Children Bill [H.L.]

HL Deb 19 December 1988 vol 502 cc1147-87

4.16 p.m.

House again in Committee on Clause 1.

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 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 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 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 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 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.

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 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. 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 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.

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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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) 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.