Children Bill [H.L.]

HL Deb 19 December 1988 vol 502 cc1196-234

House again in Committee on Clause 5.

Lord Kilbracken moved Amendment No. 17: Page 4, line 12, leave out ("before") and insert ("after").

The noble Lord said: About 25 years ago I put down an amendment to the Betting, Gaming and Lotteries Bill which I considered to be of some importance. The Committee rose for Dinner immediately before I moved that amendment; when we returned there were present in the Chamber myself, the Deputy Chairman of Committees and the Minister. That exactly constituted a quorum. I feel somewhat in the same position at this moment with a feeling of dèjá vu.

The amendment is not of enormous importance but I feel that it is irresistible. In subsection (6) we are told that: Where, immediately before the death of any person making an appointment under subsection (2) or (3)—(a) the child concerned had no parent with parental responsibility for him". I am suggesting that that should read: immediately after the death of any person making such an appointment", for the very simple reason that if the parent concerned is still alive, then that parent himself has parental responsibilities for the child. Therefore there cannot be any circumstances under which the child has no such parent. I do not see that that can be disputed and I ask the Committee to accept my amendment. I beg to move.

Lady Saltoun of Abernethy

Perhaps I may suggest an alternative form of wording: "upon the death".

The Lord Chancellor

The difficulty about this is that perhaps the two branches of Clause 5(6) require different consideration. Subsection (6)(b) is such that if we make the wording "after the death" there is no residence order in favour of the deceased because the residence order comes to an end on the death. So immediately after the death there is no: residence order in favour of the deceased … in force with respect to the child". It is not absolutely easy to get this right. I think the noble Lord has a point on the first part of the subsection. Clause 5(6)(a) applies to the situation where there was no parent. One has to remember the two possibilities that I mentioned before. They raise somewhat different considerations. What is wanted is a situation in which, generally speaking, the guardianship comes into action only on the death of both parents.

But there is also the situation where the one parent who has predeceased was a parent with whom the child was residing by virtue of a residence order. In that situation guardianship can take effect. In that situation there may be no parent with parental responsibility for the child at the time of death but a guardian who had responsibility and was unable to make an appointment.

The first part deals with the situation where there is no parent at all, and a guardian was appointed under the provisions. The second part deals with the situation where an order was in force in favour of the deceased immediately before his death. It states: the appointment shall take effect on the death of that person. To introduce the word "after" would certainly not work as regards paragraph (b). As I say, the first part deals with the only case in which a guardianship can take effect, and that is where there is a parent alive in the situation where the predeceasing parent was one in respect of whom there was a residence order made providing that the child should live with that person. The noble Lord is a little unsure. But I think that I have dealt with the point. I am certainly prepared to look at it further, but I think that explanation deals with the point.

Lord Simon of Glaisdale

Would the right word not be "on", which my noble and learned friend just used, and which is used in the preceding line? Instead of the words "immediately before" the words "on the death" should be used. One would then get consistency of terminology. Perhaps my noble and learned friend would consider that. I hope that it might make the noble Lord, Lord Kilbracken, happy.

The Lord Chancellor

I am grateful for that suggestion and I should like very much to consider it. But the noble Lord, Lord Kilbracken. may be at least sufficiently happy to withdraw the amendment and give me a chance to see whether we can deal with it in that way.

Lord Kilbracken

I am grateful to the noble and learned Lord. I am glad that he is going to consider this again. I feel that it is a matter that needs further consideration because it is very difficult to draft a subsection which is applicable to both subsections (2) and (3). The suggestion has been made both by the noble Lady, Lady Saltoun of Abernethy, and the noble and learned Lord, Lord Simon of Glaisdale, for putting the words "at the death of".

Surely, if it is a question of a child not having a parent with parental responsibility, we have to decide whether that is before or after. The language will be different according to which we decide upon. The fact remains that, as the Bill is drafted at present, in the case of subsection (2) we are talking about—leave out the guardian of the child in subsection (3)—: A parent who has parental responsibility for his child". He is still alive and he has that responsibility.

But then in subsection (6) we are talking about a child who before the death of that person: had no parent with parental responsibility". That cannot make sense because we have already predicated that there is a parent who has parental responsibility, and that he is still alive until he dies. I think I am right about that, but I am glad to accept the offer of the noble and learned Lord—unless he wants to add any words—both as regards this and as regards the next amendment which is really a similar one although it is not quite so strong. In view of his offer to look at the matter again, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

On Question, Whether Clause 5 shall stand part of the Bill?

8.15 p.m.

Lord Simon of Glaisdale

I have two questions about this clause. The first concerns subsection (11). There is a doctrine of probate law known as dependent relative revocation which turns up much more frequently than one would suppose. It occurs when a will is revoked with the intention of revoking it, but with the further intention of making another testamentary instrument in its place and that latter intention is, for some reason, frustrated or does not take place. The law then says that the revocation with the intention of revoking it will not take effect as a revocation. In other words, the will stands.

It may be that subsection (11) is sufficiently close to the Wills Act to allow the operation of that useful rule. But, on the face of it, it is excluded. Perhaps my noble and learned friend will look into that. Unfortunately my noble and learned friend Lord Brightman, who undoubtedly has learnt the Wills Act by heart, has now left the Chamber.

My second question concerns subsection (17), which states: A guardian may only be appointed in accordance with the provisions of this section. My question is: does that preclude the appointment of a testamentary guardian? Subsection (12) suggests that a guardian may still be appointed by will or codicil, but that is only an implication. Would my noble and learned friend consider that it ought to be a special saving?

Lord Kilbracken

If I may avail myself of this opportunity I should like to say that during the dinner break I saw a solution to my personal problem which I mentioned on the previous amendment. That is that I should die before Royal Assent.

The Lord Chancellor

Some solutions are preferable to others but I express no preference for that one.

In relation to the second question that the noble and learned Lord, Lord Simon of Glaisdale, raised, I think that the conditions that are required are that the nomination or appointment should be in writing, dated and signed by the person making it.

Lord Simon of Glaisdale

That does not really meet my point. If the appointment is made by a will, further requirements beyond the dating and signing of the will are necessary. I am sure that that is the same in Scots law.

The Lord Chancellor

That is right. Therefore the greater includes the lesser and, so long as the document is in writing and signed, whatever other requirements there may be in relation to a will the requirements relating to the appointment of a guardian are satisfied.

Lord Simon of Glaisdale

That seems to be a complete answer to my question.

Lady Saltoun of Abernethy

Perhaps I may ask the noble and learned Lord a question. Nowhere in this clause is there any suggestion that the court should in the first instance consider relatives of the child as guardians before considering outsiders. Perhaps that is not necessary and perhaps it is normal for the court to do so but I should be very grateful if the noble and learned Lord could reassure me on that point.

The Lord Chancellor

The important point is that the parent who has parental responsibility for his child may appoint another individual to be the child's guardian in the event of his death. It may well be that the parent would think that a relative was the best appointment but that does not necessarily follow. I do not see why any restriction should be placed upon that particular freedom.

I should like to answer the other point raised by the noble and learned Lord, Lord Simon of Glaisdale. Clause 5(11) reads: An appointment under subsection (2) or (3) (other than one made in a will or codicil) is revoked if the person who made the appointment destroys it with the intention of revoking the appointment. I am keen to avail myself of the opportunity of looking at that point further. At the moment I am inclined to think that the doctrine of dependent relative revocation does not apply.

Lord Simon of Glaisdale

Should it not apply?

The Lord Chancellor

As someone said earlier today, that is an interesting question. As I said, I shall be glad to avail myself of the opportunity of considering the matter further. However, that is my understanding of the matter as drafted.

Lord Kilbracken

In subsection (12) we are told that: For the avoidance of doubt, an appointment … made in a will or codicil is revoked if the will or codicil is revoked". That must mean that if the will or codicil is not revoked it remains effective. Is it then to be the fact that although it is effective it still does not come into force until the death of the surviving parent?

Lady Saltoun of Abernethy

I had in mind a situation in which a parent might not have got around to appointing a guardian in his will or in a codicil to his will and where it might therefore fall to the court to do so.

The Lord Chancellor

Rather in the same way as with a parent, I think that in that case no preference is given to relatives in the court's power to appoint guardians. There may be circumstances in which a relative would be a good appointment. I think that the situation is exactly the same in the present law. As many of your Lordships will know, relatives are often appointed and relationship is a good basis on which to consider appointment. However, I would not be in favour at the moment of putting in the Bill a preference for relatives where the present law does not so provide.

Lady Saltoun of Abernethy

I did not want to put in a preference for relatives but merely to suggest that they should be considered in the first instance before others were considered.

Clause 5 agreed to.

Clause 6 [Welfare reports]:

Lord Prys-Davies moved Amendment No. 19: Page 5, line 12, leave out ("may") and insert ("shall").

The noble Lord said: Under Clause 6, the court has complete discretion as to whether or not it will call for a welfare report. As a general rule we consider that the welfare report should be before the court whenever it considers under the Act a question with respect to a child. I should have thought it essential that the welfare report should be available in order to bring the interests of the child to the forefront of the considerations. That point was emphasised by the noble and learned Lord the Lord Chancellor earlier this afternoon.

We are a little puzzled. In what circumstances will the need for the welfare report be waived? Are we considering a consent application where it may not be necessary? Or does the noble and learned Lord the Lord Chancellor have other circumstances in mind? In any event, if there is to be a waiver of the general rule, ought not the court to satisfy itself that proper arrangements have been made to safeguard the interests of the child and that that should be written into the Bill? That would ensure that the need for the interests of the child to be before the court will not be overlooked. I beg to move.

Lord Renton

With respect to the noble Lord, I do not think that his amendment should be accepted. On a previous amendment my argument was invalidated by my failure to consult the report of the Law Commission. I have now armed myself with a copy, which means that my speeches will be more accurate and may be a little longer.

On this point, the report is quite specific. The Law Commission recommends: that the courts should have power to call for a welfare officer's report in all cases in which orders relating to the child's upbringing may be made". The commission goes on to say: Welfare officers' time is limited and must be targeted on the cases in which it will be most valuable". It adds reports are also a source of delay, and in some cases the court may have to balance the advantage to be gained from the report against the disadvantages of delaying the hearing until, in effect, the case decides itself". On those grounds, I would expect my noble and learned friend not to accept the amendment.

Lord Meston

Surely the answer to this amendment is the practical one which has just been mentioned. In an ideal world whenever arrangements for children have to be considered in court there would be a welfare officer's report to assist the court. But to impose a mandatory requirement for a welfare officer's report in every case would place an impossible burden upon the welfare officers to the detriment of those cases where the welfare officer's report is needed and needed quickly.

The answer therefore seems to be the same as might have been given to the earlier amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. It is simply impractical for the court to order the assistance of a welfare report in every case in the same way that it is impracticable to expect the court solemnly to go through the check list in every case where the matters before the court are not in dispute.

The reality is that the children's appointment system under Section 41 of the Matrimonial Causes Act 1973 works essentially well. As I understand it, the clause as drafted still enables the court to direct, as it sometimes does, a welfare officer's report, even when the parties concerned, usually the mother and father, are not themselves in dispute. According to my reading, it is for that reason that the Bill states that the court can order a report when it is considering any question with respect to the child. That would seem to me to include the consideration of the arrangements for the child after divorce.

8.30 p.m.

Lord Kilbracken

I must say that I completely agree with the noble Lord, Lord Meston, and do not see the necessity for my noble friend's amendment. The clause states that: A court considering any question with respect to a child under this Act may— (a) ask a probation officer; or" et cetera. I think that it would be completely wrong if in all such cases the court had to ask a probation officer or a local authority to report to the court. Only last Monday, a week ago today, I made my son a ward of court. That is certainly a matter that would come under this Act. But to suggest in a case like that that there had to be a probation officer or representative of a local authority present, just to give that one example is surely ridiculous. I do feel that what the noble Lord, Lord Meston, says is absolutely correct.

Baroness David

Perhaps I may ask the noble and learned Lord whether it is intended under the Bill that only disputed cases should be the subject of family proceedings. If the cases are disputed, surely it is important that there should be a report. I ask that question in order to try to clarify the matter.

Lord Hylton

This may be an appropriate moment to raise the question of the status of voluntary welfare bodies. If such a body is in contact with a family or a child whose future arrangements are being discussed by a court and also if it employs a qualified person would it be entitled to submit its views to the court and—

Lord Mottistone

If the noble Lord will permit me—

Lord Hylton

I should just like to finish my sentence—would the court then be obliged to take account of those views?

Lord Mottistone

I simply wished to suggest that perhaps the noble Lord might care to put forward his very useful contribution on my Amendment No. 20 which is the next amendment to be discussed and relates to just that point.

Lord Simon of Glaisdale

My noble friend's question prompts me to ask a question that I had intended to put during the debate on whether the clause should stand part of the Bill. The Family Division has a team of welfare officers. That was originally instituted by my predecessor and subsequently expanded both numerically and by close liaison with the marriage guidance council, to which my noble friend has just referred. I wonder whether subsections (1)(a) and (1)(b) are sufficient to cover that team of welfare officers. The noble Lord, Lord Meston, tells me that they are still operating in the same way.

The Lord Chancellor

I think that the amendment and the way in which it was put raises the question, first, of whether in every case there should be an obligation on the court when considering any question with respect to a child to ask for what I shall loosely call for the moment a welfare report under paragraphs (a) and (b) of this subsection. That is the first question. The noble Lord, Lord Meston, and other noble Lords have pointed out how difficult that will be.

There are cases in which it is absolutely apparent that what is being sought is in the best interests of the child; for example, where parents have agreed that the arrangement on divorce should be that one of them should be the wage earner and the other should look after the child. The only question is whether an order is required and the affidavits of the parents could explain why that was so. In such a clear case to require them to report fully is a waste of time because it causes delay and a waste of resources because good welfare officers are scarce.

However it does not follow that there is no uncontested case which might not raise some question in the mind of the court. Therefore it seems right that the court should have the power to go through the checklist in that case (which is what the provisions allow) and, if required to ask for a report. So it does not necessarily follow that it is a linkage of contested and uncontested cases. One would expect that the vast majority of uncontested cases would be cases in which a report was not necessary but there might be some in which the court would regard a report as necessary.

On the other hand, in most contested cases a welfare report of some kind would generally be required. There might be occasions on which the court had such a full account of disputed oral evidence from the parties, and so on, that it was able to know the position. So it seems right to word the provision as "may" rather than "must".

Perhaps I may now take the second point mentioned by the noble Lord when he moved the amendment. I think that he was seeking some specification of the cases in which it might not ask for a report and seeking to confine the discretion. In view of what I have said, I think that it would be very difficult to do that in any sensible way. It is so much a matter of the court's judgment applied to the particular facts that we think it would be right for the court to have a general discretion in this matter.

So far as concerns the question raised by the noble Lord, Lord Hylton, as my noble friend Lord Mottistone said, we shall shortly be dealing a little more fully with this matter in another amendment. The intention as expressed in the Bill as drafted is that it allows either a probation officer—that is, an officer of the probation service, and I believe that welfare officers of the Family Division are in fact officers of the probation service and are therefore covered by paragraph (a)—or as in subsection (1)(b) an officer of the authority to deal with the matter. I doubt whether the officers of purely voluntary bodies will come into that category.

Of course it could well be that if there were a full report from an independent officer of that kind placed before the court, the court would regard it as unnecessary to exercise its powers under this clause. If it had a good report from some welfare organisation which was run by a charity of some kind in which it had confidence, that might be an example of a case in respect of which it would not require to call in addition for a report under this section. However, there are other consequences—and we shall come in a moment to these when we discuss my noble friend's amendment—which might not follow in that case.

I hope that I have answered the points that have been raised and that in the light of my explanation the noble Lord will feel able to withdraw his amendment.

Lord Simon of Glaisdale

Will the noble and learned Lord specifically satisfy himself that the court welfare officers will come under paragraph (a)?

The Lord Chancellor

I believe I have said that that is the position. I shall be happy to check it. but I believe that they are probation officers.

Lord Trafford

Before my noble and learned friend sits down perhaps he could enlighten me on one point. I am probably being very stupid, but why is the provision under this subsection confined to these two particular categories of person from whom the court may or shall require a report?

The Lord Chancellor

At first sight these are the natural people to ask. They are officials who have responsibility to the court or local authority officials whom the court might expect to answer its requirements. The point will be discussed in relation to another aspect of the clause. However, that is the explanation. Obviously I would think that giving power to the court to require an official or an officer to report means that it must be somebody who has some kind of official position in respect of which they would have a duty to the court. That would not be the normal position of an outside agency, however willing it may be to give its service.

Lord Trafford

Excuse my pursuing this matter further, but does a local authority stand in that relationship with the court any more than other people?

The Lord Chancellor

The statute can put a responsibility on a local authority. It is in line with what it does at the moment.

Lord Prys-Davies

I thought that I had anticipated the argument that the noble Lord, Lord Meston, would advance against the amendment that there are unlimited demands on the resources of the court and the probation officers. However, I thought that I had suggested a way that one could possibly reconcile the real world with the ideal world. However, I accept the guidance that the noble and learned Lord the Lord Chancellor has given to the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 20: Page 5, line 14, leave out ("to arrange for an officer of the authority").

The noble Lord said: At last we come to this subject, which has already been touched upon. I am advised throughout the Bill by the National Society for the Prevention of Cruelty to Children. I have the honour to be a member of its central executive committee. I am sorry that this is the first opportunity I have had to join in discussion on the Bill because my duties in the Isle of Wight interfered with both the Second Reading and the earlier discussion on the Bill today. However at last we are here.

Under Section 6(1)(b), as it is written, the local authority has to arrange for an officer of its authority to report to the court. It so happens that with the encouragement of multidisciplinary co-operation—which I think most people agree is an excellent development in the general area of child care and welfare—the NSPCC sometimes acts on behalf of the local authority, where it is seen as being a key worker for the child and the family on behalf of the rest of the multidisciplinary body, which includes the local authority officers as well as itself. It is a nice, flexible arrangement if in a particular area at a particular time the NSPCC official who is seen to be handling this child or family makes the report, and does so through the local authority. The local authority then submits it to the court.

With my amendment the provision would state: or ask a local authority to report to the court on such matters, and so on. It can then get its report from wherever is suitable. The existing practice—and I emphasise that it is an existing practice which is used only when it is the most convenient and sensible way of doing things—allows that to happen already. It is already happening at local level. It seems therefore that it is a pity to so word the statute that it has to go through an officer of the authority. As Members of the Committee said earlier, officers of the authority are grossly overworked. Hence the reason for retaining "may" rather than "shall". It is a shared operation. There does not seem any reason why that should not continue. It can continue if my amendment, or some other alteration, is accepted. My noble and learned friend the Lord Chancellor may have a better way of wording it. However, at the moment it is too tight. I hope that he will support this amendment. I beg to move.

8.45 p.m.

Lord Meston

Very briefly I wish to support the amendment wholeheartedly because of my experience of a wardship case in which I was involved only last week. The only outside agency in the circumstances of the case in which the child was suffering at the hands of very inadequate parents was the NSPCC. The grandparents became involved and there was an all-round family dispute. The NSPCC produced swift, perceptive and very valuable reports which enabled everybody to reach agreement and, more importantly, to reach the right solution.

Anything which enables that to happen must be valuable. I therefore wish to support this amendment and to suggest that it might go even further. The court should be empowered to invite a report from outside agencies such as the NSPCC even where it is not acting as agent for the local authority.

Lady Kinloss

As the noble Lord, Lord Mottistone, has already explained, the NSPCC has been able to submit written reports to the court on behalf of local authorities in some areas from time to time when the society has been acting as a key worker for a child and family. This again was noted by the Cleveland Report, which thought that it was important legislation in seeking to bolster up existing good arrangements.

Lord Hylton

On first reading the amendment I had assumed that it was a probing amendment. I now appreciate that if it should be approved, the Bill would read consecutively even allowing for the omission.

On the point made by the noble Lord, Lord Meston, the NSPCC is not the only voluntary organisation involved in family casework in a very broad sense. There are other such bodies that do not have the semi-formalised arrangements with local authorities which have been for a long time enjoyed by the NSPCC. Nevertheless, these other bodies may have valuable and relevant information. Perhaps the noble and learned Lord the Lord Chancellor will write to me at leisure in due course before the next stage of the Bill explaining a little further what he was saying on the last amendment about when such reports could he considered relevant by the appropriate court.

Baroness Faithfull

I rise to support this amendment on two grounds. There is a growing cooperation and partnership between the voluntary and statutory sector. An enormous number of local authorities are using voluntary bodies not only the NSPCC but others, as the noble Lord, Lord Hylton, said. Therefore the work that they are doing with the family and the knowledge that they have of the family and of the child are of inestimable value to the court.

The noble Lord, Lord Trafford, asked, why go through the local authority? It is the social services department of the local authority that is responsible for the Children and Young Persons Act. It is the practice that if a case is going to court it should be channelled through the local authority so that there is no overlapping in each local authority area. It is for that reason that the local authority has the knowledge and the agreement that the case should go to court. It is the authority that works with the court as well as with the probation service.

Lord Trafford

I am obliged to my noble friend for her comment. I was wondering whether this is exclusive. It says: a court considering any question in respect of a child under this Act may—

1. (a) ask a probation officer; or
2. (b) ask a local authority to arrange for an officer of the authority …"

I take it that that is not exclusive and that under this legislation the court may request a report from almost anybody who is relevant under the circumstances with respect to the child. I take it that that is right, and I ask my noble and learned friend whether that is so; that the court can ask others to report if necessary and that it is not exclusive. That was the purpose of my intervention because, as has been pointed out, in many of these child cases a multidisciplinary operation is undertaken in connection with their affairs. This includes the social services, the NSPCC and other voluntary agencies. It even concerns the police, and indeed my own profession. I was wondering, if I may ask specifically, whether this is not an exclusive clause and that the court may request a report from other bodies as well.

Baroness David

I think that everything has been said on this matter and the case has been very well made. I should like to add my support to the amendment.

The Lord Chancellor

I think that it is important when answering such questions as that posed by my noble friend Lord Trafford, to look at the whole provision of Clause 6: A court considering any question in respect to a child under this Act may

1. (a) ask a probation officer; or
2. (b) ask a local authority …".

Subsection (5) is important: It shall be the duty of the authority or probation officer to comply with any request for a report under this section". That is part of the obligation. That cannot be done in respect of voluntary organisations generally. The court could ask, but an obligation to comply would only be appropriate in the case of a statutory body that had some responsibility in that area.

I entirely agree with the view that has been expressed by a number of your Lordships, that there is a growing partnership between local authorities and voluntary agencies in this respect. I believe that such partnership is very much to the good; the more partnership the better. The NSPCC has been mentioned and it holds an honourable place in the record of work in this field.

Having regard to the structure of the clause and the general principles underlying it, where the court is to have the power to call for a report and the person who has asked for the report has to have a duty to comply with the request of the court, in this area the local authority must have the responsibility. That does not mean that it should be confined to arranging for one of its own officers to do the report, as is provided at the moment. Therefore, I am happy to consider whether there should be some alteration.

I am not certain that my noble friend's amendment will have the effect that he desires. His amendment would make it still a report by the local authority. They could adopt a report by another agency. They might not always need to go through that particular administrative arrangement. I am happy to look at this to see whether we can give effect to the various views that have been expressed and still preserve the general character of the clause. The clause must give backing in regard to the court getting a report where the court requires one. It is not merely a power to ask; it is a right to get the report when it is asked for. Perhaps in the light of that reply the noble Lord will feel able to withdraw the amendment.

Lord Irvine of Lairg

I am bound to say that what came from the noble and learned Lord the Lord Chancellor was most encouraging. For my own part, however, I should have thought that there must be a real risk that Clause 6(1) would be read as impliedly prohibiting the court from asking any person other than a probation officer or a local authority to arrange for an officer of the authority to report. There must be a danger that it would be read exclusively, as the noble Lord, Lord Trafford, has said. As the noble and learned Lord the Lord Chancellor said, it is natural in the case of a probation officer or a local authority being asked to arrange for an officer of the authority to assist the court, that it should be the duty either of the authority or the probation officer to comply with a request for a report. On the other hand, it would not be natural for there to be such a duty if a voluntary body was requested to assist in that way.

The way in which to deal with that may be to retain the present structure but to add to it an express power in the court to request assistance from any voluntary body for a report to the court, but without adding an obligation on the part of that body to comply with the request.

Baroness Faithfull

May I say that it is essential to go through the local authority. The local authority may be dealing with another child in the family, and unless it is channelled through one avenue and it is known to the local authority that a voluntary organisation is going to give a report, there may be two organisations working within the same family, one not knowing about the other.

Lord Irvine of Lairg

It may be possible to deal with that by some kind of notification obligation.

The Lord Chancellor

I have it in mind to open up Clause 6(1)(b) to enable the local authority to make arrangements other than with its own officers. The court must feel, if it makes a request, that it will receive a report. We do not want a court to make a request to somebody who does not comply with that request and a great deal of time is thereby wasted—because delay is the enemy of the good in this field perhaps more than in any other. I have it in mind to ask the local authority to arrange for a report to be made, not necessarily by its own officer but to include in it, for example, such bodies as the NSPCC. If the local authority cannot arrange for anyone else, it would have to fall back on its own officer. I think that that would probably meet the case, and it would certainly meet the point that my noble friend Lady Faithfull has made. The local authority would have the ultimate responsibility to see that a report was made. It would certainly cover the key worker case that has been mentioned because the local authority will have made these arrangements in the first place.

Lord Mottistone

I am grateful to my noble and learned friend for his undertaking to look at this and to provide another amendment on the lines which he has just described. I am sure that that is entirely what we are looking for, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

9 p.m.

Lord Prys-Davies moved Amendment No. 21: Page 5, line 14, at end insert ("or (c) ask a member of a panel of guardians ad litem and reporting officers,").

The noble Lord said: We would be grateful if the noble and learned Lord the Lord Chancellor could also open up subsection (1) to include a member of a panel of guardians ad litem and reporting officers. One would have thought that this clause should incorporate a report by the guardian ad litem as well as the probation officer and the local authority social worker. A guardian ad litem may already be in possession of a great deal of information relating to the child and would therefore be in a position of some advantage in preparing a welfare report. I have listened very carefully to the noble and learned Lord the Lord Chancellor and I trust that he will give consideration to this amendment. I beg to move.

Lord Simon of Glaisdale

Earlier I presumed to congratulate my noble and learned friend the Lord Chancellor on the draftsmanship of this Bill; that it could be read throughout by any literate person who was affected by it. The words "guardian ad litem" represent the only exception. Of course all your Lordships present in the Chamber now know exactly what they are, but the ordinary reader of the statute may not be conversant with them and may not have learnt Latin.

I remember that when the Joint Consolidation Committee were consolidating the Scottish criminal procedure legislation one of the English members asked whether it was really necessary to have so much Latin in a Scottish statute, to which the draftsman replied firmly, "Yes". And as he was supported by that great judge, the late Lord Gibb, the matter was not pursued. Nevertheless, I would ask my noble and learned friend the Lord Chancellor whether one might not now introduce an equivalent of guardian ad litem in English.

The Lord Chancellor

It is a pity to leave a blemish on such an excellent Bill, and obviously I will consider that request very carefully. So far as the main matter of the amendment is concerned, if a guardian ad litem is appointed he will have responsibilities, including the responsibility to state to the court the position from his point of view. The function of the guardian ad litem is to look after the interests of the child and to try to see the matter from the child's point of view. In the situation that we have here, they are more in the nature of a party to the proceedings than of a reporting person. Therefore I would think it inappropriate to add whatever designation at this particular place, because essentially they will be performing a different function. One might have a welfare report where there was a guardian ad litem and also where there was not; and so the two are rather different. Perhaps the noble Lord might feel able not to insist on this particular amendment.

Lord Renton

As the noble and learned Lord, Lord Simon of Glaisdale, has invited my noble and learned friend the Lord Chancellor to find a substitute in ordinary English for the term "guardian ad litem", might I hazard the suggestion that "guardian for the case" might be suitable?

Lord Prys-Davies

We will clearly have to consider the very convincing answer which the noble and learned Lord the Lord Chancellor has given us, together with the suggestion offered by the noble Lord, Lord Renton. In the circumstances I will not take up the time of the Committee further, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 22: Page 5, line 19, leave out ("or orally, as the court requires") and insert ("and shall be disclosed as soon as possible in advance to the parties and to their advisers unless it is impracticable to do so.").

The noble Lord said: In moving Amendment No. 22, I should like to explain that I realise that it goes further than I had intended. For that I apologise, and hasten to say that I shall not press the amendment in its present form because I did not intend to preclude altogether the possibility of an oral welfare report.

I recognise, of course, that there are circumstances in which an oral report is better than no report, and there are circumstances in which an oral report may well be better than an adjournment for a written report. Indeed, it is valuable to have an oral report even where there is a written report, to bring matters up to date, and particularly where there has been a significant change in circumstances. Subject to that, I hope that the purpose of the rest of the amendment is self-evident.

The Bill as drafted seems to put an oral report and a written report on an equal footing and to regard them as equally acceptable. The amendment seeks to provide that, wherever possible, the report should be in writing, and that, wherever possible, it should be disclosed to the parties in advance of the hearing. I hope that is self-evidently necessary, both in the interests of fairness and of a speedy resolution of the case, because a good welfare officer's report will state findings and draw conclusions which the court is likely to follow. That will enable the case to be settled in advance of the hearing and, if it is not settled, it enables a case to be properly prepared.

For those reasons I would suggest that it is important to provide in the statute that the report should be disclosed to the parties, as in fact happens at present, and disclosed as soon as possible. That also seems to me to be consistent with the Government's proposals to stipulate timetables for the resolution of these disputes. That said, the provision for an oral report should be retained: I accept that. But it should be retained as a second-best alternative to meet particular circumstances where a written report, for some reason or other, cannot be obtained. I beg to move.

Lord Elwyn-Jones

I support the proposition that the report should be disclosed as soon as possible. Only a few moments ago the noble and learned Lord the Lord Chancellor said: Delay is the enemy of the good. In this field also it is important that all the material facts and information should be available at the earliest possible opportunity.

The Lord Chancellor

On the second point, there is really nothing between us: it is only a question of how best to make the provision. I would have thought that Rules of Court could so readily provide. However, there is a precedent in existing legislation for some such provision and I am happy to consider what should be done in that respect.

So far as the oral reporting is concerned, I certainly could not accept the amendment as it stands, but the noble Lord has kindly relieved me of having to consider that further. I think it is a useful thing, as the Law Commission have found, considering this point specifically, that there should be power for the reporting officer to report orally in certain circumstances. I doubt whether it would be right to specify the circumstances, but no doubt we can easily make a provision that is attracted to written reports whenever they are made. Perhaps on that understanding the noble Lord may feel able to withdraw his amendment.

Lord Meston

I am most grateful to the noble and learned Lord for his offer to consider the matter. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 23: Page 5, line 22, after ("report") insert ("provided the source of such statement is disclosed in the report unless the source is confidential or there is other good reason to omit it;").

The noble Lord said: This brings me to a slightly different topic; that is, the control of hearsay in welfare officers' reports. I believe that in the early '70s there was some case law making it clear that hearsay should be avoided if at all possible in welfare officers' reports. Since then, the occurrence of hearsay in reports has much diminished but still occurs. Of course it is a feature of child cases that reports very often have to contain hearsay. Where there is hearsay in such a report the court and the parties will want to know, and, indeed, will be entitled to know, from where that hearsay comes so that the court and the parties can test its weight and, if necessary, can make further inquiries if what is reported as having been stated is hotly disputed, as is sometimes the case.

What I propose in this amendment is in line with the rules relating to affidavit evidence in interlocutory matters—the rules providing that the sources of any information from a third party should be stated. Of course, there is a proviso, which also appears in this amendment, which enables sources to be protected if they are confidential or there are other good reasons to omit them.

I hope that that sufficiently states the purpose of the amendment. I hasten to say that this amendment is complemented by Amendment No. 24, which requires the court to be satisfied that the reporting officer has taken reasonable steps to substantiate the accuracy of the statement. I hope that a combination of those two amendments will find favour. I beg to move.

Lord Mottistone

If it suits my noble friend I shall speak to Amendment No. 24. As the noble Lord, Lord Meston, said, our two amendments similarly tackle the problem of making sure that welfare reports do not rely unreasonably on hearsay.

It is perhaps relevant that the NSPCC proposed Amendment No. 24. It has a great deal of experience in dealing with that sort of case and would not have done that if it did not believe that it was necessary to have a safegaurd. I am not sure whether that was the safeguard of the noble Lord, Lord Meston, or the one which I propose in Amendment No. 24. However, I hope that my noble and learned friend will find a way to reassure us that there will be some measure of control of hearsay in that area.

Lord Renton

Although I appreciate the motives of the noble Lord, Lord Meston, in moving this amendment and, indeed, the motive underlying the next amendment, I believe that we should bear in mind that under subsection (4) the court is given a discretion to take account of the matters mentioned in paragraphs (a) and (b). In exercising that discretion there will be a very wide range of matters which, according to the circumstances of the case, the court may have to consider. With respect to the noble Lord, Lord Meston, and to my noble friend, I doubt whether they are doing either what is wise or necessary in going into the further details which they suggest.

As my noble and learned friend the Lord Chancellor knows, I feel that we go into too much detail for the most part in our statutes. I believe that on these two amendments the proposed details could be avoided.

Lord Elwyn-Jones

I should like to support the two interlinked Amendments Nos. 23 and 24. Inevitably the reports from welfare officers in many cases contain a good deal of hearsay. It is important that the hearsay should be reasonable. In the case of Webb v. Webb it was recognised that the court welfare officer could not do his job properly without including hearsay.

Lord Justice Buckley in the case of Thompson v. Thompson (1986) said: Some hearsay is unavoidable in such a document, and in respect of comparatively uncontroversial matters is likely to he unobjectionable". But then continues, but where acutely controversial matters are concerned, I think it is important that a reporting officer should report his own observations and assessments, and that where he is constrained to pass on secondhand information or opinions he should endeavour to make this explicit and should indicate the source and his own reason, if he has any, for agreeing with any such opinions. Where a judge has to arrive at crucial findings of fact he should found them upon sworn evidence rather than upon an unsworn report. Therefore, the general judicial principle is set out in those observations. Government guidance, as I understand it, for guardians ad litem and social workers, has urged caution in the use of hearsay particularly when dealing with controversial matters, but there is scope and room for it and it should not be an obsolute doctrine to exclude what is valuable and is not really disclosable without a slight infringement of the hearsay rule. What the soldier said is not evidence and in any case there are many exceptions to that.

9.15 p.m.

Baroness Faithfull

As one who has had to make reports to the court on children, may I say that one did use hearsay but on only two conditions: first, that one consulted with the person concerned and obtained permission to put it in the report and, secondly, that the person would be available if the court called him or her.

I particularly refer to grandparents. The Committee will remember in, I think, the Kimberly Carlile case that the grandparents were bitter because they wanted to report to the court and the social services on what happened with that child. They did not have an opportunity to tell the court. Therefore, I believe that it is possible to have hearsay evidence but I have always followed the rule that I never put in hearsay evidence without the person's permission and the fact that he or she would appear before the court if called upon to do so.

Lord Irvine of Lairg

I specifically support Amendment No. 23 tabled by the noble Lord, Lord Meston. As regards the contribution of the noble Lord, Lord Renton, I cannot see that the discretion vested in the court in Clause 6(4) meets the point. That is a discretion which goes only to the relevance, to the question of the statement or the evidence. If the statement is hearsay it may still, of course, be relevant to the question. Therefore, it does not appear that the discretion affords any protection.

It must surely be a good rule that the sources of statements are disclosed generally unless there is an overriding reason why that should not be done; namely, that the source is confidential or where there is any other good reason to omit the source. Therefore, it is a carefully drafted amendment. It operates to encourage the revelation of sources so that the strengths or accuracy of the statement can be better evaluated, but subject to the very careful qualifications which the amendment includes. Therefore, I believe that the amendment merits our support.

The Lord Chancellor

Dealing with the last point put by the noble Lord, Lord Irvine of Lairg, it may he that my noble friend Lord Renton was referring to the power given to the court in the opening part of Clause 6(4) that, the court may take account of … any statement". In other words, the court would not be bound to take account of a statement if it had good reason for supposing that the statement—

Lord Irvine of Lairg

Perhaps the noble and learned Lord will forgive me for intervening. What I had in mind was that the court "may take account or in so far as it is relevant.

The Lord Chancellor

Yes, but the court may not, even if the court considered it to be relevant. I believe that is what my noble friend was referring to.

The situation dealt with in Clause 6(4) is in accordance with general practice presently prevailing in the County Court and the High Court and in accordance with the provision under the Guardianship of Minors Act. It is also existing law in magistrates' matrimonial proceedings legislation.

I can see that if it is pointed out to the court that there is a statement that is obviously hearsay with no source mentioned for it, it may not be wise to take account of it. I doubt whether it is necessary to put fetters on what the court may do and, if it is, I should have thought it is best dealt with in the subordinate legislation, either in the rules of court specifying what further considerations the court can take into account or in regulations under Clause 6(2). For example, the regulations may specify, if hearsay statements are reported, that the source of the statements should be disclosed.

I believe the advantage of that is that this is an area in which experience may develop. It may well be that further qualifications or changes may be seen to be wise. One would not want to put this unnecessarily into primary legislation. As it is, the court will have full power not to take account of statements contained in such a report if it had any reason to suppose that there was anything wrong with them. As we said earlier, in most cases where this kind of question will arise the court will have the benefit of the comments of the parties on what is in the report. Where statements are challenged, it will be able to look further into what is involved.

While I entirely see that there is scope for discounting statements which are not properly supported, I doubt very much whether it is wise to put detail of this kind into the primary legislation. Guidance can be given by the court itself and in other ways to those who prepare the reports about the way in which that should be carried out. I believe I am right in saying that good practice as it is at the moment generally goes along the lines of the first of these.

On a practical note, I believe that it would be unwise to put such detail into the legislation so as to encourage lengthy arguments about, for example, the meaning of "confidential" in the particular circumstances. What precisely would that be? "Good reason" is perhaps even more difficult to be sure of when the person has made the disclosure to a reporter. If a person says to a reporter "I am going to tell you this", knowing that it is a court reporter, is that confidential or not? I believe it is confidential in the sense that the reporter would not be entitled to use it for any other purpose than for a report to the court. I doubt whether it is wise to get involved in too much detail in the primary legislation.

As regards the second amendment, the same appears to apply. In some cases where a report is challenged it would obviously be wise to look further into the statements that are contested if real challenge is offered to them. One must not forget that all this matter is subject to the judgment of the court. These days it is surely unnecessary to circumscribe the court too much by detailed rules about precisely what it should do. A court is well able to separate the wheat from the chaff in a welfare officer's report without going into too much detail and description of what is wheat on the one hand and chaff on the other.

I invite the Committee not to press these amendments but to leave this matter to be dealt with either in subordinate legislation or preferably by the court itself.

Lord Morton of Shuna

I very much hesitate to intervene as a Scot on something that is purely English. I believe that there is an advantage to put into the primary legislation what the law actually means. It is unfortunate to leave the definition to the subsidiary regulations. I also believe that a court would be helped in general by always having disclosure of the sources of any information unless the reporter was able to say that for some specific reason he wished not to disclose his source of information. Therefore I support this amendment.

Lord Irvine of Lairg

Perhaps I may clarify the position that I adopted a moment or two ago. It may be that the noble and learned Lord the Lord Chancellor misunderstood me. It is perfectly possible that I am wrong but it is equally possible that I have been misunderstood.

The point that I was seeking to make in commenting on the contribution of the noble Lord, Lord Renton, is that under Clause 6(4) the court may take account of the statement in so far as it is relevant, and as the noble and learned Lord the Lord Chancellor said, may not take account of it in so far as it is not relevant. In other words, the only criterion for exclusion is relevancy. If the statement is hearsay it may still be relevant. I make that suggestion and invite the noble and learned Lord to consider the language again because the words are that the court may take account of (a) and (b), in so far as the statement or evidence is, in the opinion of the court, relevant". The court may take account of it only in so far as it thinks it is relevant; and, implicitly, may not take account of it in so far as it thinks that it is not relevant. But the fact that it is a tissue of hearsay does not give the court discretion to exclude it, because the statement, albeit it hearsay, may be relevant to the issue. There is no discretion to exclude it since it is hearsay, and nor is there any suggestion that it should be excluded since it is hearsay. The point of Amendment No. 23, as I understand it, is so far as possible to make it safe hearsay. The sources of the information are stated if it is at all possible unless the source is confidential or there is other good reason to omit it.

The noble and learned Lord the Lord Chancellor said that a safeguard is the comments of the parties. But the comments of the parties are much more likely to be effective and reach the point if the parties are able to assess the statement by knowing the source of it in an appropriate case. I suggest that the amendment is carefully drafted and gets the balance right.

Lord Renton

I hope that my noble and learned friend the Lord Chancellor will stand by the answer which he has already given. The noble Lord, Lord Irvine, and the noble Lord, Lord Morton, suggested that these particular details should be added to the discretion of the court. That is already stated in the subsection in broad terms. Would it not get us into the difficulty—and here I can most conveniently shorten my remarks by using a Latin phrase—of expressio unius est exclusio alterius? If we express one we may by interpretation be deemed to exclude others. That would be wrong. The factors mentioned in Amendments Nos. 23 and 24 are not the only factors which may come before the court when deciding these cases. I suggest that my noble and learned friend was absolutely right in saying that we should not go into detail in this matter and that we should leave it to the broad discretion of the court, as has been done in previous legislation in these circumstances and as is already expressed in the Bill.

Lord Mottistone

I was disappointed that my noble and learned friend did not give my Amendment No. 24 a more reasonable chance. Some of his arguments against Amendment No. 23 gave Amendment No. 24 a validity which it might not otherwise have possessed. However, I was not frightfully encouraged by his suggestion that the regulations under subsection (2) might include what was relevant out of these two amendments. The general sense of subsection (2) deals with regulations in a different area altogether. I very much hope that my noble and learned friend will have a good look at what has been said on this point.

I think that for once my noble friend Lord Renton is right off beam—he usually is not, but I think this time he is overpushing his case. Indeed, quoting Latin to people who stopped learning it at the age of 13 is jolly unfair. So, on the whole, I think that there is something in this proposal. I do not believe that regulations will do. I shall reserve my position and may come back at the next stage of the Bill's proceedings with another proposal in this particular area.

9.30 p.m.

Lord Meston

That last indication from the noble Lord, Lord Mottistone, encourages me to take the same position. I must say that I am most grateful for the support that I have received in respect of the amendment. Moreover, like the noble Lord, Lord Mottistone, I am somewhat disappointed at the response to it.

I turn now to the question of whether there is a discretion on the face of the Bill. I had not myself taken on board the point raised by the noble Lord, Lord Irvine of Lairg, but I follow the point completely now that he has explained it. Assuming that there is such a discretion to accept or reject hearsay evidence, it is a discretion which only arises when the case reaches the court and the court is presented with the report.

The purpose of the amendment is to ensure that what the court receives is a good quality report; that is, a report which states the sources of hearsay information—what has been called "safe hearsay". It should do so in fairness to the parties, and in fairness to the parties the welfare officers should be required, unless there are exceptional circumstances, to state the sources of their information. It is not only fair to the parties; it also assists the court to exercise its discretion as to whether, and to what extent, to take account of whatever statements are contained in the report.

With respect to the noble Lord, Lord Renton, I suggest that this is not a matter of unnecessary detail; it is a matter of principle. The Bill goes so far as to provide that the court may take account of any statement contained in the report. Therefore, to go on to provide that the sources of information should be stated would not encumber the Bill and would not encumber the reporting welfare officer. That provision should be required on the face of the statute and not in the regulations.

However, I do not intend to press the point at this late hour and it may well be that a sufficient answer is to be found in an amendment along the lines of Amendment No. 24. That amendment clearly cannot be accused of dealing with matters of detail, because it is a broader amendment and may satisfactorily deal with the problem with which I have tried to deal by tabling Amendment No. 23. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Clause 6 agreed to.

Clause 7 [Residence, contact and other orders with respect to children]:

Lord Banks moved Amendment No. 25: Page 5, line 35, after ("visit") insert ("or stay with").

The noble Lord said: We now come to that part of the Bill which deals with contact orders. We believe that the contact order will be of great value to parties who do not have a residence order made in their favour. The aim of the amendment is to stop the awarding of residence orders becoming a battleground between divorcing parents in particular.

At present it is unclear when a residence order will be considered appropriate. We believe that both child and parents have the right to know where the main home will be. We would not want to see orders being made where that fact was in substantial doubt. Apart from those very rare exceptions where residence is genuinely shared, we believe that if the grounds covered by a contact order are strengthened the relationship between residence and contact should be clarified to the benefit of all parties. The amendment permits a contact order to allow the child to stay with the person gaining contact as an addition or alternative to visiting. I beg to move.

Lord Kilbracken

The necessity for the amendment seems to depend upon the meaning of the word "visit". The word means different things to different people. Our American cousins when they talk about visiting someone or, abominably, visiting with someone, mean little. For instance, a lady will come to one's table and say, "May I visit with you for a few minutes?" We do not use the word in that sense. We therefore have to turn to the dictionary. I do not like turning to the dictionary, which I regard as being far from infallible. I edited the Oxford English Dictionary at one time. I have sent over 1,000 suggested corrections and omissions to the editor, some of which may even have been taken up. However, the dictionary is the best option open to us at present.

If we look at the Oxford English Dictionary we find that the first meaning refers to: Of the Deity: To come to (persons) in order to comfort or benefit". I do not suppose that we need to consider any visits from the deity. The principal definitions are: To make a practice of going to (persons in sickness or distress) in order to comfort or assist them out of charity or devotion or in the fulfilment of pastoral duty; or, to go to see (a person) in a friendly or sociable manner; also , to stay with for a short time as a guest". The phrase "to visit someone" probably includes staying with that person although the dictionary specifies staying as a guest. If that is the case, and that is what we mean by visiting someone, the amendment is not necessary, although it is important that what we know as staying access should be included.

Lord Meston

I support the amendment. The contact order replaces the access order which is familiar to the courts. At present there is a distinction, which is clearly understood by lawyers and parties to the litigation, between visiting access and staying access. The Bill should make it clear that that distinction is preserved and that the court is empowered to make a contact order of either variety.

The Lord Chancellor

I consider that the amendment provides additional clarification to the definition of a contact order. I am happy to advise the Committee to accept the amendment.

Lord Banks

I should like to express my appreciation to the noble and learned Lord for his ready acceptance of the amendment.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 26: Page 5, line 43, after ("person") insert ("or persons")

The noble Lord said: Is it too much to hope that, having accepted one amendment, the noble and learned Lord will accept another? I do not see how my next two amendments can reasonably be opposed. Clause 7(1) contains the definition of "a residence order". It is: an order settling the arrangements to be made as to the person with whom a child is to live". It is perfectly clear from this Bill that the order may apply to more than one person. It may apply to both the father and the mother. As I said earlier in the debate, I always thought that was a very good arrangement, where both parents had a residence order and the children went to each of them in succession.

Therefore it seems to me that in many cases—and I hope that there will be an increasing number of cases—the residence order will apply to more than one person. It may be said that, just as the male embraces the female, the singular embraces the plural. I am not quite sure how the Interpretation Act 1978 applies to that. However, it seems to me that when this definition arises we should emphasise that, by not having the word "person" in the singular in line 43, the residence order may apply in most cases to the father and the mother. Therefore I have proposed that line 43 should read "person or persons" instead of the singular "person". I beg to move.

The Lord Chancellor

As I explained earlier, by virtue of Section 6(c) of the Interpretation Act 1978: words in the singular include the plural and words in the plural include the singular", in Acts of Parliament unless a contrary intention is indicated. The draftsman has generally relied on that rule throughout the Bill and I do not think it would be helpful to make an exception in Clause 7.

Obviously, the less one relies on the rule the more one gives the impression that the general context of the Bill is against it. That is the draftsman's view. It is a matter of expert opinion. It is absolutely plain in this Bill that one can have a residence order in favour of more than one person. So there is no question but that the Interpretation Act would apply. For that reason I hope that the noble Lord will agree that on this occasion we should rely on that Act.

Lord Kilbracken

I am very glad to know that that will be on the record, although of course what is said in your Lordships' Committees on the record is in fact never remembered and never brought up again in any court. But, all the same, I am satisfied by the noble and learned Lord's assurance that the singular includes the plural. Therefore I wish to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 27: Page 6, line 15, leave out ("and II') and insert ("II and IV").

The noble and learned Lord said: This is an amendment to Clause 7(3) which would add proceedings under Part IV of the Bill (applications for care and supervision orders) to the definition of "family proceedings" for the purpose of the Bill. This would enable the court to make the orders listed in Clause 7 in proceedings under Part IV. As a result, provisions in Part IV which confer a limited power to make residence orders where care and supervision proceedings are adjourned may be repealed. Amendments to Clauses 33 and 34 which are related to this amendment I shall move later.

The purpose of this amendment is to simplify the Bill and increase the powers of courts to promote children's welfare. The court in care and supervision proceedings will be given an unfettered power to make an order under Clause 7 which is in the child's best interests. Clause 1 already enjoins the court in such proceedings to give paramount consideration to the child's welfare and to have regard to its range of powers available in these proceedings. At present Clause 33 limits those powers where care proceedings are adjourned. In these cases the court may make a residence order in favour of persons set out in Clause 33(3) if it is satisfied that this is in the child's best interests. It may not make a residence order in favour of any other person unless it is satisfied that there is reasonable ground to believe that the child's circumstances are as mentioned in Clause 26(2). If it does make a residence order it may also make a contact order.

This restriction was included in the Bill to provide consistency with the circumstances in which persons may apply for residence orders as of right. It is now felt, however, that it would be wrong to deny the court power where care and supervision proceedings are adjourned to make an order which it considered to be best for the child. Indeed, it could be potentially prejudicial to the child's welfare and wasteful of resources to require that a person who desired this order had to commence new proceedings under Part II of the Bill whilst proceedings under Part IV were on foot.

As I said, I shall move consequential amendments to Clauses 33 and 34 later. I beg to move.

Lord Renton

This amendment is, I think, a convenient moment to say that Clause 7 of the Bill is a most excellent and helpful piece of drafting. It is always to our advantage to have definitions, especially of new phrases, brought to our attention as soon as they are going to become operative within the Bill. Subsection (1) is ideal. It is very helpful indeed to have the enactments concerned listed clearly, as they are here, instead of being stuck away in a schedule, as they sometimes are. I should like to congratulate my noble and learned friend.

On Question, amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Restrictions on making section 7 orders]:

9.45 p.m.

Lord Kilbracken moved Amendment No. 28: Page 6, line 31, leave out ("them") and insert ("him").

The noble Lord said: This is a drafting amendment, and I defy the noble and learned Lord to resist it. I beg to move.

The Lord Chancellor

The noble Lord was hoping to have an amendment accepted; well here it is. I am grateful to him for his eagle eyed scanning of the Bill. The Government support the amendment without equivocation.

On Question, amendent agreed to.

Lord Meston: moved Amendment No. 29: Page 6, line 31, leave out ("three years") and insert ("one year").

The noble Lord said: I wish I could move this amendment with equal brevity and equal success. However, I doubt that, although I shall speak briefly to this amendment, and in so doing speak also to Amendments Nos. 35 and 38. This Bill removes the concept of custodianship which was intended to benefit foster parents, and indeed other members of the extended family, who had had the child concerned in their care for a period of three years in certain circumstances and a lesser period in other circumstances.

The Bill preserves the three-year rule in that Clause 9(5)(b) entitles: any person with whom the child has lived for a period of at least three years", to apply for a residence order. But the amendment which I am moving is concerned to invite the Committee to consider the position of people who have had children in their care for a lesser period but nevertheless for a substantial period. As the Bill is drafted such people—I am thinking primarily of foster parents in these circumstances, and indeed that part of the Bill to which this amendment is addressed deals with foster parents only—have three hurdles to overcome before they can obtain a residence order under the Bill as it is drafted. First, they have to get the consent of the local authority; secondly, they have to get the leave of the court; thirdly, of course they have to succeed in the ultimate application. I venture to suggest that providing all those hurdles is putting too much in the way of such applications. I ask rhetorically why it is necessary to have so many hurdles before someone who is looking after the child can come to the court to ask the court in its discretion to grant a residence order.

The position of the foster parent who has been looking after a child for, say, two or two-and-a-half years is not, I would suggest, materially different from the position of a foster parent who gets as far as three years' care of the child. I do not foresee a flood of applications if what I propose is allowed. The leave requirement will remain and granting leave does not guarantee that the subsequent application succeeds. This is meant to be a reforming Bill and I therefore suggest that the opportunity is taken to look at the position of such people afresh. I beg to move.

The Lord Chancellor

The purpose of the restriction is twofold. First, where a child is being looked after by a local authority the security which might he gained from a residence order must be set against the difficulties which premature applications might put in the way of realisation of the local authority's plans for the child. That is particularly so where a child who has been abused or neglected has been compulsorily removed from his home under a care order giving parental responsibility to the local authority. The effect of the residence order would be to give parental responsibility to the foster parent and terminate the care order and therefore the authority's parental responsibility for the child.

To permit unrestricted applications by foster parents after the child had lived with them for only one year could undermine the authority's efforts to bring stability to the child's life. We think that in those circumstances it is reasonable to require the authority's consent for periods up to three years (a period which reflects the present law). Where a foster placement has been successful and the authority can see that a residence order would be in the child's interest one would expect the authority's consent to be forthcoming. In other cases, the authority, having parental responsibility for the child, should be able to prevent an application which could cause considerable stress and disruption in the child's household and for the people concerned. After three years the applicant will usually have established a substantial relationship with the child and those concerns need not apply.

I noticed that in illustrating his point the noble Lord said that two years or two and a half years was not very different from three years. That is true. However, he is asking for one year and in all fairness I think that we must test his proposal on that basis.

The other point which I should like to make and which is also extremely important is that it is necessary, we think, to guard against the risk of deterring parents from voluntarily using fostering services provided by the local authorities. That could easily happen if the restrictions on foster parents obtaining a residence order, and therefore parental responsibility for the child, were relaxed. If parents were deterred from turning to the local authority for assistance, the arrangements which they may then make might be much less satisfactory for the children. So it is important to encourage voluntary fostering arrangements, and the three-year limit is important in that connection.

A three-year time limit will help to ensure that the authority can safeguard the Child's interests where it seems necessary to do so. It will also, we hope, reduce the risk of discouraging parents from using local authority accommodation services on a voluntary basis. But it will not prevent applications which are advantageous to the child going on to the court. A double hurdle of local authority consent and court leave may seem onerous but we regard the principle as a very important one. I hope that the noble Lord will feel that it is sufficiently important for him to withdraw his amendment.

Lord Prys-Davies

I do not think for one moment that the noble and learned Lord the Lord Chancellor wants assistance from these Benches. However, we do not consider that to lower the period from three years to one year as suggested in the amendment would improve the Bill. A period of one year may appear to be long enough, and 12 months is a long time in the life of a child, but it soon goes by. We suggest that it would be too short a period in which to know whether the child would settle down with the foster parents, with siblings and in a new school. Therefore we consider the period of one year to be too low.

Another point that has occurred to us is this. If the period is reduced to 12 months, is there not a risk that this will be seen by foster parents as a back door to getting permanent care of children? For both reasons we cannot support the amendment.

Lord Meston

This was in the nature of a probing amendment. I dispute the argument that in all circumstances an application after one year would be premature. As the noble Lord has just said, one year can be a very long time in the lifetime of a child.

Foster parents are dedicated people. When they reach the stage of applying for some sort of permanence in their status vis-à-vis the child, marking their dedication usually means that they have to give up the fostering allowance. My amendment would not have guaranteed them success; it would simply have allowed them to reach the starting gate a little sooner—if one can get to the starting gate after having jumped over the hurdles (I am conscious of muddling my metaphors).

I take the point that it can undermine voluntary fostering. Balanced against that is the fact that natural parents must realise that time runs against them. However, this is not the time to develop the argument and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8, as amended, agreed to.

10 p.m.

Clause 9 [Power of court to make section 7 orders]:

Lord Banks moved Amendment No. 30:

Page 7, line 10, at end insert ("or (c) the parties have agreed and submitted a memorandum of agreement in a form prescribed by regulations made by the Lord Chancellor without a court appearance.").

The noble Lord said: In moving Amendment No. 30, I shall, with the leave of the Committee, speak also to Amendment No. 31. I believe that all parties, including those who reach voluntary agreement, would prefer to have that agreement recorded in order to obtain as clear a framework as possible for the working of their family relationships. This is particularly important for parties who are resolving their arrangements following the breakdown of a relationship.

If we are to move toward the family court and conciliation procedures, a statement of agreement that has been ratified will provide the framework for amicable resolution. In its current draft there is in the Bill a presumption against orders being made unless issues have arisen. While we do not want unnecessarily to introduce a combative element into the proceedings, we do not believe that this will disappear if arrangements are left vague. In itself, vagueness can lead to later dispute, with either or both parties seeking further orders to prohibit each other from taking a particular action. On the other hand, we do not want the courts to have to make an order in every case, since that could represent an unnecessary delving into people's private lives, especially where voluntary agreement is possible.

Our proposed amendments to the court's powers and duties in respect of making orders seek to enable parents who are not married to have their agreement ratified without having to attend court; to enable parents who have been married to have a voluntary agreement and, where no issue has arisen, to have their agreement ratified without court attendance; but to ensure that, in the case of parents who have been married, an order shall be made where an issue has arisen. That last point is important, for it is crucial for divorcing parents who are unable to make a voluntary agreement that an order shall be made, and we can envisage no circumstances in which it would be wise for a court not to make an order. There are crucial issues, such as housing, where it is imperative to protect the interests of the children and the parent with whom they will be primarily resident by making an order where the family would be homeless if the court did not do so. I beg to move.

The Lord Chancellor

The jurisdiction provisions of Clause 9(1) into which this amendment seeks to insert a paragraph (c), already cover orders of the kind that are here in question. The essence of this is to make it possible to have the order granted without a court appearance. Whether a court appearance is necessary or not is a matter for rules and for the court's judgment. In many cases where orders are sought at the moment they are quite unnecessary. One of the policy considerations put forward by the Law Commission is to discourage this. Parties should seek an order only where an order is the most effective way of safeguarding and promoting the child's welfare. That policy is reflected in Clause 1(4), to which I have already referred. For their part the Government would wish to discourage parties from going to court as a matter of routine even for a consent order and to encourage parents who separate to make responsible arrangements between themselves without necessarily involving a court order. Many of them will be able to do so. Perhaps I may quote the Law Commission: Where a child has a good relationship with both parents the law should seek to disturb them as little as possible. There is always the risk that orders allocating custody and access (or even deciding upon residence and contact—to refer to the new orders contained in this Bill) will have the effect of polarising the parents' roles and perhaps alienating the child from one or other of them", or possibly both of them. Those last words are my addition. In that situation I do not see the need for this amendment. On court appearances, that is a matter that could be regulated by rules or by the court's own procedure.

Lord Banks

I am most grateful to the noble and learned Lord for his reply to this amendment. I should like to consider carefully what he has said. I had thought that it might be along the lines he has put forward. I should like to read it carefully and to consider whether we should pursue this matter any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 and 32 not moved.]

Lord Meston moved Amendment No. 33. Page 7, line 21, at end insert— ("(c) any relative of the child within the meaning of section 77 (1) of this Act.")

The noble Lord said: The purpose of this amendment is to give relatives an entitlement to apply to the court for a residence order as a matter of right. The people whom one has in mind in the great majority of cases are the grandparents, although in practice one comes across cases of uncles and aunts and such people who would be potential applicants and who would be covered by this amendment if it found favour.

There has been concern that the position of grandparents in particular under this Bill is to be governed by regulations. It seems that the Bill may be making it too difficult for eminently suitable people—grandparents in particular—to apply to the court. Indeed, one asks why on earth it is necessary to limit the categories of people who can apply to the court when the ultimate merit of the application will determine its results, the result being governed by the general principle of the Bill. That is to say, the child's welfare will be paramount.

I suggest that the Bill creates unnecessary hurdles. The regulations to be provided are as yet unseen. We therefore do not know what they say. We know that in the case of a child in care a grandparent or some such person can apply only in circumstances governed by Clause 9(5)(c) when the consent of the local authority is forthcoming. I suggest that that is another unnecessary hurdle.

Indeed, the requirement for the local authority to consent is a requirement which could be onerous for the local authority. It has been suggested to me that it could make local authorities more vulnerable to judicial review in these cases. That situation should be avoided if at all possible. I repeat that these applications will be determined on their merit. It is unlikely that there will be a flood of frivolous applications and it should not be the position that the law makes things too difficult for people who may be perfectly suitable to take over the care of children in these circumstances. I beg to move.

Lady Saltoun of Abernethy

I should like to support this amendment. The definition of "relative" in Clause 77 is too narrow and should be reconsidered. I have an amendment down which comes later in the Bill. The inclusion of grandparents seems to me to be too narrow. After all, it is only a right to apply for access, which could, I presume, be refused if circumstances warranted it. It is very important that people who may be close to the child and for whom he may have a great affection should be able to get access if they apply for it and if it is considered right that they should get it.

Lord Kilbracken

I support this amendment. In any case I feel that the categories included by paragraphs (a) and (b) are not wide enough. I think that any parent who has parental responsibility for a child should be entitled to apply to the court for an order under Clause 7. That is not automatically possible at present; it is only a parent, a guardian or a person in whose favour a residence order has been made. Whether or not it is made as wide as the noble Lord, Lord Meston, would like, I think that it should he widened.

The Lord Chancellor

The amendment would allow a grandparent, brother, sister, uncle or aunt (whether of full or half-blood or by affinity) or step-parent to apply for any order under Clause 7 of the Bill without leave of the court. There is clearly a danger both in limiting and expanding the categories of persons who may apply for orders in respect of children. On the one hand, a too wide and uncontrolled gateway can expose children and families to the stress and harm of unwarranted interference and the harassment of actual or threatened proceedings. If too narrow or over-controlled the gateway may prevent applications which would benefit or safeguard a child from harm.

Under the Bill, the totally unfettered right to apply for any order under Clause 7 is restricted to parents and others who have parental responsibility for the child under the Bill; namely, guardians and those who already have a residence order in their favour.

The result is not that others are precluded from seeking orders but only that they are either restricted to seeking residence orders provided that the conditions in subsection (5) are satisfied or they are required to obtain the leave of the court under subsections (1) and (8).

In the typical case referred to by the noble Lady, Lady Saltoun, it is open to apply for leave of the court. If the court thought that the application was meritorious, in the circumstances it would be likely to grant leave and the application. The purpose of including the leave requirement is to prevent families being harassed by applications which, if they are made as of right, have to be considered but which may not have any merit.

In the view of the Government the present arrangements in the Bill seem to me to be the right starting place. I say starting place because there is power under subsection (6) to add to the categories of person who may apply as of right for any or all orders under Clause 7. Thus if, for example, it becomes apparent that grandparents or siblings should have rights to apply without leave for orders, that can be achieved by rules of court. What could not, on the other hand, be achieved by rule is restricting the categories in the primary legislation if experience shows them to be too wide. That, in my view, is a strong argument for a relatively conservative approach.

This can be tested by experience. If the court grants leave in a particular category on many occasions, it would seem right to open that category after a while and make leave unnecessary. On the other hand, if we make them too open to begin with in the primary legislation and the court refuses many of these on the merits as a matter of course, we would then have no power to close up the category again. So I think it is right to start, as we have, with a fairly restricted situation and test it out by experience to see whether some change is necesssary. We have the mechanism for the appropriate direction of change in the Bill.

The Bill is already fairly bold in allowing almost anybody to apply for almost any order subject to the requisite consents or leave of the court. For example, that is a major improvement for grandparents, whose present rights are severely restricted. I would urge the Committee not to go further until we have some experience of the new provisions. Accordingly I hope that the Committee may feel it is right to leave the provisions as they are at present.

Lord Kilbracken

In that case I suggest it would be far easier if subsections (2) and (4) were transposed.

Lord Meston

I accept that this is a balancing exercise. I am encouraged that the noble and learned Lord has expressed the view, which I share, that there is a danger in over-limiting the categories of people who can apply. I am encouraged to know that, in a sense, he regards the provisions of the Bill as simply a starting point from which the position can be expanded.

I think one difficulty which people have in mind when looking at the provisions in the Bill is that although Clause 9(8) provides certain criteria for the court when considering whether or not to grant leave, it does not indicate whether and to what extent the court will have at the leave stage to prejudge the ultimate merits and success of the application. I wish to consider this matter further and I shall read what has been said. For that reason, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 34: Page 7, line 25, at end insert ("as defined in section 77(1) below").

The noble Lord said: We in your Lordships' Committee are well aware of the way in which Acts of Parliament are set down. A statement is made at the beginning of an Act, and 102 sections later on there is a definition which makes one aware that there is a quite different meaning from that which we normally give to it.

In this case we have in Clause 9 this statement: any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;". When I read that I at once thought, what is a child of the family? It is not something which is immediately obvious. If your Lordships were to turn on to Clause 77 you would find that "child of the family" is a phrase which is defined and has a special meaning for the purpose of the Bill. Of course, a lawyer reading through the Bill carefully enough will arrive at the definition in the end and will see what it means. But surely it would do no harm to insert at this stage words as suggested by the amendment, which tip off the reader that if he wants to know what is meant by "child of the family" he will find the meaning by turning to Clause 77.

Therefore I hope it may be thought helpful to include those words at this stage in the Bill, by inserting the words proposed in my amendment. I beg to move.

10.15 p.m.

Lord Simon of Glaisdale

I am most surprised that the noble Lord, Lord Kilbracken, should move this amendment, because in addition to being a distinguished author he has also been a sub-editor, and sub-editors are supposed only to cut copy and in no circumstances to add to it.

This amendment is unnecessary. Anybody coming across this phrase, unless he knows what it means, will go to the interpretation clause just as he would go to a dictionary. However, I really intervened because there is some inconsistency in the body of the Bill and in the schedules as to how far there should be reference to the interpretation clause. Perhaps my noble and learned friend will ask the draftsman to check and make sure that there is consistency or, at any rate, a defined policy.

The Lord Chancellor

This is a matter of judgment for the draftsman. If one inserted: as defined in section 77(1) below each time one of the defined words or phrases was used, the Bill would be extended by more than a sub-editor would wish. I believe that this is a matter of judgment. It is the draftsman's judgment that the Bill should be left as it is, and I hope that the noble Lord feels able to accept that judgment on this occasion.

Lord Kilbracken

Despite his criticism I appreciate the words of the noble and learned Lord, Lord Simon of Glaisdale. Perhaps I may say that he is mistaken in thinking that it is the sole duty of the sub-editor to shorten copy. On the contrary, quite often it is necessary to add a few words to explain what the journalist or author has written. It depends on the circumstances.

Of course, I recognise that these words were unnecessary insofar as the words are defined in Clause 77. However, I felt that it would be helpful if the words were included in a case where no phrase of any special significance was used but merely the phrase, "child of the family". One would not expect to find a definition of that.

Far be it from me to add words unnecessarily to the Bill if the thoughts of the Committee are against it. Therefore, I do not intend to press this amendment to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

Lord Kilbracken moved Amendment No. 36: Page 8, line 2, leave out ("disrupting") and insert (", if successful, leading to the disruption of").

The noble Lord said: At the top of page 8 there is a list of matters to which a person applying for leave to make an application should have particular regard. Paragraph (c) states: any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it". I believe that we all understand what the draftsman is getting at here. However, surely it is not the application that will disrupt the child's life to such an extent that he would be harmed by it. The application made to the court has no effect whatever upon the child's life. What has an effect on the child's life is what will happen if the application is successful. Therefore, I propose that the Bill should read: any risk there might be of that proposed application, if successful. leading to the disruption of the child's life", and so on.

I should not like to be accused of being pedantic—that is not my way. I see that the noble Lord, Lord Meston, is smiling, but a pedant I am not. I feel that in this case it is the results of the application and not the application itself that will cause a child's life to be harmed. I beg to move.

The Lord Chancellor

The issue at this stage is the application for leave. The question is: would the granting of the application for leave cause disruption? It is not the ultimate success of the application that is in question. The mere application itself and the consideration of the application can cause disruption in the child's life. It is that stage that is in question. What happens once the application for leave is granted is the next stage, and the disruption that might follow on the granting of the leave is the first stage. That is what we are now debating. It is not that the noble Lord is being pedantic but that he is on this occasion, and rarely for him, perhaps mistaken.

Lord Kilbracken

I cannot possibly agree with the noble and learned Lord. The Bill as it stands refers to the application disrupting the child's life.

The Lord Chancellor

It is the application for leave that is in question.

Lord Kilbracken

Making an application for leave does not disrupt a child's life. It cannot possibly do so. How can making an application disrupt a child's life? It is not that. It is what happens if the application is granted.

Naturally, I do not accept that I am wrong. I do sometimes accept that I am wrong, but I do not do so on this occasion. If the noble and learned Lord stands by his opinion, of course I am bound to accept it, but I reserve the right to raise the matter again at a later stage.

Lord Meston

With great respect to the noble and learned Lord the Lord Chancellor, surely "proposed application" does not mean the application for leave, because if one looks back to subsection (8)(a) it is clear that a proposed application means a proposed application for the order under Clause 7 rather than the proposed application for leave to apply for an order under Clause 7. Nevertheless, the point made by the noble and learned Lord must be right in the sense that an application itself can be disruptive to a child's life. That is what the court must consider when deciding whether to grant leave.

The Lord Chancellor

That is the point I seek to make. The application in question is an application for leave to make the application. If the application for leave is granted, the application will be allowed to proceed for the order under Clause 7. It is the application for the order under Clause 7 being allowed to proceed that will cause disruption. That is the point at issue. It seems to me that the noble Lord is perhaps applying his mind to the wrong stage in the procedure.

Lord Kilbracken

I cannot agree with the noble and learned Lord. We are talking about the application itself resulting in disruption of the child's life. An application cannot so result.

The Lord Chancellor

It can.

Lord Kilbracken

If the application is successful and the order is given, it may result in disruption of the child's life.

Lord Trafford

Will the noble Lord give way? Perhaps the noble Lord can understand the point that if one makes an application, whether for leave or an actual application or any other manoeuvre, it is likely to cause disruption to the person in regard to whom that application is made, irrespective of whether it is successful, unsuccessful, justified, unjustified or anything else. The mere fact that it has happened causes the disruption.

That is the point that I understand my noble and learned friend to be making. In those circumstances, he has already made the situation clear under Clause 9(8) on the previous page, where it says, Where the person applying for leave to make an application". That starts the whole procedure; it is not the application itself. That is the leave to make the application, etc. Surely the noble and learned Lord has made the point over and over again that that is the issue that can disrupt someone's life. If the noble Lord has never experienced such a disruption, even though totally successful subsequently, or he has never had to face the result of a particular application, the fact is that it can be disruptive, full stop.

Lord Kilbracken

It causes disruption to other people and to the parents, but it does not cause disruption to the child's life. I sense that I do not have the Committee behind me on this amendment, and I say that with great perspicacity. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 and 38 not moved.]

Clause 9 agreed to.

Clause 10 [General principles and supplementary provisions]:

Lord Mottistone moved Amendment No. 39: Page 8, line 32, at end insert— ("(4A) The court shall consider making any child over the age of ten years a party to the proceedings described in subsection (1) above.").

The noble Lord said: In many of the amendments to this Bill, the NSPCC is seeking to make sure that where practicable and when the child is of a suitable age, he should have the opportunity to take part in proceedings of various kinds. This amendment seeks to do that. If it is accepted by my noble and learned friend, it will strengthen the child's right to participate in family proceedings including the child's ability to instruct a solicitor. If the child has reached the age of 10, we are only asking that the court should consider (we are not saying that it must) that this would seem to be a reasonable addition to the Bill. I beg to move.

The Lord Chancellor

There is no intention to remove the court's current powers to join children as parties to proceedings affecting them. Clause 70 enables the rules of court to provide who may be parties to proceedings under the Bill. However, as I have said already, we must be careful not to risk children becoming unnecessarily embroiled in disputes which arise between their parents.

The Bill already highlights the need to take the child's wishes and feelings into account. It also gives the court an unfettered power to order welfare reports, one major purpose of which is to ensure that the child's interests are given proper weight. In an extreme case a child can, with leave of the court, himself apply for an order if he dislikes that being sought in existing proceedings. In these circumstances I doubt whether it is necessary to do more.

As it has been said earlier, it is difficult to know why one should fix on a particular age in this matter. We have made very general provisions about that. I believe that anything that fixes very strongly on a particular age is perhaps undesirable. At present the county court and the High Court may join children as parties to proceedings. The same is not true of the magistrates' court. However, the matter is under review and it is likely (though I cannot be certain about it at the present moment) that rules made under Clause 70(1) will enable magistrates also to join children to existing proceedings under the Bill. In the light of that explanation, I hope the noble Lord may feel able to withdraw the amendment.

Baroness David

We did not move our Amendment No. 32, which deals with a very similar situation, because on the whole we preferred the noble Lord's Amendment No. 39, which he moved very briefly. He did not go into the arguments. If we consider what happens now we cannot be altogether happy about the situation. The noble and learned Lord has mentioned the case of the High Court and the county court, where children can be made parties to family proceedings, and the Matrimonial Causes Rules 1977 to permit children to be separately represented. But that rule is not invoked very often and its use was apparently specifically discouraged by a 1981 practice direction. As a result, of more than 180,000 divorce applications in 1982, only 36 children were referred to the Official Solicitor's department under Rule 115.

It is therefore apparent that, although there is already provision for children to be made parties in a number of family proceedings, this provision is little known and little used. The Children's Legal Centre regularly hears from articulate and frustrated young people whose families are involved in family proceedings. One writes saying: In our case which started over two years ago six different people closely involved with us and the divorce case did not attempt either to find out what our wishes or points of view were or totally disregarded them and us. They were: our doctor, two different solicitors, a local court welfare officer, a senior court welfare officer and the Official Solicitor. You will see how badly young people are treated by people they should have been able to trust and get help from". If such young people were able to be parties to the proceedings they would be able to articulate their feelings appropriately in the court process.

This point merits perhaps more consideration than it is getting at this time of night. I ask the noble and learned Lord to think about it a little more.

The Lord Chancellor

I am certainly content to think about it more. But the prominence which we are giving to the child's wishes and feelings in Clause 1 will have an effect.

Lord Mottistone

I am grateful to the noble Baroness, Lady David, for her contribution and assistance and for her rather fuller statement. What my noble and learned friend said is worth studying before one decides what to do next. This is not the stage to press the point but we may find that it would be wise to come back to it at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Dundee

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.