistance. It does no good for us to destroy an industry.
Lord Cledwyn of Penrhos: My Lords, like every other noble Lord who has taken part in this exchange, I welcome the steps taken by the noble Baroness's department. However, it seems that a very large area of uncertainty remains. Can the noble Baroness give the House a percentage figure for the poultry stock of the United Kingdom that is thought to be infected at the present time? She is uncertain about the eggs that may be eaten at the moment and has given a very stern warning that raw eggs must

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not be consumed. Am I right, therefore, in assuming that her department believes that the major percentage of the stock is contaminated at the present time?
Finally, in view of the uncertainty and the urgency of the matter—and because this situation affects a large number of people, both producers and consumers—can she say when the Government will be in a position to make a clearer Statement than has been made today by her right honourable friend? It should be a Statement which will clarify the position and therefore bring back confidence to the general public and consumers in particular.
Baroness Trumpington: My Lords, I regret that I am not able to tell the noble Lord the percentage of poultry stock that is infected. It is not known. As I said before, there is no test for live birds.
As regards making a clearer Statement, it is extremely difficult to clarify the matter. I understand what may perhaps be the noble Lord's bewilderment when so many speculative numbers have been given from so many different sources. We are sure that there have been 51 outbreaks affecting about 1,000 persons. Other figures are purely speculative. They cover all the salmonella poisoning of people. It may not have come from poultry or eggs; It may indeed have been brought back by people returning from holiday abroad.
It is extremely difficult to put things down in a totally definitive way. No doubt more information will become available and when it does my right honourable friend will immediately make it available for Parliament if so required.
Lord Cledwyn of Penrhos: My Lords, is the noble Baroness in a position at least to tell the House that her department, with the full understanding of the Department of Health, is at present conducting a detailed inquiry, and very strong research and study which will in due course produce a report that will clarify the positon? If that study is taking place, when does she think a report will be forthcoming? Will it be in three months, in six months or after what period?
Baroness Trumpington: My Lords, as the various professionals are engaged in trying to decide which is the best method to pursue, with quick results, I am unable to tell your Lordships when a report will come out. I can only assure your Lordships that both my Ministry and the Department of Health are working very closely together and are making every effort they possibly can to make sure that the safety of the future is as best guarded as it possibly can be and that we have undertaken the necessary research.
Lord Jenkins of Hillhead: My Lords, while awaiting the results of this research, am I right in recollecting that earlier in her replies, the noble Baroness attempted to restore confidence in the industry by saying that nine eggs in 10 were probably safe? Did she really mean to say that there was one chance in 10 of catching salmonella poisoning from eating an egg? If that is not the case, would she like to correct it before it causes further difficulty?
Baroness Trumpington: My Lords, I apologise to your Lordships. I use the strangest English. Of course it is not one out of 10. I hope that that will suffice. I apologise most profusely.
Lord Renton: My Lords, might it help to allay anxiety and recreate demand, even in a small way, if I ask my noble friend whether she is aware that I was one of the sufferers from salmonella in your Lordships' House last summer; that being an octogenarian I am technically elderly; and that I have eaten eggs every single day since I recovered without any further ill effects? Has there not been gross overreaction in this matter?
Baroness Trumpington: My Lords, even with my peculiar English, I should like to say to my noble friend how delighted we all are to see him in such blooming good health.
Baroness Seear: My Lords, does the noble Lord, Lord Renton, consider himself safe against salmonella? I think the people who have had it are the only ones who are safe to eat eggs.
Baroness Trumpington: My Lords, I hope that that applies if the noble Baroness, Lady Seear, ever becomes infected by salmonella; I would not wish it on her. But suppose she alone were to be infected as opposed to the outbreak which took place in your Lordships' House, would she have informed the public health service that she had had a very unhappy illness? There are so many people who may have had salmonella. That is why I say that all these figures are speculative, but the risk is very small compared with the number of eggs eaten.
Baroness Seear: My Lords, if the answer to the question which the noble Baroness put to me is, "No, I would not have informed the public health service", what she is telling us is that the position is very much worse than we thought.
Baroness Trumpington: My Lords, I am trying to tell the noble Baroness that the figures which have been given are speculative.
Lord Kennet: My Lords, the noble Baroness has told the House of her hopes that the demand for eggs will very soon increase again. I am sure that the House shares that hope.
Is it not the case that the demand will increase when the problem has been dealt with? The noble Baroness has announced many measures and research plans. She has not announced a plan for dealing with the problem. We must assume that the Government have a plan. If so, what is its time-scale and when does she hope that it will be possible for the chief medical officer to withdraw his warning about the dangers of eating eggs? That is the point, is it not?
Secondly, while we may welcome this new and beneficent policy of subsidies for industries in difficulties, how long will it be before the Government have to pay compensation to motor manufacturers when they are forced to recall a production run of cars which have been found to be dangerous?
Baroness Trumpington: My Lords, this scheme is simply designed to help the industry in what are totally exceptional circumstances. It does not constitute a precedent of any kind. Nor does it imply acceptance of any form of liability by the Government for the current difficulties in the egg market.
Lady Saltoun of Abernethy: My Lords, is there any possibility of pasteurised egg also becoming available to the general public as well as to the catering industry, as I understand is the case at present?
Baroness Trumpington: My Lords, that is a question which can be answered only by food retailers.
The Lord Privy Seal (Lord Belstead): My Lords, we have had a good go round this course. I beg to move that we now again resolve ourselves into a Committee on the Children Bill.
Moved accordingly, and, on Question, Motion agreed to.

Children Bill [H.L.]
4.16 p.m.
House again in Committee on Clause 1.
Baroness David Baroness David moved Amendment No. 2:
Page 1, line 25, at end insert—
("( ) Where the court has ascertained the wishes and feelings of the child under subsection (1)(a) above, and is satisfied that the child has sufficient understanding to make an informed decision about the issue in question he shall be entitled to determine it, unless the court considers his welfare would be prejudiced if he did so.").
The noble Baroness said: The purpose of this amendment is to bring into statute the principles of the Gillick case. Members of the Committee will probably remember that I raised this matter at Second Reading. I reminded the Chamber of the view expressed by the Cleveland inquiry that the child is a person not an object of concern. The aim of this amendment is to strengthen older children's rights to determine decisions affecting them along the lines of common law principles reached in the 1985 House of Lords ruling in Gillick v. West Norfolk and Wisbech Area Health Authority. The court is already under a duty to have regard to the ascertainable wishes and feelings of a child:
"in the light of his age and understanding".
This amendment seeks to give more precise guidance to the exercise of that duty.
The amendment uses the phrase,
"sufficient understanding to make an informed decision",
which is already used in the Bill in relation to children's rights to consent or refuse medical treatment. That is in Schedule 3, paragraph 4(4). It also recognises that the court's duty to give paramount consideration to the welfare of the child (Clause 1) must be final in any matter where the court has power to make an order affecting a child.
The amendment will affect the four Section 7 orders available to the court in family proceedings which prescribe parents' rights over children, and care and supervision proceedings where local authorities are given parental rights. The noble Lord, Lord Scarman, said in Gillick:
"The underlying principle of the law is … that parental rights yield to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision".
There are many decisions about children, in particular about custody and access, where there is no clear indication as to how their welfare will best be served. Indeed, where older children are involved, courts often recognise that there is no practicable alternative to upholding their wishes. Forcing them against their will to see or live with a parent would be entirely counter-productive. That has been recognised by a number of other countries. For example, in the state of Ohio the court must honour the preference of a child aged 12 or over in custody decisions. In Georgia and Australia the wishes of 14 year-olds and over prevail. In West Germany children over 13 have the right to refuse contact with the non-custodial parent. The Bill already prevents a Section 7 order being made on a 16 or 17 year-old unless the court is satisfied that the circumstances of the case are exceptional. A care order cannot be made in the case of a 17 year-old. This amendment does not specify age-based criteria.
The Gillick ruling upheld the sensible view that there are great differences between children as to when they attain the emotional and intellectual maturity to take difficult decisions about their lives. As Lord Scarman said:
"The law relating to parent and child is concerned with problems of growth and maturity and the human personality. If the law should impose upon the process of 'growing up' fixed limits, where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change".
The Bill goes a long way in upholding the rights of children. I hope that this addition will find sympathy with noble Lords. I beg to move.
Lord Renton: With deep respect to the noble Baroness, Lady David, I hope that my noble friends will not accept this amendment. The idea behind it, so far as I have been able to understand, is that the child should have the last word. I do not think that the child should be allowed to shift the responsibility on to itself and that the courts should accept that proposition. After all, there are children and children. Some children are sincere and good; others may be highly motivated in an undesirable way. The wishes and feelings of the child, even if it has sufficient understanding to make an informed decision about the issue, should not be the only consideration. This amendment, I fear, would make it so.
Lord Simon of Glaisdale: The noble Baroness at Second Reading referred good-humouredly to the fact that she had been preceded by four lawyers. Lawyers are deeply interested in the Bill but I think every one of us feels that lay people who are experts in the social background should make the major contribution. It is therefore with misgiving that I find

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myself opposing this amendment, the first put forward by the noble Baroness.
The preceding words of the Bill direct the attention of the adjudicating body to a number of factors. It seems quite wrong to isolate one item out of many and make it conclusive. It is all the more dangerous in view of the background to the whole of the discussion on Amendment No. 1, so clearly outlined by the noble Lord, Lord Meston.
A child is easily influenced and it is not only in this branch of the law that the law takes cognizance of that fact. When a child complains of a sexual assault, a judge will always warn the jury that it is unsafe to act purely on the say-so of the child because children are so easily influenced.
Time and again adjudicating bodies in this field have come across cases where one has felt that the wishes of the child as expressed—however expressed—reflect deeply the feelings of the person who has had the custody of the child. Time and again one is told that the child has an invincible repugnance to the other parent. That will always put an experienced judge on warning because it is not really natural for a child to have an invincible repugnance to a parent. Indeed, the whole social background that has been fostered encourages children to love and respect both parents. As I say, time and again one finds a plea of invincible repugnance to the parent who is non-custodian.
In my respectful submission, that reinforces the undesirability of isolating one among many factors and making it conclusive. I hope that the noble Baroness, having made her position plain and having vindicated in her argument the right of a child to be able to express its view, will not feel it necessary to press the amendment.
Lord Meston: This amendment begs the question of when a child has sufficient understanding to make an informed decision. I understand the noble Baroness to have made a conscious decision to leave out any specific age, as is sometimes done in other jurisdictions. However, the amendment assumes that the child will reach an age when it can think as an intelligent adult. It must be recognised, and it is recognised in practice, that the wishes of the child and the best interests of the child do not always coincide. That is why the wishes of even teenage children are not conclusive in these cases. It is well recognised that children can form an exaggerated hostility to one parent, sometimes consciously or unconsciously instilled by the other parent. When one arrives at what the noble and learned Lord, Lord Simon of Glaisdale, described as an invincible repugnance, there have been cases where the court comes to question the suitability of the parent who has instilled that repugnance, however much the child says that he or she wishes to remain with that parent.
There is one other problem with the amendment. It refers to child in the singular. The position is sometimes reached that an older child of a family wants to go with the father while an overwhelming case exists for the younger child to stay with the mother. In those circumstances the court is faced with a very difficult question: should the elder child's wish prevail with the result that he or she goes to the
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father and splits the family; or the elder child's wish prevailing, does that mean bringing the younger child with him or her, that being the only way to avoid splitting the siblings? These cases are not simple. And it is, I would respectfully say, over simplistic to allow the wishes of a child in such circumstances to be conclusive. As the noble and learned Lord, Lord Simon of Glaisdale, has said, the effect of this amendment would be to give too much prominence to one of the items in what is intended to be simply a statutory checklist.
4.30 p.m.
Lord Hailsham of Saint Marylebone: I make no apology for being a lawyer—or, to be more exact, having been one. I have not got anything like the judicial experience in this field of my noble and learned friend on the Cross-Benches, nor the up-to-date practical experience of the noble Lord who has just addressed the Committee. However, I must say that my own experience, such as it is, extends over a very long time and leads me to prefer the text of the Bill as it stands to the amendment which has been proposed by the noble Baroness, for the sort of reasons which have already been stated.
My own experience is that, as the child grows older, the court, in deciding questions which come before it, will pay more and more attention to his expressed wishes. From about the age of 12 until very nearly the age of majority the court will In many cases treat them as conclusive. But the amendment goes against one of the fundamental principles in this Bill. The overriding principle ought to be, and is, as it has been for many years and will be if this Bill passes into law, that the decision is ultimately determined by the welfare of the child, viewing every possible relevant circumstance.
My noble friend Lord Renton said that there are children and children. With that I agree, but there are also issues and issues. Some of the issues which the court has to determine about the future of children have a greater relevance, while others have less relevance, to the wishes of the child. Indeed, sometimes it may be the painful duty of the court to act contrary to the child's wishes about some matter affecting its welfare. Therefore, simply as a matter of jurisprudence, I would myself vastly prefer the Bill as it stands to the proposed amendment.
However, I should like to say this to the noble Baroness. I entirely agree with the intention underlying what she said. The older the child is, the greater the weight that ought to be paid to its wishes in matters of parental preference. The factor, which is a voluntary factor under the Bill, is one which a wise court will do well to consider, with the importance increasing with the age of the child. With that I entirely agree.
Baroness Phillips: I should just like to put the record straight on one point. Each professional approaches the child from a different standpoint. I approach the child as a teacher; and it is my experience that the small child is eminently truthful. It is we who gradually corrupt the child. Anybody who has asked a small child a question such as, "Do I look nice in this coat?" will know that the child may

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say, "No, you look awful". No adult would answer the question in that direct way because they have learnt to speak with two tongues.
It is my experience that the small child is extraordinarily truthful. I think it would be most unfortunate if we concluded that the only time we are going to get the truth from them is when they reach a certain age. The intelligence of the child seems to me to have been very much underrated here. I find it most disturbing.
As I read it, we are not laying down that they must do any of these things. The wording merely says that this must be a paramount consideration; so surely, bearing in mind the strictures we have received many times from the legal profession, that it is better to have too much put into an Act of Parliament than too little, there can be no real objection to including this. From my experience of the Family Division there was always an understanding—most peculiar—that preference should be given to the natural mother. But 25,000 cases of child cruelty suggest to me that there are a lot of unnatural mothers. They produce the child, but certainly they may not be the right person to bring it up.
I am very glad that Princess Anne had the honesty to speak out and say that some people do not actually like children. One has not always been allowed to say such things. So I think we have to be careful to give every opportunity to the child. I would rather over-emphasise that than under-emphasise it, because I think it is extremely important when it comes to a decision concerning a separation, which is going to have terrible effects from whichever viewpoint.
Lady Saltoun of Abernethy: I must just take issue with the noble Baroness over one thing she said about small children always being truthful. I think there are circumstances in which very often they are not truthful. One is when they are frightened; and if they are frightened of somebody they will often be frightened to tell anyone else that they are, because they will fear that the person they are frightened of will take it out on them.
Also, I think that small children, if they are bright and intelligent, very quickly get around to the idea that telling lies may get them out of punishment; and they just have to be brought up to tell the truth. If they have been brought up to tell the truth then I think they are probably very truthful on the whole; but there are those exceptions.
Lord Elwyn-Jones: I venture to submit to the Committee that it is very important that we should adhere to the principle set out in the Gillick case, where a most distinguished judicial committee expressed the view that the parental right to control a minor child deriving from parental duty was a dwindling right, which existed only so far as it was required for the child's benefit and protection. My noble friend read from the speech of the noble and learned Lord, Lord Scarman, in Gillick, where he said:
"The underlying principle of the law is…that parental rights yield to the child's right to make his own decisions when he reaches a
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sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."
What the amendment does is to give an accurate restatement, if that is the right word, of that principle so firmly enunciated by the noble and learned Lord.
The Lord Chancellor: I entirely understand the fundamental point that the noble Baroness, Lady David, has so clearly put before your Lordships in connection with this amendment. I think that we have sought to give effect to that principle in the way that the Bill is drafted, subject of course to the point which her amendment recognises: that there may be situations in which the court, making a balanced assessment of the whole matter, concludes that the welfare of the child would go counter to the decision that the child has made.
Seeking to elaborate this, what we have done—and I think everyone has agreed with this—is to put in the forefront of the Bill, in Clause 1(1), the fundamental principle that where a court determines questions of the sort that are in issue the child's welfare shall be the courts paramount consideration. The noble Baroness's amendment takes account of that.
What we have done next, as I said in relation to the last amendment, is to put in the forefront of the particular circumstances to be applied or to be considered in applying that principle, the ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding. We have chosen that phrase—not any decision of the child but the child's wishes and feelings—to indicate that this is a matter that must be looked at very seriously and principally. As I have said, we have given it the first importance. These are not necessarily in order of importance but with that in mind we have put it in the first place in our checklist.
Lord Elwyn-Jones: With great respect, if the noble and learned Lord will give way, it is the first which appears in those seven circumstances that are set out. It is not highlighted in any way as the primary principle. There follow paragraphs (b) to (g) as other circumstances to which the court is required to have particular regard.
The Lord Chancellor: Of course I agree that we have paragraphs (a) to (g), but that is put in the forefront of the considerations. It cannot be overlooked even if the court were to become tired—as I am sure it would not—of reading the list. That would certainly be at the forefront of its considerations.
Therefore, in looking at this amendment we have also to note the point that the amendment mentions an "informed decision" by the child about the issue. That is something which may not be quite as deep or certain as a child's "wishes and feelings". It is the whole attitude of the child to the point in question which has to be taken into account. The "wishes and feelings" of the child is a phrase which encompasses that idea; that is, something certain and deep in the child's view of the matter.
The vast majority of cases concerning children follow on the breakdown of the family, and generally

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the issue is about with which parent the child should live and how often, if at all, he should have contact with the other parent. As those active in this area know, the great sadness is that many or even most children, if given a real choice in the matter, would want their parents to stay together. Indeed, that is the point referred to by the noble Lord, Lord Simon of Glaisdale, in taking the paramountcy of the child forward into matrimonial law more generally. Alas, the wishes of the children do not, and as a practical matter cannot, prevail.
I believe that the difficulty about the amendment is that if what I have just said is correct and that the child really wants the two parents to stay together, then to put a feeling child fond of both parents in the position of having to make a decision on the issue—because that is what this amendment requires is perhaps putting on the child a burden which may be greater than he needs to bear. In the ordinary case if the child wishes to be with both parents, then the answer to the question posed by Clause 1(2)(a) would be that the child would like to be with both parents, is keen on them both and wishes to stay with them both. However, assuming the child can be with only one parent, then that is a new question for the child. It may be a question with which the child should not be faced. The child may have a view on the matter, but he may not.
I should like to refer back to what I said earlier in relation to Amendment No. 1. In the possibility of that question being put to a child there is always a risk that the parent will wish to secure an answer from the child favourable to the parent concerned. He then becomes the pawn in the sad dispute which we are seeking to remove as far as possible. It is impossible to remove that altogether. However, in this Bill, as a matter of policy and in the framing of our proposals, we are trying to reduce as far as possible the temptation on parents to make their children pawns in a kind of power struggle.
Of course, I entirely accept that since the decision in Gillick, from which the noble Baroness quoted particularly the speech of my noble and learned friend Lord Scarman, there has been increased interest in and concern about the autonomy of children. That case in general terms recognises that once a child is mature and intelligent enough to take decisions for himself the parent's authority to take those decisions ceases. Of course, the decisions in question there were rather particular decisions. The Bill does nothing to change that position.
However, the approach of the Law Commission's report and of the Bill is to focus attention away from the theoretical and arguably undefinable nature and content of parental authority, parental rights, and its necessary implication for children's rights, and to focus the attention of courts and parties on the concrete issues that arise about children. Instead of regarding the children as having rights in relation to the parents, we have emphasised parental responsibility in relation to the children. We have then sought to focus not on abstract ideas like custody and so on but on concrete questions as to where the child should live and whether the child should have associations with a particular person and so on.
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In place of those theoretical arguments the Bill will put orders in place which will deal explicitly with the child's place of residence, contact with him by others and any other specific issue which is in contention or any step which a party wishes to have prohibited.
Rather than attempting the arguably impossible task of definitively describing the parents' and child's rights and how they interrelate the Law Commission proposals, as enshrined in the Bill, let us ensure that the child's views are taken into account in disputes by putting his wishes and feelings at the head of the checklist in Clause 1(2) and by giving the courts wide powers to order welfare reports, one of whose major functions is to ascertain the child's views. Further, under the Bill, if a child wishes to obtain an order he may with the court's permission apply for one. In addition, in care proceedings he is to remain a party with a right to independent representation by a guardian ad litem, one of whose functions is to inform the court of the child's wishes and feelings. And, further, there is no intention to remove or restrict the existing powers of the courts in private proceedings such as divorce, to join the child as a party if his upbringing is in any way in issue, if that is thought to be helpful. Of course in many cases in private law practice that is not found to be necessary. The noble Lord, Lord Kilbracken, referred to his experience of practice a long time ago and I believe it may be substantially the same in that aspect.
As regards the older children, in practice the courts in private law disputes do not make orders about older children against their wishes save in the most exceptional circumstances and are as aware of the need to respect the child's wishes as are any of your Lordships in your practical way of looking at matters. I should also add that under the Bill orders about residence contact, specific issues and prohibited steps can only be made in respect of a child over 16 in exceptional circumstances and if already in existence cease on the child's sixteenth birthday unless there are such circumstances.
It is very difficult to get this exactly right but, bearing in mind the very real risks of embroiling children in disputes which have been stirred up between their parents, the Bill, in the Government's view, strikes the right balance between giving proper weight to the child's view while avoiding burdening him with invidious decisions and putting so much of a premium on his decision that the parent might be tempted to take steps to try to secure that decision.
As I said at the outset, I entirely understand and appreciate the concern expressed by the noble Baroness in this amendment. It is a matter which I have considered and reconsidered in the light of what she said on Second Reading. However, I feel that we have done it in the right way and that it would be making it unnecessarily difficult to put in an amendment requiring a decision by the child to be given effect to except in particular circumstances. In principle it is surely right to take the child's interest as the paramount consideration and to subsume in that a consideration of the child's wishes.
I believe that I have taken account of the various comments which have been made by your Lordships. I should certainly wish to dissent in respect of my

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noble and learned friend Lord Hailsham from the past tense which he sought to bring in. His views as a lawyer are still very much valued. I can well see that the classes for which the noble Baroness, Lady Phillips, was responsible were well instructed, as the noble Lady, Lady Saltoun, said with the result that they almost invariably spoke the truth.
Baroness Phillips: My Lords, perhaps the noble and learned Lord will forgive me. I do not wish to go down on the record as being a pompous and self-important creature. I merely say and reassert that we, the adults, currupt the child. When it is born the child has no fear and has instinctive feelings about love and various other matters.
Lord Hailsham of Saint Marylebone: Original sin.
Baroness Phillips: That is right.
The Lord Chancellor: I am sure that those who know the noble Baroness and who have read or listened to what she says would think of her not in any way as pompous but as simply putting a point of view based on her own valuable experiences as a school teacher. I believe, as my noble and learned friend Lord Simon of Glaisdale said, that we have to look at the experience and views of the different people who come into contact with children—parents, teachers and, as a last resort, lawyers. I hope that in the light of those considerations the noble Baroness will feel able not to press the amendment.
Lord Kilbracken: I profoundly agree with the noble and learned Lord. In view of that, perhaps I may again draw from my personal experience and say that throughout my childhood from the age of about six or seven what I wanted most in life was that my parents should be together again. That was not possible. Instead, I and my siblings—there were three of us—spent exactly equal periods of time each and every holiday from our boarding schools with each parent, calculated down to the last day or half child day. Our parents each had their own home which we regarded as our own. We loved them equally. I often feel that it would be so much better if children of ruined marriages today could have similar arrangements.
Baroness David: I thank all who have spoken and I am pleased to note the interest that the amendment aroused. I must say that there were moments when I wondered whether noble Lords had read the amendment with care. The noble Lord, Lord Renton, said that it gives a child the last word. That is not so. The concluding words of the amendment state:
"unless the court considers his welfare would be prejudiced if he did so."
That is a let out. The amendment also states:
"Where the court has ascertained the wishes and feelings of the child under subsection (2)(a) above and is satisfied that the child has sufficient understanding".
Therefore, that covers the points that one or two noble Lords raised.
The noble Lord, Lord Meston, asked how one knows that a child has sufficient understanding.
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Amendment No. 7, proposes that:
"Rules of Court shall provide for the procedure to be followed."
Possibly the Rules of Court would give guidance about when sufficient understanding can be considered to have been arrived at.
The noble and learned Lord gave a careful and considered response, for which I am grateful. However, he took exception to "informed decision". What I should like to do, therefore, is to read everything that has been said in this short debate. I am not altogether convinced by the arguments against the amendment but I should like to consider whether slightly different wording might be more acceptable. I do not promise not to come back, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): In calling Amendment No. 3 I should state that if it is agreed to it would not be possible to call Amendment No. 4.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 3:
Page 2, line 3, leave out from first ("order") to ("or") in line 4.
The noble and learned Lord said: I should like to inform my noble and learned friend the Lord Chancellor that this is a probing amendment. It is grouped with his Amendment No. 4 for discussion at the same time. If my amendment is accepted, as the Committee has just been informed from the Chair, the Lord Chancellor's amendment cannot be called. I merely add that if my amendment is not carried I have no objection to that of my noble and learned friend.
I cannot see what the words I propose to delete are intended to mean. The making of the order must be an opposed order before the court considers the facts as set out in subsection (2). I am bound to say that it seems to me that whether or not the application is opposed the court ought to consider, and will in fact consider, all the matters set out in subsection (2). That is reinforced by the fact that by Clause 9(1)(b) the court can act of its own motion; it does not have to wait for an application to be opposed.
Therefore, if the words are unnecessary and, as I believe, undesirable—but even if they are only unnecessary—they should be removed from the Bill. I have no doubt that by the time we have finished with the Bill we shall have added a great deal to it, so anything we can do in the way of removing unnecessary and undesirable words, so much the better. I beg to move.
The Lord Chancellor: The purpose of the words that my noble and learned friend Lord Simon of Glaisdale wishes to leave out is to focus attention on the need for these particular factors to be regarded particularly when the order in question is opposed. The idea of the checklist is to enable the court, where the parties are at issue, to make sure that not only are the matters that the parties are raising in question but also that the other matters listed are being taken into account.

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This emphasises, in a disputed case, the need for that. However, it is not so necessary for that to be done where one has the general principle applicable and there is no dispute between the parties. There is, I fear, a risk that if one had placed on the court a duty to apply the checklist in detail in every case the courts would conclude that they would need to have a very full examination of the family situation in every case. The result would be undesirable.
First, the preparation of welfare reports involves an intrusion into families. That may be necessary, but where it is not necessary it should be avoided. It may often be pointless and unwarranted; for example, where the parties are agreed about the arrangements and there is no better or realistic alternative available or where the order sought would represent an already well established status quo. To look into all the details in such a case would seem to be unnecessary.
Secondly, welfare reports inevitably involve some delay and as the Law Commission said,
"in some cases the court may have to balance the advantage gained from a report against the disadvantage of delaying".
The Bill recognises explicitly in Clause 10 that delay is generally detrimental to the child's welfare and the Government would resist any amendment which directly or indirectly seemed likely to cause unnecessary delays by requiring welfare reports where there was no real need.
Thirdly, we wish to target welfare reporting on cases where it is required. In that situation I venture to put the view to the Committee that it is right that the checklist, and the responsibility for having regard to every distinct item in the checklist, should arise and it is seen as necessary only where the matter is the subject of a contest.
As regards my amendment, it is simply making clear that the checklist applies where variation or discharge is in question as well as where the making of such an order is involved. I believe that to be the meaning of the clause as drafted but it is wise to make it clear. Accordingly, in due course I shall propose that amendment, but it is right to speak to it now. In the light of my explanation I hope that my noble and learned friend will feel able to withdraw his amendment.
5 p.m.
Lord Renton: I have listened with great attention and interest to both the noble and learned Lord, Lord Simon of Glaisdale, and my noble and learned friend. If the words that the noble and learned Lord, Lord Simon of Glaisdale, wishes to have left out are to be kept in the Bill, then the amendment of my noble and learned friend the Lord Chancellor should be made. I ask my noble and learned friend to consider whether it is desirable that in effect the court should have only the responsibility laid upon it by subsection (2) in opposed cases. As the noble and learned Lord, Lord Simon of Glaisdale, said, the court should be entitled but not necessarily obliged, in a suitable case to take note of matters on its own motion. Bearing in mind the special responsibility that the court has always had in any case involving children and young people, to place these words of limitation upon the discretion of the court may not be right.
The Lord Chancellor: I believe that there may be some misunderstanding. There is no intention to place any words of limitation on the discretion of the court. What is to be done is to make it not obligatory on the court to have regard in particular to the full range of the checklist unless the case is opposed. If the case is opposed then the court has an obligation to have regard to all the matters in the checklist. The court is perfectly entitled to have regard to all matters in the checklist even if the case is not opposed, but it does not have the duty to do so. I believe that there may have been some misunderstanding for which I am responsible in not explaining the matter properly.
Lord Renton: I believe that this Bill is far better drafted than most of the Bills that we have had in recent years. If there is a misunderstanding it is one which seems to be shared by several members of the Committee, in which case the drafting needs to be looked at again. Whatever decision the Committee may take at this stage, I hope that my noble and learned friend will consider what has been said. He has made the intention at which he is aiming abundantly clear. I ask him to consider whether the inclusion of these words that the noble and learned Lord, Lord Simon of Glaisdale, wishes to have left out clarifies that intention or the reverse.
Lord Simon of Glaisdale: When I moved this amendment I indicated that it was a probing amendment. I hope that my noble and learned friend will not take it amiss if I say that what the probe turned up was not entirely satisfactory to me. I am reinforced in saying that by the fact that the noble Lord, Lord Renton, takes the same view. This is an extremely well-drafted Bill and a notable improvement on some that we have had recently. It uses idiomatic language; it uses what is the prerequisitie of legislation in a parliamentary democracy; namely, language which can be understood by any literate person affected by the Bill. That being so, it seems a pity to leave in what seems but, what is more important, what appears to the noble Lord, Lord Renton, to be unnecessary words. It is a pity to spoil the ship by splashing a lot of extra tar over it. However, having said that it was a probing amendment, the only course open to me at this stage is to ask the Committee for leave to withdraw it.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
"Page 2, line 3, after ("making") insert ("variation or discharge").
Lord Harmar-Nicholls: I feel that the noble and learned Lord's amendment makes the point less specific than if the words were not there at all. The noble and learned Lord has said that he is looking at the matter again in the light of what my noble friends have said. My reading of it would make the matter less specific and therefore less effective in order to achieve what the noble and learned Lord has in mind.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 5:
Page 2, line 6, at end insert ("and Part V").
The noble Baroness said: My noble friend Lord Mottistone has asked me to apologise to the noble and learned Lord and to the Committee. He has a longstanding prior engagement in the Isle of Wight which he could not easily cancel. Therefore, on his behalf, I, and the noble Lady, Lady Kinloss, have been asked to move this amendment.
My noble friend Lord Mottistone is very closely bound up with the work of the NSPCC. This is a probing amendment submitted to my noble friend by the NSPCC. I ask my noble and learned friend whether this is the right place for this amendment or whether it should be in Part V of the Bill. The effect of the amendment will be to ensure that the checklist would be used by the court in emergency protection cases. I believe this to be the main point of the amendment. It is suggested that in the checklist at (h) there should be added another sentence; namely, the effect which making an order or not making an order will have on any other children of the family. I move this amendment on behalf of my noble friend Lord Mottistone and ask for the help of the noble and learned Lord the Lord Chancellor. I beg to move.
Lady Kinloss: I support what the noble Baroness, Lady Faithfull, has said. The Cleveland Report noted that a child was a person and not an object of concern. As many noble Lords have said, it is essential to seek the wishes of a child as long as the child understands what is being asked of it. Its home background is taken into account. Perhaps I may ask for clarification on one point. The Bill mentions many times "the child", but from time to time there is a line with "him" or "her"; "his" or "he". I ask, should it not be "he" or "she" and "him" or "her", as the case may be? The Bill mentions "him", "his" and "he".
The Lord Chancellor: I shall take that last question first. The statute book would be longer if on every occasion the word "he" was used the word "she" had to be included where that was appropriate. In order to try to simplify the statute book a little, Parliament decided to have a list of words which in the ordinary context would apply equally. "He" is said to include "she" by the Interpretation Act. It is the same for the plural and so on. In some situations, if one wishes to emphasise very specially that there is need for either feminine where a masculine is used or a plural where a singular is used and one wants to be absolutely emphatic about it, one might make such an express reference. However, for the most part the parliamentary draftsman relies on the Interpretation Act. It is good practice that he should do so. If he departs from it in one place he puts in question the use of the Interpretation Act in all other places.
As regards the main amendment, it is a question of style where the provision might come. It is perfectly reasonable that we should consider it here. However, the point is one of principle. The question is whether, in making an emergency order under Part V, the full panoply of the checklist should apply. The checklist is intended to permit exhaustive consideration of the relevant issues for a final determination of the case. That is one of the reasons why I was saying a few
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moments ago that it is not appropriate to have the full checklist as an obligatory list in a case that is not contested. However, in the emergency case it is essential to have a quick and effective emergency procedure to protect the child where he may suffer significant harm if action is not taken.
The role of the court at this stage—the emergency stage—is limited to deciding whether there is sufficient evidence to justify making an emergency protection order. The issue will by definition need to be decided without delay. The rules of court to be made under Clause 43 will not prevent inter-partes hearings. But, in practice, because there appears to be an emergency, many applications are likely to be made by the person seeking the order without opportunity for the other party to be heard. In contrast, the checklist is primarily designed for contested proceedings relating to the child's long-term welfare in which the court will usually be assisted by an independent report from a guardian ad litem or a welfare officer. That independent report will be the usual means of satisfying the court on the various matters.
Under Clause 38(8) in Part V, provisions as to the circumstances in which applications for discharge of an emergency protection order may be made will be provided for in rules of court. These will provide for applications by the child or a parent of his, among others. The child will have party status and will be entitled to be heard, and the court will have to take account of his views. We must however remember that there may be a limit to what can reasonably be expected of the children at that stage. There could be difficult circumstances where an emergency order was in question in which the children are likely to be frightened and confused.
Emergency protection orders will run for at most eight days, except in rare cases where a further extension is granted by the court for up to seven days. If, after the making of an emergency protection order, the local authority or other persons authorised by the Secretary of State initiate care or supervision proceedings, the checklist provisions will come into play automatically by virtue of Clause 1(3)(b). All the circumstances of the case will then be examined in the ordinary way. To sum up, the checklist is appropriate for full consideration of the issues. It is not appropriate for the kind of hearing which would be suitable at the emergency stage.
On the noble Baroness's other point, the question of another child being involved is a separate matter. Perhaps we may come to that later.
5.15 p.m.
Lord Trafford: I am not sure that I quite follow my noble and learned friend's answer on why Part V should not be included. Even if an emergency order lasts only eight days it has a significant effect on the life of a family and on the life of a child. No one would disagree with that. I find it hard to believe that anyone would issue an order without looking at and taking account of, in whatever statutory form or obligatory form, the so-called checklist. Everyone will agree with the checklist. Surely those issuing an emergency order will be checking from (a) to (g) with

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great care as to what will happen to the child, what harm he may be suffering, how capable the parents are and so on.
I cannot believe that I am right in the view that my noble and learned friend is saying that in an emergency we can dispense with a checklist in the interests of speed. I cannot believe that I have heard correctly. This is nearly as important an action with as long term consequences to child and family as a more definitive hearing that comes under Part IV. Therefore I cannot see anything wrong with Part V being included at this point.
Lord Hailsham of Saint Marylebone: The answer to what my noble friend has just said is that emergency orders mean what they say. In other words, the safety of the child, even its life, may be at stake if an order is not made. Speed is therefore an important factor. It is true that an emergency order should not be made without good reason. But when one asks for an emergency order and gets it, it must be the case that the safety of the child or perhaps his moral safety is urgently in need of protection.
Lord Renton: Is there not the further point that an emergency order is essentially an interim matter? There is no finality about it. It is something that must be done and done quickly. The governing words are in Clause 37(1) which says that the court must be satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm. It then sets out conditions about accommodation and place. As my noble and learned friend the Lord Chancellor has said, that is quite a different issue from the one which the court will have to decide under Clause 1, which involves, as he described it, going through a stringent checklist. It is quite different.
Lord Trafford: I am sorry to come back to this point again but the noble and learned Lord, Lord Hailsham, and the noble Lord who has just spoken talk about an interim order, an order that can last eight days. Surely one of the lessons of Cleveland is that too much speed was shoved into this without sufficient consideration in many respects. I cannot see what harm there is in writing into the clause that those concerned should look through the checklist. That is a reasonable protection. An interim order—it may well be interim—has a devastating impact on the family and on all concerned. Every possible protection should be considered. One should not dismiss it by saying that it is only an interim order. An interim order can affect the whole life of the person concerned.
The Lord Chancellor: I should not like it to be thought that I do not regard the emergency order as an extremely important order in the life of a child and in the history of a child's family. Quite the contrary; I regard it as of extreme importance. On the other hand one must remember that it is an emergency order and therefore it may be required in an emergency. I can understand that if one takes emergency action which turns out not to be necessary one may do a great deal of harm. But equally, if one does not take emergency action when there is an
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emergency one may do a great deal of harm. It is difficult to tell and a fine judgment is required.
The point is not that care is not required in regard to an emergency order. I do not subscribe for a moment to the view that it is not a most important and delicate decision to take. What I do say is that the checklist requires a great deal of information. The checklist is not just something that a judge or a court could apply without getting information. The basic information required for the checklist, if it is to be fully obtained, would normally take longer than the time that would be available in an emergency. The idea of the checklist is that information should be provided in respect of which the checklist can be operated in the making of long-term decisions so far as concerns the child.
Of course in some cases the information in the checklist may be readily available; in some cases not. The difficulty is making it obligatory in all cases for the court to have regard to all the factors in the checklist. Therefore it is the implication that it must obtain the necessary information to do so in every case which is what is objectionable about this particular amendment. I entirely agree that it is most important that the best possible judgment should be taken in an emergency; but it must be taken in an emergency and in a timescale which is appropriate for an emergency.
Baroness Faithfull: Perhaps I may say that I absolutely support the remarks made by my noble friend because I think that in the Cleveland case it was an emergency and it was at the time of that emergency that things went wrong. However, I equally see the point made by the noble and learned Lord that a fuller report is needed when the case comes before the court.
Speaking for myself, I consider that it is a second form of abuse to move the children from the mother. I used to try and keep mother and children together for as long as possible. But I am moving the amendment on behalf of my noble friend Lord Mottistone and I have taken account of what has been said by my noble friend, and by the noble and learned Lord. I shall pass on to my noble friend what has been said and I am sure that he will reconsider the matter. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 6:
Page 2, line 7, leave out subsection (4) and insert—
("(4) Where a court is considering whether or not to make one or more orders under this Act with respect to a child it shall not make the order or any of the orders unless the order proposed is the most effective means available to the court of safeguarding the child's welfare.").
The noble Baroness said: The purpose of the amendment is to ensure that the court considers whether an order is the most effective means of safeguarding the child's welfare. It suggests a different subsection (4) from the one which is in the Bill at present. I am most happy for the amendment to be taken with Amendment No. 152 which concerns Clause 26, and which has a similar purpose.
The amendment would bring the Bill into line with the proposals in the White Paper The Law on Child Care and Family Services. The current wording contained in the Bill is more applicable to disputes between parents where the intention is that the court should intervene only when it is really necessary. In cases concerning local authorities and families, the law needs to be clearer in stressing the importance of the court being sure that a compulsory order is the best means available of securing the child's welfare. The court should look at what other assistance is being given, or could be given, to a family. It should give particular consideration to whether, if an order is necessary, it should be a care order or a supervision order.
The report to Ministers of the Review of Child Care Law argued, in favour of such wording, as follows:
"We also consider that the grounds should in future make clear reference to the likely effectiveness of an order. At present in section 1(2) there is the requirement that the child's need for care or control is unlikely to be met unless the court makes an order. Our impression is that the test is often satisfied by proof that his needs will not be met outside care, rather than by positive proof that a care order or supervision order will result in his needs being met or at least better catered for, and further that intervention would not do more overall harm than good. In our view the matter should be put beyond doubt. We consider that this might be achieved best by linking the idea of effectiveness with the child's best interests, that being the ultimate purpose of an -order and in our view itself a matter which needs to be drawn expressly to the court's attention. Accordingly, we think that there is a strong case in future for requiring the court to be satisfied before it makes an order that it is the most effective means available to it (including refusing an order) of safeguarding and promoting the child's welfare".
As regards Amendment No. 152, again its purpose is to ensure that the court is satisfied of the need for an order and considers the local authority's plans for a child. It suggests inserting:
"that the order proposed is the most effective means available to the court of safeguarding the child's welfare".
As I said, the proposal in the White Paper was that this should be the third element about which the court should be satisfied before making a care or supervision order. Care orders, and to a lesser extent supervision orders, have profound effects on the lives of children and their families. They should only be made when the court is satisfied that a care order will result in a child's needs being met, or at least being better catered for than if no order was made.
That provision will necessarily involve the court in considering whether other assistance could be given to the child or the family, or whether accommodation should be provided; what plans the local authority has for the child, if the care order is made; and it will also involve the court in careful consideration about which order should be made.
In respect of Amendment No. 152, it would assist the court if that principle were clearly attached to the other two grounds for making care and supervision orders. However, both amendments have the aim of considering whether the order is the most effective means of safeguarding the child's welfare. I beg to move.
Lord Kilbracken: Perhaps I may look ahead for a moment to the amendments tabled in my name; namely, Amendments Nos. 11, 12 and 14. I put the amendments forward because I had not fully realised
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that Clause 1(1) applies to the whole of the Bill. I thought it was necessary to give the courts some criterion by which they should reach their decision. But of course when Clause 1(1) is effective, the court already has to put the child's welfare before everything else. I had reached the conclusion that my amendments were probably unnecessary and I decided to withdraw them.
However, since my noble friend moved the amendment it seems to me that the subsection, as it exists at present, and the new subsection which is proposed, are both equally unnecessary as the court will automatically put the child's welfare first. If I am right about that I shall not move my later amendments; but, if I am wrong, then I think that my amendments are as necessary as this one, or the existing subsection.
The Lord Chancellor: This amendment would remove the existing subsection (4) and substitute one that was indicated previously, as the noble Baroness, Lady David, pointed out. We have taken the two points that were mentioned in that amendment and put them separately into the Bill. First, as the noble Lord, Lord Kilbracken, has just said, we have put the real principle right in the forefront. That is in accordance with what I have heard as recommended drafting practice on more than one occasion. The principle is that the child's welfare shall be the court's paramount consideration. That applies to all the orders mentioned in the later amendments of the noble Lord, Lord Kilbracken. So that is the criterion.
But we identified another point, which the noble Baroness mentioned. The court has sometimes approached the matter by saying, "Well, now, if this child does not go into care, this problem, that problem and another problem will affect it". It has done so without considering the positive question: If the child does go into care, will those difficulties be avoided? That is the other part of the amendment proposed by the noble Baroness.
We have separated those two principles and have made the interests of the child the paramount consideration. We also propose, as a second general rule, that when the court is considering whether to make one or more orders under the Act with respect to a child, it shall not make any of the orders unless it considers that to do so would be better for the child than making no order at all. In other words, the court must be satisfied that making the order is a positive step towards achieving the paramount consideration. If the court is not so satisfied, it is not to make the order. The result is fully to exhaust the two aspects of the amendment moved by the noble Baroness.
Developing the thought in the earlier documents, we felt that this was the best way to go about achieving that purpose. It is a general principle. It applies to care orders, supervision orders and so forth. In addition, there is the test that in respect of any order that it is thinking of making, the court must look to see whether it will improve matters. Unless some positive contribution is likely to flow from the order, it is not to be made. In other words, orders are not to be made for their own sake, as part of a package or anything of that sort.

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As the review said, care orders may be made on proof that a child's needs will not be met outside care rather than on positive proof that a care order or supervision order will result in his needs being met or at least better catered for, and that further intervention will not do more harm than good. That is the purpose of Clause 1(4). It is right and helpful and makes it more clear to separate the two points instead of having them together. If one does that, one does not need an extra ground for care or supervision. That point relates to the later amendment to which the noble Baroness referred.
I hope that in the light of that explanation the noble Baroness will feel that the objects of her amendment have been achieved in a way that has made for greater clarity than the original proposals upon which we worked.
5.30 p.m.
Baroness David: I thank the noble and learned Lord for his explanation. I think that I am convinced by it, but I should naturally like to read what he said with great care. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: I must apologise for raising in the clause stand part debate, a question of law of which I have given my noble and learned friend notice. My excuse for doing so is that the point concerns the most important word in the Bill—"paramount"—which has been given an undesirable gloss that may well run counter to the wishes of the Bill's proponents and the Committee.
It requires temerity to say of a decision to which Lord Justice Warrington was a party that that decision was incorrect. The case is called In re Thain, which is reported in 1926 Chancery Reports. It concerns the guardianship of a girl aged seven. It was brought under the Guardianship of Infants Act, which contains the words "first" and "paramount". As I said on Second Reading, there is a concealed pleonasm in those words. The draftsman of the Bill is correct to have used only the word "paramount".
As I say, the child was seven. Her father was at all material times an officer in the technical arm of the Royal Flying Corps. His wife, the mother of the child, unfortunately suffered from a post-puerperal fever and died when the child was about one year old.
The father, being a serving officer, could not offer the child a home, nor had he any close female relatives who could do so. It was therefore agreed between him and the mother's sister and her husband—in other words, the maternal uncle and aunt—that they should look after the child and bring her up as a member of their own family, of which they already had several. That was done.
When the child was about five or six the father's prospects improved significantly. He had escaped the Geddes Act and so was firmly established in a good position in the Royal Flying Corps. He was about to remarry. He confirmed with his sister-in-law and her husband, who were bringing up his child, that she
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should continue to live with them. However, he changed his mind and brought complicated proceedings which ended up as proceedings under the Guardianship of Infants Act.
The court decided the following matters: first, the words "first" and "paramount" presuppose that there are other considerations. The second was—this is the important point to which I shall return in a moment—that one such other consideration was the right of an unimpeachable father (which this was) to the guardianship of his own child. That point is taken care of by Clause 2(4). Thirdly, the court decided that the judge had rightly exercised his discretion in giving weight to that other consideration (the right of an unimpeachable father to the guardianship of his own legitimate child); and although the court decided that the judge had exercised his discretion, I can see no sight of it having done so. That hardly matters, because the Court of Appeal said that the judge had rightly directed himself in law; in other words, it was a correct decision in law that "first" and "paramount" allow for other considerations to which weight could be given.
On the face of it, the proposition that "first" and "paramount" allow for other considerations is true. What the court did not say, and what apparently it did not see, and what is dangerous, is that there can only be one "first" consideration and in the ordinary use of the word there can be one "paramount" consideration. In the context of this well drafted Bill "paramount" will be taken in its ordinary sense—coming before or above any other, just as we talk about a paramount chief.
It seems to me that the danger is that, although we have got rid of the rule of law that a father is the natural guardian of his legitimate child—or we shall do so in a moment, no doubt—we have not allowed for other considerations which can be given greater weight than the welfare of the child. It is not easy to think of them but the Bill mentions later religious upbringing, cultural background and ethnic origins. I suppose that a court might consider any of those if the rule In re Thain stands as overriding the welfare of the child.
I respectfully suggest that my noble and learned friend ought to deal with that. One way that I would not suggest is to define "paramount"; I would much sooner leave "paramount" in the ordinary sense. The way I should like this to be dealt with is for my noble and learned friend to consider adding to the words in Clause 2(4):
"The decision In re Thain is hereby abolished".
That would get rid of the difficulty that I have tried to indicate to your Lordships. Again, I apologise for raising what is a pure point of law but I felt bound to do so because it concerns the very heart of this Bill.
Lord Kilbracken: I wish to express agreement, if I may, with much of what the noble and learned Lord, Lord Simon of Glaisdale, has just said. I too was not at all happy about the word "paramount" being used simply on its own. I wonder whether I might also draw the attention of the Committee to the word "upbringing" in Clause 1(1)(a). I am not at all certain that that word includes many of the matters that the court will have to consider. I do not think that the

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question of access of one parent to the child on Sunday afternoons, or, for instance, of the child leaving the jurisdiction, or a lot of other important matters would come under the heading of the "upbringing" of a child. I do not know whether the noble and learned Lord will consider that some other word or phrase ought to be used there.
Baroness Macleod of Borve: I wish to ask the noble and learned Lord, Lord Simon of Glaisdale, for clarification. When he is talking about "paramount" and "the child", we are presuming that there is only one child. If there are three children, is he saying that the eldest is paramount? Or are we going to put in the Bill that the eldest should be paramount or first? I wonder whether somebody can help me; this is rather important. It happens very often that more than one child is being discussed by the court.
Lord Kilbracken: Perhaps I may intervene for a moment. It is the case that the welfare of each child must be considered separately. The children may be different and what is best for one child may not be best for the other. Therefore the wording of Clause 1(1) is correct in that the welfare of each child in turn shall be "the court's paramount consideration" for that child.
5.45 p.m.
The Lord Chancellor: Perhaps I may answer the question of my noble friend Lady Macleod of Borve. My understanding is that it would be right to consider each child distinctly. It would be recognised that the children are part of the family. Therefore consideration of the family would enter into the matter. But one would look at each child and consider in the light of the family circumstances of the child what is best for that child. It might well be a very important consideration that the children should be together, for example.
Perhaps I may take the other two questions in order. First, as regards "paramount", compliments have been paid to the drafting of the Bill. Since I received it from Parliamentary Counsel, I wish to join in those compliments. I think Parliamentary Counsel have done a good job. They are more often criticised than praised, so I am very glad to have an opportunity of joining in the praise.
One important point is to use words in their ordinary meaning and to use ordinary words. The word "paramount" strikes me as a good word to give effect to what we want—namely that the welfare of the child should come before and above any other consideration in deciding whether to make an order. I do not know how that can be improved upon. We have the words "first" and "paramount". The "first" does not seem to add anything; therefore we use the word in that meaning.
I agree with my noble and learned friend Lord Simon of Glaisdale that In re Thain was a somewhat remarkable decision perhaps. I think that as concerns the actual decision, the change that we are proposing in the underlying rule of law would have the result of affecting the basis of the decision. However the whole
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structure of this statute and its emphasis on parental responsibility rather than parental rights would have that effect.
I shall consider further whether the express reference to In re Thain should be made. My impression up to now has been that we have so operated on the structure of the law as it was at the time of In re Thain that the best way to bury In re Thain is not to put it into this statute but to leave it as superseded by the changes in the statutory provisions. However I shall certainly look at that further.
As regards "upbringing", it is a word of very general scope. Anything to do with the child's education or the child's social life while the child is being reared I should have thought was a question with respect to the upbringing of the child. If one wants a single word for the whole process of dealing with a child, "upbringing" strikes me as being as good a word as one can get. I am in the market for receiving any suggestions for a better single word. I certainly do not wish to have a whole string of words if one will suffice. If I may say so, that is an open invitation to the noble Lord, Lord Kilbracken. Up till now we thought that the word "upbringing" was a good one. That whole way of approaching the matter is part of the reason why the Bill is perhaps more readable than many.
Lord Elwyn-Jones: I respectfully agree with the conclusions of the noble and learned Lord, particularly in regard to the use of the word "paramount". It has very honourable ancestry in Section 1 of the Guardianship of Infants Act 1925. I am reliably informed that it provides there that the welfare of a child is the paramount consideration. So there is no novelty or ingenuity in the draftsman's choice of the phrase. It is well founded, well provided for. In ordinary language it means "supreme" or "pre-eminent", as the Oxford English Dictionary describes it. It seems to me, with respect, to be an admirable choice of word.
Clause 1, as amended, agreed to.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 7:
After Clause 1, insert the following new clause:
("Procedure for ascertaining child's wishes
. Whenever the court is under a duty to have regard to a child's wishes and feelings, or the level of his understanding, Rules of Court shall provide for the procedure to be followed.").
The noble and learned Lord said: In the course of our earlier deliberations the noble and learned Lord the Lord Chancellor rightly attached importance to the provisions in Clause 1(2) of the Bill:
"In the circumstances mentioned in subsection (3), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)".
That provision raises a number of difficulties in application. What tests and what means of measuring the level of a child's understanding should a court take into consideration or be assisted by?
With regard to the wishes and feelings of the child that have to be taken into account, age is merely one of the factors but it is clearly an important factor. I

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am not saying it would be easy, but would it not be of immense value for those who have to apply and interpret these crucially important provisions if there were provided rules of court to give guidance to the courts as to how they should operate and apply these somewhat difficult tests of measuring understanding, and indeed even as regards the nature of the child's wishes and feelings and their reality? That is the purpose of this amendment. I am not suggesting it is an easy task, but I think the provision would be of a very great help to a court which is trying to apply these difficult criteria. I beg to move.
Lord Meston: I wonder what this amendment adds to the existing power of a court and to the power which is preserved in the Bill to invite the assistance of a welfare officer who will report to a court. In every case a welfare officer is the ears and eyes of the court and can speak to the child and transmit the wishes of the child to the court. He can also speak to the school, obtain school reports and so on. I wonder what this amendment suggests in practice.
Lord Renton: I agree with the noble Lord, Lord Meston. If there were to be rules of court, I do not see how they could avoid repeating the checklist in Clause 1. I do not think that provisions for rules of court could add very much to what is already in the Bill.
Lord Hylton: I think we are all quite well aware that in the case of a particular child the chronological age and the mental age may differ quite widely. I do not know whether that needs to be reflected in rules of court.
The Lord Chancellor: With regard to the point made by the noble Lord, Lord Hylton, the passage in Clause 1(2)(a) in brackets is intended to direct attention to that point. It states:
"(considered in the light of his age and understanding)".
In other words, chronological age and the age of understanding may not be the same. But those words direct a court's attention in a gentle way to that point.
As regards procedures, as the noble Lord, Lord Meston, has said, the powers for a report from a welfare officer are of course continued in the Bill. The Law Commission, when it dealt with this matter, having set out the need for an accurate picture of a child's maturity and level of understanding when considering his wishes and feelings, commented:
"This is usually best done through the medium of a welfare officer's report".
That is of course provided for, as the noble Lord has said, under Clause 6, which also allows a court to direct a welfare officer in the making of his report, and for regulations to specify what matters should be dealt with in such reports.
Other options are of course from time to time open, such as a judge speaking to the child in private, as sometimes occurs. That power has to be used carefully, but the majority of those consulted by the Law Commission agreed that courts should not be prevented from doing so in future. There are difficulties about that however. In an extreme case a court has existing powers, if it thinks it necessary, to
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join children as parties to the proceedings. There is no intention to alter the position in that respect.
There are a number of ways in which a child's wishes and feelings can be ascertained—all of them under the control of a court—which a court has power to undertake at the moment. I agree that this is a special area and it is necessary to consider it, but I believe that the existing powers for making rules of court would be adequate to deal with any special matter. However, the main point I wish to make is that the ordinary procedure would be by way of a welfare officer's report, which is expressly provided for. In the light of that explanation, I hope that the noble and learned Lord and the noble Baroness may feel that the matter is adequately covered.
Lord Elwyn-Jones: I certainly shall not press the matter. However, this is a difficult field and courts must apply this law. A welfare officer will be a crucial witness in the proceedings. I am well aware of his importance, but for the time being at any rate I beg leave to withdraw the amendment.
Baroness David: I wish to ask one question about this. As regards the level of a child's understanding, would not rules of court possibly help in obtaining a similar practice in different areas of the country? Practice in different courts can be very different in different parts of the country, particularly perhaps as regards the concept of levels of understanding. I wonder whether the noble and learned Lord has considered the practice in different courts all over the country, and whether rules of court would not be of any assistance there.
The Lord Chancellor: I am certainly considering how best to deal with practical questions. As I said on Second Reading, I hope that ultimately these matters may be dealt with by those who have made a special study of them. But on a question of this kind, such as whether 12, 13 or 14, for example. should be the appropriate age, I should have thought it may be quite delicate to operate too definitely in that area. The regulations for welfare officers' reports could apply generally. Therefore anything put into them about the nature of the circumstances that they should look into would apply generally. That may be one way of influencing practice in this difficult area.
It would certainly be true that rules of court could make provisions affecting this point, but even if they did, I do not think it would be necessary to have a special provision of this kind. However the noble Baroness can be assured that we shall keep that in mind as a possibility in suggesting the exercise of powers to make rules if the Bill becomes law.
Amendment, by leave, withdrawn.
6 p.m.
Clause 2 [Parental responsibility for children]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 8:
Page 2, line 26, leave out subsection (5).
The noble Lord said: My next two amendments, Amendments Nos. 8 and 10, are both drafting amendments. Because they are drafting amendments I wish first to refer to what the noble and learned

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Lord said just now about the excellence of the drafting in this Bill. I wish to say, if I may, how much I agree with him. It is indeed fine, and I think it will set a new landmark in the history of parliamentary draftsmanship. I have in the past often been highly critical of parliamentary draftsmen, perhaps because my father was a parliamentary draftsman. But in this case I must say that I find the Bill to be in good English and highly intelligible. I do not think I have ever before seen a clause such as this one, which consists of 11 subsections, none of them longer than six lines in length.
Lawyers can always make out an enormous tangle of clauses and subsections, but for the layman it is a very great improvement to have something which he can understand. My Amendment No. 8 seeks to leave out subsection (5). My reason for proposing it is that that subsection seems to me to be otiose. It says simply:
"More than one person may have parental responsibility for the same child at the same time."
But in subsections (1) and (2) it is already perfectly obvious that more than one person may have parental responsibility at the same time because examples are given of the father and mother both having it. Therefore, unless the noble and learned Lord can tell me that there is some particular reason why that has to be stated in so many words in subsection (5) I suggest that it should be deleted.
Lord Renton: Although I hope that the subsection will not be omitted, I think that the noble Lord, Lord Kilbracken, has done a valuable service in giving us the opportunity to discuss it.
There is no definition in the Bill of the word "parent", which is the operative word. It is defined in a number of previous statutes but in relation to the context of those statutes. I am sorry to say that I have not done my homework to find out in which statutes it appears and I am speaking from recollection. There is one statute in which the word "father" (who is a kind of parent) includes the natural father, the stepfather and even an adoptive father.
Suppose that parental responsibility is shared by the natural mother with whom the child is to remain, the natural father whom she has divorced, and the stepfather, being the man she has married. There are three people who may have parental responsibility. That may seem to be too many. On the other hand, theoretically each of those three people would seem to have some kind of right and responsibility with regard to the child. In the Acts dealing with the maintenance of children a stepfather can be made to assume responsibility for the maintenance of his stepchildren in certain circumstances. Therefore I think that this is a matter that needs to be clarified.
I should like to put one specific question to my noble and learned friend the Lord Chancellor. Where does parental responsibility lie in the case of a child who lives with its mother who has divorced her husband, the natural father of the child, but whose second husband lives in the home and looks after the child?
Lord Meston: The problem touched upon seems to me to be aggravated by subsection (7) which provides that:
"Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility".
Like subsection (5), that may be said to be a statement of the obvious, but it is possible that if it is spelt out in that way it may be used by the unreasonable parent as a stick with which to beat the other.'
The problem is further aggravated by the definition of"parental responsibility" which appears in Clause 3. That is a non-definition because it simply says that it:
"means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
That does not tell us a great deal. It does not attempt to list all those rights and duties. Perhaps the one thing that needs to be stated is that parents who are meant to be co-operating have a duty to co-operate with one another.
The Lord Chancellor: It is true that subsections (1) and (2) give examples of situations in which more than one person can have parental responsibility for the same child at the same time. The phrase "parental responsibility" is used in those subsections for the first time. It is an important phrase. It is intended to emphasise the departure from too rigid an adherence to the idea of rights of parents in relation to children. Of course parental responsibility means:
"all the rights, duties, powers, responsibilities and authority which by law the parent of a child has",
but I think that the phrase "parental responsibility" helps gradually to alter the perception of those terms. I think that Clause 3(1) provides a reasonable definition where one seeks simply to use different language to describe matters which already exist in law.
So far as concerns leaving out subsection (5), I think that it is important to have it in the Bill as a general principle. The obvious examples in Clauses 2(1) and 2(2) are clear enough. However, there is so much that is contested in matters relating to custody, for example, that I think that it is valuable to emphasise the aspect of parental responsibility as one which is not or need not be unique. It is not a prize to be fought for but a responsibility which can apply to more than one person.
I think that I can answer the question asked by my noble friend Lord Renton about the step-parent in this way. The step-parent would not have parental responsibility merely as a result of marrying the parent of the child. However, there might be circumstances in which that person took on parental responsibility. In the case that my noble friend instanced, the divorced father would retain parental responsibility under the Bill.
The purpose of Clause 2(7) is to deal with the very matter which the noble Lord, Lord Meston, raised. I think that a duty to co-operate is a difficult duty to enforce in many circumstances. One has to have recourse to exclusion of some kind if one is to prevent the parent from doing something in the exercise of

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parental responsibility. The prohibited steps order would achieve that. I think that to enforce co-operation between people who have found marriage impossible is a rather unlikely exercise. Therefore, it is best to deal with the problem in a practical way, by giving them responsibility and power to act but giving the court power to prohibit actions in particular circumstances by means of the prohibited steps order.
Although I can see that it would not make a tremendous amount of difference to leave the subsection out, I hope that the noble Lord will see that to do so would not be an improvement and would feel able to withdraw his amendment.
Lord Renton: Before my noble and learned friend sits down, I wonder whether he would be so kind as to clarify one point. He has made it clear that the mother and the natural father could each have parental responsibility. Could the stepfather also have parental responsibility, bearing in mind that he may have statutory responsibilities with regard to the maintenance of the child?
The Lord Chancellor: Yes. That is so, not by reason of marriage alone, but he could incur parental responsibility for the child by virtue of his actions. He would not necessarily have all parental responsibility but he could have responsibility to maintain the child if the child was living with him as family. He could find himself in a situation where he would have responsibility for the child in a limited sense. That is how I see the situation. It is a question on which I have not had an opportunity for a great deal of thought and therefore I may seek leave to amplify my answer. However, that is my understanding of the position at present.
Who knows, someone else may have something to say on the subject. I am glad to see that the answer on this piece of paper is in accordance with what I said. It gives the example that if a residence order was made for the child to reside with the stepfather he would carry parental responsibility. So the general rule is that by virtue of actions after the marriage but not merely by the marriage the stepfather can have parental responsibility.
Lord Renton: So three people could be sharing parental responsibility—is that right?
The Lord Chancellor: Yes.
Baroness Macleod of Borve: Before the noble and learned Lord sits down perhaps I could just conclude this point by asking for clarification on a situation that I experienced in which the boy was 15 and the girl was 17 years old. They did not marry although they were the father and mother of a child. The parental responsibility was taken over by the mother and father of the 15 year-old boy—the father's parents. I do not think it was done legitimately by adoption. Would that come within the ambit of the noble and learned Lord's explanation?
The Lord Chancellor: In our proposals the natural father himself would not have parental responsibility
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under the Bill. The parental responsibility would be with the mother. However if an order were made for the child to live with the father and mother of the child's father, they would then, by the making of the order, assume parental responsibility.
Viscount Ullswater: Before my noble and learned friend sits down I should like to ask one more question. It is quite possible for parents to have great difficulty in producing children and to seek other means of achieving parenthood. It is quite possible that the father of the child that is born is not the natural parent of the child. Would he have the responsibilities as laid down in the Bill?
The Lord Chancellor: In the example given by my noble friend I assume that the persons in question are married to one another and that the wife is the mother of the child. If so, Clause 2(1) lays down that both had parental responsibility for the child. It does not go into details of the method by which the child came into existence, except to say that it was born.
Lord Kilbracken: I am grateful to the noble and learned Lord and other noble Lords who rather broadened my little amendment beyond the area that I expected it to cover. Of course I shall withdraw the amendment but before doing so I should like to refer to what the noble Lord, Lord Renton, said about the definition of the word "parent". I agree that it is far from clear what that word means. He spoke of some previous statute in which the word "father" was defined—or he thought it was. I wonder whether by any chance he is thinking of the definition of that word which I put down as an amendment to the Family Law Reform Bill. I thought that it was necessary on that occasion, as I do now, to say what is meant by the word "father"—or "mother"—because it seems to be used to mean something quite different in one section as opposed to another section.
So far as I can see in this Bill it usually means the natural father—the biological father. But it seems also to be used to mean the legal father or the second husband of the wife, who has custody—we cannot be sure what it means. When I put down that amendment I remember the noble and learned Lord, Lord Hailsham, who was occupying the Woolsack, saying that he really thought we all knew what a father was—and so we do. However, when it comes to legislation, if one refers to a father or a parent it can mean so many different things and even different things in different subsections that I do feel some clarification such as the noble Lord, Lord Renton, indicated is perhaps called for. But in the circumstances of course I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord Meston Lord Meston moved Amendment No. 9:
Page 2, line 28, at beginning insert ("Except where an adoption order is made,").
The noble Lord said: The purpose of Amendment No. 9 is to fill what I believe is a gap in Clause 2(6) in that the effect of an adoption order is overlooked. An adoption order completely extinguishes the rights

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and duties of the natural parents, transferring them completely to the adopters. Therefore it seems that there may be a potential inconsistency between that state of affairs and Clause 2(6) which provides that a person is not to lose parental responsibility solely because some other person has subsequently acquired parental responsibility for the child.
It seems to me that it would be valuable to make it quite clear that that provision is without prejudice to the effect of an adoption order, which is as I have just described it. I hope that that is a sufficient explanation of the amendment. I beg to move.
The Lord Chancellor: We have tried to use words carefully in this Bill—at least at this stage—and the emphasis is on the word "solely". Clause 2(6) reads:
"A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child."
When an adoption order is made it has the effect of depriving the person who previously had the parental responsibility of that responsibility. But that is not solely because the adoptive parents acquire parental responsibility under the adoption order; rather, it is because the adoption order, by virtue of Section 12(3) of the Adoption Act 1976, specifically extinguishes the previous parent's responsibility.
That is why we use the word "solely". It is a general principle and, I think, a universal one that merely because someone else acquires parental responsibility it does not mean that those who already have it are deprived of it. The adoption order is not merely saying that someone else has acquired the parental responsibility; the order has gone on to deprive the previous holder of that responsibility.
So with respect I consider that it is not necessary to make the exception, the emphasis being on the word "solely" which carried with it the point that the noble Lord has made. I hope that in the light of that explanation he will feel able to withdraw his amendment.
Lord Simon of Glaisdale: I trust that my noble and learned friend the Lord Chancellor has not closed his mind to this matter. Having heard his argument and that of the noble Lord, Lord Meston, it seems to me that this is a matter where there is room for further consideration.
Lord Meston: I am grateful for that invervention by the noble and learned Lord. Obviously it struck me that the answer might be found in the word "solely", but even so that there was some room for further clarification of the Bill in that respect. Therefore I join in asking the noble and learned Lord the Lord Chancellor not entirely to cease consideration of this point. I suggest that it will make the clarity of Clause 2 that much greater. There is a potential for some measure of confusion, particularly by those who wish there to be confusion in these matters. One can think of the unreasonable parent who, on finding that an adoption order has been made transferring all responsibilities for the child away to the adopters, latches on to Clause 2(6) and
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says, "Hold on! I've still got parental responsibilities. The law seems to say so".
I hope that this is only a drafting matter and that the point can still be cleared up in the way I suggest. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 10:
Page 2, line 39, leave out from ("child") to ("may") in line 40.
The noble Lord said: I regard this as a drafting amendment although it might also be called a probing amendment. It relates to subsection (9), which states:
"A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf".
I am sure that the noble and learned Lord can tell me how it is possible for some or all of his parental responsibility to be met by one or more persons acting on his behalf, without surrending or transfererring any part of it. That is the purpose of my amendment. I beg to move.
Lady Saltoun of Abernethy: If one engages a nanny to look after one's child one is not surrendering but delegating responsibility. Surely this is a delegation clause, is it not?
Lord Renton: The noble Lady has raised a point that, I must confess, I had never thought of. I welcome the amendment because as it stands the clause contains a contradiction in terms and can lead to confusion. Let us suppose we have parental responsibility shared by three people. This has been made clear by my noble and learned friend on previous occasions. Let us suppose that one of them, not all of them—the subsection refers to,
"A person who has parental responsibility"—
is told that he,
"may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met"—
I find the word "met" inexplicable in these circumstances. I should have thought that the word "held" or "exercised" might be more explicit—
"by one or more persons acting on his behalf."
Here we refer in the plural again. We may find that the one out of three parents sharing parental responsibility may transfer it to two other people.
This is a very confused and strange subsection, which I am sure my noble and learned friend the Lord Chancellor will wish to reconsider, whatever his atttude may be to the acceptance of the amendment.
Had I been tabling an amendment, I would have left out the words "but may arrange" to the end of the subsection, rather than leaving out the words which the noble Lord, Lord Kilbracken, wishes to omit. I do not think that in this case it would be right for responsibility to be surrendered or transferred or, to use another word, delegated.
On the point about the nanny, the noble Lady may be quite right, but I do not think that this is what I would call "nanny talk".
The Lord Chancellor: The noble Lady, Lady Saltoun, has explained this clause entirely to my satisfaction by reference to the example of the nanny.
Both the common law and Section 85 of the Children Act 1975 prohibit a person surrendering or transferring his parental responsibility. That is what we say. He may not surrender or transfer. That is perfectly plain in my submission. The Law Commission recommended that this situation should continue. In the Government's view it is quite right. There should be no question, short of an adoption process through the courts, of transferring what amounts to parental status or of a parent shedding his duties to a child by a unilateral act. That is why in this subsection we prohibit the surrender or transfer of that parental responsibility. Therefore if three people have parental responsibility, none of them can transfer or surrender any part of it.
On the other hand, perhaps some part of it should be delegated. They retain the responsibility but arrange for some part of it to fall to them to be carried out. It is the delegating of the parental responsibility that is allowed. That is a common distinction between the getting rid of one's responsibility altogether and arranging with somebody else to carry it out.
In delegating parental responsibility, the parent does no more than make arrangements for someone to act on his behalf in discharging this obligation. This is what we are saying here. He may arrange for some or all of it to be met. With respect, I think that "met" is a straightforward word. The responsibility is met by someone carrying out a duty which the responsibility requires. In that situation the person who has to do that is discharging, to the extent to which he carries it out, the parent's responsibility. It does not involve the parent giving up responsibility, and, more important, ceasing to be primarily responsible for the child. Its advantages as seen by the Law Commission are that it will help the conciliation process when couples separate if they understand that without giving up their parental responsibility they can nonetheless agree that on particular matters one of them should act on behalf of both.
One of the difficulties of the present situation is this uniqueness to which I referred earlier. People feel that if a unique right, say custody, is conferred on one parent rather than the other it gives them a victory in the fight. It may be better that they should both retain this more general level of responsibility yet still have the power to make arrangements, but that one or other of them should carry out some part of the responsibility. Its advantage, as seen by the Law Commission, is that it will help the conciliation process when couples separate if they understand that without giving up the responsibility they can nonetheless agree that on particular matters one of them should act on behalf of both of them. It was also thought that it would clarify the position for third parties, such as schools, who would know that to accept the decision of a person nominated by parents to act on their behalf during their absence would be within the law.
Let us consider the position of parents who are abroad. They could nominate someone to whom the
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school could refer, for example in the case of an emergency, when the parents were away. That would quite clearly be within the law. The Law Commission recommended that we keep the existing law. One cannot transfer or surrender parental responsibility but one can arrange for someone to carry out some part of the duties of that responsibility on one's behalf.
Lord Renton: I am extremely grateful to my noble and learned friend for this clarification. I had not looked at the matter in this way. It is usual for parents who send children away to school to employ people. To the extent that it is done, the child is in the care temporarily from time to time of the person meeting the responsibility. May we assume that when that arrangement is made—and I use the concept of the subsection,
"arrange for some or all of it to be met"—
the person who is doing that has no responsibility to the court, but that the people with the parental responsibility remain the only ones who are responsible to the court?
6.30 p.m.
Lord Kilbracken: My Lords, it had not occurred to me that nanny, nursemaids, baby sitters and child minders should have parental responsibility. All these people who take over work which parents are unable or unwilling to do are very useful, if either parent or both want to go to a pub for a drink. However, they can never be said to have parental responsibility and I do not think that any reference to them is intended here.
I am grateful to the noble Lord, Lord Renton. He is probably quite right in suggesting that I should have left out the part I left in and omitted the part I left out. However, it was the principle that I was talking about.
I listened with care to the noble arid learned Lord and I will read what he said with care tomorrow. I may be very dull, but I do not know why it is necessary to say that a person who has parental responsibility for a child may not surrender or transfer any part of the responsibility, but may arrange for all of it to be met by one or more persons acting on his behalf.
Baroness Faithfull: Very difficult circumstances can arise. Those who have worked in the child care field know that when parents go abroad and ask somebody else to look after their children and then do not send the money, there are real difficulties. If this clause goes in, one will know exactly who is financially responsible.
Lord Prys-Davies: The words that worry me are that the parental responsibilities can be surrendered or transferred. I follow the reasoning, if we are confining ourselves to parental responsibility, with delegation of some duties to another person. If there is delegation then we have the relationship of principal and agent and ultimately the parent remains responsible. However, if he is permitted to surrender, where, at the end of the day, is the responsibility?
Lady Saltoun of Abernethy: Surely the responsibility at the end of the day is still on the parents, however much you delegate care of a child to a nanny or to a school. If you are going abroad and you tell the school that if the child has appendicitis they are to apply to Aunt Jane for permission to have the operation done, at the end of it all the legal responsibility is still yours.
Lord Prys-Davies: That would certainly be the position if the critical word in the subsection were "delegation", but here the critical word seems to be "surrender". If the parent surrenders the power, does that mean that his responsibility vanishes?
The Lord Chancellor: I think that there may be some misunderstanding. The important words immediately before "surrender" are "may not surrender or transfer". That is the essence of it. That is the part that the noble Lord was thinking of leaving out. We are saying that that should not be allowed. You should not be able to rid yourself of your parental responsibiility, but you should be able to make arrangements for it to be met by other people in whole or in part, depending on the circumstances. It is difficult to think of circumstances where you could arrange for the whole of it to be met, but there may be some. That is the idea behind this clause and I hope that it is reasonably clear. I am certainly willing to consider whether we can make it even clearer.
Lord Renton: Would my noble friend kindly confirm that the person who has been asked to undertake the responsibility for a time, has no responsibility to the court?
The Lord Chancellor: I do not think that it would be right to say that. Another person cannot rid the parent of parental responsibility. For example, if a nanny took a child to school and was careless in letting the child cross the road, as a result of which there was an accident, the nanny may well have a legal responsibility for that. The parent might have a responsibility of a different kind. It is not easy to give an answer that would cover every possible circumstance. The responsibility as parent would remain on the person who made the arrangement, hut there may be a liability attaching to the person who agreed to take certain steps.
Lord Meston: Perhaps the noble and learned Lord will confirm that this provision derives from the common law prohibition on selling children? As he said, it was restated in the Children Act 1975. The importance of this provision in the Bill may well be in relation to formal surrogacy arrangements and things of that kind, which the law should intend to discourage.
The Lord Chancellor: It is right to say that the most extreme form of attempting to surrender or transfer parental responsibility was in the sale of children. The prohibition against that was in more general terms.
Lord Kilbracken: I should like to refer to what was said by the noble Baroness, Lady Faithfull. She spoke
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of parents who arranged for nurses or nannies to look after children while they were out of the country. It seems to me, in the ordinary use of the English language, that in that case they have surrendered or transferred a part of that responsibility to another. It must be part of parental responsibility to look after a child all of the time. They transfer a part of that for a short period.
Baroness Faithfull: The noble and learned Lord will correct me if I am wrong when I say that they may have surrendered the day-to-day care of the children, but they have not surrendered the responsibility. As one who worked in Oxford, I know that there were a number of dons who would do research for a year in another country. They would ask an aunt or an uncle or even foster-carers to look after the children and they would be responsible for paying for them. Therefore the foster-parents had the care of the children, but the parents had not surrendered responsibility.
Lord Kilbracken: It seems to me that if I were to put my child under the care of someone, I would say, "You are responsible for him while I am away." I would make that person responsible, and that person would assume responsibility.
The Lord Chancellor: I am not sure how much further we can take this matter. The point is that while you may ask somebody to look after your child while you are away, this is saying that so long as you are away you are still the child's parent and have responsibility for the child. One cannot cease, even in part, to be the child's parent just because one has left the child with someone else. In that situation one retains full parental responsibilities—as I am sure one would wish to do—having made arrangements for the responsibility of looking after the child to be met by somebody else. That somebody else may have responsibilities to the parent and may have responsibilities in law to other people. He or she would certainly have a responsibility to carry out whatever arrangements had been made with him or her to look after the child. If there is any fault in that respect, there may be some remedies. However, the parental responsibility remains with the parent. The responsibility of the person who has been asked by the child's parents is to meet in part some of the duties flowing from that responsibility.
Lord Kilbracken: I am most grateful to the noble and learned Lord for his consideration. I accept entirely what he says and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Acquisition of parental responsibility by father]:
[Amendments Nos. 11 and 12 not moved.]
Lord Banks Lord Banks moved Amendment No. 13:
Page 3, line 34, at end insert ("which shall include a statement that each party has been advised to seek legal advice.").
The noble Lord said: This amendment seeks to ensure that when an unmarried father is seeking parental responsibility both parties shall be advised to take legal advice. We believe that these two amendments in the names of myself and the noble Lord, Lord Kilmarnock, will strengthen the Bill by giving greater clarity to agreements that are made, protect the most vulnerable single mothers and give parties with contact orders greater scope for strengthening their relationship with the child. We believe that these measures operate within the spirit of the Bill, but give it greater impact.
This first amendment is designed to protect the unmarried mother. While we agree that unmarried parents should be able to enter into voluntary agreement to share parental rights, many organisations, including the National Council for One Parent Families, have experience of unmarried mothers having unreasonable pressure brought to bear upon them to agree access of a putative father to a child.
We welcome a recognition in law that more putative fathers are playing an active role in the lives of their children but we do not want to leave the very vulnerable group of unmarried mothers without protection. Our amendment seeks to ensure that parties to any voluntary agreement have been advised to seek legal advice before they file their recommendation of agreement, so that both parties are fully aware of the consequences of their action. I beg to move.
Lord Simon of Glaisdale: Will this amendment do in its present form? I well understand what the noble Lord wishes to get at, but it is dealing with rules of court and it does not seem to me to make much sense to say that the rules of court shall include a statement that such a party has been legally advised. Does not the noble Lord want included the word "requirement" rather than "statement"?
The Lord Chancellor: I think that here there is possibly a drafting difficulty. I think I am right in saying that the amendment has altered in its terms a little since its originally appeared. It says:
"which shall include a statement that each party has been advised to seek legal advice."
It is not clear to me at the moment who is the authority who has to give the advice to the parties to seek-legal advice. What is at issue in this part of the clause is a form for giving the father and mother of a child, who were not married to each other at the time of the child's birth, the possibility by agreement, which we refer to as a parental responsibility agreement, for the father to have parental responsibility for the child.
I entirely accept that that is an important agreement, and we shall do our best to make the terms of the prescribed form as clear as possible. We shall try to match the standard which has been set in this Bill. For the reason given by the noble and learned Lord, Lord Simon of Glaisdale, it would be difficult to see this amendment in its present form being quite appropriate.
On the other hand, if it was thought desirable, the form which the Lord Chancellor would prescribe
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could, inter alia, contain a warning about the legal significance of the form and the fact that it was meant to have legal consequences, and that if anyone was in any doubt before signing it they should seek legal advice. I would be prepared to go along with that as a proposal, which might meet the point made by the noble Lord. I think that to put that in the Bill would require some further consideration of the drafting, and it may be that an assurance in these terms would meet the point the noble Lord wishes to make.
Lord Banks: I fully take the point made by the noble and learned Lord, Lord Simon of Glaisdale, and no doubt the word "requirement" would be more satisfactory. I believe the noble and learned Lord the Lord Chancellor was thinking along somewhat similar lines. I should like to read very carefully what he has suggested, and perhaps return to this matter at the next stage of the Bill. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Clause 4 agreed to.
Clause 5 [Appointment of guardians]:
6.45 p.m.
Lord Meston Lord Meston moved Amendment No. 15:
Page 4, line 3, at end insert ("or
(c) the surviving parent is unable, whether temporarily or permanently, to exercise parental responsibility for him.").
The noble Lord said: Amendment No. 15 is designed to fill what is perceived to be a gap in the guardianship provisions of the Bill. The Bill provides for the circumstances in which the court may by order appoint an individual to be a child's guardian. It seems to me that one particular state of affairs can arise whereby one parent is killed and the surviving parent, for one reason or another, is incapable of exercising parental responsibility for the child. This can arise in practice, for example, where one parent has killed the other—has actually murdered the other—and is in prison, or where there has been an accident in which one parent has been killed and the other parent seriously incapacitated, or where the surviving parent suffers from some form of disability such as severe mental illness. It is to fill that gap, as it is perceived to be, that this amendment is put forward. I hope my explanation of it is sufficient, and I beg to move.
The Lord Chancellor: This amendment addresses a situation which I can see requires to be addressed; but I think it is to some extent addressed in the Bill by the various provisions that would cover it. I will come to those in a moment, but to begin with I should like to say that the amendment is very wide and unspecific in its terms. For example, it does not limit itself to where the disability arises from mental or physical health, or where the parent is outside the country. Indeed, this would operate as the noble Lord said, if one of the parents is in jail.
It leaves the court with a very broad issue to decide as to how far a parents ability, for whatever reason, has to be impaired before he becomes unable to

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exercise parental responsibility. A person who is in prison may be able to exercise some parental responsibility, particularly having regard to the power that we were referring to a little while ago. Also the measure is very drastic in its apparent effect, as it allows the appointed guardian to exercise responsibility for him—I think that must mean for the parent, although I am not absolutely certain that is what is meant. This, I take it, implies exclusion of the existing parent.
Clause 2(9) already enables a parent himself to make arrangements to delegate his responsibility to another person. He might want to do this, for example, when he is working abroad. Further, where a parent cannot look after a child he can apply to the court for a residence order, which gives him shared parental responsibility with any parent, together with the right to have the child live with him. Therefore the sort of situation which the noble Lord wishes to cover would certainly be dealt with in that way. In the most extreme cases adoption is always an option, or indeed if the child is at risk of harm there is the possibility of local authority care proceedings.
The amendment would give the courts wide powers to substitute a guardian for a parent and, in effect, to extinguish the parents responsibility perhaps forever. The circumstances where it would be possible are vague and there are no qualifying criteria to govern who may apply for an order, nor is the court's leave required as it would often be in respect of orders under Clause 7. Certainly there are none of the protective conditions that operate in care or supervision cases and no careful process as is involved in adoption.
In those circumstances, the Government are not convinced that there is a need to give the court the power which the amendment envisages. And even if there did appear to be some lacuna in the law or the Bill a power would need to be more closely circumscribed and hedged about to prevent it being invoked improperly.
I am sure we all share the underlying concern to protect and promote the welfare of children but this is not a means to that end which we see as desirable. In cases such as this the range of available orders under Clause 7 should usually be sufficient. A residence order, for example, gives the person concerned all the parental responsibility except the power to consent or refuse consent to adoption or to appoint a guardian.
If one is going straight to a guardian, or if one is going to appoint a guardian, then there is a problem. Those are the two exceptions in that case. Neither derogation is a real problem as the court may dispense with parental consent to adoption and the court can always appoint a guardian if and when the parent dies. In an extreme case adoption or local authority care is available. However, unlike the amendment both are carefully designed to avoid abuse.
The particular problem of a child having a surviving parent who is under some form of disability is catered for in quite a number of ways. Where those ways exist, there are safeguards. The proposal in this
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amendment seems to be very open with a good deal of difficulty about it. Therefore I do not feel able to support this amendment on the basis of the explanation given so far.
Lord Meston: I am grateful for that response. Of course I accept that in the situations I described there are other options open to deal with the situation. However, I should have thought that the purpose of the amendment was to add a measure of consistency to the law and not to rule out the choice of guardianship in such circumstances, if considered appropriate. Of course, that is not to say that the court would grant the appointment of a guardian in those circumstances because it still has a discretion whether or not to make that order.
I should like to consider the suggestion made by the noble and learned Lord that the proposal in this amendment is too wide, and I should like the opportunity to come back, if necessary, with a more restricted amendment at a later stage. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 16:
Page 4. line 11 leave out subsections (6) and (7) and insert—
("( ) Any appointment made under subsection (2) or (3) above shall take effect on the death of the person who made it.").
The noble Lord said: Subsections (2) and (3) move on to the question of a guardian who is appointed by one of the child's parents to take his place after the parent's death.
This is a matter of great personal importance to me, as may appear from my remarks. I consider it to be of considerable importance. As I understand it, until now the position has been that such guardians are appointed by a codicil to the will of the man, or the woman's will for that matter, in which is appointed a testamentary guardian. As I understand it, such a guardian begins to fulfil that function as soon as the person making the will dies.
That situation is completely changed by the provisions of subsections (2) and (3) as read in connection with subsections (6) and (7), which state as a general rule that if a guardian is appointed by a parent to take over after his death, then that guardian does not have any function to fulfil until the other parent has died.
I have quoted before my own experience as a child. However, to illustrate this point perhaps I may mention my own position at present. I am 68 years old and I have a son aged seven. His mother and I are on the point of divorce. His mother is an Australian. If I die within the next 11 years, which becomes increasingly likely as the years go by, then I do not want my son to go off into the backwoods of Australia or wherever his mother happens to be, removing all contact with my family, all the members of my family who are close to him, and from my home in Ireland, which otherwise might happen. Therefore, a couple of years ago, I appointed as his testamentary guardian my elder son, who is 44, and who is already a very parental figure to his half-brother. Therefore my elder son would become the guardian of my younger son on my death.
I believe that that situation should continue. I do not see why it should wait until his mother's death, which would be unlikely to occur during the next decade. The purpose of this amendment is to ensure that any such appointment of another person as guardian of a child should come into force immediately after that parent's death. That calls for the deletion of subsections (6) and (7) and the substitution of the new subsection in my amendment.
Perhaps I may say that the language of subsection (6) is rather hard to understand. It begins:
"Where, immediately before the death of any person making an appointment under subsection (2)",
which is what I am referring to, where the child concerned has no parental responsibility regarding him, and yet subsection (2) refers to a parent who has parental responsibility for the child. Therefore, there must always be one with that responsibility. If I continue I shall become confused. Therefore I beg to move.
The Deputy Chairman of Committees (Lord Alport): I have to advise the Committee that if this amendment is agreed to I cannot call Amendments Nos. 17 or 18.
7 p.m.
The Lord Chancellor: Under the Bill as it stands, subject to one exception, the appointment of a guardian does not take effect if there is a surviving parent with parental responsibility. The amendment would mean that the appointment would always take effect when the appointer died and the guardian would share parental responsibility with any surviving parent.
This is a matter which the Law Commission considered carefully and, subject to one exception, it recommended that appointments of guardians should not take effect while there is a surviving parent with parental responsibility. The present law which allows a guardian to take office alongside a surviving parent in their view reflects the days when the father alone was the child's guardian so that on his death a replacement was required.
Again in their view, and it is a view shared by the Government, a modern law reflecting the equal status of parents must balance the claims of a surviving parent and the wishes of a deceased parent in the way which is best for the child. The majority of children who face the death of a parent will have been living with both parents at the time of the death. Their interests will generally best be served if the law seeks to preserve the stability of the home and supports and confirms the continuing responsibility of the surviving parent and his or her existing relationship with the child. So far I expect we might generally agree.
In the Government's view, allowing an outsider at that point the right, irrespective of the wishes of the surviving parent or the child, to exercise authority in respect of the child is capable of causing added harm and worry to the family. Even under the present law, where the surviving parent may object to the guardian, he or she may be faced with an invidious choice. Either she accepts the deceased's wishes,
1186
when in all likelihood neither realised that the guardian would have power to interfere in the family's life while there was a survivor, or she must object to that guardian despite the fact that she might be content for the appointment to have effect were she to die.
There is, of course, nothing to stop a surviving parent seeking and taking the advice of a person whom their partner has appointed as guardian without the appointment taking effect. Further, if there is some real concern for the children's welfare a person appointed guardian could always seek an order under this Bill. In rare cases, local authority care or supervisions might be considered. Therefore, the person who is appointed guardian might well, if there was a real difficulty, apply to the court for leave to present, for example, an application for a residence order. In these circumstances, I hope your Lordships will resist this amendment and in so doing safeguard widows and widowers who already face enough problems in raising their children from having persons appointed by their partner seeking to interfere in their lives on the basis of legal authority.
It is important for me to mention the exeption. It is not for me to give advice on particular cases, but it may well be that the exception would apply in the case to which the noble Lord referred. The Bill provides that where the child was required to live with the deceased under a residence order the appointment should take immediate effect on death. For example, if a couple were divorcing and sought an order from the court and an order was made that the child should reside with one parent, in that case the exception would apply. The guardian would then share parental responsibility with a surviving parent.
The reason for the exception is that, sadly, following separation, children often lose touch with one parent. In some cases they become part of a new family. In those cases, the parent who has the care of the child may think it necessary to ensure that on his or her death there is someone to care for the child and, if the child is living in a second family, to safeguard the child's position in it. Accordingly, it seems right to the Government that a single or separated parents' appointment should take effect when he or she dies if the child is living with him or her under an order. In the majority of cases that will ensure that the child is looked after by a close friend or relative such as a grandparent or by a step-parent who has the responsibility for bringing up the child.
That result need not exclude the surviving parent who can either share the child's upbringing or, if he or she wishes, seek to have the guardian removed by the court. Therefore, it may well be that the circumstances mentioned by the noble Lord could be dealt with otherwise, but that is the justification for our position. As I said, the matter was considered by the Law Commission and this result set out. I hope that the noble Lord will feel able, in the light of that reply to withdraw his amendment.
Lord Kilbracken: I am grateful for the advice given to me by the noble and learned Lord. It comes to me from an eminent source without my having to pay any legal fees. Of course, before that could happen I would have to obtain a residence order. Clause 7(3)

1187
does not make clear whether a residence order can be given in respect of both parents; but I believe that it may be.
This is clearly a matter of opinion. There is not a right or a wrong about it. Either you believe that the child should have a guardian in place of his dead parent, or you do not believe that. I believe it should be the former; the noble and learned Lord thinks the latter, and probably the majority of your Lordships think so, too. I wish to clarify that position. I assume that if one has already appointed a testamentary guardian or, indeed, if a testamentary guardian is already in existence, that his powers will continue; though perhaps the testamentary guardian who has not yet succeeded to the possession would find he did not have those powers. I am not certain about that. However, in view of what the noble and learned Lord said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Dundee: The Committee may feel that we have reached a suitable moment to break and return to the subject in one hour's time, at five minutes past eight. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Bristol Development Corporation (Area and Constitution) Order 1988
7.5 p.m.
The Earl of Arran The Earl of Arran rose to move, That the order laid before the House on 17th May be approved [27th Report from the Joint Committee, Session 1987-88].
The noble Earl said: My Lords as the second Motion in my name on the Order Paper follows directly from the first, it may be convenient for the House if I speak to both together.
My right honourable friend the Secretary of State announced his proposal for an urban development corporation in Bristol on 7th December last year. A team of consultants, led by Ecotec Research and Consulting were appointed to study the proposed area and the land immediately adjacent. They were asked to recommend boundaries, assess the public sector resources required and the likely level of private investment that could be generated.
In the light of their advice, my right honourable friend the Secretary of State drew up firm boundary proposals, which were circulated to both the city and county council for comment before final decisions were taken and an order made.
The Bristol Development Corporation (Area and Constitution) Order 1988 was laid before your Lordships' House on 17th May. The order was declared hybrid and two petitions were deposited against it. The petition of Bristol City Council was judged to have locus standi and the order was referred to a Select Committee of your Lordships' House for further inquiry. The committee comprised the noble
1188
and learned Lord, Lord Brightman, as chairman and the noble Lords, Lord Blease, Lord Elibank and Lord Hampton, and the noble Viscount, Lord Hood.
The committee began its inquiry on 11th October. It sat for nine days to hear evidence and submissions from the Government and the city council and then visited Bristol to tour the proposed area. It met on a further two days to consider its report. The committee made known its conclusions on 9th November and its full report was published on 7th December.
I am sure that your Lordships' House will join me in expressing gratitude to the committee for the way in which it conducted its enquiries. It made a thorough examination of the problems, potential and progress of each part of the proposed area before producing its comprehensive report. The report made firm recommendations. I am delighted to say that the committee found strongly in favour of the establishment of a UDC. It recommended that the boundaries be altered so as to exclude four areas, together totalling around 60 hectares.
The Government have accepted these proposed amendments to the boundary. My right honourable friend the Secretary of State laid an amendment order before your Lordships' House on 12th December. That amendment order was itself declared hybrid. However, your Lordships determined last week that it would be appropriate to suspend Standing Order No. 216 in this case, given the detailed inquiry which had already been held.
The effect of these two orders, if approved by your Lordships and in another place, will be to establish a UDC in Bristol. Its designated area will cover around 360 hectares.
That briefly is the history of these two orders. Perhaps I may say a few words in general about urban development corporations. UDCs are set up under Part XV1 of the Local Government, Planning and Land Act 1980. They are single-minded organisations with a statutory duty to secure the regeneration of their areas. They combine statutory powers and public funding with the private sector experience of their boards. The combination of these factors ensures that UDCs are effective agencies for urban renewal.
In particular, UDCs should seek to bring land and buildings into beneficial use; they may themselves acquire, reclaim and dispose of land and other property and seek to ensure the provision of services. UDCs can encourage the development of new and existing industry and commerce, help create an attractive environment and ensure that housing and social facilities are available to encourage people to live and work in the area. They may also, by order, be made the development control authority for their area, and indeed my right honourable friend the Secretary of State intends to transfer planning powers to the Bristol UDC.
I now turn to the situation in Bristol. The City of Bristol is for the most part prosperous and flourishing. However, that prosperity is not evenly distributed throughout the city. The area to the east of the city centre contains Bristol's traditional industrial heartland. The area was mostly developed

1189
in the 19th century but now finds itself with an out-of-date transport infrastructure, serious development problems and a significant number of vacant and under-used sites. The UDC will address itself to overcoming these problems and securing the area's regeneration.
The strategy for regenerating the area will be a matter for the UDC once it is established. However, the consultants examining the area have suggested that the UDC would need to improve access for both new and existing users; open up industrial sites to ensure an adequate supply of industrial land to meet the requirements of modern industry; undertake environmental improvements and encourage further housing development; and bring back into use major derelict sites by encouraging mixed use development.
The consultants have estimated that the UDC should be able to do its work with a budget of £15 million over five years plus receipts of several million pounds from land transactions. Ecotec estimated that up to £250 million of private development could result from this expenditure.
UDCs for Central Manchester and Leeds were announced together with that for Bristol; a UDC for Sheffield was announced in March as part of Action for Cities. Establishment of those three UDCs was unopposed and they came into existence at the end of June. It is unfortunate that the Bristol UDC has been delayed. However, I hope that, if your Lordships approve these orders today and if they are subsequently approved in another place, the UDC can start work in its area early in the New Year. The Government, like the Select Committee hope that the city council will now lend the UDC its full co-operation, which will be invaluable to the regeneration of the area. I commend the orders to your Lordships' House.
Moved, That the draft order laid before the House on 17th May be approved [27th Report from the Joint Committee, Session 1987–88].—(The Earl of Arran.)
7.15 p.m.
Lord Dean of Beswick: My Lords, perhaps I may join with the noble Earl, Lord Arran, in thanking the members of the committee that dealt with these matters. I am fully aware of the time that was taken and the amount of evidence that it had to hear in order to make a recommendation to your Lordships' House. While we on this side of the Chamber have no desire to oppose the orders before us, I do not believe the situation is as the Minister indicates. In fact I believe he is looking at the matters through rose-coloured glasses.
The noble Earl mentioned that this particular order was originally tabled for process at the same time as the orders for Manchester and Leeds, and they were not opposed. They were not opposed officially and there was no recourse to the action that Bristol took. Those orders were not welcomed with open arms by the City of Manchester City Council or the City of Leeds City Council. At one time those areas were not proceeding with the best of haste to be developed. The councils had finally come to the view that they had to proceed on a partnership basis
1190
involving themselves with private money and developers. I do not believe it is right to say or to give the impression that the orders were welcomed with open arms in Leeds and Manchester because that was not the case. As I have said, both those cities were in the process, and still are, of developing substantial areas of their inner cities in partnership and on agreed terms with various financial entities.
What worries me in particular is that with the best will in the world urban development corporations are still at an experimental stage because as yet they have not proved anything. They have not been given the chance. The only example to which one can have recourse and consider is that of the London Docklands. We all know that the development as regards London Docklands has not been roses all the way. There has been severe criticism by the Public Accounts Committee in another place as regards some of the activities of London Docklands and the way in which those activities were pursued. London Docklands, like these urban development councils, need not have recourse to the local authorities in which they are situated. They can proceed lightly on their way. The only person who can muzzle them or put a tight rein upon them is the Secretary of State. If one takes the trouble to read the minutes of the Public Accounts Committee in another place one sees that there is a good deal of concern as regards what unelected but appointed bodies can do when they are dealing with large areas of land for redevelopment in inner city areas. That will be high value land whatever city it is in.
The Minister said that the City of Bristol is a patchwork where various parts of the city are prosperous and other parts are not. From my experience one can say that about any of our largest cities including London. We are within almost a stone's throw of some of the worst areas of London that require development. One has the most affluent areas of London in the West End and in the City of London, but within a mile or two one can see the utmost deprivation. Therefore, it is not peculiar to Bristol to use the contrasts as an excuse. As I have said, we are not opposing these orders, but there is the question of the Government's insensitivity in not having regard to the views of the local authorities. They represent people and they are voted into and out of office.
I do not expect the Minister to give me an answer now, but people like myself will be watching the progress of these urban development corporations. I believe that one of the first developments after London Docklands was Trafford Park on the periphery of the City of Manchester but in Greater Manchester. We must wait to see what that development produces.
Some two or three weeks ago I read with some dismay that there was a threat that the Phoenix Initiative would be brought to an end. To be very brief, the Phoenix Initiative is not an official government body. I believe its offices are situated at the Building Employers' Confederation offices. The Phoenix Initiative has been doing an excellent job in partnership with cities and it has been producing results. I have been to see a quite outstanding

1191
example in the City of Salford. This body was in negotiation for a huge area towards the centre of Manchester. As far as I know the Phoenix Initiative had been quite extensively involved in inner city development before anyone had coined the name or even thought of an urban development corporation. The body was mainly motivated by people in the private sector; namely, builders, financiers and their supporters who were negotiating with local authorities, coming to terms with them and redeveloping to the satisfaction, I must say, of the government of the day. That was without any demure whatever.
I do not expect the Minister to answer me now but perhaps he will write to me on the question of the future of the Phoenix Initiative. I do not oppose the urban development corporations: I wish them success. I believe it will be absolutely disastrous if the Government, while forming or instituting this type of procedure with urban development councils, were almost to pull the rug from beneath the Phoenix Initiative and what it stands for. It has started to produce the goods and I believe that it will produce them quicker than the urban development corporations because it is further through the tunnel. Having said that, I end on the note on which I commenced.
I am saddened that the development of cities such as Bristol cannot take place on a full partnership basis. Some local authorities appeared to be reluctant at the beginning but came to realise that without partnership with the private sector development could not take place. In the cities of Manchester and Leeds, which I know very well, development was gathering pace. It is happening now because the urban development corporation has not existed long enough for it to do anything. I hope that the formation of urban development corporations does not act as a brake on schemes already agreed on a voluntary basis between local authorities, the private sector and the building interests involved. What the Government are doing through the urban development corporations could have been done by agreement.
It may be the case that in the not too distant future your Lordships will decide to debate this important function. The Minister referred to a starting point of £15 million. As a basis for the development of a city like Bristol, that is confetti money. It is peanuts in terms of land values.
We shall not oppose the orders but we do not criticise Bristol for its course of action. It acted in what it considered to be the best interests of the citizens and the ratepayers of Bristol. Only time will tell whether the urban development corporations are value for money for local ratepayers. I look forward to the day when balance sheets are available. We shall then see whether the experiment—and it is only an experiment—has been a success or a failure. I hope that the former is the case but I am frightened to death that it may be the latter. If that is so, it will prove what I and many other people not of my political persuasion have said from the start—partnership at local level is a far better starting point than an urban development corporation.
Lord Hampton: My Lords, I thank the Minister for introducing the orders. I speak from our Front Bench but I was also a member of the Select Committee so ably chaired by the noble and learned Lord, Lord Brightman. From these Benches, more readily it seems than the noble Lord who has just spoken, we welcome the way in which the Government have accepted the unanimous recommendations of the Select Committee. I hope that Bristol city council and the new development corporation can now work toegether in real harmony.
We were agreed in the committee that the main area needed regeneration. We all believed that that part of the originally proposed development area to the north-west which has now been accepted for exclusion has already shown lively development and can best be left in the care of the city council. With confidence we wish Mr. C. W. Thomas, the chairman designate of the urban development corporation, well. We on these Benches support the two orders. I shall certainly hope to go back in two or three years' time optimistically to see the developments.
Lord Brightman: My Lords, I am sure that the committee which I had the honour to chair will be grateful for the kind remarks made by the noble Earl, Lord Arran, and the noble Lord, Lord Dean of Beswick, on its handling of its task. I should also like to thank the noble Lord, Lord Hampton, for his kindly tribute to my chairmanship.
I found the committee's task both enjoyable and instructive but not easy. Perhaps the most important and worrying aspect was that the establishment of an urban development corporation inevitably means that the planning control of the area in question is taken out of the hands of the elected representatives of Bristol and placed in the hands of a government agency. This aspect much concerned the Select Committee which examined the London docklands order and this aspect greatly concerned our committee. It meant that the promoter of the order had to make out a strong case to justify the setting up of an agency that would supplant the local council.
There were three main issues before the committee. The first main issue was whether the area in question needed to be regenerated. The committee had no doubt that the answer to that question was an emphatic yes. Perhaps I may give your Lordships just one example. In the middle of the proposed urban development area there is a 25-acre site with the somewhat unappealing name of Marsh Junction. Until 1980 it was used as a storage area for a large board mill which has now been closed. At the northern end of this important site is a now disused and crumbling railway embankment. Beyond the embankment is an unofficial site for gypsy caravans. The rest of the site is vacant and deserted. Down the western side is a disused railway track. Along that track British Rail has stationed a line of rusty old railway wagons which bar the southern access to the site. The wagons are all marked as condemned but they have been condemned for so long that coarse grasses have found a foothold on some of them and bindweed grows over their wheels.

1193
This important site has been unused for eight years except as a cemetery for old railway wagons. There are many other pockets of decay or dereliction. Inevitably one asks who is to blame for this state of affairs. The committee said, and I emphasise, that blame should not he laid at the door of the city fathers. As the committee stated in its report, the dedication of Mr. Patterson, the chief planning officer of the council, was abundantly clear. But the city council has many responsibilities outside the proposed urban development area, competing priorities and a restricted budget. It is hampered by the fact that it is not the highway authority, and much of the trouble stems from an out-of-date road system and inadequate access to development sites. It should not therefore be a matter of great surprise if the council has not carried out the wholesale attack on those areas of decay which an urban development corporation will be certain to mount.
The second main issue before the committee, and the most difficult one, was whether regeneration would be better accomplished by an urban development corporation, rather than by the absence of one. The conclusion reached by the committee is spelt out in paragraph 47 of the report. With your Lordships' permission I should like to read two sentences therefrom, because they are really the nub of the committee's decision on the issue:
"Quite apart from the injection of over £15 million of extra money, a small agency such as the proposed UDC, with highly qualified members in office, concentrating on the sole job of initiating the regeneration of a small area of the city, would have the capacity to move with greater speed and effectiveness than the planning department of the City Council. Furthermore, the knowledge that there exists a government agency to deal specifically with the redevelopment of a defined area of Bristol will give prospective developers the confidence that the area as a whole is about to be improved and a modern infrastructure created".
The third issue was also a difficult one; namely, whether any parts of the proposed UDA should be excluded for reasons peculiar to those parts. After a great deal of discussion among themselves, members of the committee concluded that four parts on the circumference of the area did not really need to be handed over to the proposed corporation.
Samuel Pepys, writing in his diary on 13th June 1668, described the then city of Bristol as:
"in every respect another London".
Seventy years later, Alexander Pope described the River Avon, where it wound its way through the city as:
"fuller of ships than the Thames between London Bridge and Deptford".
It is perhaps too much to expect that Bristol will attain quite that eminence again in the foreseeable future. But the establishment of an urban development corporation offers Bristol the best means of rehabilitating her former industrial heartland.
I express the hope that your Lordships will feel that the committee reached the right answer in its report. If both Houses approve the proposed orders, I also hope that the city council, despite its initial opposition, will accept the situation and lend the corporation its fullest co-operation.
Lord Blease: My Lords, I too was a member of the Select Committee appointed to consider the matters under the principal order. I rise to support the approval of the orders now before the House and warmly to concur with the remarks so ably made by the noble and learned Lord, Lord Brightman. I should also like to say that I welcome the critical and forthright way—and I believe helpful way—in which my noble friend the Opposition spokesman, Lord Dean of Beswick, dealt with the issues of urban development areas.
I should also like to thank the Minister for his kind remarks in reference to the work of the committee. I feel that it is only right and proper that I should indicate my pleasure regarding the way in which the Secretary of State for the Environment, the right honourable Nicholas Ridley, now proposes to implement the recommendations of the Select Committee. I do so because I am assured that the action has met with the approval of the elected representatives of the Bristol area.
The Select Committee certainly very much appreciated the help and co-operation it received from both the promoters and the petitioners. We found that both groups were strongly committed to the needs of a regeneration of the area concerned. Despite the reservations that the members of the committee had about the mode of operation and about certain planning measures, we believe that the decisions that were taken were taken in the best interests of the people in the area.
I believe that the Members of the Select Committee would like to place on record their gratitude to the chairman. the noble and learned Lord, Lord Brightman. His pleasant and effective manner in the committee and in the drafting work made our task comparatively light. We also found the clerk and the staff of the Private Bill Office most helpful.
Finally, perhaps I may add, with I believe a sense of confidence, what is already contained in the Select Committee's report; namely that through this project the Bristol City Council and the urban development corporation can accomplish much for the benefit of the people in that particular area. Therefore I concur with the remarks already made by the noble Lord, Lord Hampton, and by the chairman of the committee, the noble and learned Lord, Lord Brightman, that this was done with a considerable amount of critical analysis of the work of both the proposed urban development corporation and the role and functions of the Bristol City Council. With those remarks I should like to express again my support for the approval of both orders.
The Earl of Arran: My Lords, as a result of this evening's debate I think it would be most right and proper if, before taking individual points—especially the points made by the noble Lord, Lord Dean of Beswick—I were to express on behalf of your Lordships' House our great gratitude once again to those noble Lords who sat on the Select Committee. In particular we should like to express our gratitude to the chairman of the Select Committee the noble and learned Lord, Lord Brightman, who obviously put an enormous amount of toil, good sense and hard

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work into the whole problem. Indeed, the noble and learned Lord spoke most eloquently about the problems of the area. The Government can only agree with the committee's finding that those problems are best tackled by a single-minded body.
I turn now to the remarks made by the noble Lord, Lord Dean of Beswick. I should first point out that the Select Committee in its report described the UDA—I repeat this passage again—as:
"A decayed area set near the heart of one of England's greatest cities. It is not an area of total devastation, but one which contains numerous pockets of decay … an area which cries out for a radically improved infrastructure and orderly development".
This particular UDC is the eleventh that has been formed since the Government's conception of UDCs in 1980. I should like, if I may, to make three very quick points in regard to the remarks made by the noble Lord, Lord Dean of Beswick. First, he said that the Leeds and Manchester urban development corporations were not welcomed with open arms. But both local authorities are co-operating with the UDCs, and local councillors have taken up seats on their boards.
Lord Dean of Beswick: My Lords, I hope that the noble Earl will give way for a moment. Is not the Minister aware that in the case of the Manchester one, the two members of the Manchester City Council who were appointed to the board—namely, the leader of the council and councillor Flanagan—did not attend the initial opening to express their disapproval of what was taking place?
The Earl of Arran: My Lords, I hear the point made by the noble Lord. Secondly, I remind the noble Lord, Lord Dean, that UDC members are not elected, but neither were the members of the highly successful new town corporations which were invented by the Labour Government. UDCs exist to get the job done. Their members all have local connections with the private and public sector. Where local authorities have agreed, local councillors have been appointed.
Thirdly there is no reason why the UDC should displace the Phoenix initiative. Local private sector initiatives can only be helped by the formation of the UDC. By approving the orders, we can make an important contribution to the regeneration of a sizeable area of East Bristol. It is in that context and in that vein that I commend the orders to your Lordships.
Lord Dean of Beswick: My Lords, before the noble Earl sits down, I hope your Lordships will not think that I am labouring the point, but I should like to express my gratitude for the tremendous amount of work done by the committee under the chairmanship of the noble and learned Lord, Lord Brightman, in a difficult situation. Bearing in mind the need to create the maximum goodwill in the area, will the Minister tell the House whether any members of Bristol City Council have been appointed to, or been offered and refused, places on the UDC? That is an important point.
The Earl of Arran: My Lords, I understand that eight appointments have already been made and that three places remain to be filled.
Lord Dean of Beswick: My Lords, I am sorry to pursue the point but I asked a question. Have any Bristol City councillors been appointed or have any places been offered to them?
The Earl of Arran: My Lords, to be best of my knowledge none of them has yet been appointed.
Lord Dean of Beswick: My Lords, have the councillors been offered places? The noble Earl must surely know that.
Lord Brightman: My Lords, I do not know whether I am at liberty to intervene, but my understanding was that two—I may be wrong in my numbers—appointments were going to be offered to the council. I intervene only to say that that was my recollection. My noble friend Lord Blease may be able to support that recollection.
On Question, Motion agreed to.

Bristol Development Corporation (Area and Constitution)(Amendment)Order 1988
7.42 p.m.
The Earl of Arran The Earl of Arran rose to move, That the order laid before the House on 12th December be approved [3rd Report from the Joint Committee].—(The Earl of Arran.)
On Question, Motion agreed to.
7.43 p.m.
Viscount Long: My Lords, I beg to move the House do now adjourn during pleasure until eight o'clock.
Lord Ponsonby of Shulbrede: My Lords, I believe that the time should be five minutes past eight, as indicated earlier by the Government Whip.
Viscount Long: My Lords, I apologise. I beg to move that the House do now adjourn during pleasure until five minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.44 to 8.5 p.m.]

Children Bill [H.L.]
House again in Committee on Clause 5.
Lord Kilbracken Lord Kilbracken moved Amendment No. 17:
Page 4, line 12, leave out ("before") and insert ("after").
The noble Lord said: About 25 years ago I put down an amendment to the Betting, Gaming and Lotteries Bill which I considered to be of some importance. The Committee rose for Dinner immediately before I moved that amendment; when we returned there were present in the Chamber myself, the Deputy Chairman of Committees and the

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Minister. That exactly constituted a quorum. I feel somewhat in the same position at this moment with a feeling of dèjá vu.
The amendment is not of enormous importance but I feel that it is irresistible. In subsection (6) we are told that:
"Where, immediately before the death of any person making an appointment under subsection (2) or (3)—(a) the child concerned had no parent with parental responsibility for him".
I am suggesting that that should read:
"immediately after the death of any person making such an appointment",
for the very simple reason that if the parent concerned is still alive, then that parent himself has parental responsibilities for the child. Therefore there cannot be any circumstances under which the child has no such parent. I do not see that that can be disputed and I ask the Committee to accept my amendment. I beg to move.
Lady Saltoun of Abernethy: Perhaps I may suggest an alternative form of wording: "upon the death".
The Lord Chancellor: The difficulty about this is that perhaps the two branches of Clause 5(6) require different consideration. Subsection (6)(b) is such that if we make the wording "after the death" there is no residence order in favour of the deceased because the residence order comes to an end on the death. So immediately after the death there is no:
"residence order in favour of the deceased … in force with respect to the child".
It is not absolutely easy to get this right. I think the noble Lord has a point on the first part of the subsection. Clause 5(6)(a) applies to the situation where there was no parent. One has to remember the two possibilities that I mentioned before. They raise somewhat different considerations. What is wanted is a situation in which, generally speaking, the guardianship comes into action only on the death of both parents.
But there is also the situation where the one parent who has predeceased was a parent with whom the child was residing by virtue of a residence order. In that situation guardianship can take effect. In that situation there may be no parent with parental responsibility for the child at the time of death but a guardian who had responsibility and was unable to make an appointment.
The first part deals with the situation where there is no parent at all, and a guardian was appointed under the provisions. The second part deals with the situation where an order was in force in favour of the deceased immediately before his death. It states:
"the appointment shall take effect on the death of that person."
To introduce the word "after" would certainly not work as regards paragraph (b). As I say, the first part deals with the only case in which a guardianship can take effect, and that is where there is a parent alive in the situation where the predeceasing parent was one in respect of whom there was a residence order made providing that the child should live with that person. The noble Lord is a little unsure. But I think that I have dealt with the point. I am certainly prepared to
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look at it further, but I think that explanation deals with the point.
Lord Simon of Glaisdale: Would the right word not be "on", which my noble and learned friend just used, and which is used in the preceding line? Instead of the words "immediately before" the words "on the death" should be used. One would then get consistency of terminology. Perhaps my noble and learned friend would consider that. I hope that it might make the noble Lord, Lord Kilbracken, happy.
The Lord Chancellor: I am grateful for that suggestion and I should like very much to consider it. But the noble Lord, Lord Kilbracken. may be at least sufficiently happy to withdraw the amendment and give me a chance to see whether we can deal with it in that way.
Lord Kilbracken: I am grateful to the noble and learned Lord. I am glad that he is going to consider this again. I feel that it is a matter that needs further consideration because it is very difficult to draft a subsection which is applicable to both subsections (2) and (3). The suggestion has been made both by the noble Lady, Lady Saltoun of Abernethy, and the noble and learned Lord, Lord Simon of Glaisdale, for putting the words "at the death of".
Surely, if it is a question of a child not having a parent with parental responsibility, we have to decide whether that is before or after. The language will be different according to which we decide upon. The fact remains that, as the Bill is drafted at present, in the case of subsection (2) we are talking about—leave out the guardian of the child in subsection (3)—:
"A parent who has parental responsibility for his child".
He is still alive and he has that responsibility.
But then in subsection (6) we are talking about a child who before the death of that person:
"had no parent with parental responsibility".
That cannot make sense because we have already predicated that there is a parent who has parental responsibility, and that he is still alive until he dies. I think I am right about that, but I am glad to accept the offer of the noble and learned Lord—unless he wants to add any words—both as regards this and as regards the next amendment which is really a similar one although it is not quite so strong. In view of his offer to look at the matter again, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
8.15 p.m.
Lord Simon of Glaisdale: I have two questions about this clause. The first concerns subsection (11). There is a doctrine of probate law known as dependent relative revocation which turns up much more frequently than one would suppose. It occurs when a will is revoked with the intention of revoking it, but with the further intention of making another

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testamentary instrument in its place and that latter intention is, for some reason, frustrated or does not take place. The law then says that the revocation with the intention of revoking it will not take effect as a revocation. In other words, the will stands.
It may be that subsection (11) is sufficiently close to the Wills Act to allow the operation of that useful rule. But, on the face of it, it is excluded. Perhaps my noble and learned friend will look into that. Unfortunately my noble and learned friend Lord Brightman, who undoubtedly has learnt the Wills Act by heart, has now left the Chamber.
My second question concerns subsection (17), which states:
"A guardian may only be appointed in accordance with the provisions of this section."
My question is: does that preclude the appointment of a testamentary guardian? Subsection (12) suggests that a guardian may still be appointed by will or codicil, but that is only an implication. Would my noble and learned friend consider that it ought to be a special saving?
Lord Kilbracken: If I may avail myself of this opportunity I should like to say that during the dinner break I saw a solution to my personal problem which I mentioned on the previous amendment. That is that I should die before Royal Assent.
The Lord Chancellor: Some solutions are preferable to others but I express no preference for that one.
In relation to the second question that the noble and learned Lord, Lord Simon of Glaisdale, raised, I think that the conditions that are required are that the nomination or appointment should be in writing, dated and signed by the person making it.
Lord Simon of Glaisdale: That does not really meet my point. If the appointment is made by a will, further requirements beyond the dating and signing of the will are necessary. I am sure that that is the same in Scots law.
The Lord Chancellor: That is right. Therefore the greater includes the lesser and, so long as the document is in writing and signed, whatever other requirements there may be in relation to a will the requirements relating to the appointment of a guardian are satisfied.
Lord Simon of Glaisdale: That seems to be a complete answer to my question.
Lady Saltoun of Abernethy: Perhaps I may ask the noble and learned Lord a question. Nowhere in this clause is there any suggestion that the court should in the first instance consider relatives of the child as guardians before considering outsiders. Perhaps that is not necessary and perhaps it is normal for the court to do so but I should be very grateful if the noble and learned Lord could reassure me on that point.
The Lord Chancellor: The important point is that the parent who has parental responsibility for his
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child may appoint another individual to be the child's guardian in the event of his death. It may well be that the parent would think that a relative was the best appointment but that does not necessarily follow. I do not see why any restriction should be placed upon that particular freedom.
I should like to answer the other point raised by the noble and learned Lord, Lord Simon of Glaisdale. Clause 5(11) reads:
"An appointment under subsection (2) or (3) (other than one made in a will or codicil) is revoked if the person who made the appointment destroys it with the intention of revoking the appointment."
I am keen to avail myself of the opportunity of looking at that point further. At the moment I am inclined to think that the doctrine of dependent relative revocation does not apply.
Lord Simon of Glaisdale: Should it not apply?
The Lord Chancellor: As someone said earlier today, that is an interesting question. As I said, I shall be glad to avail myself of the opportunity of considering the matter further. However, that is my understanding of the matter as drafted.
Lord Kilbracken: In subsection (12) we are told that:
"For the avoidance of doubt, an appointment … made in a will or codicil is revoked if the will or codicil is revoked".
That must mean that if the will or codicil is not revoked it remains effective. Is it then to be the fact that although it is effective it still does not come into force until the death of the surviving parent?
Lady Saltoun of Abernethy: I had in mind a situation in which a parent might not have got around to appointing a guardian in his will or in a codicil to his will and where it might therefore fall to the court to do so.
The Lord Chancellor: Rather in the same way as with a parent, I think that in that case no preference is given to relatives in the court's power to appoint guardians. There may be circumstances in which a relative would be a good appointment. I think that the situation is exactly the same in the present law. As many of your Lordships will know, relatives are often appointed and relationship is a good basis on which to consider appointment. However, I would not be in favour at the moment of putting in the Bill a preference for relatives where the present law does not so provide.
Lady Saltoun of Abernethy: I did not want to put in a preference for relatives but merely to suggest that they should be considered in the first instance before others were considered.
Clause 5 agreed to.
Clause 6 [Welfare reports]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 19:
Page 5, line 12, leave out ("may") and insert ("shall").
The noble Lord said: Under Clause 6, the court has complete discretion as to whether or not it will call for

1201
a welfare report. As a general rule we consider that the welfare report should be before the court whenever it considers under the Act a question with respect to a child. I should have thought it essential that the welfare report should be available in order to bring the interests of the child to the forefront of the considerations. That point was emphasised by the noble and learned Lord the Lord Chancellor earlier this afternoon.
We are a little puzzled. In what circumstances will the need for the welfare report be waived? Are we considering a consent application where it may not be necessary? Or does the noble and learned Lord the Lord Chancellor have other circumstances in mind? In any event, if there is to be a waiver of the general rule, ought not the court to satisfy itself that proper arrangements have been made to safeguard the interests of the child and that that should be written into the Bill? That would ensure that the need for the interests of the child to be before the court will not be overlooked. I beg to move.
Lord Renton: With respect to the noble Lord, I do not think that his amendment should be accepted. On a previous amendment my argument was invalidated by my failure to consult the report of the Law Commission. I have now armed myself with a copy, which means that my speeches will be more accurate and may be a little longer.
On this point, the report is quite specific. The Law Commission recommends:
"that the courts should have power to call for a welfare officer's report in all cases in which orders relating to the child's upbringing may be made".
The commission goes on to say:
"Welfare officers' time is limited and must be targeted on the cases in which it will be most valuable".
It adds
"reports are also a source of delay, and in some cases the court may have to balance the advantage to be gained from the report against the disadvantages of delaying the hearing until, in effect, the case decides itself".
On those grounds, I would expect my noble and learned friend not to accept the amendment.
Lord Meston: Surely the answer to this amendment is the practical one which has just been mentioned. In an ideal world whenever arrangements for children have to be considered in court there would be a welfare officer's report to assist the court. But to impose a mandatory requirement for a welfare officer's report in every case would place an impossible burden upon the welfare officers to the detriment of those cases where the welfare officer's report is needed and needed quickly.
The answer therefore seems to be the same as might have been given to the earlier amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. It is simply impractical for the court to order the assistance of a welfare report in every case in the same way that it is impracticable to expect the court solemnly to go through the check list in every case where the matters before the court are not in dispute.
The reality is that the children's appointment system under Section 41 of the Matrimonial Causes
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Act 1973 works essentially well. As I understand it, the clause as drafted still enables the court to direct, as it sometimes does, a welfare officer's report, even when the parties concerned, usually the mother and father, are not themselves in dispute. According to my reading, it is for that reason that the Bill states that the court can order a report when it is considering any question with respect to the child. That would seem to me to include the consideration of the arrangements for the child after divorce.
8.30 p.m.
Lord Kilbracken: I must say that I completely agree with the noble Lord, Lord Meston, and do not see the necessity for my noble friend's amendment. The clause states that:
"A court considering any question with respect to a child under this Act may—
(a) ask a probation officer; or" et cetera.
I think that it would be completely wrong if in all such cases the court had to ask a probation officer or a local authority to report to the court. Only last Monday, a week ago today, I made my son a ward of court. That is certainly a matter that would come under this Act. But to suggest in a case like that that there had to be a probation officer or representative of a local authority present, just to give that one example is surely ridiculous. I do feel that what the noble Lord, Lord Meston, says is absolutely correct.
Baroness David: Perhaps I may ask the noble and learned Lord whether it is intended under the Bill that only disputed cases should be the subject of family proceedings. If the cases are disputed, surely it is important that there should be a report. I ask that question in order to try to clarify the matter.
Lord Hylton: This may be an appropriate moment to raise the question of the status of voluntary welfare bodies. If such a body is in contact with a family or a child whose future arrangements are being discussed by a court and also if it employs a qualified person would it be entitled to submit its views to the court and—
Lord Mottistone: If the noble Lord will permit me—
Lord Hylton: I should just like to finish my sentence—would the court then be obliged to take account of those views?
Lord Mottistone: I simply wished to suggest that perhaps the noble Lord might care to put forward his very useful contribution on my Amendment No. 20 which is the next amendment to be discussed and relates to just that point.
Lord Simon of Glaisdale: My noble friend's question prompts me to ask a question that I had intended to put during the debate on whether the clause should stand part of the Bill. The Family Division has a team of welfare officers. That was originally instituted by my predecessor and subsequently expanded both numerically and by close liaison with the marriage guidance council, to which my noble friend has just

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referred. I wonder whether subsections (1)(a) and (1)(b) are sufficient to cover that team of welfare officers. The noble Lord, Lord Meston, tells me that they are still operating in the same way.
The Lord Chancellor: I think that the amendment and the way in which it was put raises the question, first, of whether in every case there should be an obligation on the court when considering any question with respect to a child to ask for what I shall loosely call for the moment a welfare report under paragraphs (a) and (b) of this subsection. That is the first question. The noble Lord, Lord Meston, and other noble Lords have pointed out how difficult that will be.
There are cases in which it is absolutely apparent that what is being sought is in the best interests of the child; for example, where parents have agreed that the arrangement on divorce should be that one of them should be the wage earner and the other should look after the child. The only question is whether an order is required and the affidavits of the parents could explain why that was so. In such a clear case to require them to report fully is a waste of time because it causes delay and a waste of resources because good welfare officers are scarce.
However it does not follow that there is no uncontested case which might not raise some question in the mind of the court. Therefore it seems right that the court should have the power to go through the checklist in that case (which is what the provisions allow) and, if required to ask for a report. So it does not necessarily follow that it is a linkage of contested and uncontested cases. One would expect that the vast majority of uncontested cases would be cases in which a report was not necessary but there might be some in which the court would regard a report as necessary.
On the other hand, in most contested cases a welfare report of some kind would generally be required. There might be occasions on which the court had such a full account of disputed oral evidence from the parties, and so on, that it was able to know the position. So it seems right to word the provision as "may" rather than "must".
Perhaps I may now take the second point mentioned by the noble Lord when he moved the amendment. I think that he was seeking some specification of the cases in which it might not ask for a report and seeking to confine the discretion. In view of what I have said, I think that it would be very difficult to do that in any sensible way. It is so much a matter of the court's judgment applied to the particular facts that we think it would be right for the court to have a general discretion in this matter.
So far as concerns the question raised by the noble Lord, Lord Hylton, as my noble friend Lord Mottistone said, we shall shortly be dealing a little more fully with this matter in another amendment. The intention as expressed in the Bill as drafted is that it allows either a probation officer—that is, an officer of the probation service, and I believe that welfare officers of the Family Division are in fact officers of the probation service and are therefore covered by
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paragraph (a)—or as in subsection (1)(b) an officer of the authority to deal with the matter. I doubt whether the officers of purely voluntary bodies will come into that category.
Of course it could well be that if there were a full report from an independent officer of that kind placed before the court, the court would regard it as unnecessary to exercise its powers under this clause. If it had a good report from some welfare organisation which was run by a charity of some kind in which it had confidence, that might be an example of a case in respect of which it would not require to call in addition for a report under this section. However, there are other consequences—and we shall come in a moment to these when we discuss my noble friend's amendment—which might not follow in that case.
I hope that I have answered the points that have been raised and that in the light of my explanation the noble Lord will feel able to withdraw his amendment.
Lord Simon of Glaisdale: Will the noble and learned Lord specifically satisfy himself that the court welfare officers will come under paragraph (a)?
The Lord Chancellor: I believe I have said that that is the position. I shall be happy to check it. but I believe that they are probation officers.
Lord Trafford: Before my noble and learned friend sits down perhaps he could enlighten me on one point. I am probably being very stupid, but why is the provision under this subsection confined to these two particular categories of person from whom the court may or shall require a report?
The Lord Chancellor: At first sight these are the natural people to ask. They are officials who have responsibility to the court or local authority officials whom the court might expect to answer its requirements. The point will be discussed in relation to another aspect of the clause. However, that is the explanation. Obviously I would think that giving power to the court to require an official or an officer to report means that it must be somebody who has some kind of official position in respect of which they would have a duty to the court. That would not be the normal position of an outside agency, however willing it may be to give its service.
Lord Trafford: Excuse my pursuing this matter further, but does a local authority stand in that relationship with the court any more than other people?
The Lord Chancellor: The statute can put a responsibility on a local authority. It is in line with what it does at the moment.
Lord Prys-Davies: I thought that I had anticipated the argument that the noble Lord, Lord Meston, would advance against the amendment that there are unlimited demands on the resources of the court and the probation officers. However, I thought that I had suggested a way that one could possibly reconcile the real world with the ideal world. However, I accept the guidance that the noble and learned Lord the Lord

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Chancellor has given to the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 20:
Page 5, line 14, leave out ("to arrange for an officer of the authority").
The noble Lord said: At last we come to this subject, which has already been touched upon. I am advised throughout the Bill by the National Society for the Prevention of Cruelty to Children. I have the honour to be a member of its central executive committee. I am sorry that this is the first opportunity I have had to join in discussion on the Bill because my duties in the Isle of Wight interfered with both the Second Reading and the earlier discussion on the Bill today. However at last we are here.
Under Section 6(1)(b), as it is written, the local authority has to arrange for an officer of its authority to report to the court. It so happens that with the encouragement of multidisciplinary co-operation—which I think most people agree is an excellent development in the general area of child care and welfare—the NSPCC sometimes acts on behalf of the local authority, where it is seen as being a key worker for the child and the family on behalf of the rest of the multidisciplinary body, which includes the local authority officers as well as itself. It is a nice, flexible arrangement if in a particular area at a particular time the NSPCC official who is seen to be handling this child or family makes the report, and does so through the local authority. The local authority then submits it to the court.
With my amendment the provision would state:
"or ask a local authority to report to the court on such matters,"
and so on. It can then get its report from wherever is suitable. The existing practice—and I emphasise that it is an existing practice which is used only when it is the most convenient and sensible way of doing things—allows that to happen already. It is already happening at local level. It seems therefore that it is a pity to so word the statute that it has to go through an officer of the authority. As Members of the Committee said earlier, officers of the authority are grossly overworked. Hence the reason for retaining "may" rather than "shall". It is a shared operation. There does not seem any reason why that should not continue. It can continue if my amendment, or some other alteration, is accepted. My noble and learned friend the Lord Chancellor may have a better way of wording it. However, at the moment it is too tight. I hope that he will support this amendment. I beg to move.
8.45 p.m.
Lord Meston: Very briefly I wish to support the amendment wholeheartedly because of my experience of a wardship case in which I was involved only last week. The only outside agency in the circumstances of the case in which the child was suffering at the hands of very inadequate parents was the NSPCC. The grandparents became involved and there was an all-round family dispute. The NSPCC produced swift, perceptive and very valuable reports which enabled everybody to reach agreement and, more importantly, to reach the right solution.
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Anything which enables that to happen must be valuable. I therefore wish to support this amendment and to suggest that it might go even further. The court should be empowered to invite a report from outside agencies such as the NSPCC even where it is not acting as agent for the local authority.
Lady Kinloss: As the noble Lord, Lord Mottistone, has already explained, the NSPCC has been able to submit written reports to the court on behalf of local authorities in some areas from time to time when the society has been acting as a key worker for a child and family. This again was noted by the Cleveland Report, which thought that it was important legislation in seeking to bolster up existing good arrangements.
Lord Hylton: On first reading the amendment I had assumed that it was a probing amendment. I now appreciate that if it should be approved, the Bill would read consecutively even allowing for the omission.
On the point made by the noble Lord, Lord Meston, the NSPCC is not the only voluntary organisation involved in family casework in a very broad sense. There are other such bodies that do not have the semi-formalised arrangements with local authorities which have been for a long time enjoyed by the NSPCC. Nevertheless, these other bodies may have valuable and relevant information. Perhaps the noble and learned Lord the Lord Chancellor will write to me at leisure in due course before the next stage of the Bill explaining a little further what he was saying on the last amendment about when such reports could he considered relevant by the appropriate court.
Baroness Faithfull: I rise to support this amendment on two grounds. There is a growing cooperation and partnership between the voluntary and statutory sector. An enormous number of local authorities are using voluntary bodies not only the NSPCC but others, as the noble Lord, Lord Hylton, said. Therefore the work that they are doing with the family and the knowledge that they have of the family and of the child are of inestimable value to the court.
The noble Lord, Lord Trafford, asked, why go through the local authority? It is the social services department of the local authority that is responsible for the Children and Young Persons Act. It is the practice that if a case is going to court it should be channelled through the local authority so that there is no overlapping in each local authority area. It is for that reason that the local authority has the knowledge and the agreement that the case should go to court. It is the authority that works with the court as well as with the probation service.
Lord Trafford: I am obliged to my noble friend for her comment. I was wondering whether this is exclusive. It says:
"a court considering any question in respect of a child under this Act may—

(a) ask a probation officer; or

(b) ask a local authority to arrange for an officer of the authority …"

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I take it that that is not exclusive and that under this legislation the court may request a report from almost anybody who is relevant under the circumstances with respect to the child. I take it that that is right, and I ask my noble and learned friend whether that is so; that the court can ask others to report if necessary and that it is not exclusive. That was the purpose of my intervention because, as has been pointed out, in many of these child cases a multidisciplinary operation is undertaken in connection with their affairs. This includes the social services, the NSPCC and other voluntary agencies. It even concerns the police, and indeed my own profession. I was wondering, if I may ask specifically, whether this is not an exclusive clause and that the court may request a report from other bodies as well.
Baroness David: I think that everything has been said on this matter and the case has been very well made. I should like to add my support to the amendment.
The Lord Chancellor: I think that it is important when answering such questions as that posed by my noble friend Lord Trafford, to look at the whole provision of Clause 6:
"A court considering any question in respect to a child under this Act may

(a) ask a probation officer; or

(b) ask a local authority …".

Subsection (5) is important:
"It shall be the duty of the authority or probation officer to comply with any request for a report under this section".
That is part of the obligation. That cannot be done in respect of voluntary organisations generally. The court could ask, but an obligation to comply would only be appropriate in the case of a statutory body that had some responsibility in that area.
I entirely agree with the view that has been expressed by a number of your Lordships, that there is a growing partnership between local authorities and voluntary agencies in this respect. I believe that such partnership is very much to the good; the more partnership the better. The NSPCC has been mentioned and it holds an honourable place in the record of work in this field.
Having regard to the structure of the clause and the general principles underlying it, where the court is to have the power to call for a report and the person who has asked for the report has to have a duty to comply with the request of the court, in this area the local authority must have the responsibility. That does not mean that it should be confined to arranging for one of its own officers to do the report, as is provided at the moment. Therefore, I am happy to consider whether there should be some alteration.
I am not certain that my noble friend's amendment will have the effect that he desires. His amendment would make it still a report by the local authority. They could adopt a report by another agency. They might not always need to go through that particular administrative arrangement. I am happy to look at this to see whether we can give effect to the various views that have been expressed and still preserve the
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general character of the clause. The clause must give backing in regard to the court getting a report where the court requires one. It is not merely a power to ask; it is a right to get the report when it is asked for. Perhaps in the light of that reply the noble Lord will feel able to withdraw the amendment.
Lord Irvine of Lairg: I am bound to say that what came from the noble and learned Lord the Lord Chancellor was most encouraging. For my own part, however, I should have thought that there must be a real risk that Clause 6(1) would be read as impliedly prohibiting the court from asking any person other than a probation officer or a local authority to arrange for an officer of the authority to report. There must be a danger that it would be read exclusively, as the noble Lord, Lord Trafford, has said. As the noble and learned Lord the Lord Chancellor said, it is natural in the case of a probation officer or a local authority being asked to arrange for an officer of the authority to assist the court, that it should be the duty either of the authority or the probation officer to comply with a request for a report. On the other hand, it would not be natural for there to be such a duty if a voluntary body was requested to assist in that way.
The way in which to deal with that may be to retain the present structure but to add to it an express power in the court to request assistance from any voluntary body for a report to the court, but without adding an obligation on the part of that body to comply with the request.
Baroness Faithfull: May I say that it is essential to go through the local authority. The local authority may be dealing with another child in the family, and unless it is channelled through one avenue and it is known to the local authority that a voluntary organisation is going to give a report, there may be two organisations working within the same family, one not knowing about the other.
Lord Irvine of Lairg: It may be possible to deal with that by some kind of notification obligation.
The Lord Chancellor: I have it in mind to open up Clause 6(1)(b) to enable the local authority to make arrangements other than with its own officers. The court must feel, if it makes a request, that it will receive a report. We do not want a court to make a request to somebody who does not comply with that request and a great deal of time is thereby wasted—because delay is the enemy of the good in this field perhaps more than in any other. I have it in mind to ask the local authority to arrange for a report to be made, not necessarily by its own officer but to include in it, for example, such bodies as the NSPCC. If the local authority cannot arrange for anyone else, it would have to fall back on its own officer. I think that that would probably meet the case, and it would certainly meet the point that my noble friend Lady Faithfull has made. The local authority would have the ultimate responsibility to see that a report was made. It would certainly cover the key worker case that has been mentioned because the local authority will have made these arrangements in the first place.
Lord Mottistone: I am grateful to my noble and learned friend for his undertaking to look at this and to provide another amendment on the lines which he has just described. I am sure that that is entirely what we are looking for, and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
9 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 21:
Page 5, line 14, at end insert ("or
(c) ask a member of a panel of guardians ad litem and reporting officers,").
The noble Lord said: We would be grateful if the noble and learned Lord the Lord Chancellor could also open up subsection (1) to include a member of a panel of guardians ad litem and reporting officers. One would have thought that this clause should incorporate a report by the guardian ad litem as well as the probation officer and the local authority social worker. A guardian ad litem may already be in possession of a great deal of information relating to the child and would therefore be in a position of some advantage in preparing a welfare report. I have listened very carefully to the noble and learned Lord the Lord Chancellor and I trust that he will give consideration to this amendment. I beg to move.
Lord Simon of Glaisdale: Earlier I presumed to congratulate my noble and learned friend the Lord Chancellor on the draftsmanship of this Bill; that it could be read throughout by any literate person who was affected by it. The words "guardian ad litem" represent the only exception. Of course all your Lordships present in the Chamber now know exactly what they are, but the ordinary reader of the statute may not be conversant with them and may not have learnt Latin.
I remember that when the Joint Consolidation Committee were consolidating the Scottish criminal procedure legislation one of the English members asked whether it was really necessary to have so much Latin in a Scottish statute, to which the draftsman replied firmly, "Yes". And as he was supported by that great judge, the late Lord Gibb, the matter was not pursued. Nevertheless, I would ask my noble and learned friend the Lord Chancellor whether one might not now introduce an equivalent of guardian ad litem in English.
The Lord Chancellor: It is a pity to leave a blemish on such an excellent Bill, and obviously I will consider that request very carefully. So far as the main matter of the amendment is concerned, if a guardian ad litem is appointed he will have responsibilities, including the responsibility to state to the court the position from his point of view. The function of the guardian ad litem is to look after the interests of the child and to try to see the matter from the child's point of view. In the situation that we have here, they are more in the nature of a party to the proceedings than of a reporting person. Therefore I would think it inappropriate to add whatever designation at this particular place, because essentially they will be performing a different function. One might have a welfare report where
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there was a guardian ad litem and also where there was not; and so the two are rather different. Perhaps the noble Lord might feel able not to insist on this particular amendment.
Lord Renton: As the noble and learned Lord, Lord Simon of Glaisdale, has invited my noble and learned friend the Lord Chancellor to find a substitute in ordinary English for the term "guardian ad litem", might I hazard the suggestion that "guardian for the case" might be suitable?
Lord Prys-Davies: We will clearly have to consider the very convincing answer which the noble and learned Lord the Lord Chancellor has given us, together with the suggestion offered by the noble Lord, Lord Renton. In the circumstances I will not take up the time of the Committee further, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston moved Amendment No. 22:
Page 5, line 19, leave out ("or orally, as the court requires") and insert ("and shall be disclosed as soon as possible in advance to the parties and to their advisers unless it is impracticable to do so.").
The noble Lord said: In moving Amendment No. 22, I should like to explain that I realise that it goes further than I had intended. For that I apologise, and hasten to say that I shall not press the amendment in its present form because I did not intend to preclude altogether the possibility of an oral welfare report.
I recognise, of course, that there are circumstances in which an oral report is better than no report, and there are circumstances in which an oral report may well be better than an adjournment for a written report. Indeed, it is valuable to have an oral report even where there is a written report, to bring matters up to date, and particularly where there has been a significant change in circumstances. Subject to that, I hope that the purpose of the rest of the amendment is self-evident.
The Bill as drafted seems to put an oral report and a written report on an equal footing and to regard them as equally acceptable. The amendment seeks to provide that, wherever possible, the report should be in writing, and that, wherever possible, it should be disclosed to the parties in advance of the hearing. I hope that is self-evidently necessary, both in the interests of fairness and of a speedy resolution of the case, because a good welfare officer's report will state findings and draw conclusions which the court is likely to follow. That will enable the case to be settled in advance of the hearing and, if it is not settled, it enables a case to be properly prepared.
For those reasons I would suggest that it is important to provide in the statute that the report should be disclosed to the parties, as in fact happens at present, and disclosed as soon as possible. That also seems to me to be consistent with the Government's proposals to stipulate timetables for the resolution of these disputes. That said, the provision for an oral report should be retained: I accept that. But it should be retained as a second-best alternative to meet particular circumstances where a written report, for some reason or other, cannot be obtained. I beg to move.
Lord Elwyn-Jones: I support the proposition that the report should be disclosed as soon as possible. Only a few moments ago the noble and learned Lord the Lord Chancellor said:
"Delay is the enemy of the good."
In this field also it is important that all the material facts and information should be available at the earliest possible opportunity.
The Lord Chancellor: On the second point, there is really nothing between us: it is only a question of how best to make the provision. I would have thought that Rules of Court could so readily provide. However, there is a precedent in existing legislation for some such provision and I am happy to consider what should be done in that respect.
So far as the oral reporting is concerned, I certainly could not accept the amendment as it stands, but the noble Lord has kindly relieved me of having to consider that further. I think it is a useful thing, as the Law Commission have found, considering this point specifically, that there should be power for the reporting officer to report orally in certain circumstances. I doubt whether it would be right to specify the circumstances, but no doubt we can easily make a provision that is attracted to written reports whenever they are made. Perhaps on that understanding the noble Lord may feel able to withdraw his amendment.
Lord Meston: I am most grateful to the noble and learned Lord for his offer to consider the matter. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston moved Amendment No. 23:
Page 5, line 22, after ("report") insert ("provided the source of such statement is disclosed in the report unless the source is confidential or there is other good reason to omit it;").
The noble Lord said: This brings me to a slightly different topic; that is, the control of hearsay in welfare officers' reports. I believe that in the early '70s there was some case law making it clear that hearsay should be avoided if at all possible in welfare officers' reports. Since then, the occurrence of hearsay in reports has much diminished but still occurs. Of course it is a feature of child cases that reports very often have to contain hearsay. Where there is hearsay in such a report the court and the parties will want to know, and, indeed, will be entitled to know, from where that hearsay comes so that the court and the parties can test its weight and, if necessary, can make further inquiries if what is reported as having been stated is hotly disputed, as is sometimes the case.
What I propose in this amendment is in line with the rules relating to affidavit evidence in interlocutory matters—the rules providing that the sources of any information from a third party should be stated. Of course, there is a proviso, which also appears in this amendment, which enables sources to be protected if they are confidential or there are other good reasons to omit them.
I hope that that sufficiently states the purpose of the amendment. I hasten to say that this amendment is complemented by Amendment No. 24, which requires the court to be satisfied that the reporting
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officer has taken reasonable steps to substantiate the accuracy of the statement. I hope that a combination of those two amendments will find favour. I beg to move.
Lord Mottistone: If it suits my noble friend I shall speak to Amendment No. 24. As the noble Lord, Lord Meston, said, our two amendments similarly tackle the problem of making sure that welfare reports do not rely unreasonably on hearsay.
It is perhaps relevant that the NSPCC proposed Amendment No. 24. It has a great deal of experience in dealing with that sort of case and would not have done that if it did not believe that it was necessary to have a safegaurd. I am not sure whether that was the safeguard of the noble Lord, Lord Meston, or the one which I propose in Amendment No. 24. However, I hope that my noble and learned friend will find a way to reassure us that there will be some measure of control of hearsay in that area.
Lord Renton: Although I appreciate the motives of the noble Lord, Lord Meston, in moving this amendment and, indeed, the motive underlying the next amendment, I believe that we should bear in mind that under subsection (4) the court is given a discretion to take account of the matters mentioned in paragraphs (a) and (b). In exercising that discretion there will be a very wide range of matters which, according to the circumstances of the case, the court may have to consider. With respect to the noble Lord, Lord Meston, and to my noble friend, I doubt whether they are doing either what is wise or necessary in going into the further details which they suggest.
As my noble and learned friend the Lord Chancellor knows, I feel that we go into too much detail for the most part in our statutes. I believe that on these two amendments the proposed details could be avoided.
Lord Elwyn-Jones: I should like to support the two interlinked Amendments Nos. 23 and 24. Inevitably the reports from welfare officers in many cases contain a good deal of hearsay. It is important that the hearsay should be reasonable. In the case of Webb v. Webb it was recognised that the court welfare officer could not do his job properly without including hearsay.
Lord Justice Buckley in the case of Thompson v. Thompson (1986) said:
"Some hearsay is unavoidable in such a document, and in respect of comparatively uncontroversial matters is likely to he unobjectionable".
But then continues,
"but where acutely controversial matters are concerned, I think it is important that a reporting officer should report his own observations and assessments, and that where he is constrained to pass on secondhand information or opinions he should endeavour to make this explicit and should indicate the source and his own reason, if he has any, for agreeing with any such opinions. Where a judge has to arrive at crucial findings of fact he should found them upon sworn evidence rather than upon an unsworn report."
Therefore, the general judicial principle is set out in those observations. Government guidance, as I understand it, for guardians ad litem and social workers, has urged caution in the use of hearsay

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particularly when dealing with controversial matters, but there is scope and room for it and it should not be an obsolute doctrine to exclude what is valuable and is not really disclosable without a slight infringement of the hearsay rule. What the soldier said is not evidence and in any case there are many exceptions to that.
9.15 p.m.
Baroness Faithfull: As one who has had to make reports to the court on children, may I say that one did use hearsay but on only two conditions: first, that one consulted with the person concerned and obtained permission to put it in the report and, secondly, that the person would be available if the court called him or her.
I particularly refer to grandparents. The Committee will remember in, I think, the Kimberly Carlile case that the grandparents were bitter because they wanted to report to the court and the social services on what happened with that child. They did not have an opportunity to tell the court. Therefore, I believe that it is possible to have hearsay evidence but I have always followed the rule that I never put in hearsay evidence without the person's permission and the fact that he or she would appear before the court if called upon to do so.
Lord Irvine of Lairg: I specifically support Amendment No. 23 tabled by the noble Lord, Lord Meston. As regards the contribution of the noble Lord, Lord Renton, I cannot see that the discretion vested in the court in Clause 6(4) meets the point. That is a discretion which goes only to the relevance, to the question of the statement or the evidence. If the statement is hearsay it may still, of course, be relevant to the question. Therefore, it does not appear that the discretion affords any protection.
It must surely be a good rule that the sources of statements are disclosed generally unless there is an overriding reason why that should not be done; namely, that the source is confidential or where there is any other good reason to omit the source. Therefore, it is a carefully drafted amendment. It operates to encourage the revelation of sources so that the strengths or accuracy of the statement can be better evaluated, but subject to the very careful qualifications which the amendment includes. Therefore, I believe that the amendment merits our support.
The Lord Chancellor: Dealing with the last point put by the noble Lord, Lord Irvine of Lairg, it may he that my noble friend Lord Renton was referring to the power given to the court in the opening part of Clause 6(4) that,
"the court may take account of … any statement".
In other words, the court would not be bound to take account of a statement if it had good reason for supposing that the statement—
Lord Irvine of Lairg: Perhaps the noble and learned Lord will forgive me for intervening. What I had in mind was that the court "may take account or in so far as it is relevant.
The Lord Chancellor: Yes, but the court may not, even if the court considered it to be relevant. I believe that is what my noble friend was referring to.
The situation dealt with in Clause 6(4) is in accordance with general practice presently prevailing in the County Court and the High Court and in accordance with the provision under the Guardianship of Minors Act. It is also existing law in magistrates' matrimonial proceedings legislation.
I can see that if it is pointed out to the court that there is a statement that is obviously hearsay with no source mentioned for it, it may not be wise to take account of it. I doubt whether it is necessary to put fetters on what the court may do and, if it is, I should have thought it is best dealt with in the subordinate legislation, either in the rules of court specifying what further considerations the court can take into account or in regulations under Clause 6(2). For example, the regulations may specify, if hearsay statements are reported, that the source of the statements should be disclosed.
I believe the advantage of that is that this is an area in which experience may develop. It may well be that further qualifications or changes may be seen to be wise. One would not want to put this unnecessarily into primary legislation. As it is, the court will have full power not to take account of statements contained in such a report if it had any reason to suppose that there was anything wrong with them. As we said earlier, in most cases where this kind of question will arise the court will have the benefit of the comments of the parties on what is in the report. Where statements are challenged, it will be able to look further into what is involved.
While I entirely see that there is scope for discounting statements which are not properly supported, I doubt very much whether it is wise to put detail of this kind into the primary legislation. Guidance can be given by the court itself and in other ways to those who prepare the reports about the way in which that should be carried out. I believe I am right in saying that good practice as it is at the moment generally goes along the lines of the first of these.
On a practical note, I believe that it would be unwise to put such detail into the legislation so as to encourage lengthy arguments about, for example, the meaning of "confidential" in the particular circumstances. What precisely would that be? "Good reason" is perhaps even more difficult to be sure of when the person has made the disclosure to a reporter. If a person says to a reporter "I am going to tell you this", knowing that it is a court reporter, is that confidential or not? I believe it is confidential in the sense that the reporter would not be entitled to use it for any other purpose than for a report to the court. I doubt whether it is wise to get involved in too much detail in the primary legislation.
As regards the second amendment, the same appears to apply. In some cases where a report is challenged it would obviously be wise to look further into the statements that are contested if real challenge is offered to them. One must not forget that all this matter is subject to the judgment of the court. These days it is surely unnecessary to circumscribe the court

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too much by detailed rules about precisely what it should do. A court is well able to separate the wheat from the chaff in a welfare officer's report without going into too much detail and description of what is wheat on the one hand and chaff on the other.
I invite the Committee not to press these amendments but to leave this matter to be dealt with either in subordinate legislation or preferably by the court itself.
Lord Morton of Shuna: I very much hesitate to intervene as a Scot on something that is purely English. I believe that there is an advantage to put into the primary legislation what the law actually means. It is unfortunate to leave the definition to the subsidiary regulations. I also believe that a court would be helped in general by always having disclosure of the sources of any information unless the reporter was able to say that for some specific reason he wished not to disclose his source of information. Therefore I support this amendment.
Lord Irvine of Lairg: Perhaps I may clarify the position that I adopted a moment or two ago. It may be that the noble and learned Lord the Lord Chancellor misunderstood me. It is perfectly possible that I am wrong but it is equally possible that I have been misunderstood.
The point that I was seeking to make in commenting on the contribution of the noble Lord, Lord Renton, is that under Clause 6(4) the court may take account of the statement in so far as it is relevant, and as the noble and learned Lord the Lord Chancellor said, may not take account of it in so far as it is not relevant. In other words, the only criterion for exclusion is relevancy. If the statement is hearsay it may still be relevant. I make that suggestion and invite the noble and learned Lord to consider the language again because the words are that the court may take account of (a) and (b),
"in so far as the statement or evidence is, in the opinion of the court, relevant".
The court may take account of it only in so far as it thinks it is relevant; and, implicitly, may not take account of it in so far as it thinks that it is not relevant. But the fact that it is a tissue of hearsay does not give the court discretion to exclude it, because the statement, albeit it hearsay, may be relevant to the issue. There is no discretion to exclude it since it is hearsay, and nor is there any suggestion that it should be excluded since it is hearsay. The point of Amendment No. 23, as I understand it, is so far as possible to make it safe hearsay. The sources of the information are stated if it is at all possible unless the source is confidential or there is other good reason to omit it.
The noble and learned Lord the Lord Chancellor said that a safeguard is the comments of the parties. But the comments of the parties are much more likely to be effective and reach the point if the parties are able to assess the statement by knowing the source of it in an appropriate case. I suggest that the amendment is carefully drafted and gets the balance right.
Lord Renton: I hope that my noble and learned friend the Lord Chancellor will stand by the answer which he has already given. The noble Lord, Lord Irvine, and the noble Lord, Lord Morton, suggested that these particular details should be added to the discretion of the court. That is already stated in the subsection in broad terms. Would it not get us into the difficulty—and here I can most conveniently shorten my remarks by using a Latin phrase—of expressio unius est exclusio alterius? If we express one we may by interpretation be deemed to exclude others. That would be wrong. The factors mentioned in Amendments Nos. 23 and 24 are not the only factors which may come before the court when deciding these cases. I suggest that my noble and learned friend was absolutely right in saying that we should not go into detail in this matter and that we should leave it to the broad discretion of the court, as has been done in previous legislation in these circumstances and as is already expressed in the Bill.
Lord Mottistone: I was disappointed that my noble and learned friend did not give my Amendment No. 24 a more reasonable chance. Some of his arguments against Amendment No. 23 gave Amendment No. 24 a validity which it might not otherwise have possessed. However, I was not frightfully encouraged by his suggestion that the regulations under subsection (2) might include what was relevant out of these two amendments. The general sense of subsection (2) deals with regulations in a different area altogether. I very much hope that my noble and learned friend will have a good look at what has been said on this point.
I think that for once my noble friend Lord Renton is right off beam—he usually is not, but I think this time he is overpushing his case. Indeed, quoting Latin to people who stopped learning it at the age of 13 is jolly unfair. So, on the whole, I think that there is something in this proposal. I do not believe that regulations will do. I shall reserve my position and may come back at the next stage of the Bill's proceedings with another proposal in this particular area.
9.30 p.m.
Lord Meston: That last indication from the noble Lord, Lord Mottistone, encourages me to take the same position. I must say that I am most grateful for the support that I have received in respect of the amendment. Moreover, like the noble Lord, Lord Mottistone, I am somewhat disappointed at the response to it.
I turn now to the question of whether there is a discretion on the face of the Bill. I had not myself taken on board the point raised by the noble Lord, Lord Irvine of Lairg, but I follow the point completely now that he has explained it. Assuming that there is such a discretion to accept or reject hearsay evidence, it is a discretion which only arises when the case reaches the court and the court is presented with the report.
The purpose of the amendment is to ensure that what the court receives is a good quality report; that is, a report which states the sources of hearsay information—what has been called "safe hearsay". It

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should do so in fairness to the parties, and in fairness to the parties the welfare officers should be required, unless there are exceptional circumstances, to state the sources of their information. It is not only fair to the parties; it also assists the court to exercise its discretion as to whether, and to what extent, to take account of whatever statements are contained in the report.
With respect to the noble Lord, Lord Renton, I suggest that this is not a matter of unnecessary detail; it is a matter of principle. The Bill goes so far as to provide that the court may take account of any statement contained in the report. Therefore, to go on to provide that the sources of information should be stated would not encumber the Bill and would not encumber the reporting welfare officer. That provision should be required on the face of the statute and not in the regulations.
However, I do not intend to press the point at this late hour and it may well be that a sufficient answer is to be found in an amendment along the lines of Amendment No. 24. That amendment clearly cannot be accused of dealing with matters of detail, because it is a broader amendment and may satisfactorily deal with the problem with which I have tried to deal by tabling Amendment No. 23. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
Clause 6 agreed to.
Clause 7 [Residence, contact and other orders with respect to children]:
Lord Banks Lord Banks moved Amendment No. 25:
Page 5, line 35, after ("visit") insert ("or stay with").
The noble Lord said: We now come to that part of the Bill which deals with contact orders. We believe that the contact order will be of great value to parties who do not have a residence order made in their favour. The aim of the amendment is to stop the awarding of residence orders becoming a battleground between divorcing parents in particular.
At present it is unclear when a residence order will be considered appropriate. We believe that both child and parents have the right to know where the main home will be. We would not want to see orders being made where that fact was in substantial doubt. Apart from those very rare exceptions where residence is genuinely shared, we believe that if the grounds covered by a contact order are strengthened the relationship between residence and contact should be clarified to the benefit of all parties. The amendment permits a contact order to allow the child to stay with the person gaining contact as an addition or alternative to visiting. I beg to move.
Lord Kilbracken: The necessity for the amendment seems to depend upon the meaning of the word "visit". The word means different things to different people. Our American cousins when they talk about visiting someone or, abominably, visiting with someone, mean little. For instance, a lady will come to one's table and say, "May I visit with you for a few
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minutes?" We do not use the word in that sense. We therefore have to turn to the dictionary. I do not like turning to the dictionary, which I regard as being far from infallible. I edited the Oxford English Dictionary at one time. I have sent over 1,000 suggested corrections and omissions to the editor, some of which may even have been taken up. However, the dictionary is the best option open to us at present.
If we look at the Oxford English Dictionary we find that the first meaning refers to:
"Of the Deity: To come to (persons) in order to comfort or benefit".
I do not suppose that we need to consider any visits from the deity. The principal definitions are:
"To make a practice of going to (persons in sickness or distress) in order to comfort or assist them"
out of charity or devotion or in the fulfilment of pastoral duty; or,
"to go to see (a person) in a friendly or sociable manner; also , to stay with for a short time as a guest".
The phrase "to visit someone" probably includes staying with that person although the dictionary specifies staying as a guest. If that is the case, and that is what we mean by visiting someone, the amendment is not necessary, although it is important that what we know as staying access should be included.
Lord Meston: I support the amendment. The contact order replaces the access order which is familiar to the courts. At present there is a distinction, which is clearly understood by lawyers and parties to the litigation, between visiting access and staying access. The Bill should make it clear that that distinction is preserved and that the court is empowered to make a contact order of either variety.
The Lord Chancellor: I consider that the amendment provides additional clarification to the definition of a contact order. I am happy to advise the Committee to accept the amendment.
Lord Banks: I should like to express my appreciation to the noble and learned Lord for his ready acceptance of the amendment.
On Question, amendment agreed to.
Lord Kilbracken Lord Kilbracken moved Amendment No. 26:
Page 5, line 43, after ("person") insert ("or persons")
The noble Lord said: Is it too much to hope that, having accepted one amendment, the noble and learned Lord will accept another? I do not see how my next two amendments can reasonably be opposed. Clause 7(1) contains the definition of "a residence order". It is:
"an order settling the arrangements to be made as to the person with whom a child is to live".
It is perfectly clear from this Bill that the order may apply to more than one person. It may apply to both the father and the mother. As I said earlier in the debate, I always thought that was a very good arrangement, where both parents had a residence order and the children went to each of them in succession.
Therefore it seems to me that in many cases—and I hope that there will be an increasing number of cases—the residence order will apply to more than

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one person. It may be said that, just as the male embraces the female, the singular embraces the plural. I am not quite sure how the Interpretation Act 1978 applies to that. However, it seems to me that when this definition arises we should emphasise that, by not having the word "person" in the singular in line 43, the residence order may apply in most cases to the father and the mother. Therefore I have proposed that line 43 should read "person or persons" instead of the singular "person". I beg to move.
The Lord Chancellor: As I explained earlier, by virtue of Section 6(c) of the Interpretation Act 1978:
"words in the singular include the plural and words in the plural include the singular",
in Acts of Parliament unless a contrary intention is indicated. The draftsman has generally relied on that rule throughout the Bill and I do not think it would be helpful to make an exception in Clause 7.
Obviously, the less one relies on the rule the more one gives the impression that the general context of the Bill is against it. That is the draftsman's view. It is a matter of expert opinion. It is absolutely plain in this Bill that one can have a residence order in favour of more than one person. So there is no question but that the Interpretation Act would apply. For that reason I hope that the noble Lord will agree that on this occasion we should rely on that Act.
Lord Kilbracken: I am very glad to know that that will be on the record, although of course what is said in your Lordships' Committees on the record is in fact never remembered and never brought up again in any court. But, all the same, I am satisfied by the noble and learned Lord's assurance that the singular includes the plural. Therefore I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 6, line 15, leave out ("and II') and insert ("II and IV").
The noble and learned Lord said: This is an amendment to Clause 7(3) which would add proceedings under Part IV of the Bill (applications for care and supervision orders) to the definition of "family proceedings" for the purpose of the Bill. This would enable the court to make the orders listed in Clause 7 in proceedings under Part IV. As a result, provisions in Part IV which confer a limited power to make residence orders where care and supervision proceedings are adjourned may be repealed. Amendments to Clauses 33 and 34 which are related to this amendment I shall move later.
The purpose of this amendment is to simplify the Bill and increase the powers of courts to promote children's welfare. The court in care and supervision proceedings will be given an unfettered power to make an order under Clause 7 which is in the child's best interests. Clause 1 already enjoins the court in such proceedings to give paramount consideration to the child's welfare and to have regard to its range of powers available in these proceedings. At present Clause 33 limits those powers where care proceedings
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are adjourned. In these cases the court may make a residence order in favour of persons set out in Clause 33(3) if it is satisfied that this is in the child's best interests. It may not make a residence order in favour of any other person unless it is satisfied that there is reasonable ground to believe that the child's circumstances are as mentioned in Clause 26(2). If it does make a residence order it may also make a contact order.
This restriction was included in the Bill to provide consistency with the circumstances in which persons may apply for residence orders as of right. It is now felt, however, that it would be wrong to deny the court power where care and supervision proceedings are adjourned to make an order which it considered to be best for the child. Indeed, it could be potentially prejudicial to the child's welfare and wasteful of resources to require that a person who desired this order had to commence new proceedings under Part II of the Bill whilst proceedings under Part IV were on foot.
As I said, I shall move consequential amendments to Clauses 33 and 34 later. I beg to move.
Lord Renton: This amendment is, I think, a convenient moment to say that Clause 7 of the Bill is a most excellent and helpful piece of drafting. It is always to our advantage to have definitions, especially of new phrases, brought to our attention as soon as they are going to become operative within the Bill. Subsection (1) is ideal. It is very helpful indeed to have the enactments concerned listed clearly, as they are here, instead of being stuck away in a schedule, as they sometimes are. I should like to congratulate my noble and learned friend.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Restrictions on making section 7 orders]:
9.45 p.m.
Lord Kilbracken Lord Kilbracken moved Amendment No. 28:
Page 6, line 31, leave out ("them") and insert ("him").
The noble Lord said: This is a drafting amendment, and I defy the noble and learned Lord to resist it. I beg to move.
The Lord Chancellor: The noble Lord was hoping to have an amendment accepted; well here it is. I am grateful to him for his eagle eyed scanning of the Bill. The Government support the amendment without equivocation.
On Question, amendent agreed to.
Lord Meston Lord Meston: moved Amendment No. 29:
Page 6, line 31, leave out ("three years") and insert ("one year").
The noble Lord said: I wish I could move this amendment with equal brevity and equal success. However, I doubt that, although I shall speak briefly to this amendment, and in so doing speak also to Amendments Nos. 35 and 38. This Bill removes the concept of custodianship which was intended to benefit foster parents, and indeed other members of the extended family, who had had the child

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concerned in their care for a period of three years in certain circumstances and a lesser period in other circumstances.
The Bill preserves the three-year rule in that Clause 9(5)(b) entitles:
"any person with whom the child has lived for a period of at least three years",
to apply for a residence order. But the amendment which I am moving is concerned to invite the Committee to consider the position of people who have had children in their care for a lesser period but nevertheless for a substantial period. As the Bill is drafted such people—I am thinking primarily of foster parents in these circumstances, and indeed that part of the Bill to which this amendment is addressed deals with foster parents only—have three hurdles to overcome before they can obtain a residence order under the Bill as it is drafted. First, they have to get the consent of the local authority; secondly, they have to get the leave of the court; thirdly, of course they have to succeed in the ultimate application. I venture to suggest that providing all those hurdles is putting too much in the way of such applications. I ask rhetorically why it is necessary to have so many hurdles before someone who is looking after the child can come to the court to ask the court in its discretion to grant a residence order.
The position of the foster parent who has been looking after a child for, say, two or two-and-a-half years is not, I would suggest, materially different from the position of a foster parent who gets as far as three years' care of the child. I do not foresee a flood of applications if what I propose is allowed. The leave requirement will remain and granting leave does not guarantee that the subsequent application succeeds. This is meant to be a reforming Bill and I therefore suggest that the opportunity is taken to look at the position of such people afresh. I beg to move.
The Lord Chancellor: The purpose of the restriction is twofold. First, where a child is being looked after by a local authority the security which might he gained from a residence order must be set against the difficulties which premature applications might put in the way of realisation of the local authority's plans for the child. That is particularly so where a child who has been abused or neglected has been compulsorily removed from his home under a care order giving parental responsibility to the local authority. The effect of the residence order would be to give parental responsibility to the foster parent and terminate the care order and therefore the authority's parental responsibility for the child.
To permit unrestricted applications by foster parents after the child had lived with them for only one year could undermine the authority's efforts to bring stability to the child's life. We think that in those circumstances it is reasonable to require the authority's consent for periods up to three years (a period which reflects the present law). Where a foster placement has been successful and the authority can see that a residence order would be in the child's interest one would expect the authority's consent to be forthcoming. In other cases, the authority, having parental responsibility for the child, should be able to prevent an application which could cause
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considerable stress and disruption in the child's household and for the people concerned. After three years the applicant will usually have established a substantial relationship with the child and those concerns need not apply.
I noticed that in illustrating his point the noble Lord said that two years or two and a half years was not very different from three years. That is true. However, he is asking for one year and in all fairness I think that we must test his proposal on that basis.
The other point which I should like to make and which is also extremely important is that it is necessary, we think, to guard against the risk of deterring parents from voluntarily using fostering services provided by the local authorities. That could easily happen if the restrictions on foster parents obtaining a residence order, and therefore parental responsibility for the child, were relaxed. If parents were deterred from turning to the local authority for assistance, the arrangements which they may then make might be much less satisfactory for the children. So it is important to encourage voluntary fostering arrangements, and the three-year limit is important in that connection.
A three-year time limit will help to ensure that the authority can safeguard the Child's interests where it seems necessary to do so. It will also, we hope, reduce the risk of discouraging parents from using local authority accommodation services on a voluntary basis. But it will not prevent applications which are advantageous to the child going on to the court. A double hurdle of local authority consent and court leave may seem onerous but we regard the principle as a very important one. I hope that the noble Lord will feel that it is sufficiently important for him to withdraw his amendment.
Lord Prys-Davies: I do not think for one moment that the noble and learned Lord the Lord Chancellor wants assistance from these Benches. However, we do not consider that to lower the period from three years to one year as suggested in the amendment would improve the Bill. A period of one year may appear to be long enough, and 12 months is a long time in the life of a child, but it soon goes by. We suggest that it would be too short a period in which to know whether the child would settle down with the foster parents, with siblings and in a new school. Therefore we consider the period of one year to be too low.
Another point that has occurred to us is this. If the period is reduced to 12 months, is there not a risk that this will be seen by foster parents as a back door to getting permanent care of children? For both reasons we cannot support the amendment.
Lord Meston: This was in the nature of a probing amendment. I dispute the argument that in all circumstances an application after one year would be premature. As the noble Lord has just said, one year can be a very long time in the lifetime of a child.
Foster parents are dedicated people. When they reach the stage of applying for some sort of permanence in their status vis-à-vis the child, marking their dedication usually means that they have to give up the fostering allowance. My amendment would

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not have guaranteed them success; it would simply have allowed them to reach the starting gate a little sooner—if one can get to the starting gate after having jumped over the hurdles (I am conscious of muddling my metaphors).
I take the point that it can undermine voluntary fostering. Balanced against that is the fact that
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natural parents must realise that time runs against them. However, this is not the time to develop the argument and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8, as amended, agreed to.
10 p.m.
Clause 9 [Power of court to make section 7 orders]:
Lord Banks Lord Banks moved Amendment No. 30:
Page 7, line 10, at end insert ("or
(c) the parties have agreed and submitted a memorandum of agreement in a form prescribed by regulations made by the Lord Chancellor without a court appearance.").
The noble Lord said: In moving Amendment No. 30, I shall, with the leave of the Committee, speak also to Amendment No. 31. I believe that all parties, including those who reach voluntary agreement, would prefer to have that agreement recorded in order to obtain as clear a framework as possible for the working of their family relationships. This is particularly important for parties who are resolving their arrangements following the breakdown of a relationship.
If we are to move toward the family court and conciliation procedures, a statement of agreement that has been ratified will provide the framework for amicable resolution. In its current draft there is in the Bill a presumption against orders being made unless issues have arisen. While we do not want unnecessarily to introduce a combative element into the proceedings, we do not believe that this will disappear if arrangements are left vague. In itself, vagueness can lead to later dispute, with either or both parties seeking further orders to prohibit each other from taking a particular action. On the other hand, we do not want the courts to have to make an order in every case, since that could represent an unnecessary delving into people's private lives, especially where voluntary agreement is possible.
Our proposed amendments to the court's powers and duties in respect of making orders seek to enable parents who are not married to have their agreement ratified without having to attend court; to enable parents who have been married to have a voluntary agreement and, where no issue has arisen, to have their agreement ratified without court attendance; but to ensure that, in the case of parents who have been married, an order shall be made where an issue has arisen. That last point is important, for it is crucial for divorcing parents who are unable to make a voluntary agreement that an order shall be made, and we can envisage no circumstances in which it would be wise for a court not to make an order. There are crucial issues, such as housing, where it is imperative to protect the interests of the children and the parent with whom they will be primarily resident by making an order where the family would be homeless if the court did not do so. I beg to move.
The Lord Chancellor: The jurisdiction provisions of Clause 9(1) into which this amendment seeks to insert a paragraph (c), already cover orders of the kind that are here in question. The essence of this is to make it possible to have the order granted without a court appearance. Whether a court appearance is necessary or not is a matter for rules and for the court's judgment. In many cases where orders are sought at the moment they are quite unnecessary. One of the policy considerations put forward by the
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Law Commission is to discourage this. Parties should seek an order only where an order is the most effective way of safeguarding and promoting the child's welfare. That policy is reflected in Clause 1(4), to which I have already referred. For their part the Government would wish to discourage parties from going to court as a matter of routine even for a consent order and to encourage parents who separate to make responsible arrangements between themselves without necessarily involving a court order. Many of them will be able to do so. Perhaps I may quote the Law Commission:
"Where a child has a good relationship with both parents the law should seek to disturb them as little as possible. There is always the risk that orders allocating custody and access (or even deciding upon residence and contact—to refer to the new orders contained in this Bill) will have the effect of polarising the parents' roles and perhaps alienating the child from one or other of them",
or possibly both of them. Those last words are my addition. In that situation I do not see the need for this amendment. On court appearances, that is a matter that could be regulated by rules or by the court's own procedure.
Lord Banks: I am most grateful to the noble and learned Lord for his reply to this amendment. I should like to consider carefully what he has said. I had thought that it might be along the lines he has put forward. I should like to read it carefully and to consider whether we should pursue this matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 and 32 not moved.]
Lord Meston Lord Meston moved Amendment No. 33.
Page 7, line 21, at end insert—
("(c) any relative of the child within the meaning of section 77 (1) of this Act.")
The noble Lord said: The purpose of this amendment is to give relatives an entitlement to apply to the court for a residence order as a matter of right. The people whom one has in mind in the great majority of cases are the grandparents, although in practice one comes across cases of uncles and aunts and such people who would be potential applicants and who would be covered by this amendment if it found favour.
There has been concern that the position of grandparents in particular under this Bill is to be governed by regulations. It seems that the Bill may be making it too difficult for eminently suitable people—grandparents in particular—to apply to the court. Indeed, one asks why on earth it is necessary to limit the categories of people who can apply to the court when the ultimate merit of the application will determine its results, the result being governed by the general principle of the Bill. That is to say, the child's welfare will be paramount.
I suggest that the Bill creates unnecessary hurdles. The regulations to be provided are as yet unseen. We therefore do not know what they say. We know that in the case of a child in care a grandparent or some such person can apply only in circumstances governed by Clause 9(5)(c) when the consent of the

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local authority is forthcoming. I suggest that that is another unnecessary hurdle.
Indeed, the requirement for the local authority to consent is a requirement which could be onerous for the local authority. It has been suggested to me that it could make local authorities more vulnerable to judicial review in these cases. That situation should be avoided if at all possible. I repeat that these applications will be determined on their merit. It is unlikely that there will be a flood of frivolous applications and it should not be the position that the law makes things too difficult for people who may be perfectly suitable to take over the care of children in these circumstances. I beg to move.
Lady Saltoun of Abernethy: I should like to support this amendment. The definition of "relative" in Clause 77 is too narrow and should be reconsidered. I have an amendment down which comes later in the Bill. The inclusion of grandparents seems to me to be too narrow. After all, it is only a right to apply for access, which could, I presume, be refused if circumstances warranted it. It is very important that people who may be close to the child and for whom he may have a great affection should be able to get access if they apply for it and if it is considered right that they should get it.
Lord Kilbracken: I support this amendment. In any case I feel that the categories included by paragraphs (a) and (b) are not wide enough. I think that any parent who has parental responsibility for a child should be entitled to apply to the court for an order under Clause 7. That is not automatically possible at present; it is only a parent, a guardian or a person in whose favour a residence order has been made. Whether or not it is made as wide as the noble Lord, Lord Meston, would like, I think that it should he widened.
The Lord Chancellor: The amendment would allow a grandparent, brother, sister, uncle or aunt (whether of full or half-blood or by affinity) or step-parent to apply for any order under Clause 7 of the Bill without leave of the court. There is clearly a danger both in limiting and expanding the categories of persons who may apply for orders in respect of children. On the one hand, a too wide and uncontrolled gateway can expose children and families to the stress and harm of unwarranted interference and the harassment of actual or threatened proceedings. If too narrow or over-controlled the gateway may prevent applications which would benefit or safeguard a child from harm.
Under the Bill, the totally unfettered right to apply for any order under Clause 7 is restricted to parents and others who have parental responsibility for the child under the Bill; namely, guardians and those who already have a residence order in their favour.
The result is not that others are precluded from seeking orders but only that they are either restricted to seeking residence orders provided that the conditions in subsection (5) are satisfied or they are required to obtain the leave of the court under subsections (1) and (8).
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In the typical case referred to by the noble Lady, Lady Saltoun, it is open to apply for leave of the court. If the court thought that the application was meritorious, in the circumstances it would be likely to grant leave and the application. The purpose of including the leave requirement is to prevent families being harassed by applications which, if they are made as of right, have to be considered but which may not have any merit.
In the view of the Government the present arrangements in the Bill seem to me to be the right starting place. I say starting place because there is power under subsection (6) to add to the categories of person who may apply as of right for any or all orders under Clause 7. Thus if, for example, it becomes apparent that grandparents or siblings should have rights to apply without leave for orders, that can be achieved by rules of court. What could not, on the other hand, be achieved by rule is restricting the categories in the primary legislation if experience shows them to be too wide. That, in my view, is a strong argument for a relatively conservative approach.
This can be tested by experience. If the court grants leave in a particular category on many occasions, it would seem right to open that category after a while and make leave unnecessary. On the other hand, if we make them too open to begin with in the primary legislation and the court refuses many of these on the merits as a matter of course, we would then have no power to close up the category again. So I think it is right to start, as we have, with a fairly restricted situation and test it out by experience to see whether some change is necesssary. We have the mechanism for the appropriate direction of change in the Bill.
The Bill is already fairly bold in allowing almost anybody to apply for almost any order subject to the requisite consents or leave of the court. For example, that is a major improvement for grandparents, whose present rights are severely restricted. I would urge the Committee not to go further until we have some experience of the new provisions. Accordingly I hope that the Committee may feel it is right to leave the provisions as they are at present.
Lord Kilbracken: In that case I suggest it would be far easier if subsections (2) and (4) were transposed.
Lord Meston: I accept that this is a balancing exercise. I am encouraged that the noble and learned Lord has expressed the view, which I share, that there is a danger in over-limiting the categories of people who can apply. I am encouraged to know that, in a sense, he regards the provisions of the Bill as simply a starting point from which the position can be expanded.
I think one difficulty which people have in mind when looking at the provisions in the Bill is that although Clause 9(8) provides certain criteria for the court when considering whether or not to grant leave, it does not indicate whether and to what extent the court will have at the leave stage to prejudge the ultimate merits and success of the application. I wish to consider this matter further and I shall read what has been said. For that reason, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 34:
Page 7, line 25, at end insert ("as defined in section 77(1) below").
The noble Lord said: We in your Lordships' Committee are well aware of the way in which Acts of Parliament are set down. A statement is made at the beginning of an Act, and 102 sections later on there is a definition which makes one aware that there is a quite different meaning from that which we normally give to it.
In this case we have in Clause 9 this statement:
"any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;".
When I read that I at once thought, what is a child of the family? It is not something which is immediately obvious. If your Lordships were to turn on to Clause 77 you would find that "child of the family" is a phrase which is defined and has a special meaning for the purpose of the Bill. Of course, a lawyer reading through the Bill carefully enough will arrive at the definition in the end and will see what it means. But surely it would do no harm to insert at this stage words as suggested by the amendment, which tip off the reader that if he wants to know what is meant by "child of the family" he will find the meaning by turning to Clause 77.
Therefore I hope it may be thought helpful to include those words at this stage in the Bill, by inserting the words proposed in my amendment. I beg to move.
10.15 p.m.
Lord Simon of Glaisdale: I am most surprised that the noble Lord, Lord Kilbracken, should move this amendment, because in addition to being a distinguished author he has also been a sub-editor, and sub-editors are supposed only to cut copy and in no circumstances to add to it.
This amendment is unnecessary. Anybody coming across this phrase, unless he knows what it means, will go to the interpretation clause just as he would go to a dictionary. However, I really intervened because there is some inconsistency in the body of the Bill and in the schedules as to how far there should be reference to the interpretation clause. Perhaps my noble and learned friend will ask the draftsman to check and make sure that there is consistency or, at any rate, a defined policy.
The Lord Chancellor: This is a matter of judgment for the draftsman. If one inserted:
"as defined in section 77(1) below"
each time one of the defined words or phrases was used, the Bill would be extended by more than a sub-editor would wish. I believe that this is a matter of judgment. It is the draftsman's judgment that the Bill should be left as it is, and I hope that the noble Lord feels able to accept that judgment on this occasion.
Lord Kilbracken: Despite his criticism I appreciate the words of the noble and learned Lord, Lord Simon of Glaisdale. Perhaps I may say that he is mistaken in thinking that it is the sole duty of the sub-editor to shorten copy. On the contrary, quite often it is
1230
necessary to add a few words to explain what the journalist or author has written. It depends on the circumstances.
Of course, I recognise that these words were unnecessary insofar as the words are defined in Clause 77. However, I felt that it would be helpful if the words were included in a case where no phrase of any special significance was used but merely the phrase, "child of the family". One would not expect to find a definition of that.
Far be it from me to add words unnecessarily to the Bill if the thoughts of the Committee are against it. Therefore, I do not intend to press this amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 36:
Page 8, line 2, leave out ("disrupting") and insert (", if successful, leading to the disruption of").
The noble Lord said: At the top of page 8 there is a list of matters to which a person applying for leave to make an application should have particular regard. Paragraph (c) states:
"any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it".
I believe that we all understand what the draftsman is getting at here. However, surely it is not the application that will disrupt the child's life to such an extent that he would be harmed by it. The application made to the court has no effect whatever upon the child's life. What has an effect on the child's life is what will happen if the application is successful. Therefore, I propose that the Bill should read:
"any risk there might be of that proposed application, if successful. leading to the disruption of the child's life",
and so on.
I should not like to be accused of being pedantic—that is not my way. I see that the noble Lord, Lord Meston, is smiling, but a pedant I am not. I feel that in this case it is the results of the application and not the application itself that will cause a child's life to be harmed. I beg to move.
The Lord Chancellor: The issue at this stage is the application for leave. The question is: would the granting of the application for leave cause disruption? It is not the ultimate success of the application that is in question. The mere application itself and the consideration of the application can cause disruption in the child's life. It is that stage that is in question. What happens once the application for leave is granted is the next stage, and the disruption that might follow on the granting of the leave is the first stage. That is what we are now debating. It is not that the noble Lord is being pedantic but that he is on this occasion, and rarely for him, perhaps mistaken.
Lord Kilbracken: I cannot possibly agree with the noble and learned Lord. The Bill as it stands refers to the application disrupting the child's life.
The Lord Chancellor: It is the application for leave that is in question.
Lord Kilbracken: Making an application for leave does not disrupt a child's life. It cannot possibly do so. How can making an application disrupt a child's life? It is not that. It is what happens if the application is granted.
Naturally, I do not accept that I am wrong. I do sometimes accept that I am wrong, but I do not do so on this occasion. If the noble and learned Lord stands by his opinion, of course I am bound to accept it, but I reserve the right to raise the matter again at a later stage.
Lord Meston: With great respect to the noble and learned Lord the Lord Chancellor, surely "proposed application" does not mean the application for leave, because if one looks back to subsection (8)(a) it is clear that a proposed application means a proposed application for the order under Clause 7 rather than the proposed application for leave to apply for an order under Clause 7. Nevertheless, the point made by the noble and learned Lord must be right in the sense that an application itself can be disruptive to a child's life. That is what the court must consider when deciding whether to grant leave.
The Lord Chancellor: That is the point I seek to make. The application in question is an application for leave to make the application. If the application for leave is granted, the application will be allowed to proceed for the order under Clause 7. It is the application for the order under Clause 7 being allowed to proceed that will cause disruption. That is the point at issue. It seems to me that the noble Lord is perhaps applying his mind to the wrong stage in the procedure.
Lord Kilbracken: I cannot agree with the noble and learned Lord. We are talking about the application itself resulting in disruption of the child's life. An application cannot so result.
The Lord Chancellor: It can.
Lord Kilbracken: If the application is successful and the order is given, it may result in disruption of the child's life.
Lord Trafford: Will the noble Lord give way? Perhaps the noble Lord can understand the point that if one makes an application, whether for leave or an actual application or any other manoeuvre, it is likely to cause disruption to the person in regard to whom that application is made, irrespective of whether it is successful, unsuccessful, justified, unjustified or anything else. The mere fact that it has happened causes the disruption.
That is the point that I understand my noble and learned friend to be making. In those circumstances, he has already made the situation clear under Clause 9(8) on the previous page, where it says,
"Where the person applying for leave to make an application".
That starts the whole procedure; it is not the application itself. That is the leave to make the application, etc. Surely the noble and learned Lord has made the point over and over again that that is the issue that can disrupt someone's life. If the noble
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Lord has never experienced such a disruption, even though totally successful subsequently, or he has never had to face the result of a particular application, the fact is that it can be disruptive, full stop.
Lord Kilbracken: It causes disruption to other people and to the parents, but it does not cause disruption to the child's life. I sense that I do not have the Committee behind me on this amendment, and I say that with great perspicacity. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 and 38 not moved.]
Clause 9 agreed to.
Clause 10 [General principles and supplementary provisions]:
Lord Mottistone Lord Mottistone moved Amendment No. 39:
Page 8, line 32, at end insert—
("(4A) The court shall consider making any child over the age of ten years a party to the proceedings described in subsection (1) above.").
The noble Lord said: In many of the amendments to this Bill, the NSPCC is seeking to make sure that where practicable and when the child is of a suitable age, he should have the opportunity to take part in proceedings of various kinds. This amendment seeks to do that. If it is accepted by my noble and learned friend, it will strengthen the child's right to participate in family proceedings including the child's ability to instruct a solicitor. If the child has reached the age of 10, we are only asking that the court should consider (we are not saying that it must) that this would seem to be a reasonable addition to the Bill. I beg to move.
The Lord Chancellor: There is no intention to remove the court's current powers to join children as parties to proceedings affecting them. Clause 70 enables the rules of court to provide who may be parties to proceedings under the Bill. However, as I have said already, we must be careful not to risk children becoming unnecessarily embroiled in disputes which arise between their parents.
The Bill already highlights the need to take the child's wishes and feelings into account. It also gives the court an unfettered power to order welfare reports, one major purpose of which is to ensure that the child's interests are given proper weight. In an extreme case a child can, with leave of the court, himself apply for an order if he dislikes that being sought in existing proceedings. In these circumstances I doubt whether it is necessary to do more.
As it has been said earlier, it is difficult to know why one should fix on a particular age in this matter. We have made very general provisions about that. I believe that anything that fixes very strongly on a particular age is perhaps undesirable. At present the county court and the High Court may join children as parties to proceedings. The same is not true of the magistrates' court. However, the matter is under

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review and it is likely (though I cannot be certain about it at the present moment) that rules made under Clause 70(1) will enable magistrates also to join children to existing proceedings under the Bill. In the light of that explanation, I hope the noble Lord may feel able to withdraw the amendment.
Baroness David: We did not move our Amendment No. 32, which deals with a very similar situation, because on the whole we preferred the noble Lord's Amendment No. 39, which he moved very briefly. He did not go into the arguments. If we consider what happens now we cannot be altogether happy about the situation. The noble and learned Lord has mentioned the case of the High Court and the county court, where children can be made parties to family proceedings, and the Matrimonial Causes Rules 1977 to permit children to be separately represented. But that rule is not invoked very often and its use was apparently specifically discouraged by a 1981 practice direction. As a result, of more than 180,000 divorce applications in 1982, only 36 children were referred to the Official Solicitor's department under Rule 115.
It is therefore apparent that, although there is already provision for children to be made parties in a number of family proceedings, this provision is little known and little used. The Children's Legal Centre regularly hears from articulate and frustrated young people whose families are involved in family proceedings. One writes saying:
"In our case which started over two years ago six different people closely involved with us and the divorce case did not attempt either to find out what our wishes or points of view were or totally disregarded them and us. They were: our doctor, two different solicitors, a local court welfare officer, a senior court welfare officer and the Official Solicitor. You will see how badly young people are treated by people they should have been able to trust and get help from".
If such young people were able to be parties to the proceedings they would be able to articulate their feelings appropriately in the court process.
This point merits perhaps more consideration than it is getting at this time of night. I ask the noble and learned Lord to think about it a little more.
The Lord Chancellor: I am certainly content to think about it more. But the prominence which we are giving to the child's wishes and feelings in Clause 1 will have an effect.
Lord Mottistone: I am grateful to the noble Baroness, Lady David, for her contribution and assistance and for her rather fuller statement. What my noble and learned friend said is worth studying before one decides what to do next. This is not the stage to press the point but we may find that it would be wise to come back to it at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Birmingham City Council Bill
Returned from the Commons with the amendments agreed to.
Southern Water Authority Bill
Returned from the Commons with the amendments agreed to.

Harwich Harbour Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at twenty-seven minutes before eleven o'clock.