Children Bill [H.L.]

HL Deb 20 December 1988 vol 502 cc1252-315

2.59 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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

Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly on Clause 10.

[The LORD ABERDARE in the Chair.]

Lord Elwyn-Jones moved Amendment No. 40:

Page 8, line 32, at end insert— (" (4A) The court shall have power in relation to unreasonable delay by any party to hold that party in contempt of court.").

The noble and learned Lord said: Clause 10 sets out the general principles and supplementary provisions governing proceedings arising from the making of a Section 7 order. Clause 10 is very interesting in that it provides for the proper management of court proceedings arising in respect of a Section 7 order. It is admirable in its intent and purpose and provides, among other things, for the setting up of a timetable for the conduct of the proceedings with a view to determining the question at issue without delay. It is an attractive idea which might be adopted in other proceedings as well and might be a means of reducing the inordinate length of at any rate some proceedings. No doubt the noble and learned Lord the Lord Chancellor has that ultimately at the back of his mind, if not at the forefront.

Prolonged delays in deciding cases affecting children add to the uncertainty for them and for their families and are very unsettling. Additionally, they make it difficult for local authorities upon which much of the burden is cast to make firm plans for children. We support the Government's objective of setting up a better managed system for the conduct of the proceedings, but what is to happen if the court is faced with those who for whatever motives are in the view of the court acting unreasonably and as a result are creating intolerable delay in the conduct and the conclusion of the proceedings?

Would it not he useful, and indeed might it not be highly desirable, for the court dealing with the matter to have contempt proceedings brought against the delaying offender? Would it not be useful to have that power expressly set out in the Bill? I am not absolutely certain at the moment to what extent the ordinary powers of the court are adequate to order or to arrange for contempt proceedings to be brought. In any view it would be useful to have it on the record that a delaying party would be liable to have contempt proceedings brought against him with the wide range of consequences which a finding against him would bring forth. I beg to move.

Lord Campbell of Alloway

Perhaps I have misunderstood the position. If a court orders something to be done within a period of time or not to be done within a period of time, failure to observe such an order renders the person concerned liable in contempt. Whether proceedings are instituted for contempt is another matter. if there is unreasonable delay and the court is satisfied that there is wholly unreasonable delay, surely the court already has adequate powers without the proposed amendment. I may have misunderstood the position, but with great respect I wonder whether this is wholly necessary.

The Lord Chancellor

As Clause 10 demonstrates, we take the view that delay in dealing with children's cases is very much to be regretted and to be avoided. In that sense there is nothing between us in principle in this matter. As to the amendment, the position is that the county courts and the High Court already have power to punish in respect of contempt of court. I would expect that normally to arise, as my noble friend Lord Campbell of Alloway said, by the court requiring something to be done by a particular time. In any contempt proceedings it would be necessary to have a close definition of what was involved. A judgment would be required if the amendment were used as the basis in that the powers related to unreasonable delay by any party.

Therefore in these courts I would expect the process to be by way of asking a party who appears to be delaying to get something done by a particular time. If that failed, the contempt powers would come into operation. As regards proceedings in magistrates' courts—the Committee will appreciate that magistrates' courts are in question in this Bill—they have powers to punish those who disobey their orders. Once again that could be used to speed things along. One would not want to make the aspect of punishment prominent in this Bill. We are anxious that delay be avoided and we have specified on the face of the Bill that that is to be aimed for. Therefore, while there are reserve powers by way of punishment that could arise in connection with delay, we would not want to give that prominence.

There is also a risk that children could be used to carry on a form of extended warfare between their parents. I have had experience, as I am sure have other Members of the Committee, of the difficulty that arises when parents disagree. A court order is made and the parent in respect of whom it is made cannot bring himself or herself to obey the order. The court is put in a difficult position. I would not wish to extend that possibility more than is absolutely necessary. We are against delay and we have tried to express that. In the light of that explanation, I hope that the noble and learned Lord will feel able not to press the amendment.

Baroness David

Let us suppose that the delay is on the other side and the court is so full or business that it does not have time to hear all the cases that should be coming before it. What happens then?

The Lord Chancellor

That is a difficult question which this amendment does not address. It is a problem which Clause 10 addresses. It puts before the court the point that in these cases, perhaps above all, delay is a matter to be avoided. I hope that that will be sufficient indication from Parliament to the courts that they must give every possible priority to such cases. As the noble Baroness knows, there are proposals in the civil justice review to seek timetables for cases. One of the great causes of delay is that the parties tend to put things off. Timetables imposed on cases may be of great assistance. We shall do our best to ensure that the courts deal with these cases as rapidly as possible.

Lord Elwyn-Jones

Perhaps I should make clear that the purpose of putting down the amendment, withholding the possibility of contempt proceedings so to speak in terrorem in relation to the parties, was not to punish the parties but to induce and activate them to get on with it. Having it in black and white on the face of the Act will be an encouragement to achieve the purpose which the noble and learned Lord has in mind. I am most grateful for his sympathetic approach to the matter and his understanding of what we have in mind. But I invite him to look again at the possibility of the value of having on the face of the record, in the case of a deliberately delaying party, the knowledge that such a party can be faced with contempt proceedings and all the unpleasant consequences which that might involve.

I note that the noble and learned Lord the Lord Chancellor maintains a sedentary position and I make no complaint about it because we have a long day ahead of us; but in all the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 41: Page 8, line 35, at end insert ("Before making such an order the court shall consider the need of the child to have a fixed and secure home and the need of the child to reside (if possible) with his siblings.").

The noble Lord said: The purpose of the amendment is to modify Clause 10(5) of the Bill. That subsection provides for what in effect one might call split residence orders. In other words, the court is enabled to provide that the child can live with more than one person, and the subsection enables the court to specify how long the child should spend with each person. In a sense that is a change from the existing practice whereby although custody can be joint, care and control—or a care and control order—is almost invariably indivisible. The child is regarded as being in the day-to-day care and control of one or other parent.

The risk that Clause 10(5) seems to present is that where it provides that the court may split the residential arrangements for the child, some courts may feel that they should do so, especially if the parents have agreed that that is what is to be done. I am thinking primarily in the course of the amendment in terms of equal division, because it seems in practice that parents arrange, or try to arrange, equal division of residence for the child. They do so thinking that they are being fair to each other and thinking that no one will be seen to have won or lost the battle over the child. But what underlies the amendment is the suggestion to Members of the Committee that what may seem fair or convenient to the parents is not necessarily fair to the child.

The child who stays at boarding school for two-thirds of the year is perhaps less affected in this respect. Indeed, yesterday we heard the noble Lord, Lord Kilbracken, tell us that in his childhood such arrangements worked very well. But the great majority of children are at day schools and they may well find it difficult to cope with a split residence regime. The conventional wisdom in the courts in this area is, I suggest, correct and should be given account in the Bill. The conventional wisdom is that a child should have one home base—indeed, he or she has a right to know where his or her main home is—and preferably that the child should be able to spend as much time as possible with his or her brothers and sisters.

Quite recently in a case which was heard in the Court of Appeal the court thoroughly disapproved of an arrangement whereby a child—a girl approaching puberty—spent alternate weeks with her mother and her father. In practice, one comes across other similar arrangements whereby parents periodically swap over the children with the result that children do not grow up in the company of their brothers and sisters. That is simply because it seems convenient to the parents and because that happens to be the arrangement which the parents have reached.

I hasten to say that this amendment is not intended to be a wrecking amendment. I notice that the side note to Clause 10 speaks in terms of its being a clause dealing with, General principles and supplementary provisions". That is precisely what I seek to achieve by way of the amendment; namely, to supplement the general principles of the Bill. The amendment, in detail, requires the court to consider the particular needs of children where split orders are under consideration. I beg to move.

3.15 p.m.

Baroness Faithfull

Perhaps I may ask the noble Lord, Lord Meston, a question. If the child is to have a fixed home, which is very understandable, does the noble Lord not also think that it ought to be laid down when the other parent can he visited?

Lord Meston

Yes, or course. That situation is provided for in the Bill by means of the contact order. The noble Baroness may remember the amendment which was accepted yesterday whereby the terms of a contact order under Clause 7 were extended to permit a child not only to visit the person named in the order but also to stay with the person named in the order.

Lord Kilbracken

The noble Lord, Lord Meston, was kind enough to refer to the remarks which I made yesterday. I accept that in the great majority of cases the arrangement in a failed marriage is that one parent, usually the mother, has care and control and the other parent has access. The non-custodial parent just turns up from time to time, according to what he wants and according to what the custodial parent will allow.

But as I said yesterday, I feel that that is not the best solution for the children. In many cases it is extremely important for children to have a real relationship with both parents, if they will agree to that and if both of them are willing to perform that function. The best thing of all is if they regard the home of each of their parents as their own home and spend at least half of their holidays with either parent. Therefore they would not a have a single fixed and secure home but two fixed and secure homes. I found that to be very much the case not only when I was a little boy but also in the case of my son who is now a little boy.

Lord Harmar-Nicholls

It seems to me that the wording of the amendment gives us the best of all worlds. It provides: Before making such an order the court shall consider the need of the child to have a fixed and secure home". There is nothing definite about that. If the court, on looking at the matter, finds because of the need to have tranquillity that joint homes would be better, the amendment does not prevent that. I should have thought that there is something to be said for that in order to encourage having a definite place without ruling out the alternative, which in certain circumstances may be better.

Lord Campbell of Alloway

I hope that my noble and learned friend will give sympathetic consideration to this matter. Surely it is a useful amendment in the interests of children that the principle of this approach, which is only to consider, should be stated on the face of the Bill. With respect, as we are seeking to improve the Bill, would not this provision be a reasonable improvement; or, at all events, could not consideration be given to it?

Baroness Macleod of Borve

I should like to say that I think the amendment is an important one in that it is not binding. It will be on the face of the Bill and therefore it will be taken notice of by anyone representing the parents and the children; but, as it is not binding, it gives them a certain inkling of how Parliament believes things should be done. Therefore I must support the amendment.

Lord Prys-Davies

I believe that this kind of order is relatively rare, but I understand that when the court comes to consider the making of such an order it takes into consideration the need for a secure home and the need to consider the child's siblings. That is the convention. However, we agree with the noble Lord. Lord Meston, and other speakers that it would be extremely helpful if the need to give consideration to these two factors were expressed on the face of the Bill. Therefore we wish to support the amendment.

The Lord Chancellor

As has already been said, the Law Commission, in recommending that residence orders should be able to specify that a child divide its time between two households, recognised that it would rarely be appropriate. However, experience in the United States, in the view of the commission, has shown that it can sometimes be a beneficial arrangement for children. I have no doubt that it has learned, since the proceedings on this Bill started, that there are other examples. Where a child is going to spend substantial but perhaps not equal amounts of time with both parents, the commission says it is a more realistic order than giving a residence order to one parent and a contact order to the other. The Government accept those views as good sense and have provided the structural framework for them in the Bill.

The amendment, as I understand it, aims simply to remind the court of the need of the child for a stable home with his brothers and sisters and the need to weigh that factor with others in reaching its decision.

In principle I see no objection to the amendment if taken in isolation. However, it cannot be judged in isolation. The child in respect of whom this order is under consideration is no different in regard to these matters from any other child. The principle underlying the amendment is that every child has the need for a stable home, a "fixed and secure home" to use the words of the amendment. He has a need if possible to reside with his siblings. That is a general characteristic related to the children; it does not arise simply because this order is being made. Therefore one has to think of this not in isolation in relation to the making of a particular order but as a general principle. It is an application to the circumstances of a particular order-making which is here in question.

It is important to remember that in all these circumstances the general checklist of Clause 1(2) will be attracted. On that general checklist there is included in subsection (2)(b), his physical, emotional and educational needs". The need for a fixed and secure home is certainly one of these, as is the likely effect on the child of any change in his circumstances. One change contemplated in such an order is that from one parent's home to the other's, repeated perhaps at fairly frequent intervals.

I suggest to your Lordships that this matter is already appropriately dealt with in the general principles, first of all the paramountcy of the welfare of the child and the checklist which includes the circumstances. There is a danger, if we depart from the scheme of general principles and the general checklist of court orders providing a kind of mini-checklist in respect of different types of order, that the Bill would become extremely complicated. It would detract from the simplicity we are aiming at. After all, in this field of the law the Bill is to be used by very many different people—principally, I hope, by ordinary people who can read and understand it with reasonable ease. Therefore we should not make it unnecessarily complicated.

It seems to us that the amendment puts into the Bill an unnecessary kind of mini-checklist in respect of this type of order. The essential message of Clause 1 is that all matters have to be taken into account in making any order which contributes to the welfare of the child. These matters clearly fall into that context. The court has the obligation therefore to consider all those matters, whatever order it is thinking of making.

Lord Meston

I have to say that I am disappointed. The amendment is to deal with a relatively rare state of affairs, as we all acknowledge. It is also to deal with the possibility that these arrangements may become less rare. I am very grateful for the support I have received throughout the debate in your Lordships' Committee on the amendment. No one seems to have questioned the principles stated in it. Of course the checklist appears at the beginning of the Bill. And the amendment, as I sought to explain, seeks to supplement the checklist in order to deal with the specific principles which should be considered. It is not a question of dictating to the court what it should do; simply what it might particularly want to consider given a certain state of affairs.

With respect to the noble Lord, Lord Kilbracken, I understand and respect his point of view. The amendment is not intended to undermine the need of a child of separated parents to have a relationship with both. In certain circumstances there may be something in the noble Lord's argument that the child can, or at least should, if possible in those circumstances, have two fixed secure homes. However, the amendment goes further, perhaps more importantly in drawing attention to the need for a continuing relationship with his siblings.

I am disappointed that the noble and learned Lord considers that three quite important lines are an undue burden or complication to the Bill. I am very tempted to test the opinion of the Committee in view of the support I have received. I therefore intend to press the amendment.

Lord Campbell of Alloway

With respect, can the noble and learned Lord consider whether, as he suggested, the amendment is fairly covered by Clause 1(2)(b)? With the greatest respect, I should not have thought that it was. If it is not and if there is any doubt about it, why should not the Government consider at Report the introduction of an amendment to Clause 1(2)(b) to include the point? Can the matter possibly be considered further in view of the reference to a Division?

The Lord Chancellor

I say that everything in this amendment is covered in the checklist. If it is not, then it ought to be. Accordingly, if an alteration is to be made, as it seems to me, and if we are to maintain the structure and the principle of this Bill, we should put into the checklist those factors which have been omitted. For example, it would be possible to say, "the child's physical, emotional and educational needs, including the need for a stable or secure home" or something of that kind. But the more one looks at the amendment the more one sees that there are many types of physical, emotional and educational needs that could be specified. That is what I am saying about it. If the Committee feels that this matter is not properly covered by the checklist, then it ought to be. That is the way to go about it, not by making a particular provision in respect of a particular order.

To concentrate on a particular order creates an imbalance by suggesting that such an order involves an additional obstacle—an additional consideration for the court—before it can be made. That is contrary to the whole idea that the court should have a full range of orders available to it and that it should not make any order unless it thinks that making the order brings about an improvement. If it is to make an order it should make the best order in all the circumstances available to it. That is my view.

I do not underrate the importance of the factors that have been proposed. But if they are factors then they must be taken into account in every case. What child does not require a secure home? What child will not be better, generally speaking, if within his or her siblings? That is a consideration apart from any order that one may be thinking of making. Surely if this is a good point, it is a point that requires to be met in the checklist. If the checklist is defective, by all means let us see what change we can make in it. All I am saying is that if one goes into too much detail in the checklist, it will be so long as to be inappropriate. But I am very happy to consider the matter further, if that helps the situation. I simply want to make my point of view as clearly as I can, so that the Committee will know that if it puts this provision in, it is making what I regard as an improvement which may not have that effect universally.

3.30 p.m.

Lord Harmar-Nicholls

The approach that the noble and learned Lord has just made is rather different to his first approach when he seemed to be turning the amendment down just like that. If he is now saying that the principle behind this amendment, which some of us commended, can be dealt with by adding to the checklist, I have no doubt that the noble Lord, Lord Meston, would not put the Committee to the trouble of having to march through the Lobbies. If that is what the noble and learned Lord is saying, it will certainly please me and I hope that it might please the noble Lord.

Baroness Faithfull

I wish to ask for further clarification from the noble Lord, Lord Meston. I have several cases where children spend the week with one parent and the weekend with another parent. The brothers and sisters do the same, so they are moving together. But in fact they have two homes. How would this amendment fit in with that situation?

Lord Meston

In answer to that particular point, that seems to me to fit more easily with the contact order rather than the residence order. It is a form of access in present terms. It is what at present we describe as weekend staying access. But to return to the particular point with which I am dealing at the moment, I am still a little upset that the noble and learned Lord having described the amendment as a complication went on to describe it in his last remarks as an obstacle. The intention was not to create an obstacle, but simply to highlight particular considerations and to enlarge upon particular considerations which may be found in the checklist in particular unusual circumstances which the court may have to deal with. But he has given me a fair indication that I might put forward an amendment to the checklist in due course on Report. I shall take the noble and learned Lord up on that, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Residence orders and parental responsibility]:

Lord Kilbracken moved Amendment No. 42: Page 9, line 14, leave out first ("father") and insert ("parent").

The noble Lord said: In Clause 11 we move on to the making of residence orders. The Committee will see that in subsection (1) there is a reference to what happens when the court: makes a residence order in favour of the father of a child".

The subsection further states that the court shall: if the father would not otherwise have parental responsibility for the child, also make an order under section 4 giving him that responsibility". I am proposing that in both instances the word "father" should be replaced by the word—

Lord Hailsham of Saint Marylebone

Did the noble Lord say partner rather than parent?

Lord Kilbracken

I said "father". At present there is a residence order in favour of the father, and I am saying it should be in favour of the parent of the child. It seems to me that although in most cases the residence order will be made in the case of the mother, surely when that happens and it is made in favour of the mother it is equally necessary that, if she would not otherwise have parental responsibility, a similar order should be made. In subsection (2) there is mention of: a residence order in favour of any person who is not the parent or guardian". But subsection (1) refers only to the father. It seems to me that an exactly similar provision would be necessary if it were made in favour of the mother. I beg to move.

The Lord Chancellor

Clause 11(1) is included in the Bill because it is possible that an unmarried father will seek a residence order for the child to live with him, even though he does not at that time have parental responsibility by a court order or agreement.

A mother will have parental responsibility. It is the unmarried father that is in question here. If the court makes a residence order in his favour, it would be wrong to deny him the full range of parental responsibilities as well. The clause therefore provides that in those circumstances the court will also make an order under Clause 4 giving the father parental responsibility, if he does not already have it.

Clause 11(1) will have no relevance to parents other than the unmarried father. Where a child's father and mother are married to each other at the time of birth they each have parental responsibility for the child. Where they were not so married, the child's mother has parental responsibility. Accordingly, the only person that has to be catered for by this particular provision is the unmarried father. What we are saying is that if the court makes a residence order in respect of the child to stay with the unmarried father, then it will also give the unmarried father parental responsibility. We do not need to say unmarried father, because that is the only case to which it applies. There is no parent other than an unmarried father who would not have parental responsibility. That is the reason for the provision. I hope in the light of that explanation the noble Lord will feel able to withdraw the amendment.

Lord Kilbracken

Yes, I am quite relieved to withdraw this amendment, and not to move the next two amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Clause 11 agreed to.

Clause 12 [Change of child's name or removal from jurisdiction]:

The Lord Chancellor moved Amendment No. 45: Page 9, line 34, leave out from ("child") to ("no") in line 35.

The noble and learned Lord said: I wish to speak to Amendment No. 45 along with Amendment No. 159. These amendments transfer from Clause 12 in Part II to Clause 28 in Part IV provisions placing restrictions on removing from the United Kingdom and changing the surname of a child who is the subject of a care order without written consent or leave of the court. The second amendment also introduces a new provision allowing the authority to remove a child from the United Kingdom for less than one month without consent or leave and brings into line children in care and children under residence orders. The present provisions in Clause 12 with respect to children subject to resident orders are not affected.

Our intention in tabling these amendments is to improve the arrangements of the Bill and to provide consistency between the public and private law relating to children. Clause 12 at present imposes a restriction on both removing from the United Kingdom and changing the surname of children who are the subject of a residence order or a care order. On reflection, we think that for children in care this provision is better made in Clause 28, which details the legal effect of a care order. So we are separating out, in effect, the provision that deals with care. Clause 12 would then be limited to children subject to a residence order. We think this amendment would make the Bill easier to follow by dealing with care in the care part and other orders in Part II.

The second amendment is intended to align care orders and residence orders. Clause 12 at present allows a child who is the subject of a residence order to be taken out of the United Kingdom for less than a month by the person with the benefit of the residence order without the written consent of other persons with parental responsibility or leave of the court. This is intended to facilitate, for example, short holidays abroad with one parent. We would like to extend the benefit of this one-month rule to arrangements made by local authorities for children in care. The new subsection (5)(a) would achieve this. Subsection (5)(b) makes it clear that where a local authority wishes to arrange for a child to live abroad more permanently, the rules in paragraph 17 of Schedule 2 apply. I beg to move.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 46: Page 9, line 39, after ("child") insert ("and of a child with sufficient understanding to make an informed decision").

The noble Lord said: This amendment would require the consent of a child of sufficient understanding to a change in his surname, and his removal from the United Kingdom.

Probably, the most obvious possession of a child is his surname and the decision to change it would he a major decision for the child. He is the one who may be embarrassed if he has a different surname from that of his new family, and schoolchildren can be very cruel. On the other hand an older child, particularly if he has maintained a link with his father, may want to retain his original surname. Therefore we consider that the change of surname is just as important to the child as it is to the parent and that the consent of the child of sufficient understanding is as essential as that of the person who has parental responsibility for the child. Likewise if he is to be removed from his settled lifestyle in the United Kingdom the child's consent should also be necessary to the decision.

We hope that the noble and learned Lord the Lord Chancellor will look at the amendment with some sympathy. I beg to move.

Lord Campbell of Alloway

Surely this is a most helpful and reasonable amendment. The question of the representation of the child also arises under the Convention on Human Rights. The child has a right to be represented if under sub-paragraph (b), he is to be removed from the United Kingdom. What harm would it do to insert something along the lines of the amendment which would all but demand that the interests of the child should be represented?

There is always the leave of the court. The court could say that it would not grant leave unless it were right and proper to do so. However, in the circumstances, is that wholly sufficient and does it ensure that the child's interests and rights will be represented? I support the amendment.

Lord Meston

Leaving aside for the moment the question of removal from the United Kingdom, it is inconceivable that a court would change a child's surname against the wishes of that child. It is usually the other way round; it is usually the child who wishes to have his or her surname changed so that at school he or she has the same name as stepbrothers or half brothers. That is the usual reason. In those circumstances it is a question of whether or not the child's wishes are complied with. It seems inconceivable that a change could be made against the child's wishes.

Lady Saltoun of Abernethy

Nonetheless, I should have thought it very undesirable that the child's name could be changed at any stage without the child's consent. I should like to see that written into the Bill.

3.45 p.m.

The Lord Chancellor

The matters at issue are very important. They are decisions in relation to the child, and the court's order is required in respect of those decisions. I have made the point in other contexts that we consider that there is a danger, if the child's view is to be determinative of the matter, that the child may be put in an invidious position—for example, where one separated parent wanted him to stay behind and the other wanted him to go and live abroad, or where one parent wanted him to change his surname and the other did not. It is quite bad enough for the child that the parents should separate. It would be very much worse if the child was then burdened with the decision about which parent he should stay with or which parent's name he should adopt if, for example, one of them remarried.

Since the case of Gillick it is recognised that older children's rights to self-determination are important. However, in the Government's view, the Bill strikes the right balance not by giving the child the right to decide such issues, and thus unavoidably embroiling him in parental disputes, but by ensuring that in court proceedings his views are taken fully into account and by enabling him, with the court's leave, to seek an order himself. Hence, an older child who objects to being known by a new surname or to being taken abroad can, under Clause 9(7) apply for a prohibited steps or specific issue order to prevent it.

The fundamental point is that the child's wishes and feelings in the matter are to be taken into account as a very central feature of the situation. As the noble Lord, Lord Meston, has said it is likely that the court would be extremely reluctant to alter a child's name or to send a child abroad against his wishes if in the court's judgment the child was mature enough to reach a view on that matter.

We have tried to do what we believe to be right. In this matter we have given the child's decision prominence in the court's judgment without putting upon the child the invidious burden of having to make that decision himself. That is what the position would be if the child's decision were made determinative. That is the balance which we have tried to strike and it applies to other questions as well as this. This is a particularly important one.

We suggest to the Committee that we have met the main concern of the amendment but we have done so by putting the child's wishes and feelings at the very head of the checklist that the court has to consider in making any order. They would of course be given particular prominence in a matter of this kind.

Lady Saltoun of Abernethy

Perhaps I may ask the noble and learned Lord what would be the position if a child was not old enough to make his wishes known about a change in his name.

The Lord Chancellor

The court would have to decide in the light of all the circumstances what was best for the child, taking into account all the matters on the checklist, including his educational, emotional and physical needs. His emotional needs would be a very important factor in that decision. It is one of the matters to which I referred earlier. The stability and security of his home would obviously be associated with the name prominent in that home. If the other children in the home had one name and he had another that might be a very important consideration in favour of a change.

The court would apply all the factors which were relevant in deciding the issue. As the noble Lady has pointed out, it could arise in the case of a child who was not old enough to decide for himself or herself. The rule applies to all children. It makes it unnecessary to determine the initial issue of sufficient understanding. As was said yesterday in another connection, that is a difficult issue to determine. In applying the checklist, the court has to take account of the degree of understanding of the child. I respectfully suggest to the Committee that that is a very balanced and important way in which to approach the question and that it is better than making the child, in any circumstances, the absolute arbiter in the matter.

Lord Prys-Davies

Before I respond to the guidance and the explanation given by the noble and learned Lord, perhaps he will explain to us, or at least to this one Member of the Committee, how in fact the child would make an application to join or initiate any proceedings under this section. It seems to me that the Bill is silent on that point, unless it is already covered by rules of court. Would the child apply exparte and who would apply on his behalf, or would he apply on notice? Whatever may be the position of the court on the substantive issue, it is not clear to me how he will himself initiate or join proceedings.

The Lord Chancellor

The rules will give to the child the possibility of applying in the application for orders under Clause 7. It will be for the court to decide on an application. If the child is of a sufficient age he will be able to act in the same way as any other person and it will be for the court to decide whether in the particular circumstances that should be allowed. There is no technical problem to the child applying for the order.

I should envisage that as a very extreme situation. The ordinary situation whereby this matter would arise in court proceedings is that the court would be seized of the matter in any event. I should perhaps have said earlier that this amendment is not directly related to court proceedings although in fact it is a matter that would ultimately have to be decided in that way if an issue were joined about it. The possibility of a child of sufficient understanding being able to approach the court is one of the matters envisaged by the provisions in the Bill. It is an important safeguard for a child that wishes its views to be known. That was a point made yesterday by the noble Baroness, Lady David.

Another point of importance is that in the ordinary case, in using the checklist in court orders the court will have the obligation to ensure that the child's wishes and feelings are ascertained.

Lord Prys-Davies

I am grateful to the noble and learned Lord for giving us that explanation and his reasons for resisting this amendment. I am also grateful to the Members of the Committee who have supported the amendment. In the circumstances we shall have to consider the matter and decide whether to bring it again before this Chamber. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 47: Page 9, line 41, leave out ("one month") and insert ("four weeks").

The noble Lord said: Clause 12 and indeed the new additions to Clause 28 about which we have been told by the noble and learned Lord the Lord Chancellor deal with the right of parents and others to remove children from the United Kingdom when a residence order is in force. Clause 12(1) restates the existing law with the notable exception that Scotland is no longer out of hounds if one happens to have the benefit of an English or Welsh custody order.

However Clause 12(2) is something of a novelty in that it permits a person with a residence order to remove a child for up to one month. It seems to me that it is something of a weakness in the drafting of the Bill that it is not stated for how many periods of up to a month in any one year the person with the residence order can remove the child. I think that that is a potential for abuse because on the face of the Bill there could be any number of absences of up to a month without the need for either the court's permission or the consent of the other parent. But perhaps that is something to which I should more properly refer again in relation to the next amendment, Amendment No. 48.

This amendment seeks to avoid one particular area of argument. Lawyers know that by virtue of the Interpretation Act a month means a calendar month. Laymen do not know that. However four weeks is something that is understood by everyone. The purpose of this amendment therefore is to give less room for argument between parents as they try to arrange matters of this sort. To those of us who practise in the area of family law it is all too familiar a situation when parents argue about fractions of a day. Indeed, unreasonable parents can argue about absolutely everything.

The other argument for clarification is not simply for the benefit of the parties, and indeed the courts in this country which will possibly he concerned with the provisions of this Bill. It is also to make the matter clearer to foreign courts which may have to consider the legality of the removal if the child abduction conventions abroad are invoked. It is therefore a modest amendment which seeks simply to tighten up the Bill in one small respect. I beg to move.

The Lord Chancellor

First of all the point about the number of months allowed in a specific time mentioned by the noble Lord is one that I should like to consider further although it does not perhaps arise directly out of this amendment. I can see that there is just a chance that some abuse may lurk in that area.

The decision to use the term "one month" was a practical one. As the noble Lord has mentioned, "one month" is defined as a calendar month and it is a very easy calculation for those of us who are not perhaps accustomed to counting the days directly. In our view it would be easier for those affected in practice to comprehend the idea of a period which runs, for example, from 6th September to 6th October than it would be to calculate the four weeks from 6th September to whatever date it is in October.

The other point is that the periods based on the month are used throughout the Bill. For example, six months is the duration of a family assistance order under Clause 14 and in Clause 10(6) six months is the period of cohabitation by parents which terminates a residence order in favour of either of them.

It is a matter of choice. I do not feel very strongly about this matter. Consistency in the Bill would argue in favour of using the word "month". We have become accustomed to it. It is in the Bill in the other places. We have not used "four weeks." Marginally therefore I favour "a month". I hope that the noble Lord will come to see this matter in the same way.

Lord Meston

I do not feel very strongly about the matter. I look forward to the litigation that will be engendered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Lord Meston moved Amendment No. 48: Page 9, line 42, at end insert ("provided that at least three weeks prior written notice is given to every other person who has parental responsibility for the child of the date and duration of the proposed removal and of each place to which the child is to be taken and provided that any subsequent changes in the date or duration of the proposed removal or in the places to which the child is to be removed are notified as soon as possible to every other person who has parental responsibility.").

The noble Lord said: This amendment deals perhaps more seriously with a matter of concern which seems to me to be created by the provision in Clause 12(2). It gives a right of temporary removal without consent and without even notice to the other parent. So it appears on the face of the Bill and, as I have already mentioned, apparently it is without any limitation on the number of times in a year in which that right may be exercised. The noble and learned Lord has been good enough to indicate that he will reconsider that point.

The basic proposition which underlies this amendment is that the parent who takes the child out of the jurisdiction of the United Kingdom court should be required at least to provide the other parent with basic information such as details of dates and itinerary. That is not to say that the other parent should be required to consent to the proposal; simply that he or she should be given the opportunity to object. That is best illustrated perhaps from situations that can arise in practice where one comes across parents who quite irresponsibly take children away for holidays.

In a case in which I was involved very recently a mother was insisting all the way to the Court of Appeal that she should be allowed to take her children to Sri Lanka on a holiday in the face of an official warning from the Foreign Office that nobody should go there unless it was absolutely necessary. She said that that did not matter; she knew perfectly well where she was going and it was quite safe to go. One comes across these rather selfish holiday arrangements that may be suitable to the mother and her new boyfriend and fit in with their working and holiday plans but, for example, may clash very badly with important examinations for the child or something of that kind. They can also severely disrupt previously agreed arrangements for access.

Indeed, one can take it to a further extreme. Giving the parent with the residence order the right to remove the child without any notice to the other parent could permit child abduction—that is to say, removal out of the jurisdiction, retention for a longer period than another four weeks or whatever it is to be—and the other parent will not have known about the departure until after it has happened.

Therefore the proposition that I seek to invite Members of the Commitee to consider is this. The other parent has a basic entitlement to be informed, to reassure himself or herself about such matters as the safety of the arrangements if the child is to go to a particular country which requires innoculations, and to enable the other parent to make his or her own arrangements when he or she wants to take the children on holiday. If one parent who does not have the residence order wants to book a holiday, it enables him or her to do so if he or she knows when the child is to be taken abroad by somebody else. All too often one comes across people complaining that they have booked simultaneous holidays, one having failed to communicate with the other.

I hope that I have explained this amendment. It is an intention not to make life difficult for the custodial parent but simply to require him or her to provide basic information. I beg to move.

Lord Renton

It is surely right, as the noble Lord, Lord Meston, has said, that the other person or persons with parental responsibility should be given proper notice of what is to happen or may happen. I agree with the motive described in the amendment. But how is it to be carried out? Such matters would normally go into rules of court. We have already passed the point at Clause 10(3) at which rules of court may be made for various purposes. I should have thought that this is the detail which would be better dealt with in rules of court than in the primary legislation.

Baroness Macleod of Borve

I agree very sincerely with my noble friend Lord Renton. I have knowledge of several cases which come in this category. The rules of court are made by the hearing judges or magistrates. This amendment has to be in force, and is in force already, with many of the families that I know of.

Lord Simon of Glaisdale

I should like to support what the noble Lord, Lord Renton, has said. This is a well drafted Bill. It would be a great pity to overload it with detail which could well go into regulations such as rules of court. I should have thought this essentially falls into that category.

Lord Prys-Davies

We fully support the principle that notice of intention to remove a child should be given to the other parent or the person who has parental responsibility. However, I am not so sure that there should be a hard and fast rule about the length of the notice. The parent who has the residence order may suddenly be faced in practice with a crisis in the family. He or she may be left with no time, let alone three weeks, in which to give the notice. Therefore while we strongly support the principle that notice should be given, in the circumstances we consider that what is required is reasonable notice. That would obviously depend on the circumstances.

The Lord Chancellor

In a great number of cases the parent who has the child and wants to take the child on holiday could perfectly well be trusted with the child and a foreign holiday. If one is going to have to inform the other parent about all the movements of the child, in logic that would apply in this country also. For example, let us say that the parent was thinking of going on a mountaineering holiday in some of the better places in the North. It would be very reasonable that the other parent should know about it and know where they were. I can see that there may be some circumstances in which some form of reasonable notice would be required. This is the detail that one might expect to find adjusted in the order.

To make a detailed requirement of the itinerary is probably going a little far. Quite a number of people go on enjoyable holidays perfectly safely without knowing exactly where they are going. They plan as they go along. A detailed itinerary in advance might not be very practicable. I therefore agree with what has been said by a number of Members of the Committee. This is the detail that is best settled by reference to the particular case.

There are two ways of doing that. One is for the court dealing with the case in question to make the necessary arrangements. Obviously it would depend a little on the judgment that the court had about the extent to which the parent who had the child was to be completely relied upon in relation to the way in which he or she would look after the child. Therefore one way is in the detail of the order. The other is in the more general provision (for example the rules of court) that could require the court to lay down conditions. Perhaps the noble Lord might like to reflect on this. We shall do the same in the hope of producing a fairly flexible arrangement which may be adapted according to circumstance to particular cases.

Lord Meston

Of course I shall do that. I do not intend to encumber the Bill in any way. I do not think it matters terribly whether what I have suggested, or something similar, goes in the Bill or in the rules of court. What is important is that on the face of any court order the terms on which general leave to remove a child for a given period is to be granted under the provisions of this Bill are clearly stated. It is in a sense a detail, but an important one.

What is important is that whatever is provided—and I suggest that we should provide a general requirement to give notice to the other party—the requirement should be on the face of the Bill. One does not want to hamper unduly people who wish to go on reasonable holidays. People are not always reasonable. Sometimes people who on the face of it seem reliable whisk children away across the globe. That is the situation that one wants to try to prevent, or at least to limit, if possible. On the basis indicated I beg leave to withdraw the amendment.

Baroness Phillips

Can the noble and learned Lord enlighten us where the "better places" are? Is he referring to Scotland?

A noble Lord

The Lake District of course!

The Lord Chancellor

I had a number of places in mind but I think that most of them would be North of the Tweed.

Amendment, by leave, withdrawn.

Clause 12, as amended, agreed to.

Clause 13 agreed to.

Schedule 1 [Financial Provision for Children]:

Lord Meston moved Amendment No. 49:

Page 68, line 15, at end insert— ("or (iii) to such other person as the court may direct for the benefit of the child.").

The noble Lord said: I should like to speak also to Amendment No. 50, which has an identical purpose. The amendment supplements Schedule 1 to the Bill and enables the court to make periodical payments to third parties for the benefit of a child. Its purpose is to introduce a measure of flexibility.

There are a limited number of cases where, for example, a child may be living with an uncle and aunt who have not felt the need to apply for a residence order. The thrust of the Bill is that people should not be granted orders unless they are necessary. Although they do not have such an order they must hear the cost of maintaining the child. They are not formally constituted as foster parents by the local authority and therefore do not receive a fostering allowance.

I suggest that in such circumstances the court should be empowered to make an order for periodical payments to be made direct to the person looking after the child but who may not fall within the category of applicants specified in the first paragraph of the schedule.

Another good reason for enabling the court to make what is a sensible order in those terms is that it is less emotive. If such a payment must be made via a third party—for example, as in the situation I have described—the father must pay the uncle and aunt via the mother. However, the father may say that he does not trust the mother with the money and that he is prepared to pay maintenance for the child but does not want the mother to get her hands on it. That is all too familiar a response in such cases.

The amendment also deals with the position in respect of school fees. They have become less significant to those who practise in this area because the Finance Act abolished the benefit of tax relief on maintenance. Nevertheless, the position remains that if a reluctant parent is required to pay the school fees the order must be dressed up as a maintenance order in favour of the mother of the child or the child. There then exists an artificial arrangement whereby the child must make payment to the school as an agent. That is properly regarded as artificial.

I suggest that the issue would be simplified if the court could order that payment should be made direct to the relative looking after the child, to the school, to whoever may be appropriate or to any combination. I beg to move.

The Lord Chancellor

I should like an opportunity to consider the matter. It may be that consequential amendments to the clause will be required. However, as the noble Lord has explained the amendment, I can see no harm in the court having that further power in necessary cases. Perhaps the noble Lord will accept that reply. I hope to be able to deal with the matter at the next stage of the Bill.

Lord Meston

In order to introduce consistency it may be necessary to make a consequential amendment to the Matrimonial Causes Act. I am grateful to the noble and learned Lord and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Schedule 1 agreed to.

Clause 14 [Family assistance orders]:

4.15 p.m.

Lord Prys-Davies moved Amendment No. 51: Page 10, line 25, leave out ("other than the child") and insert ("including that of a child from the age of 14").

The noble Lord said: We consider that the consent of a child aged 14 years or more and to whom a family assistance order relates should also be obtained. However, the need for his consent is specifically excluded by Clause 14(3).

If a child is aged 14 years or more and is not prepared to consent to such an order, one may think that his co-operation will not be forthcoming. Therefore we wonder whether there is any point in making a family assistance order to advise, assist and befriend if the child is unwilling to seek or listen to such advice, assistance or friendship. We believe that instead of his consent being excluded from the clause it should be necessary before the order is made. I beg to move.

Lord Renton

I am surprised that Clause 14(3)(b) is included in the Bill. It requires the consent of every person named in the order to be obtained, and I find that a strange prohibition. I do not believe that the situation will be improved by the amendment. With or without the amendment the provision must he reconsidered.

Lord Meston

I agree with the noble Lord, Lord Renton. Clause 14 replaces the supervision order which has been familiar to practitioners for many years. It introduces the requirement of consent. I agree with the noble Lord that that requirement introduces a weakness into the provision of the Bill. I believe that it is wrong to prevent the court from making a supervision order—whatever one chooses to call it—simply because the parents will not consent. The more unreasonably they withhold their consent, or withdraw it, the more the court may believe that the family needs a degree of supervision or assistance.

Another weakness in Clause 14 is the limitation in subsection (5)—which is a novelty—of a fixed period of six months or less. There is no provision which initially enables the court to make an order lasting longer than six months, thereby preventing everyone from returning at the end of that time as otherwise they must. I hope that the Government will reconsider the clause.

Lord Campbell of Alloway

I support the concept that my noble and learned friend should reconsider the clause. I also suggest that the clause is desperately adrift and needs reconsidering.

The Lord Chancellor

I shall first answer the questions which have been raised about the clause because they are fundamental to the amendment. The consent provisions have been introduced because the order is intended to provide assistance to a parent, for example, whom the court may believe to be in difficulty and who may benefit from the assistance of a probation officer or an officer of the local authority. The idea is, rather as the noble Lord, Lord Prys- Davies, said in moving this amendment, that without the consent of the person to be helped there is not much chance of giving help.

This is the sort of order that this clause is dealing with: an order making help available to a person who can be persuaded to accept that help. It is surely a very wise method by which to approach family difficulties if you possibly can—to put someone in with the agreement of the person who may have a difficulty to help that person overcome the difficulty and thus avoid the need for further intervention.

The reason for the six months is that it is intended as a short-term arrangement. You are not going to have long delays to find out whether the help has been sufficiently effective. The idea is that this is a fairly short-term measure and is intended to overcome a difficulty.

One particular type of problem that I have come across in this connection is the difficulty of one parent with whom the child is residing being unwilling to afford contact, as we would call it under this Bill, or in the old nomenclature, access, to the other parent. That situation is very difficult and help from someone from the local authority, such as a probation officer, to advise and possibly to be present at some of the earlier contacts and so on is a good method. It is very hard for that to be acheived, or indeed to achieve anything, unless there is a degree of co-operation and consent. That is the underlying theory of this provision.

So far as the amendment is concerned—and that is what we are talking about although that may not be evident so far from my remarks—the question is whether the child needs to give consent. The person to be helped or advised usually will be a parent. It does not seem to be necessary that the child should be in a situation where the cnild makes or breaks the arrangement. Here again the same principle applies. We felt strongly that it is unwise to put the child in a determinative position in relation to any matter that is going on. As I have said, the court always has the right, and indeed the duty, to have regard to the child's wishes; but it is rather a different matter if the child is to be affected only by the order and is not to be in a position to say whether or not the matter should go ahead. But the wishes of the child in respect of the matter should be taken into account.

That gets the value of the child's views before the court without putting the child in the invidious position of having nominally to make a decision for himself or herself, which may well be a decision between the parents who have different points of view. This is the situation we see applying here an therefore, although I understand the reason which prompted the amendment, I would hope that the noble Lord would feel it is not necessary for the consent of the child to be obtained in every case, the court of course considering the attitude of the child to the matter in any situation.

I think the custody cases, where access was being difficult, certainly represent a typical situation. Very often the reason given by the parent who is refusing access is that he or she says that the child does not want to see the other parent. One has some doubt about exactly how that state of affairs has come about and one wonders how it can be resolved. To put the child into the centre again and to have the child's wishes determine the matter might be rather difficult, because what is hoped is that the relationship, say, with the father would he repaired by the father seeing the child after a bit. This is a practical situation with which this clause would deal.

Lord Renton

Arising out of what my noble and learned friend has said—and I am sure we are all very grateful to him for his clarification of the policy—I am nevertheless a little puzzled and I wonder whether I might ask him this. I see the reason for not requiring the consent of the child, because it may be that the court considers that the child can be helped by the intervention of a probation officer. But supposing the parent, the guardian or the person with whom the child is living is also named in the order, and just cannot get on with the probation officer and may have had previous experience of the probation officer, the help it is intended to give the child could be frustrated by the refusal of consent by the parent, guardian or person with whom the child is living.

Turning to the amendment, even more so would this concern a child over 14. If the child over 14 is to be allowed to refuse consent to a family assistance order, the whole object of the exercise, which is intended to help the child, would be defeated. I wonder whether my noble and learned friend would be so good as to consider those circumstances.

The Lord Chancellor

The first point to notice is that the person who may be named in the order would include, for example, a parent and it may well be that the parent requires to be advised or assisted. The parent would be the person named in the order and the assistance would be in the form of making a probation officer available.

My noble friend asks: what is the position if the parent does not want that particular probation officer? I think that is part of the reason why consent is required. You want to be sure that an arrangement of that kind is going to work. There is no point in naming somebody to be helped by a person against whom that person to be helped has a rigid objection. Therefore the whole idea is that this can proceed only on a basis of co-operation. The important thing is that the person named in the order may not be the child: it may be the child, if it is the child who requires assistance but, as I said, these practical problems often arise because one or other of the parents, and sometimes both parents, require some help to see things a little differently from the rather antagonistic way in which they may have seen things hitherto.

One can imagine a probation officer, perhaps a children's officer with great skill, coming in and helping the parents to see matters differently and to resolve the issue. But it is the sort of assistance that cannot prevail except where people are willing to have it. That is the whole basis of the order, and that is why we have this here. If the help is to be to the child then of course the person is in a situation where the child, if the child is old enough, would not be a realistic object of help without that child's co-operation. But the child might be quite young and so it is not necessary that the child's consent should be obtained in every case. The better approach in such a situation so far as the child is concerned is to ascertain the child's wishes and feelings in the matter and take them into account in considering how to proceed.

Lord Prys-Davies

We are once again very grateful for the explanation which the noble and learned Lord has given the Committee. The essential point we were making is that there is no point in making this kind of order unless one is assured of the co-operation of the person named.

The noble Lord, Lord Renton, has raised another issue, and I think we shall just have to reflect on the specific point that he raised, supported by the noble Lord, Lord Meston, and also on the explanation given by the noble and learned Lord the Lord Chancellor as to how the clause as it stands fits into the philosophy of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

4.30 p.m.

Lord Campbell of Alloway moved Amendment No. 52: After Clause 14, insert the following new clause:

("Use accommodation for restricting liberty.

.—(I) Subject to the following provisions of this section, no child shall he kept or placed in secure accommodation unless either—

1. (i) he has a history of absconding, and is likely to abscond from any other description of accommodation, and that if he absconds he is likely to suffer harm; or
2. (ii) the relevant criteria under section 2 or 3 of the Mental Health Act 1983 are satisfied in his case; or
3. (iii) if he is kept in any other description of accommodation he is likely to injure himself or other persons.

(2) No child shall he kept, or placed, in secure accommodation for a period exceeding 3 days without the authority of the Court.

(3) If it is proposed to keep or place a child in secure accommodation an application shall be made to the Court, on which the child shall be legally represented by the Official Solicitor and any interested person may be heard for authority to implement such proposal.

(4) It shall be the duty of the Court on the hearing of the application or on any application to discharge the order to determine whether any of the criteria in subsection (1) above are satisfied.

(5) If the Court determines that any such criteria are satisfied it shall make an order specifying the maximum period for which the child may he kept in secure accommodation subject to review of such order on any subsequent application, and on any adjournment of the hearing may make such interim order as may be adjudged to be appropriate.

(6) An appeal shall lie from any decision of the Court under this section, and pending the hearing of such appeal such interim order as may be made shall have due regard to the entitlement of the child to receive education appropriate to his needs in accordance with the provisions of the Education Acts.

(7) The procedure applicable to contested and uncontested applications under this section, and appeals from any order made thereon, shall be as provided by the Rules of the Supreme Court.").

The noble Lord said: In moving Amendment No. 52, I should like to speak also to Amendment No. 208. This inevitably involves the question as to whether Clause 21 stand part of the Bill. Questions of broad principle arise. I should say at the outset that it is not the intention to divide the Committee, only to canvass views and to seek to engender constructive discussion on a difficult subject. On Report we may return to the matter, having considered in particular the response of my noble and learned friend the Lord Chancellor, whose good offices are always so much appreciated.

Although the amendments are supported by my noble friend Lord Renton, he is in no way responsible for the drafting. The drafting is mine and inevitably it will be deficient. The intention is to provide a vehicle for discussion on the question of principle involved.

The object of the amendment is to introduce a new order of general protection for children who are by definition under the age of 18 to ensure that no child shall be placed or kept in secure accommodation for more than three days without the authority of the High Court unless one of the criteria in subsection (1) is satisfied. That is the provision in subsection (2); it is fairly simple drafting. The relevant procedure would be provided by Rules of the Supreme Court under subsection (7).

In all applications to the court the interest of the child would be represented by the Official Solicitor in both the contested and uncontested applications. That appears under subsection (3). The Official Solicitor separates even now within his wardship activities by delegation and by agency arrangements and, as I understand it, would not need to take on extra staff.

Subsections (4), (5) and (6) are self-explanatory. It is the duty of the court to determine whether any of the criteria in subsection (1) are satisfied. In the event of a conflict of evidence, which may well exist, the court is not bound to accept the clinical judgment of any person in charge of the hospital or other place where the child is placed or is proposed to be kept or placed.

Subsection (5) gives the court powers if it determines that the criteria are satisfied. Subsection (6) refers in particular to ensuring the entitlement of the child to receive education in accordance with the provisions of the Education Acts so far as that is relevant. At present one cannot at times make an enforceable order against someone in charge of a hospital in certain circumstances. It is suggested that the rules of court should make provision for such hospital or other place, or the appropriate authority responsible for the hospital to be joined as parties in any contested application so that any order made by the court may be fully enforceable and effective. It is envisaged that the uncontested applications may be remitted to the county court and that one day when the family court is established these matters will all be dealt with by that court where the child will always be represented.

Without going into detail or naming places, I can say that some recent experiences in the courts have shown the need for a clause along these lines conferring jurisdiction upon the court to afford this order of protection for children and enabling effective relief to be granted which can be enforced by the court. A judicial review affords no adequate protection for the child. I note that the noble and learned Lord, Lord Brightman, is in his place. He delivered perhaps one of the most important judgments on the limits of judicial review recently. On judicial review the noble and learned Lord would confirm that the court can never go into the merits. The amendment or some similar amendment, if carried, would always ensure full adjudication on the merits as part of the substantive law affording enforceable individual rights.

There is concern that children are being locked up in secure accommodation on their parents' authority not only in a particular private mental place, which again I do not propose to name but also in National Health Service establishments. This concern was expressed to me quite independently by the Children's Legal Centre after the amendment was tabled; so there is something in principle behind this. There is no lower age limit under the Mental Health Act—hence the inclusion of paragraphs (i) and (ii), one of the criteria omitted frm Clause 21. The concept of making general provisions as to any parents' authority should be superimposed on the provisions of the Mental Health Acts.

Another concern, again expressed quite independently after the amendment was tabled, by the Children's Legal Centre is that under present law on wardship and secure accommodation, children are denied the rights of a fair hearing under the European Convention on Human Rights—hence the introduction of provisions in the amendment to secure that the child is represented by the Official Solicitor. Again, that is omitted from Clause 21.

This is a sensitive, complex and very difficult subject which cannot possibly be satisfactorily resolved without the contributions to this debate of Members of the Committee. Those contributions do not lie within the province or the expertise of lawyers. We merely seek to point to the problem. How the question of principle is resolved is a matter for lay judgment. However, these are matters of general public concern only partially recognised in Clause 21 of this Bill. As it stands, the Bill is open to certain objections, as indeed are the provisions of Part II, paragraph 10(2) of Schedule 6, which make an entirely new provision—I am subject to correction—for both voluntary and private children's homes to maintain and use locked secure accommodation for children. My Amendment No. 208 supported by my noble friend Lord Renton, seeks to delete that provision. As far as I am aware, that is totally new and as at present advised I cannot understand the necessity or justification for its introduction.

Those provisions which Amendment No. 208 seeks to excise are to be operated under regulations to be made by the Executive and not by the judiciary—by the Secretary of State. The Bill states that the use of such accommodation is subject to the approval of the Secretary of State in addition to those requirements imposed by Clause 21. Is that new provision requisite or accepted? I hope that Members of the Committee will believe that it is not.

Why is Clause 21 open to objection? Perhaps Members of the Comittee will look very quickly at Clause 21, because one cannot propound this amendment without looking at that clause. It can be seen that the clause admits the Mental Health Act criteria included in the amendment. Secondly, if one looks at Clause 21(7), the legal aid provision is indeed complex and involves time-consuming machinery for representation. It is suggested that the more appropriate avenue of representation is the Official Solicitor. Thirdly, Clause 21 makes no mention of the three-day restriction which appears in the amendment. That is a matter of crucial consequence which must be on the face of the Bill and not in executive regulations issued by a Secretary of State.

Fourthly, in Clause 21(8) there is a panoply of control by regulation by the Secretary of State which again is complex and, I suggest, not appropriate. It is far more appropriate that the machinery for implementing the principle which I seek to propound, or a derivative or variant of it, should be by the rules of the Supreme Court and not by regulations of the Executive. I beg to move.

4.45 p.m.

Lord Elwyn-Jones

With great respect, as the noble Lord indicated, this substantial amendment raises many serious questions and difficulties. It basically concerns deprivation of liberty. Locking people up is a matter for the state and not for individuals, parents or anyone else. If that is to be done, it should have the sanction of court authority.

The principal purpose of the amendment, as I understand it, is to ensure that a court's authority should be obtained before any child can be kept in secure accommodation, which presumably means locked up—let us not mince words about that—for more than three days. Why should it be for three days? Should parents have the power to lock up a child for three days? That seems to me to go far beyond the common law rights of a parent to administer reasonable punishment. That is one of the many points which fall for consideration in dealing with this amendment.

There is no indication in the amendment as to the premises in which a child may be locked up. Proper objection was taken to certain premises which are used, and we may receive some guidance in due course from the noble and learned Lord the Lord Chancellor on that difficult and extremely important question.

Is it not the accepted view that only children in the care of the local authority and those sanctioned under the Mental Health Act can be locked up? Is that not the present limitation on the locking up of children? I ask that without firmly stating a proposition.

The amendment proposes that the child in question should be represented by the Official Solicitor if the issue arises. I am not at all sure about that. Does he not have the right, if he wishes, to be represented by a lawyer of his own choice? Let us suppose that the Official Solicitor thinks that it is a good idea that the child should be locked up. Who will speak for him then? Johnny might not like the idea at all and I should not blame him for that. I am quite unattracted by the alleged security and protection given in those circumstances by the Official Solicitor. I believe that this amendment needs much further careful thought.

Baroness Faithfull

I understand and agree with the principle behind the amendment. As the noble and learned Lord, Lord Elwyn-Jones, I am not sure about the mechanics of it. I too ask why the Official Solicitor should deal with the child and why it should not be the magistrates' court or the county court. I am not sure how the arrangements will be managed. If a case comes to the local authority's care through the magistrates' court, I believe that the magistrates' court should deal with the matter.

Secondly, I am rather concerned because I think the noble Lord mentioned voluntary homes. I hope that voluntary homes will not be used as secure accommodation and that provision of secure accommodation will rest with local authorities alone. I should be very grateful for elucidation on those two points.

Lord Campbell of Alloway

If I may with leave assist, at the moment they have none, but the Committee will see that under Schedule 6 it is proposed that they should maintain and use accommodation. I have tabled Amendment No. 208 to delete paragraph (i). My noble friend Lady Faithfull is totally right that at the moment they do not have such accommodation and I am desperately anxious to see that they should not.

Lord Renton

My noble friend Lord Campbell of Alloway deserves credit for his initiative in raising this important matter and for the trouble he has taken to think out a scheme and to draft a new clause.

Placing any person in any form of custody or secure accommodation for anything longer than a short length of time, restricting freedom, is and always has been regarded by Parliament as a serious matter requiring an order of some kind of court or another. In principle, surely my noble friend Lord Campbell is right in suggesting that the matter should be dealt with in Part II, which confers powers on the court in relation to children, rather than in Part III, Clause 21, which simply prescribes certain powers to be exercised by the Secretary of State (we know that this in effect means the Home Secretary) and how local authorities should use the accommodation for restricting liberty.

Whether or not we leave something like Clause 21 in the Bill, it is surely necessary when we are dealing with the powers of the courts under Part II that we should deal with this important and delicate question of restricting freedom. It follows, as suggested by my noble friend, that something on the lines of the new clause should be in Part II.

The noble and learned Lord, Lord Elwyn-Jones, although he poured some cold water on the general proposition, was right to raise the three points that he did. Should anybody have the power to restrict liberty for as long as three days? That needs consideration. It arises within the question of the powers of the courts. The noble and learned Lord is also right to draw attention to premises. Clause 21 deals with premises. The new clause does not. In my opinion, some kind of link will eventually be needed between the propositions in Clause 21 and those in my noble friend's new clause.

As regards the Official Solicitor, I confess to my noble friend Lord Campbell of Alloway that I too was surprised to find this in the amendment but I thought it was a point worth discussing. I believe in freedom of choice, particularly, if I may say so, the freedom of choice of lawyers. I do not suppose that the noble and learned Lord, Lord Elwyn-Jones, disagrees with me on that. Therefore, although the Official Solicitor might in some cases have a part to play I do not think we should be restrictive and limit the representation to him.

My noble friend Lady Faithfull suggested that the magistrates' courts should have this power. Of course magistrates have power to put offenders into prison. However, the question of children needs even greater thought than in the case of offenders. After all, children are defenceless people. They are not mature enough to stand up for themselves and to present their own rights. Might it not be safer and wiser where a child's freedom is to be restricted that it should be done by a judge? A circuit or Crown Court judge would seem to he perfectly right in the circumstances and I do not believe that it would create too great a burden for a High Court judge to have this power in cases which come before him or her.

Therefore, I hope that my noble and learned friend the Lord Chancellor will realise that this new clause and the consequentials to it raise important matters of principle affecting the liberty of the subject and we must try to get it right.

Lord Henderson of Brompton

I should like to add a few words in support of this amendment; not support in detail but support for the initiative of the noble Lord, Lord Campbell of Alloway, for having drawn the attention of the Committee to the important defects in Clause 21. I strongly agree with him and with the noble Lord, Lord Renton, that if it is to be in the Bill it should be in Part II rather than Part III.

After all, Part III, where it now appears, is headed Local Authority Support for Children and Families". Can it be said that locking up children is support for them? I should have thought not. If there is to be a provision for the locking up of children I should have thought it would be much better in Part II where the noble Lord, Lord Campbell of Alloway, places his new clause.

I do not wish to repeat what others have said because I have my doubts about the three days and about the Official Solicitor, but there are a number of suggestions in the new clause, which has been drafted so skilfully by the noble Lord, which deserve consideration by the noble and learned Lord the Lord Chancellor if he will be good enough to do so.

I particularly like subsection (1)(ii) of the new clause which introduces the relevant criteria under the Mental Health Act. I also like subsection (6) which provides for the education of a child who is locked up. Perhaps inadvertently there is no definition of "secure accommodation". I am told that there is a definition in the Mental Health Act, but one of the beauties of this Bill, which has already been praised by many people, is that one can understand it within its four corners. We do not want to have to look into the Mental Health Act to find the meaning of "secure accommodation". If something on the lines of the noble Lord's amendment is acceptable to the Government I hope that they will retain that part of Clause 21 which defines secure accommodation.

I wish only to add that I echo what everyone has said so far in this Committee stage. This is a matter of extreme importance because it involves the liberty of the subject. There should be no apology from anyone that this important subject has taken up the time of the Committee. I hope that the noble and learned Lord the Lord Chancellor will consider this amendment sympathetically.

5 p.m.

The Lord Chancellor

I join with those who have congratulated my noble friend on bringing this matter to the attention of the Committee. I join also with the noble Lord, Lord Henderson of Brompton, in saying that it is important and certainly I would not suggest that any time spent on it is in any way excessive. I hope I shall not be guilty of spending excessive time on it.

As my noble friend Lord Campbell of Alloway has pointed out. Clause 21 governs the circumstances in which a child who is being looked after by a local authority may have his liberty restricted by being placed in secure accommodation. Such a placement may be either in a community home provided by a local authority, a youth treatment centre provided and managed by the Department of Health, or a closed unit provided by another agency; for example, a secure adolescent psychiatric unit.

The noble Lord, Lord Henderson of Brompton, pointed out that the word "support" is used in the relevant context of Clause 21. I believe it is important to have in mind that the use of secure accommodation is not intended in any sense to be a punishment or anything of that kind. It is a specialised form of care for difficult and sometimes disturbed young people who are a risk either to themselves or to other people and sometimes to both. Some may be in care because they have committed offences and others will have severe emotional or behavioural problems which cannot be dealt with adequately without this provision. Therefore, it is a form of support; it has to he regarded as such and, in the context of Clause 21, it has to be regarded as part of the way in which children are being looked after by the local authorities. It is sad that that form of looking after some children is required, but that is undoubtedly so in some circumstances.

My noble friend is proposing that Clause 21 should be replaced, with some amendment, by a new clause in Part II of the Bill. Clause 21 reproduces, with several minor variations, the substance of what is currently Section 21A of the Child Care Act 1980. While the existing legislation and the replacement provision in Clause 21 applies to children who are being looked after by a local authority wherever they are placed in secure accommodation, my noble friend Lord Campbell of Alloway has quite rightly pointed out that no such protection is afforded to other children who may have their liberty restricted in certain comparable circumstances. To that extent I have some sympathy with the underlying purpose of this amendment.

However, there are some matters to which I should direct attention as regards the amendment proposed and which would have to be taken into account. I entirely accept that my noble friend has no intention of doing other than raising these issues for consideration today. In particular his amendment omits the important provisions of Clause 21 enabling the Secretary of State to make regulations specifying the maximum duration of a court authorisation to keep a child in secure accommodation.

My noble friend remarked that the provision for regulations may not be the best. In our view, the way of dealing with this matter by regulations has proved satisfactory and provides a good method of dealing with the details. This is a subject that should be regulated in quite considerable detail. It does not include regulation-making power to apply or disapply the provisions of the clause to certain categories of children, and to modify their effect for certain categories of children. For example, under the secure accommodation regulations currently in force, the Secretary of State—it is the Secretary of State for Health who makes these regulations because of the considerations to which I referred earlier—has established modified criteria governing the secure placement of certain children remanded to care, and has determined that no child under the age of 10 years shall be placed in secure accommodation without the Secretary of State's specific approval to the specific case. The new clause also makes no reference to who is entitled to seek the authorisation of the court to keep a child in secure accommodation.

I am also hound to agree with those noble Lords who did not feel able to accept the effect of subsection (3) which requires that the Official Solicitor represents the child in applications to detain him in secure accommodation. I say this in the knowledge that the Official Solicitor is an officer responsible to the Lord Chancellor.

This provision seems unduly restrictive. The Bill already provides adequately for representation of children in secure accommodation cases, and has the virtue that the child has the choice of deciding whether he wishes to be represented by someone with whom he is already familiar, if he is familiar with someone whom he wishes to represent him.

To return to the substance of my noble friend's concern, I have already indicated that we are not unsympathetic in principle to what he wishes to achieve. It hinges on ensuring that young people are not placed in accommodation which restricts their liberty without any recourse whatever to legal review on the merits of the placement. In particular those who have their liberty restricted in what I would term the "institutional" sector require this protection.

The proposed amendment envisages in subsection (1 )(ii) that one of the criteria for placement in secure accommodation should he that: the relevant criteria under section 2 or 3 of the Mental Health Act 1983 are satisfied". I see some difficulty in going down this road for a number of reasons. For example, the criteria in those sections are concerned with "assessment and treatment" rather than with conditions that require restriction of liberty. It is envisaged that the court would authorise the use of secure accommodation in such circumstances without also extending the regime for protection of patients' interests under the Mental Health Act 1983 (for example, the provisions regarding duration and review of detention).

There is also an associated issue here as regards the private law concerning the relationship between parents and their children. In appropriate circumstances parents may meet their responsibility for safeguarding their children's welfare by restricting liberty to some extent. Obviously, one would not want young children to be allowed to run out at liberty at all times of the day or night. A parent who acts excessively and unreasonably in this regard acts unlawfully, both under the law governing tort and also the criminal law.

While I appreciate that there is a matter that my noble friend wishes to cover, I doubt whether this particular amendment is the best way of achieving the desired objective for the reasons that I have given, among others. It will certainly be a matter that we need to look at further. As I said, I am grateful to my noble friend for raising the issue. I believe that it would be highly desirable that the various matters dealt with in regulations under Clause 21 and its statutory predecessor should be taken into account in any new provision. Therefore I ask my noble friend to reflect upon these matters as no doubt we all will between now and the next stage of the Bill.

Lord Campbell of Alloway

I shall, with leave, be withdrawing the amendment. The brevity of what I am about to say cannot in any way mask the sincerity that I feel towards all your Lordships for the contributions that have been made. Quite clearly, the amendment has served its purpose to generate discussion.

When my noble and learned friend the Lord Chancellor says that he expresses sympathy for one of the main principles that prompted the amendment, one feels that one could not have achieved more (certainly on a do-it-yourself draft) without any assistance. I wholly accept that the drafting is defective. Having listened to the noble and learned Lord, Lord Elwyn-Jones, I fully accept that the idea of the Official Solicitor is a very bad one. I was totally convinced but not for the first time by the noble and learned Lord's eloquence. There are other defects. It is quite clear that all one can use is Hansard and in effect we shall have to throw away the vehicle which is now rather creaky and inappropriate as an amendment. If before Report my noble and learned friend the Lord Chancellor will entertain, as I gather he will, further consideration and further informed representations from the noble and learned Lord, Lord Elwyn-Jones, if he will be good enough to participate, and any other noble Lords, in particular one or two of the noble and learned Lords on the Cross Benches, perhaps the Government will introduce their own solution, having accepted that there is a problem.

I am extremely grateful to all noble Lords who have spoken. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Ampthill)

I should remind the Committee that if Amendment No. 53 is agreed to I shall be unable to call Amendment No. 54.

Clause 15 [Provision of services for children in need, their families and others]:

Lord Mottistone moved Amendment No. 53: Page 11, line 7, leave out ("who are in need") and insert ("in the manner of a good parent").

The noble Lord said: In moving Amendment No. 53 I shall also speak to Amendments Nos. 55 and 57. The noble Baroness, Lady David, intends to speak to Amendment No. 56. Clause 15(1) outlines a general duty for every local authority with regard to the range and the level of services appropriate to children's needs. My amendments are designed to underline the setting of a standard for the provision of local authority services and to place local authorities under a duty to rehabilitate children in care and to promote the welfare of children within their families. It is perhaps a refinement on what is already there.

Amendment No. 53 seeks to delete the words "who are in need". "Children in need" means something to people these days and does not altogether mean just the children for whom care should be provided in a local authority area. The words "children in need" create a picture of starving children in Sudan. We had a meeting at which many people spoke and it was quite clear that one needs a different phrase from the one in the Bill. We seek to change the emphasis. We want to try to identify the way in which the local authority might provide the care and provide it "in the manner of a good parent".

Amendments Nos. 55 and 57 go together. We want to talk not just of promoting the upbringing of such children by their families. We want to emphasise the fact that we are talking about the upbringing of children by their families whether or not such children are being looked after by a local authority. Some children will be looked after not by the local authority but by a voluntary organisation. Some children may not be specifically with anybody. One hopes that the general range and level of services would be available to take care of any children for whom this was necessary at any time and that the emphasis of this important subsection could be modified in the way that I have described. As it stands it does not quite hit the nail correctly on the head. I hope that my noble and learned friend the Lord Chancellor may feel some sympathy towards rearranging the subsection in the way that I suggest. I beg to move.

5.15 p.m.

Lord Simon of Glaisdale

I wish only to say that if the words "in need" are removed very extensive further amendment to the Bill will be needed. One has only to look at subsection (9) to see that the words are again used. They are used repeatedly in the schedule. My other objection is more substantial. It seems to me that "in the manner of a good parent" is far too vague a criterion. I have absolutely no idea how that could be applied and I am sure that any court would have great difficulty in deciding what the proper standard should be. While I understand why the noble Lord, Lord Mottistone, wishes to extend the criterion a little, I very much hope that he will consider that this way of doing it will cause immense difficulty.

Baroness David

I hope that the noble and learned Lord, Lord Simon of Glaisdale, will have some sympathy with our amendment, which does not delete "in need" but adds "or who are likely to be in need". The group of amendments tries to widen the scope of the authority so that some preventive action is taken. We wish to help not just those already in need who may be in some trouble or difficulty because of their family circumstances but to help other children in the community and to try to prevent them getting into the kind of problems which the words "in need", as the noble Lord, Lord Mottistone, has said, suggest.

For some time people have been trying to get more action in this respect. I refer to the 1984 report of the Social Services Select Committee of another place. The Short Committee established the link between poverty, deprivation and reception into care, and said that, children in care are the children of the poor". The intentions of the clause of the Bill concerned with local authority support for children and families will be undermined if services can be offered only after there has been a crisis and the child is in need. This is why we should like to have the phrase widened.

Perhaps I may quote a paragraph from the Select Committee report: While there is a general acceptance that more could and should be done explicitly to prevent children entering long-term care, and some awareness of the courses of action that would make this possible, there is as yet regrettably little indication of any concerted strategy which could translate pious thoughts into action. There are many reasons for this. One must surely be the lack of any organisational commitment to prevention to parallel that to fostering and adoption. Few authorities if any have a similar commitment to prevention. If half the funds and intellectual effort which has gone towards developing strategies for finding alternative families had been put into what we can only lamely call preventive work, there would be unquestionable advantage to all concerned". We want to tilt the Bill in that direction. I am quite sure that this is the aim of all those who have their names to these amendments.

Amendment No. 56 is similar to Amendment No. 57 and I am sure is aimed at the same thing. It is for clarification and seeks to make clear to local authorities that they have a rehabilitative duty to children in care whether it is voluntary or compulsory care.

Previous legislation placed local authorities under a duty to, promote the welfare of children by diminishing the need to receive children into or keep them in care under this Act". That passage appeared in Section 1 of the Child Care Act 1980. The duty has now gone. So we want to try to put into the Bill a similar duty. The Bill contains a duty: to promote the upbringing of such children". —that is, children in need— by their families". so long as this is consistent with their welfare. That point is covered in Clause 15(1)(b). A child in need is defined by Clause 15(9) as one who would not achieve reasonable standards of health and development without provision of local authority services.

We are worried that local authorities will say that children cease to be "in need" when their needs are being met in care by the provision of services. However, a careful reading of the Bill suggests that being "in need" continues even when the needs are met. So the Government should not object to the addition of the words, whether being looked after by a local authority or not", simply as a clarification of the duty. We believe that clarification along those lines is extremely important.

Social workers' minds must be clearly focused on the need to plan for a child once he or she is received into care. Their first responsibility must be to ensure that the child is returned home whenever possible. The longer a child remains in care, the more likely it is that he will not return home.

Research has shown that a child who is left to drift in care for longer than six months is unlikely to be returned home. Therefore, the Bill must clearly spell out the rehabilitative duties of the local authority. That is, I believe, what we are all trying to do by way of these five amendments, although perhaps in slightly different ways. I am sure that the aim is the same. I beg to move.

Lady Kinloss

I should like to express my support for all these amendments. All children in local authority areas should receive the same quality services. But a child in care may well need special attention for a particular problem, in the manner of a good parent". Amendment No. 55, by leaving out the word "such", means that any services received would not be seen to stigmatise certain children and their families. The noble and learned Lord, Lord Simon of Glaisdale, said that we should not leave out the words "who are in need". But some authorities would like a definition of those words. Perhaps the noble and learned Lord can help the Committee in that respect?

Lord Simon of Glaisdale

Perhaps I should intervene at this point. What I said was that if those words are removed, many other amendments to the Bill will be needed.

Lord Seebohm

I am most impressed by the remarks of the noble Baroness, Lady David, as regards prevention. I think that we must concentrate as much on that aspect as we do on cure. When one considers Clause 15(1)(a) which reads, To safeguard and promote the welfare of children … who are in need". one is looking at the cure rather than prevention. I wonder whether a simpler amendment such as, for example, in need, or who are at risk", would not be rather better wording.

Baroness Faithfull

I agree with all that the noble Baroness, Lady David, said. I wish to ask just two questions. First, however, I support what the noble Lady, Lady Kin loss, said as regards what is meant by "in need". It can be interpreted in many ways. I see that it will be difficult to put those words all the way through the Bill, as it will to put in the phrase, "of a good parent". Nevertheless, whether it is one thing or the other, it seems to me that it needs to be defined, especially when local authorities are having to ask for resources.

I take up the point raised by the noble Lord, Lord Seebohm, and the noble Baroness, Lady David, as regards the words, who are likely to be in need". There are an enormous number of children who would never come into care if certain facilities were available for them—not only those who are at risk at a particular time but also, for example, latch-key children. They are at risk. If, however, there were clubs, facilities and ways of caring for those children, many would not have to be put into care.

There are many cases, too, of children at risk, who, with broad-line help, would not come into care. I must specially mention—although there is not the time to expand on the matter—the care of children under five. Many mothers have to go out to work. Unless we have a system of care and a policy for the under-fives—by that, I mean all children—we will have children in care who could have been prevented from being taken into such care. Therefore, I very much support the amendment to insert the words: who are likely to be in need". We need to expand that concept so that facilities exist for all children in the community in certain areas.

The Lord Chancellor

One of the essentials, if the Bill is to be at all comprehensible, is that children who are to be the primary subjects of the attention of this part of the legislation should be described with reasonable brevity. We have used the phrase, children … who are in need as the brief reference to such children. But, of course, we have not left it at that. The idea mentioned by the noble Lord, Lord Seebohm, is, I believe, sought to be catered for in the wide definition. If Members of the Committee would be kind enough to look at Clause 15(9), it reads: For the purposes of this Part a child shall be taken to be in need if—

1. (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
2. (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
3. (c) he is disabled".

The idea is to see how the child will he unless local authority services are provided for him. The idea of likelihood and of prevention is encapsulated in those provisions. The words that he is, unlikely to achieve or maintain", emphasise that point. It is not who is in need in the sense of being in present need only; it is in need in the sense that unless something is done for him he is unlikely, for example, to maintain a reasonable standard of development.

Therefore, one has to see the child in his or her particular situation and ask, "Well, if nothing is done for that child by the local authority, is that child likely to attain a reasonable standard of development?" in order to test that part of the provision. So the idea behind Amendments Nos. 54 and 71 is included in that definition. We are looking at the likelihood; in other words, if nothing is done, what is the likelihood?

If "in need" is not a good phrase and a better short one can be thought of, it would improve the Bill. But that phrase is really just shorthand for a much longer expression contained in subsection (9)(a) (b) and (c). Every time one reads the phrase "in need" one ought, if one wishes to understand it fully, incorporate the full text of subsection (9)(a) (b) and (c).

However, as a matter of draftsmanship it is a neater device to use a short phrase like "in need" and expand it. That is what we have sought to do and I believe that phrase covers all that has been explained on that aspect by the noble Baroness, Lady David, the noble Lady, Lady Kinloss, the noble Lord, Lord Seebohm, as well as my noble friends. I shall come back to the point about including those being looked after by the local authority because the definition takes care of that, too, in a way which I shall try to explain.

Amendment No. 53, the first amendment, deletes the phrase "who are in need" and inserts, In the manner of a good parent". I should like to make a point about that. We are concerned with two matters: first, those with whom we and the local authority should be particularly concerned—the children; secondly, to what standard should care be provided for them? To delete the phrase "in need" and substitute the standard of care is somewhat to confuse the two concepts.

While I am on the subject, this point does not directly arise out of the amendments but from the remarks of the noble Baroness, Lady David. The idea is to ensure that so far as possible children are kept with their families. That is very well emphasised by Clause 15(1)(b). In other words, the real subject of promotion is the upbringing of children who are in need by their families. It is only in so far as it is necessary to safeguard and promote the welfare of the children within the area who are in need that anything else is to happen. Therefore there is considerable emphasis in the Bill on the maintenance of the existing family.

From the way in which my noble friend has explained the first amendment, he is seeking a standard of care rather than describing those who shall be the concern of the provision. Therefore perhaps I do not need to elaborate the point. If the amendment were simply taken as it stands, the result would be to put the local authority in the position of being a good parent in respect of all the children within the authority's area. As regards a good number of families in the area, the children could be left to their parents, who are provided for them by nature. It is only where the local authority is required to come in for some reason that it should have to do so.

That suggests to me that perhaps I might go on to the last matter raised by these amendments: without the provision for him of services by a local authority". That is part of the definition. The child is in need if he will not attain the necessary standard, without the provision for him of services by a local authority under this Part". If the child is being looked after by the local authority at the time, then the test is to be applied on that basis. In other words, the amendment requires that we should consider the matter on the basis that the children are to be considered as if they were not being looked after by the local authority.

The definition makes it clear that one looks at what would happen to the child if the local authority were not providing services for him. Therefore the fact that he may at the time be having services provided for him by the local authority does not affect that. He is no less in need because he is getting the necessary services from the local authority within the meaning of the definition, because the definition requires one to look at the situation and what would be likely to happen to the child if he were not getting the local authority services. The point is covered by the definition. I hope that I have explained that properly. It seems reasonably clear that that is so, and if noble Lords are not clear about it then it is because of my failure to make it plain.

5.30 p.m.

Lord Simon of Glaisdale

I wish to ask my noble and learned friend about one small point. I respectfully agree that the words "in need" are shorthand for what is spelt out in subsection (9). I also respectfully agree that subsection (9) imparts the notion of likelihood. However, it does so, For the purposes of this Part". That is the difficulty. I may be wrong but I am sure that the words "in need" occur repeatedly in the schedule and I thought they came elsewhere than in this part of the Bill. Before the next stage will my noble and learned friend consider whether "this Part" should be "this Act"?

The Lord Chancellor

Yes, I shall certainly be happy to do that. I am inclined to think that the phrase "in need" is used in relation to the local authority's responsibilities, but I shall certainly look at it. I believe the noble Baroness wants to comment.

Baroness David

Yes. The noble and learned Lord has given a very helpful explanation, but we needed it. These amendments were put down because we did not fully appreciate the preventive intentions behind this clause. I am very glad to hear that they exist. However, social workers may not understand that, just as we did not understand it. For the purpose of clarification and to make it much easier for them, it would be better if at any rate, or who arc likely to be in need were incorporated in the Bill. I think that would be helpful to the social workers when they are directing their minds to their jobs.

I should also like to insert: whether being looked after by a local authority or not or: including those being looked after by the local authority or not for the same reason. It would make it clearer for those who are going to have to work with the Bill when it becomes an Act. I wonder whether the noble and learned Lord will give that matter consideration anyway.

The Lord Chancellor

I am happy to agree to any request that noble Lords make to me to consider a matter. One could easily put in, who are in need or likely to he in need and then define that phrase in exactly the same way as we have done here. That would be adding words to the Bill. I suppose it might be useful for the sake of emphasis. One has to remember that a Bill of this kind is intended ultimately to be an Act with legal effect. We are doing our best to make it a plain, straightforward statement.

However, one cannot always achieve in it the standard of clarity that one might expect in some form of address with emphasis. The written word, however clear, cannot get to that. A certain amount depends on the emphasis. In a sense the emphasis in this clause is, to start with, on subsection (9) paragraphs (a), (b) and (c). That is the point. I admit that that is at the end but if one started with it, it would certainly help. Unless one explains the subject matter in which the phrase arises, it is difficult to give the phrase content. So the draftsman is in something of a dilemma. He wants to put emphasis on this definition but also to explain, first, why he needs to have a definition at all and what the circumstances are. So there is a great choice as to where to start, and this is the choice he has made.

On the whole, as has been said, I believe that pretty good choices have been made. But I shall certainly consider whether we can do anything to improve this. However, I am not at all hopeful that I shall be able to do anything that will not be regarded as obscuring the clarity that we have at present.

Lord Mottistone

I am grateful to my noble and learned friend the Lord Chancellor for his explanation, and indeed to all other noble Lords who have joined in this very interesting debate. The problem is that colloquially the phrase "children in need" does not quite mean in people's minds what subsection (9) says it means. I can see why my noble and learned friend says that the draftsman has to choose something as his starting point, and that what he has chosen are probably the best words possible. But it is a pity that there is a colloquial understanding of "children in need" which confuses the issue.

I think it is splendid that my noble and learned friend has agreed to look at this. Those who advised me will also look at it, and perhaps out of this debate we may come up with something which will improve the situation slightly. I hope that that will be the case, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 54: Page 11, line 7, after ("need") insert ("or who are likely to he in need").

The noble Baroness said: I have already spoken to this amendment, but I want to move it so that the noble and learned Lord the Lord Chancellor can say that he will consider it. Therefore, I beg to move.

Lord Simon of Glaisdale

The noble Baroness has given me an opportunity for second thoughts. On further consideration, I do not think that it would do to have the words, For the purposes of this Act in subsection (9) rather than: For the purposes of this Part". I should have thought it would need to be moved into the definition clause, or at any rate there should be a reference back from the definition clause to subsection (9). I realise that that is trespassing on the patience of the noble Baroness, because it has really nothing to do with her amendment. But I take the opportunity to correct what I think was a rather wild and premature suggestion.

The Lord Chancellor

I would never so characterise a suggestion from the noble and learned Lord. I have indicated that I shall see whether I can in any way make the matter plainer. I shall of course bring the points that have been made in this debate to the attention of the draftsman. From what I know about it, and from the structure of the Bill, I heel that it may not be possible to improve this, but I shall certainly see what can be done.

Baroness David

On that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 to 57 not moved.]

5.45 p.m.

Lord Prys-Davies moved Amendment No. 58:

Page 11, line 11, at end insert— ("( ) A local authority shall have a duty—

1. (a) to reduce the need to bring—
1. (i) proceedings for care or supervision orders with respect to children within their area;
2. (ii) criminal proceedings against such children;
3. (iii) any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; or
4. (iv) wardship proceedings; and
2. (b) to encourage children within their area not to commit criminal offences.").

The noble Lord said: With the leave of the Committee I shall speak also to Amendment No. 67, because the basic purpose of both amendments is the same. Part I of Schedule 2 brings under nine main headings the many responsibilities of local authorities towards children in their area. But those responsibilities, to a layman, are tucked away in small print at the back of the Bill in the schedule.

The purpose of both amendments is to transfer the responsibility, or the wording from the schedule, to the main body of the Bill and to convert the responsibility into a duty. Social workers, and others, and voluntary organisations with a concern for children consider that the responsibilities in paragraph 6 of the schedule—that is, those contained in Amendment No. 58—which deal with preventing the need for children to be taken into care, and the responsibilities in paragraph 9—those covered by Amendment No. 67; namely, promoting the rehabilitation of children whom local authorities are looking after—should be expressed as duties. As I have said, that should be transferred to the main part of the Bill.

Prevention and rehabilitation are seen as being directly and centrally related to the general duty which is spelt out in the first subsection of Clause 15. I understand that paragraph 6, which prevents the need for children to be taken into care, has its roots in Section 1 of the Child Care Act 1980. There that provision is expressed as a duty. I do not want to mislead the Committee, because later on as one reads through the clause it becomes clear that it is a power rather than a duty. But, nevertheless, it is expressed in the 1980 legislation as a duty. Those whom I have consulted believe that it should now retain at least the status of a duty, although de facto it may be no more than a power.

By accepting these amendments it is felt that the Government would be giving a very clear signal to professional workers in the field and to local authorities of the importance which they attach to the principles of prevention and rehabilitation. They would, by so doing, be giving a tremendous encouragement to field workers. I could add that there is a wealth of authority in support of enhancing the significance of prevention and rehabilitation. There is a great deal of literature and a great deal of research work which will be familiar and very well known to the Department of Health and the Department of Social Security. We believe that if the Government could see their way clear to consider transferring these responsibilities to the main body of the Act and to converting them into a duty, that would be extremely helpful. With those words, I beg to move the amendment.

Lord Mottistone

I wish to support in principle what the noble Lord has just said about taking the relevant parts out of Schedule 2 and putting them in the main body of the Bill. I have a series of amendments. Amendments Nos. 138 to 143, which seek to do that as well. But they seek to do that rather more bluntly and not in such a delicate style. More importantly, they seek to put them into Part I—the general principles of the Bill. We believe them to be so important that we think that is the more suitable place for them. However, in principle, I go with the noble Lord that we are taking them out of Schedule 2, where they do not really belong.

The Lord Chancellor

One of the fundamental requirements of a comprehensible Bill is that it should have some form of structure. Clause 15 sets out the general duty, and we believe it is right that that general duty should he supplemented by provisions setting out a number of specific duties and powers. The mere fact that those duties and powers are set out in the schedule does not mean that they are any less important.

The idea that a schedule is less important than the main provisions of the Bill may perhaps be popular, but if one is to make any large statutory provision that is an idea of which the reader or user should be disabused. The schedule is just as important as the main provision.

One wants to bring together like requirements, and removing two of the provisions from the schedule and inserting them in the Bill would separate them from their neighbours. All the provisions in Part I of Schedule 2 are specific powers and duties whose purpose is to implement the leading and general duty laid out in Clause 15. Presumably, if one were to do what is proposed properly one would have to take the whole of Schedule 2 and put it immediately behind Clause 15. As a result that part of the Bill would have no proper structure and there would be no general provision with specific powers.

Furthermore, the specific powers and duties are so detailed that it is right that they should be capable of alteration without the necessity for primary legislation. That is my answer in relation to the main points of Amendments Nos. 58 and 67. So far as concerns Amendment No. 58, I think that the words "take steps designed" provide a more specific duty than the proposed words "have a duty". The intention is to direct the attention of the authority to the fact that there are actions that it should take and that it must take steps designed to reduce the need to bring proceedings, and so on. It should initiate action. The words "shall take steps designed" suggest no less a duty than the words "to have a duty".

Turning to Amendment No. 67, paragraph 9 in Part I of Schedule 2 reads: to enable him to live with his family". There is a difficulty with that. If, as the amendment proposes, it is the duty of the local authority, to ensure that the child returns to live with his parents, relatives or friends to whom would that apply if the friends are not living at the same place as the parents? The local authority appears to have an option in respect of that duty. The use of the word "duty" does not add to the power of the local authority to enable the child to live with its family.

On that particular issue I do not believe that there is a very sharp distinction between what appears in the Bill and what is proposed. On balance, having regard to the context, I would suggest that the wording in the Bill is preferable, particularly when there is more than one option open to the authority in respect of the child in certain circumstances. My main point, however, concerns the schedule and the main provisions.

Lord Prys-Davies

We accept that the schedule does not have inferior status and that it is an integral part of the Bill. However, the point has been made by my noble friend Lady David that professional workers and social workers may attach greater significance to their responsibilities if they are set out on the face of the Bill rather than in the small print of the schedule. We accept that the duty is as powerful as if it had been expressed in the Bill itself.

I accept that possibly our amendment has been expressed in too absolute terms. In relation to Amendment No. 67, I also accept that we have to recognise that the phrase "parents, relatives or friends" is not the phrase which is used in the Bill. I believe that that phrase comes from the Child Care Act 1980.

I shall not take up the time of the Committee. We have expressed the concern that has been voiced by those who are actively engaged in the field as to how helpful it would have been if those two powers or responsibilities which they consider to be of great significance could be spelt out in the Bill. However, with those words I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved].

6 p.m.

Lord Elwyn-Jones moved Amendment No. 60: Page 11, line 19, leave out subsection (4).

The noble and learned Lord said: The amendment would leave out subsection (4) from Clause 15 of the Bill. That subsection surprisingly provides that, The Secretary of State may by order modify or repeal any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there".

Part I of Schedule 2 sets out some vital duties. Paragraph 4 of the schedule deals with the duty on the local authority to prevent neglect or abuse of children. Paragraph 5 imposes upon the local authority the duty to: provide services designed—

1. (a) to minimise the effect on disabled children within their area of their disabilities; and
2. (b) to give such children the opportunity to lead lives which are as normal as possible".

Paragraph 6 sets out proposals for rehabilitation. Those are quite fundamental provisions.

What is proposed in subsection (4), which I suggest to the Committee should be deleted, is that the Secretary of State may by statutory instrument—that is to say, by his own order—modify or repeal any of those vital provisions. In other words, what is now embodied in the legislation through the schedule is to be removable by the summary process of a statutory instrument bypassing the ordinary legislative proposals in regard to propositions which are of quite fundamental importance. In my view, which is also that of my noble friend, to turn something which is in primary legislation into a statutory instrument is a wholly unacceptable and indeed an astonishing step. I know of no precedent for such proposals. There may be some and no doubt the noble and learned Lord, with his great wisdom, has a few tucked up his sleeve. It is fairly new to me. But whether or not it is new, it should not be countenanced by this Chamber. I beg to move.

Lord Simon of Glaisdale

I venture to support this amendment. My view of it was reinforced by my noble and learned friend the Lord Chancellor when he answered the noble Lord, Lord Prys-Davies. Quite rightly he said that the schedules were no less important than the body of the Bill. That is quite right. They have full legislative force. They express the meaning and intention of Parliament. I have no doubt that there are abundant precedents for this move. They built up until Parliament and the public exploded and there was the Donoughmore Report. However, this kind of thing is now starting again and increasing. As my noble and learned friend Lord Elwyn-Jones suggests, it ought to be stopped completely in its tracks.

The Lord Chancellor

I mentioned this provision when I spoke about the schedule because I did not want it to be thought that I was speaking of the authority of the schedule apart from this provision. I explained then and do so again that the purpose of this clause is to make it possible to keep up to date the detail of these provisions.

The general provision is in Clause 15. In the schedule there are specific provisions to deal with detail which are equally important and equally vital. But they are provisions which the light of experience may well show can be improved. This is an area of great development in thinking and practice. The whole area of local authority support for children and families is a developing area. The Secretary of State wishes to have the power to keep up to date these detailed provisions. Of course the provision is to be effected by order—he cannot dc it by his own hand—in the sense that it can be interfered with by Parliament. The order would be capable of being annulled by the negative resolution procedure. Therefore the Secretary of State's order could be prevented by Parliament from becoming effective.

However, it is important in this area that we should be able to keep up to date the details of specific powers and duties in line with developments in practice. Unless we want to freeze these details altogether, surely we are right to have a power of modification in the Bill. It does not mean that these provisions are any less important. Indeed, in a sense it makes them even more important. It is vitally important that from time to time they should be kept up to date and in accordance with what is seen as required in the way of specific detail in this area.

I appreciate that this is a matter of concern; but I submit that it is also a matter of concern to prevent this particular area from being fossilised or so encased in primary legislation that the only way to effect improvements in these detailed provisions would be to wait for another opportunity to do so. The Committee knows that an opportunity to cover such matters comprehensively, as we are now doing, does not come very often in view of the number of competing demands for the valuable commodity of parliamentary time.

Lord Simon of Glaisdale

When implementing a general provision in detail a government have two choices. A perfectly proper choice is to put the provisions into secondary legislation. If possible such legislation can be amended as circumstances change by affirmative—not negative—resolution. The other way is to put them into an Act of Parliament. But an Act of Parliament ought to be changed only by another Act of Parliament. With all respect I say that it is really a constitutional outrage for a Secretary of Strate to arrogate to himself the right to add to, repeal, replace or modify any provision of an Act of Parliament.

Lord Dormand of Easington

My noble and learned friend Lord Elwyn-Jones raised a point which I felt was very important; namely, whether or not there was any precedent for what is now proposed. I noted that the noble and learned Lord the Lord Chancellor did not refer to that point when he replied. I wonder whether the absence of any reference means that there are no precedents or indeed that if there are the noble and learned Lord cannot recall them at the moment. However, I feel that in a matter of this importance the question of precedent is vital. I wonder whether the noble and learned Lord would like to respond to that point.

The Lord Chancellor

After the words of the noble and learned Lord, Lord Elwyn-Jones, the noble and learned Lord, Lord Simon of Glaisdale, said that he had no doubt that there were plenty of precedents. I did not feel it necessary to waste time by repeating his remark. I am sure that the Committee will know that the noble and learned Lord would not make such a remark unless he thought that it was correct.

I have no doubt at all that this kind of provision occurs. But I am not seeking to justify it by reference to any specific precedent. I seek to point out that these provisions are very important; therefore, they are put in primary legislation. Equally, they are provisions of considerable detail. We consider it wise to have that sort of detail in primary legislation for the reasons put forward by the noble Lord, Lord Prys-Davies, when we were discussing earlier amendments. These are important matters. They must be seen as important. The best way we can do that is to put them in the primary legislation.

However, if we are also to have the benefit of keeping the provisions reasonably up to date there must be a mechanism for doing so. That is the purpose of this provision and, as I say, it is subject to parliamentary scrutiny. The Secretary of State does not arrogate anything to himself. He is arrogating nothing to himself. He will have nothing except what Parliament gives him. It is for this Chamber to consider whether this is a wise measure.

I submit that it is an extremely wise measure. If ever there were a satisfactory situation in which to do this, it is this one. The Bill reaffirms on one hand the importance of primary legislation, and on the other the necessity of keeping up to date in a developing field. It is a field which affects our children in ways that sometimes crop up quite unexpectedly. Indeed, the need for developments in practice sometimes occurs quite unexpectedly. This is a way in which the Secretary of State, subject to parliamentary control, can do what is required to keep the provisions up to date. This is the way I present it to Members of the Committee.

Notwithstanding that it may not always be wise to have such provisions as this, I hope that Members may think that on this occasion the Government have acted wisely in making this proposal.

Lord Elwyn-Jones

It is quite true that the Secretary of State has only the powers that Parliament gives him. I, and other members, are saying that he should not he given these powers to repeal crucial "provisions" in the legislation—I use that word for short. I do not wish to repeat what I have said. The provisions are quite fundamental. At the moment the subsection provides that, The Secretary of State may by order … repeal any part he likes of Schedule 2. It is true that the subsection then states, or add any further duty or power". My noble and learned friend Lord Simon of Glaisdale made the stern comment that this was a constitutional outrage. I do not think that I can improve on that. When it comes to the next stage of the Bill we shall put it to the test. In the circumstances I regret that I must beg leave to withdraw the amendment.

Amendment. by leave, withdrawn.

The Lord Chancellor moved Amendment No. 61: Page 11, line 24, leave out ("or facilities").

The noble and learned Lord said: This is an attempt to simplify the drafting of the Bill by redefining the word "service" in Clause 77 to include "facility" to prevent us having to say "or facilities" every time. It is an extension of the device that I mentioned earlier.

It is entirely a drafting amendment. I beg to move Amendment No. 61. The same explanation applies to Amendments Nos. 62, 89 and 255.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 62: Page 11, line 28, leave out ("or facility").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

6.15 p.m.

Baroness David moved Amendment No 63: Page 11, line 31, leave out ("in exceptional circumstances, in cash.") and insert ("in cash if this would be the most efficient and effective means of giving such assistance").

The noble Baroness said: This amendment seeks to leave out "in exceptional circumstances" in Clause 15(6) and insert: in cash if this would be the most efficient and effective means of giving such assistance".

The link between poverty and reception into care has been conclusively established. The Short report states: Children in care are the children of the poor". I have already quoted that when we were dealing with the earlier group of amendments—Amendments Nos. 53 to 57. There have been several other studies: Heyward and Allen; Valencia and Jackson; and Hill. They have demonstrated the value of cash payments to families in order to avert crisis and breakdown. At the same time there is evidence as to the disparity between local authorities in respect of Section 1 payments. the very low amount of the average payment, and of the misunderstandings on the part of social workers which frequently surround policy in this area.

Sometimes social workers go to great lengths, and paradoxically expense, to avoid cash payments because of the phrase, "in exceptional circumstances". It is argued that by deleting this and substituting the alternative wording it would simultaneously increase the flexibility of social work responses and in some cases reduce the overall cost to the local authority while benefiting the child and his or her family. I hope that the noble and learned Lord will look favourably on this. I beg to move.

The Lord Chancellor

As the noble Baroness explained, this amendment would relax the requirement in the Bill as drafted that cash assistance should be given only in exceptional circumstances, and allow cash assistance to be given where it was the most efficient and effective means of giving assistance. The examples to which the noble Baroness referred would probably be in the nature of exceptional circumstances. They would be covered by that. However, we are considering this amendment.

The Bill reflects the present provision as reflected in Section 1 of the Child Care Act 1980, which itself was a consolidation of Section 1 of the Children and Young Persons Act 1963. The review of child care law recognised that local authorities interpreted "exceptional circumstances" differently, as the noble Baroness has said, but concluded that this was still the best way of allowing emergency and imaginative use of money by local authorities. A broader power could push local authorities into an income maintenance role which is the function of the social security system.

The main objective of these provisions is to make services available and to make provision for cash payments in exceptional circumstances. We suggest that to adopt the other view would push local authorities into an income maintenance role which is the function of the social security system. In the Government's view that argument, which was considered in the review of child care law, remains sound. I therefore invite the noble Baroness not to press the amendment.

Baroness David

I do not know whether some guidance to social workers could be given. Clearly there is misunderstanding and different understandings in different parts of the country about how this should work. That is a pity. It clearly leads to money sometimes not being given when it might be. That is a pity because it might save later expense. Does the noble Baroness wish to speak?

Baroness Faithfull

Many of us consider that it was a great pity that the social fund under the Social Security Act was set up in its present form. My worry about this is that local authorities would find themselves spending a great deal of money that in other circumstances might be spent by the social fund. I should prefer to have the terms of the social fund altered rather than making provision for it in this Bill.

Baroness David

In all the circumstances, having listened to the noble and learned Lord and the noble Baroness, I may be wise to withdraw the amendment, consider it further, and decide whether I should come back with something similar at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 64:

Page 11, line 31, at end insert— ("(6A) Any assistance given in cash or in kind under subsection (6) above shall not count as income in respect of any benefits payable under Part II (Income Related Benefits) of the Social Security Act 1986.").

The noble Baroness said: The purpose of the amendment is to probe the Government's intention on replacement of Section 1 payments. In effect Section 15(6) replaces and broadens the current provision under Section 1 of the Child Care Act 1980. At present Section 1 payments are disregarded for the purpose of calculating means-tested social security benefit. This amendment to Clause 15(6) seeks to probe the Government's intention with regard to the proposed provision which it is hoped will treat payment under Clause 15(6) in the manner that current Section 1 payments are treated for social security purposes.

I hope that the noble and learned Lord will be able to give us an assurance that that is so.

The Lord Chancellor

My understanding is that with regard to assistance given under the Child Care Act 1980, Section 1 is disregarded in total for the purposes of income support, family credit and housing benefit under the regulations made under the 1986 Act. The status quo will he maintained automatically by operation of the InterpretationAct 1978 as we are replacing Section 1 of the Child Care Act 1980 by this provision.

Baroness David

That is an adequate assurance and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 65: Page 11, line 33, at end insert ("but no child in need shall be deprived of any service provided by subsection (1) which he otherwise requires to safeguard and promote his welfare by reason of his parents being unable to meet any financial conditions imposed.").

The noble Lord said: This amendment deals with Clause 15(7). It provides that assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value in whole or in part.

There is nothing remarkable about that. However, assuming that conditions are to be imposed for repayment, there are no express powers allowing for the waiver or relaxation of the conditions. If they are not met because the person upon whom they are imposed is unwilling or unable to meet the conditions, I hope that Members will agree that the child or children must not suffer. We are dealing with children in need and therefore, by their nature, they are already at a disadvantage.

The Bill contains other sanctions to deal with noncompliance with financial conditions. In that spirit the amendment provides that no child in need should be deprived of any service which he requires by reason of his parents' inability to meet any financial conditions imposed. I beg to move.

The Lord Chancellor

Subsection (7) as drafted specifies that assistance for children in need may be either unconditional or subject to conditions to repayment. The amendment would add a caveat that no child in need should be deprived of any service which he requires by reason of his parents being unable to meet any financial conditions. I sympathise with the sentiments which prompt this amendment but I do not think that it is necessary. First, subsection (7) should be read with subsection (8), which requires the authority to have regard to the parents' means before imposing conditions. That is intended to ensure that repayment conditions which would be beyond the parents' means are not imposed. The authority would be expected to act reasonably and any disputes could be taken up under the representations procedure which each authority must establish under Clause 22. That should ensure that arrangements are fair. However, I shall consider whether additional provisions similar to those in paragraph 19(2) and (4) of Schedule 2 would be appropriate. These might provide specifically that an authority may impose conditions as to repayment of the asssitance only if it considers it reasonable to do so, and that a parent is not liable to repay any assistance when in receipt of income support or family credit under the Social Security Act 1986. I shall certainly examine that aspect.

Assistance in cash or kind is the only local authority service for children in need which may, under Clause 15, be given subject to conditions. The Bill does not provide that failure of parents to comply with any conditions as to assistance renders the child ineligible for other services. The authority's general duty to provide services appropriate to the needs of children in need would remain. I am doubtful whether further provision is required. However, in the light of the noble Lord's remarks I shall examine the issue.

Lord Meston

I am grateful for that indication. Will the noble and learned Lord examine the possibility of giving power to relax or waive the conditions in circumstances which do not necessarily involve the wholesale reassessment of the means of those concerned?

I am grateful for the noble and learned Lord's attitude and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 66: Page 11, line 34, leave out subsection (8).

The noble Baroness said: The amendment aims to leave out subsection (8), thereby removing the requirement for a means test before a local authority is required to promote the welfare of a child.

Before giving assistance in order to promote the welfare of a child subsection (8) requires the local authority to impose a test of means on the child and his parents. That introduces an unacceptable provision into the clause. Under this subsection, as under other subsections of the Bill, the welfare needs of the child should be paramount. By imposing a test of means on the parents that primary requirement is lost.

For example, there may be a child in a family which has one parent who is in well-paid employment but who temporarily leaves the family without means. Such cases have been encountered where North Sea oil workers have come ashore with substantial pay packets and have then chose not to return to the family, temporarily deserting it. In such circumstances families are placed under severe hardship. They have a choice of turning to the social fund for a crisis loan—a discretionary and cash-limited provision—or to the local authority for assistance. It would run counter to the spirit of the clause if the local authority were unable to assist in such a case because the man had neglected his responsibility for his wife and children.

What too of separated and divorced couples where the man cannot or will not provide for his children, perhaps because he has a new partner to support? Under the wording of the subsection, assistance would have to be denied, even in cases of proven need, if the estranged parent was considered to have means sufficient to support the child or children. Again, such limitations run counter to the spirit and the intent of the clause.

Cases where parents are deliberately negligent in their duties towards their children are the exception. Nevertheless, the local authority must have the ability to assist in such cases, putting the need of the child first and foremost. In cases where on the part of relatively well-off parents are guilty of such negligence, subsection (7) in any event gives the local authority the power to insist on repayment of any help given at such a time and in such a manner that the parents can afford.

I believe that the subsection is objectionable and I hope that the noble and learned Lord will agree to its deletion. I beg to move.

Lord Renton

Although I appreciate the motives of the noble Baroness, we must bear in mind that there are occasions when children have their own means. They may have money which arose under a will and which is held in trust for them. Their parents may have provided for them. A voluntary society may be caring for them. We are concerned with public money and it would be wrong for the Committee to ignore any other income that a child may have.

Baroness David

Is not that point covered by subsection (7)?

The Lord Chancellor

If one has subsection (7) one must have a subsection similar to (8). The idea is to discover on what basis subsection (7) should operate. We should be wrong to believe that need always equates with continuing financial hardship. In an emergency arising because of illness or loss of a job, for example, assistance may he justified to safeguard the welfare of the children. However, if the parents would be well able to repay some or all of the assistance when the emergency had passed, it is surely reasonable to allow the authority to impose such a condition.

The noble Baroness mentioned the case of someone who irresponsibly failed to provide for his family although he had plenty of money. I believe it to be eminently reasonable that in such a case the local authority should impose a condition of repayment when giving the assistance required. That does not mean that assistance is given only when payment is made. It is a repayment of the amount of the assistance or of its value. If the assistance was in the form of money, repayment would be the amount in whole or in part. If the assistance was in kind, then it would be the value of the assistance. That seems highly reasonable.

I cannot see any good ground for allowing a person who has plenty of money to put the burden of his family on the local authority without any recourse against him. It is true that if a person puts his family in that situation the local authority should have the power to act and do what is necessary to preserve the family from harm; but when it has done it I cannot see any objection to its having a power to ask for the money or the value of what it has done from the person, well able to afford it, who should have done it in the first place. And if all that is right, then you must have some machinery for ascertaining whether a person had the means required to do it in the first place: in other words, whether he had the sort of means required in subsection (8). That is just the machinery for finding out whether the person concerned should he subject to such conditions.

I entirely understand the reasoning that prompted this amendment, hut I would suggest to the noble Baroness that in the sort of case to which I have referred this type of power is eminently wise.

Baroness David

I am disappointed with the answer, but I shall read what the noble and learned Lord has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

6.30 p.m.

Baroness Masham of Ilton moved Amendment No. 68:

Page 12, line 4, at end insert— ("( ) If one or both parents have a disability this alone shall not be sufficient reason to assume the child is in need.").

The noble Baroness said: It has been brought to my notice by the Royal Association of Disability and Rehabilitation that some people who are disabled and would like to have children suffer pressure and discrimination on the part of social workers who try to take their children into care once they have had them. They think that these parents may not be able to cope.

We have often heard from the noble Baroness, Lady Faithful!, that she feels social workers need more training and that two years are not enough to cover the many and varied topics they have to deal with. Young social workers sometimes are rather theoretical and lack practical skills and experience. Instead of supporting disabled people, they have been known to try to destroy their family life.

This amendment tries to treat disabled people, as parents, the same as anyone else. Some will be good parents; others moderate; and still others in need of help. Some may not be able to cope at all, but people with disabilities who feel that they can cope should not be expected to fail. Of course the interests of the child should come first. I am very sorry that some disabled people have had to fight to keep their children and have had to turn to the courts for help. I beg to move.

Lady Kinloss

I am glad to support this amendment. I cannot see why disabled people who are perfectly capable, where necessary with the appropriate support services, of raising a child should have to fight for this right via the courts. With adequate support services and care assistance provided if necessary, disabled parents will be able to raise the child without any detrimental effects on the child. There are several cases where appropriate support has been provided and disabled parents are able to have the same rights as other parents.

Baroness Elliot of Harwood

I should like to support this amendment. One of the best things that has happened in the last year or two is the fact that disabled or handicapped people have been absorbed into the community very successfully in conditions which people sometimes may have thought could not work. But they have worked, and it is extraordinary how many disabled people can now live in the community like anyone else and carry on their lives like other people. I think this amendment put forward by the noble Baroness, Lady Masham, is simply in line with what is already happening all the time. I hope very much that the Government will accept the amendment.

Baroness Faithfull

In supporting this amendment, I think one should say what tremendous pressure is put on social workers when they have the responsibility of deciding whether or not to leave a child with disabled parents, who love their child but who may not have quite the facilities for caring for that child. It has to be recognised that enormous support needs to be given. However, I believe that parents with a disability certainly should not have a child removed from them on that ground only.

I should like to support what the noble Baroness, Lady Masham, has said: that such cases must be dealt with by trained social workers who are experienced and who understand, first, whether or not the child should stay and, secondly, the support that is required.

The Lord Chancellor

I am sure all Members of the Committee will heartily endorse the sentiments behind this amendment. It would be utterly wrong to suggest that it follows from a parent being disabled that the child is in need, in the terms set out in Clause 15 of the Bill. A disability does not necessarily prevent a parent being a good parent and meeting the needs of his or her children perfectly well. There are many examples of families successfully overcoming the obstacles presented by one parent's disability or even both parents' disability.

We have tried to deal with this by defining the child in need, and we have done it in the way that is set out in Clause 15(9). I will not weary the Committee by reading it all again, but the third point is that the child is disabled. The whole test is entirely child centred. The circumstances of the parents and even parental disability will be relevant only if the needs of the child are as set out in this clause. If as a result of failure to assist the disabled parents the child would become in need, that would be a basis for offering services; but only that. That is the way the structure has been developed.

Such services need not be limited to providing a child with accommodation away from home. Other forms of assistance might well be appropriate in that situation. I welcome the opportunity to make that absolutely clear. I think it is made clear in Clause 15, in the way that clause has been drafted, focusing on the child. It is possible that the matter is so obvious on the face of the Bill to any ordinary reader that it need not be stated on the face of the Bill. I wonder whether the concerns of the noble Baroness would not be best and most tactfully met by these matters being referred to in clear guidance that would be issued on Clause 15.

Clause 15 gives us the basis for pointing out most emphatically that it is the child who must be looked at, and a child's disability would put that child into need. It is the child's circumstances that one looks at. I would make the point that one parent's disability or even both parents' disability would not imply at all as a matter of inevitability that the child is in need. I wonder whether what I have said will meet the concern that is felt.

The difficulty I have about putting the matter on the face of the Bill is really that there is nothing on the face of the Bill itself to suggest anything of the kind and I would not like to imply that the Bill suggests anything of the kind. In a way, it is more emphatic that the Bill does not do so but that the matter would be dealt with in guidance to be associated with the Bill if and when it becomes an Act. It is practice, and the way this is applied in practice, that has given rise to the concerns that the noble Baroness and others have raised in connection with this amendment.

Baroness Masham of Ilton

I should like to thank the noble and learned Lord for his helpfulness and thoughtfulness. I will go back to RADAR to see, when they have read what he has said, whether they are satisfied. If they are still not satisfied perhaps they will get in touch with him before the next stage of the Bill. There have been problems, and they have quite a few examples of cases where there have been breakdowns with the social services, probably through inexperience and lack of knowledge. I thank the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 69: Page 12, line 6, leave out from ("is") to end of line 10 and insert ("significantly prevented from participating in community or family life by illness, injury or physical or mental handicap.").

The noble Lord said: The amendment seeks to reverse the wording of the definition of "disabled" in Clause 15(10) as drafted, which spells out the possible illnesses or handicaps from which the child may suffer.

Both the NSPCC and I believe strongly that children with disabilities should not be stigmatised. We have therefore sought to say exactly the same thing, but in reverse. The clause as amended would read: 'disabled', in relation to a child, means a child who is significantly prevented from participating in community or family life by illness, injury or physical or mental handicap". I believe that that is just as comprehensive a definition in that it covers all possible aspects. However, instead of spelling out a particular form of disability that could be thought to stigmatise a child, it says what is is not able to do.

I hope that my noble and learned friend will feel able to accept this amendment more readily perhaps than most of those that I have already moved or shall move. It is an important one, in my view. I beg to move.

Lord Renton

I am a little worried that the definition proposed by my noble friend is too narrow. He proposes that there shall be omitted from the clause most of the present definition of "disabled".

Although participating in community or family life is very important to a child, there is also to be considered the child's own life apart from what he does in the community and in the family. There is his own education and training and his own hobbies; and his own independence is at stake. I fear that by limiting the definition to what happens in family or community life we shall be depriving the child of an important part of his own life.

Lord Meston

I support the intention behind the amendment. It provides a shorter definition, which in itself is beneficial. It seems valuable in that it concentrates on the effect rather than the nature of the disability.

One matter that it appears to leave out by comparison with the Bill as drafted is the possibility of future handicap. The definition in the Bill as drafted concludes with the words, or who is likely to be so handicapped". Subject to that, it is a good amendment.

Lord Trafford

I support the amendment, which considers the effect, function or consequence of the handicap rather than a list of ailments, if I may so call them—blind, deaf, dumb, and so forth—all of which are themselves subject to variable definition. A deaf child does not have to be stone deaf to be deaf, and so forth. It is much better in many ways. With the reservation that the Committee has just heard, I think that this functional definition is in some ways preferable from the point of view of the child.

Lord Kilbracken

The present definition is faulty, and the amendment does not cure that. It sates that "disabled" means a child who is blind. That is not what disabled means. The wording is therefore mistaken.

6.45 p.m.

Lord Harmar-Nicholls

When I first read the amendment, my feelings were almost identical to those of my noble friend Lord Renton. One sees the intention behind the words. On strict interpretation it means only, prevented from participating in community or family life". There are many things that an individual does. I should prefer the phrase "normal life", which would cover what one normally can do as an individual in addition to how one can be a part of society and prevented from playing one's full part in that. If words could be found to meet my noble friend's point, I should feel happier.

Lady Kinloss

In supporting the amendment, I should like to say that some organisations dislike the word "dumb" in particular. Perhaps some other words can be found so that that word may be deleted.

Baroness David

I support the sentiment behind the amendment. The words in the Bill are rather offensive in many ways. Whether or not the exact wording of the amendment is acceptable to the noble and learned Lord, I hope that at least he may go away and consider whether there is some other way to cover this. There is the example of the Education Act 1981, in which children with special educational needs were so described rather than including a long list of possible ailments from which they might suffer.

The Earl of Radnor

I must go against the amendment. Like my noble friend Lord Renton, I fear that under this definition some people will be left out. I should not have spoken if the Education Act 1981 had not been mentioned. The danger under that Act is that, because of its broadness some people may be left out. If I may declare an interest, dyslexia is one such case. I should hate to see this happen again. I agree that this is a much nicer way of putting matters, but sometimes to be harsh is to be safe. In my view, this is such an occasion.

Lord Auckland

I hope that the Government will support the amendment. With the progress of modern science, such children will not necessarily be permanently handicapped. With the development of modern science, who knows, in some years' time a number of conditions from which children now suffer may have a partial cure.

The supporters of the amendment have put forward an optimistic view of the case. I therefore hope that my noble and learned friend will consider that aspect.

Baroness Macleod of Borve

I agree with the amendment. It puts succinctly what we all realise needs to be included in the Bill. The Bill as drafted dots the i's and crosses the t's too much and would leave out some of those whom we are endeavouring to help. I hope that the noble and learned Lord in the great wisdom which he has shown today will consider the amendment.

The Lord Chancellor

This is a difficult matter which I appreciate is given very high priority and importance by my noble friend Lord Mottistone. I have no doubt that it is extremely important but it does not necessarily follow that it is easy to get it right. "Disabled" is defined in Clause 15(10) because disabled children are to be regarded as children in need for the purposes of Part III of the Bill. I suppose that one option is to leave it at that without a definition. But that has not commended itself at all so far.

I accept that the definition seems rather out-dated. However, I do not accept that it contributes in any way to stigmatisation of children with disabilities. It is certainly not intended to do that. It is intended to try to describe the class of children with no suggestion of any form of stigma. Obviously, if there is a particular word regarded as undesirable which can be satisfactorily replaced, I should be happy to consider that.

The definition in the Bill is taken from Section 29(1) of the National Assistance Act 1948 which currently applies the provisions of that Act and other welfare legislation to both disabled children and disabled adults. The 1948 Act is to be modified by amendments in Schedule 9 to the Bill to limit its provision to disabled adults, local authorities' responsibilities to disabled children being placed with their responsibilities to other children in need in this Bill. Therefore, we are taking the children content out of that Act and putting it in this Bill.

It is important that the two definitions coincide so that a disabled person who needs local authority services does not find himself within the scope of one definition as a child but outside another and therefore ineligible as an adult. This is, I suggest, a powerful argument for keeping the two sets of statutory provisions in step. Therefore, it is right that the two should be, as far as possible, the same. I suggest that this is a powerful argument for keeping the two sets of statutory provisions in step.

As regards the definition in the Bill, it does, I think, have some virtue. It is factual, allows objective interpretation and should assist local authorities to identify the children in their area for whom they must make services available under this provision of the Bill. In this connection I should like to refer to what my noble friend said about a shorter definition in other statutes. If one wishes to be comprehensive it may be wise to try to deal with the matter in some detail, which is the approach taken by this definition. As far as I know—and this is important—this definition has been in use for some considerable time and has not posed any practical difficulties to those responsible for providing services or to those for whom the services are intended.

One of the difficulties I have with the definition in the amendment is that it does not clearly pinpoint the group in question. It depends on subjective assessments of what is meant by "significant prevention" and even "community and family life". Interpretations of this sort can vary a great deal. While I am no advocate of uniformity for the sake of it, there is surely a strong argument for trying to achieve general consistency of approach in this important area. I believe it is much easier for people to differ about whether there is significant prevention of family life in a particular condition than it is to say whether or not a particular condition exists.

The Government are not so wedded to this particular definition which has worked well for many years that they will not contemplate change. However, I believe that in this area, if we are not to cause trouble, we can only make change with great care, ensuring that all the implications are considered. I believe that at the very least, if we are to make a change wide consultation is required.

I have given some reasons why the proposal in the amendment does not seem appropriate. Another reason occurs to me on reading the amendment from my own point of view. One of the great aims of giving support to children with disabilities is to try to secure the fullest possible participation in community and family life; in other words, to overcome the obstacle—if I may use that word again—and to be integrated. To have as part of the definition something that prevents that seems to be sabotaging the attempt before it begins.

In some cases it may be realistic to think that it is impossible to overcome the obstacle, but I should have thought that in a sense there is more of a stigma in saying, "Look, you cannot fully participate in community or family life" than in saying, "You do not have eyesight; You are blind", or "You are deaf", because the family will attempt to meet the disability and integrate that child into the family by the various means available. One thing with which the local authority will be concerned is to see the extent to which that integration can be achieved.

I fully sympathise with the view that we should like the best definition here. The definition we have has worked for some time: from that point of view it is practical. Because it has worked for some time it is showing, like myself, some signs of age. However, until we have a better definition that everyone is satisfied will work well, I should have thought that it is best to leave it. If we are to have a new definition then I believe that the attempt to get that will be a longer process than the time which we are likely to have available in the course of this Bill. That will be for another day.

Therefore, I hope my noble friend will understand that I have the greatest interest in his success in achieving a really good definition but I entertain a doubt as to whether, up to date, he is entirely successful. In those circumstances, I hope that he may feel able to withdraw the amendment.

Baroness Masham of Ilton

Before the noble Lord replies, I should like to add my feelings to those of the noble and learned Lord. It is very important that disabled children, whatever the disability, are integrated and are part of the family. I believe that disability is so complicated that it would be useful to put out very clear guidelines so that the people administering the legislation will understand that point.

Lord Mottistone

Once again I thank all Members of the Committee who have taken part, including those who disagreed with me. It has been very helpful in trying to refine the difficulties of this problem.

I am particularly grateful to my noble and learned friend the Lord Chancellor for his contribution. Indeed, we shall go away and try to see if this difficulty can be overcome in an acceptable way. I appreciate that it will be difficult to resolve while the Bill is being discussed in this Chamber but it will be quite a time before the measure finally leaves Parliament. If people really feel strongly about this, then perhaps they will get together between now and the end of the Bill's passage through Parliament. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15, as amended, agreed to.

7 p.m.

Baroness David moved Amendment No. 70: After Clause 15, insert the following new clause:

("Amendment of Social Security Act 1986.

. Section 20 of the Social Security Act 1986 is amended as follows—

(1) The following subsection shall be inserted after section 20(4N)— 20(4P) For the purpose of subsection (1) above a person shall he treated as having attained the age of 18 if he—

1. (i) has no parent, or
2. (ii) is estranged from and living away from his parents."

(2) The following shall he inserted after section (20(12)(1)— (m) for treating persons under the age of 25 as having attained the age of 25, where that person—

1. (i) has no parent, or
2. (ii) is estranged from and living away from his parents;" ").

The noble Baroness said: This amendment stands in my name and that of my noble friend. I have a message from the noble Lord, Lord Banks, to say that he was too late to put his name to the amendment but that he supports it though he cannot he here in person to do so.

I am afraid that I have a lot to say on this amendment, but it is an important amendment. Noble Lords will probably remember that at Second Reading I spoke about the problems of young people leaving care and the trouble they may be in because of lack of funds, and so on. A suggestion was made that local authorities should be put under a duty to give such young people assistance. However, I said that it would be much better if that could be done by means of social security because it was as a result of the changes made by the Social Security Act that these people are in their present situation. It may seem odd to start amending the Social Security Act in the Children Bill but as the amendment has been accepted for inclusion on the Marshalled List I hope that means that it can be agreed to by the Committee and action taken on it.

The recent changes to the social security system have already had the effect of placing large numbers of already vulnerable young people, including many who have been in local authority care, in an increasingly vulnerable situation. It is the opinion of the local authority associations and many non-statutory agencies involved with the welfare of children and young people that without these proposed amendments to social security legislation many of the aims contained within the Children Bill will ultimately fail in respect of many of those young people who are above school leaving age but whom the Bill seeks to protect.

The purpose of the new clause is therefore to offer a degree of protection to vulnerable young people by way of the social security system. The suggested changes are neither new nor radical—rather, they would return provision to the situation as it stood in relation to this group of young vulnerable people prior to April this year. There are two major recent changes to social security provision which this new clause seeks to amend. These changes have left large numbers of vulnerable young people either without benefit or without sufficient benefit upon which to live.

The first major change occurred in April when income support, which replaced supplementary benefit and housing benefit, became age-related. The full amount of these benefits only becomes payable at 25 years of age; 18 to 24 year-olds receive a lower rate and 16 to 17-year olds the lowest rate. That is regardless of a person's situation, whether at home or living independently. It is becoming clear to social workers, probation officers and others working with young people that these weekly rates for under 25 year-olds, and for 16 to 17 year-olds in particular, are simply insufficient upon which to live.

Members of the Committee may well have received a paper from Barnados dealing with the subject and giving a number of cases, but not using the real names. I should like to read one example to the Committee. The young man concerned is referred to as Sean. He is a black 17 year-old with CSE and 'O' levels in five subjects. He is on a YTS computer training scheme and hopes for full-time work with computers. He rents a room in Barnados accommodation in London and would like to have his own flat.

Sean's parents separated when he was five years old and he grew up with a number of changes of address and care givers. His father severed all connection with his four children and following the death of Sean's mother when he was 13 he was looked after by an aunt; but that arrangement became strained and eventually resulted in Sean having to move out.

The social security changes in April have hit Sean hard. Prior to the changes his combined income from YTS allowance and housing benefit was £56.93—a YTS allowance of £37.99 and housing benefit of £18.94. That left him with about £5 each week for his social life, clothing, and so on, having paid his rent and rates, heating, food, laundry and other essential bills.

His housing benefit has dropped by £11.41 each week, so his new total income of £45.52 leaves him £6.50 short of even his essential living costs. As a result he is regularly without food in the house. His chances of achieving the independence necessary to move into his own flat are reduced. Similarly, the financial insecurity is hindering his prospects of completing his training and developing a career with computers.

What is to happen to Sean and a considerable number of people in similar circumstances? During the passage through Parliament of the Social Security Act 1986 Ministers pointed out that most under 25 year-olds live with their parents and so require less money than those who are living independently. The problem with that broad brush policy is that those young people who have no parental home, or no suitable parental home, are left with insufficient resources with which to maintain themselves.

The new subsection (2) in my amendment will allow young people under the age of 25 who have no parents or who are estranged the full over 25 year-old rate of benefit, currently £33.40 per week. The wording of the new clause was chosen carefully; first, because the concept of estrangement already exists elsewhere in social security law and is therefore an adaptation of an existing concept which has been tried and tested over the past eight years and with which social security officers are already familiar.

Secondly, it is broader than just young people who have been in the care of a local authority. This is important. There appears to be an increasing incidence of young people who have suffered abuse within the home environment but who have never come to the attention of the social security services and who see the opportunity to escape further abuse by leaving home once they have reached the age of 16 or 17. Therefore, to limit any amendment solely to young people who have been in care would offer no assistance to many young people who have, nevertheless, tolerated wholly unsatisfactory and even damaging family situations.

The second recent major change to the social security system in respect of young people which came into effect in September last was to exclude most 16 and 17 year-olds from entitlement to income support, which replaced supplementary benefit. Young people who have no parents or who have no suitable parental home in which to live—because of physical or sexual abuse within the home—are entitled to income support only for a period of up to 16 weeks after they leave school.

The Government's stated intent is to ensure that all young people take a place on a youth training scheme. However, it must be appreciated that not all young people, and especially severely emotionally disturbed or damaged young people, are able to take advantage of such training even when there are places available, and that young people who are emotionally disturbed are more likely to be refused a YTS place by prospective employers.

The local authority associations, professional social work associations and others dealing with young adults are all extremely concerned about the effect that this most recent change in social security will have on those young people who have no home or cannot reasonably expect to live at home but who are, for very good reasons, unable to take advantage of training schemes.

If a young person is without any income and can show that he or she would suffer severe hardship, the Secretary of State has a discretionary power to award benefit. However, that is only a discretionary benefit, without the right of appeal if it is denied, and early reports suggest that many young people who might have some chance of getting such a payment are either failing to apply because they do not know of the provision or are going to the Department of Social Security but are not being considered for, or awarded, these discretionary payments.

The intention of the proposed subsection (1) is to ensure that young people who have no parents, or who are estranged from their parents and unable to live at home, will have an entitlement to benefit, subject to a right of appeal if refused, in order to safeguard their welfare. The associations accept that it should still be a requirement to receiving benefit that such young people should be registered with careers services for YTS.

Some 80 per cent. of young people over school leaving age live with their families, but some 20 per cent. do not. For those who, for whatever reason, have to live independently within the community, the basic safeguard of benefit payable as a right and at an adequate level is a prerequisite need to ensure their welfare. While the Children Bill is mainly concerned with children under the age of 16, in places (such as in Clause 20) it provides for certain young people up to the age of 21.

When considering the needs of certain potentially vulnerable young people, it is suggested that it is difficult to define an absolute age at which both concern and provision should cease. I believe that all the agencies that are worried about these matters and the local authority associations, firmly believe that without the suggested amendment to the social security law, the current Children Bill cannot be wholly effective, as a relatively small but extremely vulnerable group of young people will he excluded from welfare provision which is vital for their continued development, wellbeing and safety. Without it, many may become homeless, with all the dangers that involves, or become hopelessly in debt with all that that involves.

We are not asking for something new in this amendment; we are merely asking for a return to the position as it was only nine months' ago. I believe this to be a very important matter. I am sorry to have spoken for so long. However, I hope that the amendment will receive the support and sympathy of the Committee. I beg to move.

Baroness Faithfull

I fully support the noble Baroness Lady David in everything that she said. I am worried about the mechanism of it all. To begin with, I believe it is absolutely essential as regards Clause 20 that children who have been in care should be helped by the local authority up to the age of 21 years. After all, those of us who are over the age of 18 to 21 were helped by our families, lived with them and returned to them and were in every way regarded as members of the family. In years gone by it has been a terrible situation that children who have been in care for years were suddenly without background, money or help at the age of 18 years and the local authorities were unable to help them. I believe I am right in saying that Clause 20 helps those children up to the age of 21 years. Personally, I should have preferred it to be to the age of 25 years.

When it comes to young people between 16 and 25 years of age who have not been in care, I absolutely agree with the noble Baroness, Lady David, that what is happening at the moment is appalling. As a Vice President of Barnardos I fully support the letter that the noble Baroness received from that organisation. However, I wonder whether this is the right Bill to deal with that situation.

I can understand that for those between 16 and 18 years of age those provisions could come within this Bill if a young person (who is, after all, between the ages of between 15 and 18 years) is going to get into trouble. However, I do not believe that this is the Bill to deal with young people up to the age of 25 years. Having said that, I fully support Clause 20 in that those in care should be helped. However, I disagree with Clause 20 to the extent that I believe it should be permissive up to the age of 25 years.

Baroness Masham of Ilton

I wish to add my concern about this age group. I am attached to a youth custody centre which has recently changed its name and I cannot remember what it is. It has changed its name three times. These young people are aged between 15 and 21 years. Recently I conducted a survey and looked at a list of the boys going out. If they are homeless their details are written in a certain way. Many of them are homeless because their families have broken up and they are going out to virtually nothing. The result is that they are returning to youth custody. I have had boys who have come back two, three and sometimes four times. It is an expensive way of dealing with them and it is not the right way. If something can be done then it should be done.

Lord Harmar-Nicholls

I wonder whether we should contemplate a major change in the social security Act in a Children Bill. It seems to be a very funny way of dealing with this problem if it is there. One would be viewing the matter from quite a different point of view if one were dealing with the social security Act itself. There has been an awful lot of special pleading. My noble friend said that she accepted responsibility for the Barnados' letter that the noble Baroness read out.

Baroness Faithfull

No, I do not believe I said that.

Lord Harmar-Nicholls

I believe that my noble friend said something like that. If I had been sitting on the committee which looked at that matter, I do not believe that I should have accepted easily the loose phrase that was included in the letter; namely, that Sean became estranged from his aunt. I should like to know why he became estranged from his aunt and what the conditions were. It may be that he was being a rather difficult and obstreperous kind of chap and it may have been quite unreasonable for that to happen. I do not know. To get one's sympathy (and mine was almost obtained for one minute) as regards being estranged from the aunt, one would wish to know more about it. If the noble Baroness does not mind me saying so, I refer to her other generality; namely, that for some reason or other some young people could not go on a youth training scheme. What reason or other?

In one's own business one has a fair amount to do with some of the training schemes. We know that some people are quite obstreperous about it. They do not want a training scheme and they will not undertake one.

In a way, I believe that that kind of generality weakened the general appeal. I should wish to know more of what is behind those phrases. In any case, I hope that my noble friend will not contemplate using the Children Bill to bring about change in the social security Act. If there is need for change let it be discussed on a social security day when the Minister responsible is available and all of the background material can be taken into account.

7.15 p.m.

Lord Trafford

I do not disagree at all with what the noble Baroness said. I am convinced that there arc problems and that they need to be addressed. I am quite convinced from all the evidence that I see and come across that there are a large number of people in that age group who for various reasons (and I am not simply concerned with children who are discharged from care) are getting into some difficulties. Perhaps the most needed change in social security is some flexibility. There has always been some anxiety expressed by your Lordships that at the time of the passage of the Bill and the regulations, a great deal of flexibility was lost with the introduction of such rigid criteria, plus changes to the social fund which was essentially a loan fund.

The noble Baroness pointed out that there were and there are provisions under a special dispensation by the Secretary of State, but that it is probably not too easy to obtain. With respect to what my noble friend Lord Harmar-Nicholls said, I would not dispute the basis of the cases that have been presented. I would not expect to receive a letter from Barnardos unless it was supposed to make my tear ducts start working. Otherwise, what is the point of sending it out?

We recognise that perhaps these are selected cases. The fact is that these cases exist and one sees them every day. These young people end up in prison, in custody or in hospital, attempting or succeeding to commit suicide. Those of us who work in these various fields quite often see such cases and I suspect that that will be increasingly so.

The scheme has not been in operation long enough and it is in a state of flux and at a time of change. It is difficult to be certain as yet that one is not talking pure propaganda off the top of one's head, on the one hand, or that one has all the figures to support what one has said, on the other. Having conceded the case put forward by the noble Baroness, this is surely the wrong place to be dealing with it. If I may say so, I believe that if one had walked into the Chamber when the noble Baroness was making her speech one would have left believing that one was hearing a discussion on the wrong Bill. The speech was for a social security debate. I am quite certain that we shall get into a dreadful mess if we start to change what possibly needs to be changed at this time and particularly as regards this clause rather than Clause 20.

The Lord Chancellor

I recognise the concern so eloquently expressed by the noble Baroness. Lady David, in moving the amendment. I have received the document from Barnardos. My wife is a member of the Council of Barnardos, so it is natural that I should see it.

I agree with those who have expressed the view that it would not be appropriate in this Bill to introduce changes which affect the principles underlying the application of policy under social security legislation, which is the responsibility of my right honourable friend the Secretary of State for Social Security in another place.

My right honourable friend has already given assurances in another place that the implementation of the social security reforms, introduced last April, will be monitored. This monitoring exercise is now under way and will include young people. Once it is completed the Secretary of State will carefully consider the information that comes to him from the monitoring and consider what adjustments, if any, need to be made. I shall ensure that the concerns which have been expressed in this debate are drawn to his attention. While I suspect that the noble Baroness will not be entirely satisfied, I hope she will understand that, from the point of view of this debate and this Bill, it is the appropriate course.

Baroness David

I should like to thank all those who have expressed their support at any rate for the aims behind the amendment. I did not think that it was altogether unprecedented to try to amend one Act when dealing with another Bill. That is not entirely new. I said at the beginning that some might find it odd that I should choose this way to deal with the problem.

The noble Baroness, Lady Faithfull, said that Clause 20 does something to help. It does hardly a thing; we shall have to amend it. It will not be adequate to deal with the problem. The problem is here and now. We have heard from the noble Lord, Lord Trafford, where these people end up. I am sure that he has had experience of observing that. I am glad to hear that the Social Security Act will be monitored. There should be monitoring but I wonder how long it will take and how long these young people will have to go on enduring what they are enduring while we await the results. I hope that after he has heard the concern expressed in the Committee the noble and learned Lord will try to get up some steam on the monitoring.

The noble Lord, Lord Harmar-Nicholls, asked why young people should so easily get off YTS schemes or be dissatisfied with them. Young people are different. Although there are many schemes, it is the case that some people are not suited to them. We must accept that fact and try to make some provision.

I shall think carefully about what to do next because I am determined to try to get something done during the passage of the Bill. However, at the moment, I have no alternative but to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Day care for under fives and supervision of school children]:

[Amendment No. 71 not moved.]

The Lord Chancellor moved Amendment No. 72: Page 12, line 17, leave out from ("attending") to end of line 18 and insert ("schools").

The noble and learned Lord said: This amendment would mean that the children in need for whom a local authority would have a general duty to provide day care would be those who are aged five or under and not yet at school. The clause as currently drafted restricts the schools criterion to local education authority maintained schools.

The amendment would empower the local authority to provide day care on a less restrictive basis. While most children go to local authority maintained primary schools, some go to independent schools and in the future some may go to schools which have opted out of such control. Children in need may fall into any one of those categories and the general duty that the Bill places on local authorities should apply to all of them, not just some.

I hope that the Committee will agree that the amendment is needed. We are however considering with the Department of Education and Science a suitable definition of "school" here and elsewhere in the Bill. In the meantime, I beg to move.

On Question, amendment agreed to.

Lord Hesketh

This may be a suitable moment to break for dinner. I suggest that 8.30 is a convenient time to resume and I hope that this meets with the approval of the Committee. I beg to move that the House do now resume.

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

House resumed.