HL Deb 20 December 1988 vol 502 cc1319-52

House again in Committee on Clause 16.

Lord Mottistone moved Amendment No. 73: Page 12, leave out line 19.

The noble Lord said: This amendment is bracketed with that of the noble Baroness, Lady David, Amendment No. 74. It so happens that I prefer her amendment to mine. Perhaps we should speak to them together.

Thanks to my noble and learned friend the Lord Chancellor having sorted out the matter of schools under Amendment No. 72, which has improved that part of the Bill very well, we are now left with the provision that every local authority shall provide such day care for children who are under five and not yet attending school, "as they consider appropriate". The point at issue is the words, "as they consider appropriate". It is felt that it would be a good plan if everybody, including the children and their parents, believed that it was not too much at the disposal of local authorities to make their own decision about appropriateness. Unfortunately that is a problem which occurs in this country.

As the Committee knows, I am advised by the NSPCC, and they have advised me on the amendment that I have put down. There are other voluntary bodies which are not entirely confident that local authorities will provide day care for children in their area who are in need, are under five and are not yet attending school. It might therefore be better if we took out the whole of line 19, which my amendment seeks to do, or perhaps just used the words "as appropriate". That is what Amendment No. 74, tabled by the noble Baroness, does. Obviously there must be some qualification.

I understand that Members of the Committee may ask, "Who will decide about appropriateness?" It could be that the parents would decide, if the wording were just "as appropriate". There is a greater vision here; it is not left entirely in the hands of the local authority. It is unfortunate that we have to take this view about the matter, but that is the state of affairs. Therefore at this stage I beg to move Amendment No. 73.

The Deputy Chairman of Committees (Lord Ampthill)

I should remind the Committee that, if Amendment No. 73 is agreed to, I cannot call Amendment No. 74.

Lord Irvine of Lairg

We support this amendment. Clause 16 goes to the provision by local authorities of day care for the under fives and the supervision of school children. As I understand it, Amendment No. 73 would remove all the words in line 19,—that is, "as they consider appropriate". Amendment No. 74 would remove only the words "they consider", leaving the line to read "as appropriate".

I believe that the point to which the noble Lord alludes is that Clause 16(1) as it stands is in practice a licence to local authorities to provide no, or wholly inadequate services. The words "as they consider appropriate" show, on the recent authority of the High Court—and I have in mind the Devon County Council case—how misleading can be an apparently absolute duty. Despite the opening words of Clause 16(1): Every local authority shall provide", etc., we know how one can be misled. Once the words "as they consider appropriate" are added, the local authority has virtually complete discretion to provide no day care at all for the children in the categories defined.

The point is that to add as a rider to an apparently absolute duty the words, "as the local authority considers appropriate", is to add to fine-sounding words a rider that may negative the impression that is being created. As I understand it, the effect of Amendment No. 73 is just to take out line 19 altogether. However Amendment No. 74 suggests taking out the words "they consider" so that at least the courts may decide whether any sort of appropriate provision at all is being made.

Our understanding of the amendment which the noble Lord has put down, as well as of the amendments immediately following, is that their general purpose is to focus attention on a fact of which we should be acutely aware—that this clause sounds very well. However, it gives no reasonable assurance that in practice the desirable services being described will either be available at all or will be available with any sort of uniformity throughout the country. The words sound fine, the saving phrase or the rider "as they consider appropriate" is capable of rendering entirely nugatory the duty that is loudly proclaimed in the opening line.

Baroness Faithfull

I wish to take a slightly different attitude over the whole situation. I believe that there has to he a national plan for the care of children under five. I do not think it ought to be left to each individual authority to interpret either my noble friend's amendment or the amendment of the noble Baroness, Lady David, and her colleagues. I am sure that the Department of Health and the Department of Education and Science must be thinking along these lines, because each of those departments has given a substantial grant to the National Children's Bureau to look into and to research the needs of children under five.

We are in some difficulty here because not only have the Department of Health and the authors of this Bill a great interest in the care of children under five: as we all know, the Home Office too now has an interest in the care of children under five. That responsibility has been given to the Minister, Mr. John Patten, because it is his role to ensure that women go out to work, and that commerce and industry set up crèches for children at the women's places of work.

Therefore, we have a lot of disparate people doing things. There is more than one ministry involved. We have local authorities with completely different ideas in different parts of the country. Although, obviously, calling for a national plan does not come within the remit of the amendments to this Bill, I nevertheless support the amendments. As my noble friend Lord Mottistone has said, I think we prefer the other amendments to our own and would support them. But, in supporting them, I make a strong plea to Her Majesty's Government to consider really seriously an overall policy in this country for the care of children under five.

I think it is well known that two research projects have been carried out in EC countries. Every EC country has a policy, some of which are better than others, but at least they all have a policy, whereas we in this country have none. I support the amendments of the noble Baroness, Lady David. But in supporting them I call for a national plan to be adopted.

Baroness Seear

We also wish to support these amendments. But in response to the very interesting point just made by the noble Baroness, Lady Faithfull, as regards a national plan, I should say that many of us have been pressing for a very long time for an extension of nursery provision. However, would the noble Baroness and the noble Lord not agree that, though a national plan should be drawn up in terms of a declared policy and standards, the application and the responsibility must be carried out by local authorities at local level and within the framework of the plan? It is surely not being argued that responsibility should be taken away from the local authorities as regards carrying out the plan. It sounded rather as if that was what the noble Baroness, Lady Faithfull, was asking for.

8.45 p.m.

Baroness Faithfull

I apologise if it appeared that I thought the responsibility for that would not devolve upon local authorities. It would be exactly the same as the administration of the Education Acts, in that the policies are formulated by the Department of Education and Science but are carried out by local authorities. I would assume that that would be exactly the same case with the plan for children under five.

The Lord Chancellor

As has been explained, the first of my noble friend's amendments seeks to ensure that a local authority shall provide day care services for every child who is under five and who is in need in its area, whether or not that local authority considers it appropriate to do so. In contrast, Part III generally requires a local authority to provide a wide range of services in a manner and at a level that it considers appropriate to the needs of those children. The latter approach must be preferable. The local authority must have the flexibility to provide whatever services are appropriate for the children within its area.

A local authority must have that kind of flexibility if it is to tailor its provision to what is required. The effect of the amendment would be to place an absolute requirement on local authorities to provide day care services. That would severely prejudice the provision by local authorities of a balanced range of services taking account of the particular priorities in the area of each authority. That does not at all preclude the idea of some form of national guidance, but it leaves the ultimate responsibility, as the Bill puts it, with local authorities.

The second of the amendments would require a local authority to provide an appropriate level of day care, rather than the level which it considers to be appropriate. The general duty to provide services for children in need which is contained in Clause 15 requires an appropriate range and level of services. Therefore, the standard is set by that general provision.

Within that general duty the Bill requires local authorities to provide particular services "as they consider appropriate." Therefore, it appears a proper application of the general provision that local authorities should have the responsibility of considering which particular services are appropriate to particular situations. If local democracy is to have any meaning, local authorities must be free to determine the range and balance of services. I believe that the Bill has got this balance right and that it would not be wise to hamstring local authorities in the manner proposed in these amendments. I hope that, with that explanation, my noble friend will feel able to withdraw his amendment.

Lord Mottistone

I understand what my noble and learned friend says, and I should dearly like to think that this was the end of the subject. But the fact is that the NSPCC, which operates all over the country and is not getting at any particular local authority—I hasten to add that, as far as I know, my own local authority is in this area entirely right in its judgment of these points—has made it clear that some local authorities are not providing the services for the under-fives that a lot of people think they should be doing. Perhaps it is beyond us to ensure by Act of Parliament that those services are provided. Perhaps this is an opportunity to air the point and go no further. However, I think it is unfortunate that we cannot find some way of inserting this to provide some kind of a grip on local authorities which are not providing the services for the under-fives that we should like them to.

However, I accept all the arguments and, at this stage of the Bill's progress, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 74 not moved.]

Lord Irvine of Lairg moved Amendment No. 75: Page 12, line 20, leave out ("may") and insert ("shall").

The noble Lord said: In the light of the observations made by the noble and learned Lord the Lord Chancellor, the noble Lord, Lord Mottistone, withdrew Amendment No. 73. However, Amendment No. 73 in aim and purpose is closely related to Amendments Nos. 75 and 77. With respect, I would suggest that, in relation to the argument on Amendment No. 73, which so closely relates to that on Amendments Nos. 75 to 77, it is all very well to say that local authorities should be left to provide what services they think appropriate, but the whole point is that they are not left to provide appropriate services. Under the system of law which applies in our country if they are left to provide the services they consider appropriate, they can only be challenged if their view of what is appropriate is utterly perverse. The provision of services may be inappropriate but they will be beyond challenge.

The purpose, as I understand it, of Amendments Nos. 73 and 75 to 77 is to focus attention on the fact that this provision of the Bill sounds very well but does not give any reasonable assurance that these desirable services, which are stated in terms of apparent absolute duties or discretionary duties as regards local authorities, will either truly in practice be available at all or be available with any kind of uniformity throughout the country.

In substance I echo what the noble Baroness, Lady Faithfull, said. Every effort should be made on a national basis to ensure that adequate facilities for the under-fives are generally and equally available throughout the country. If I understood her correctly, that is what she said.

The National Children's Bureau has concluded in a recent study that the majority of families need access to supportive services, particularly during the pre-school years. There is in practice a huge disparity between authorities in the provision of the services described in this clause. I am sure that the noble and learned Lord the Lord Chancellor will acknowledge that that is so.

The Bill as it stands is a licence to local authorities to provide no services or manifestly inadequate services of that kind. The purpose of Amendments Nos. 75 to 77, which alter the word "may" to "shall" in subsections (2), (3) and (5), is to impose clear duties on local authorities. The problem with discretionary powers is that they sound all very well, and we pass them believing that they sound all very well, but they can mean anything or nothing in practice. I beg to move.

Lord Campbell of Alloway

I wish to associate myself, without any hint of reservation, with everything that the noble Lord, Lord Irvine, said. There is no point in repetition at this hour. I hope that my noble and learned friend the Lord Chancellor will take the view that the noble Lord made a modest and informed contribution which pinpointed the essence of the problem. That problem is that in subsection (2) there is a licence for wholesale inactivity with total impunity, there being no machinery enforceable in the courts. That must be wrong.

Those of us who practise in the Divisional Court dealing with this kind of problem all know that the present provision is not worth a light. It gives you nothing. I appeal to my noble and learned friend the Lord Chancellor to accept, or at least to consider, the spirit of the amendment so that there may be some enforceable power to compel local authorities and, if they fall down on their duty, to enable the courts to do justice as regards those children.

Lord Renton

It is with great temerity that I ever differ from my noble friend Lord Campbell of Alloway. However, the difficulty about imposing an obligation upon local authorities in regard to the various duties which are covered in the relevant subsections is that financial resources are required for performing each of them.

In my former constituency we experienced a very large influx of Londoners under a town development scheme. As a result, the birth rate rose fairly sharply as soon as they arrived and the local authority found itself unexpectedly with a problem in relation to infant schools. It was a problem that it did not expect to have and that it could not solve until it had the required resources, which necessarily took a while to obtain.

I feel therefore that the safe and wise course may be to leave the provision of the facilities on a discretionary basis. If a local authority failed to exercise its discretion in an enlightened and progressive way it would be in trouble with the electorate.

Lord Meston

We wish to support the amendments. The use of the word "may" in the subsections of Clause 16 wholly enfeebles the clause. As has already been said, nothing need be done at all. A local authority does not even have to think about providing the services which are referred to in those parts of the clause now under consideration. For that reason we support any amendment which reinforces the duties which should be imposed.

Baroness Faithfull

I should like to ask two questions. I should like to put this point to the noble Lord, Lord Renton. Surely when that influx of people arrived in his area the Education Act was obligatory and children had to be sent to school. It must have been very expensive with the increased population. Also, I firmly believe that providing better services for our under-fives would be cost-effective in terms of alleviating some of the difficulties which would otherwise arise later with children having to be taken into care or having youth custody orders made on them.

The noble Lord said that it would be undemocratic to force such a scheme on local authorities. However, it is not called undemocratic to force the Education Acts on local authorities. Why, when we have that national plan, would it be undemocratic to enforce a plan for under-fives?

Lord Campbell of Alloway

My noble friend is totally right. The Committee will appreciate that the financial excuse is no defence for failure to fulfil the mandatory statutory obligations under the Education Acts. If one imports an escape clause on financial grounds, what will happen to the children? It is up to the local authority to order its affairs in such a way as to fulfil mandatory duties. This should be a mandatory duty of the same ilk as the Education Acts. It is on that very basis that I respectfully urge my noble and learned friend the Lord Chancellor to consider the importance of the issue as regards the welfare of the children.

Lord Renton

I hope I did not give the impression that it was merely a question of finance. Of course finance is vital, but with the best will in the world premises have to be found and equipped, staff have to be found and sometimes to be trained. Eventually those things get done, but inevitably occasionally—and I speak from experience—there is delay while such things are done and while the resources are found. Therefore, in order to cover such a situation I think that it is better to leave the Bill as it is.

Lord Campbell of Alloway

The Bill does not cover the situation; it opens up a wide escape clause which is wholly unenforceable. One either protects the children and provides a framework to protect them or one leaves an escape clause and leaves them wide open and unprotected.

Lord Mottistone

What I am about to say will not please everybody. I think that I am one of the few who remember happily the days when we sat on the other side of the Chamber. I say "happily" because on the Back Benches it is much more fun to be in opposition than in government. I can remember many occasions—and perhaps the noble and learned Lord, Lord Elwyn-Jones, who then sat on the Woolsack, remembers some of them also—in which I fought the battle for "may" and "shall".

When one is in opposition, and perhaps when one has not been in opposition, it is easier to say, "Oh yes, we must turn all the 'mays' into 'shalls'". In opposition one does not have the responsibility of dealing with the people who are involved. I only intervene in order to provide a balance. I think that we spend a lot of time in this Chamber arguing about "may" and "shall", and perhaps we overdo it.

9 p.m.

Lord Elwyn-Jones

Perhaps I may intervene just for a moment. The answer to the noble Lord's dilemma depends on the quality of the action called for. In this case the action called for is highly desirable; in those days it very rarely was.

Lord Irvine of Lairg

Is not a serious point about this clause of the Bill the question of how much humbug is involved in these provisions? It is all very well to confer discretionary powers on local authorities to do this or that, but if there is not the remotest likelihood of their doing it in practice and no means of enforcing the weak power or the almost non-existent duty that is imposed on them under Clause 16(1) because of the effect of the words "as they consider appropriate", to what extent are such provisions merely an exercise in window dressing with no substance to follow?

I was pleased and impressed to hear the noble Lord, Lord Renton, address an argument which was not a textual one as to why "may" for some reason could not be converted into "shall", or why there was some ineluctable logical reason why line 19 or the words "they consider" be removed. I welcomed the frankness of the proposition that all that one has to do is wait and see if local authorities—and I believe that I quote the words of the noble Lord—interpret this provision in some kind of enlightened and progressive way and if they do not then they will be answerable to the electorate. Does that proposition not entail the knowledge that the legislation that we are undertaking is so many empty words?

Lord Henderson of Brompton

Following the noble Lord's remarks, can the noble and learned Lord the Lord Chancellor say whether local authorities would have the power to make the provisions In subsections (2), (3) and (5) if the words were not there, unless this amendment is accepted?

The Lord Chancellor

I do not know on what basis it could be suggested that they would have these powers. They are statutory authorities and need statutory powers. Unless they have statutory powers to act they would not have statutory authority. Accordingly, it is important that those powers should be there.

The noble Lord, Lord Irvine, addressed the previous amendment in his last remarks. I think it might be useful to consider the first of the present amendments. Clause 16(2) states: A local authority may provide day care for children within their area who satisfy the conditions mentioned in subsection (1)(a) and (1)(b) even though they are not in need". The purpose of this clause is to empower the local authority to give day care to children, even if they are not in need within the definition. Surely it would be an extraordinary proposition to say that they must—they shall—provide day care for children within their area who satisfy the conditions mentioned in subsections (1)(a) and (1)(b) even though they are not in need.

Surely the idea is to overcome the difficulty that arises when some children, even though they are not in need, could still profit from day care. There are all sorts of people apart from the local authority who can provide day care. This amendment seems to suggest that the local authority must provide day care to children who are not in need in any and all circumstances.

If one wants to waste money that is a good way to do it, I suppose. However, I do not think that this is a situation that the Committee would wish to entertain. I choose that point because it relates to the amendment under consideration. It is all very well to talk about unenforceable obligations. A statutory body such as a local authority requires statutory power in order to act. If it has the power to act, that is surely a considerable advance.

My noble friend Lady Faithfull spoke about education. There are different levels of education. I am subject to correction if I am wrong, but my understanding is that nursery education under the Education Act is discretionary and that it is for the local authority to decide in each area exactly the level of provision required, its nature, and so on.

I humbly suggest to the Committee that lawyers can be somewhat carried away with the idea of judicial review, and so on. The correct approach is to look at the words that are written. It will be seen that we have made a considerable advance in directing the attention of local authorities to these powers, and we give them the authority to exercise those powers. Even if the children are not in need the local authority is still entitled notwithstanding to provide day care services for them.

In the present situation there is a diverse range of day care services provided by voluntary bodies and private individuals as well as local authorities. Surely it must be right for the local authorities to take account of that. These bodies have developed in some cases quite elaborate networks which have a great deal of expertise. Why should the local authority be obliged by statute to duplicate them whether or not they are required? Surely the only appropriate way is to leave the local authorities to look at this matter and decide what they should do in this connection. I speak at the moment principally in respect of Amendment No. 75.

As regards Amendments Nos. 76 and 77, the wording is a little different though the problem is the same. There are differences of circumstance in the different authorities and the only way to cater for different circumstances is to give a discretion which I should have thought would need to be exercised reasonably. Certainly I am not prepared to assume in advance of evidence that local authorities given these powers will not exercise them reasonably. I therefore invite the Committee not to support these amendments.

Lord Irvine of Lairg

The purpose of these amendments was to call attention—and I think we have done so successfully—to an unwillingness on the part of the Government to legislate for national standards in this area, in contrast to a gross willingness to do so in other areas. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 and 77 not moved.]

Lord Prys-Davies moved Amendment No. 78: Page 12, line 43, leave out ("supervised by a responsible person") and insert ("taking place in premises mentioned in section 1(1) (a) of the Nurseries and Childminders Regulation Act 1948").

The noble Lord said: This is a probing amendment. In the course of the Second Reading debate the noble and learned Lord the Lord Chancellor told the House that the Government intended by amending legislation to revise the Nurseries and Childminders Regulation Act 1948. That is the Act which regulates day care facilities provided privately for children under the age of five. Can the noble and learned Lord enlighten Members of the Committee about the scope or the nature of the proposed amending legislation? Can the noble and learned Lord tell the Committee when the amendments are likely to be published? Is it intended that they will be incorporated in this Bill at a later stage in this Chamber or in another place; or is it intended to introduce new primary legislation? I hope that the noble and learned Lord can throw some light on how the Government propose to amend the 1948 Act.

The Lord Chancellor

As I indicated, we are proposing to put down amendments to this Bill to modernise the Nurseries and Childminders Regulation Act 1948. These amendments are in the course of preparation. I have to rely on help in this matter, but it is our hope that we may be able to discuss the amendments while the Bill is still in this Chamber. I am just receiving some confirmation of that. We are trying to settle the precise detail. I hope that it will be on another day not too far off, early in the new year, while the noble Lords are still in charge of the Bill.

Baroness David

I assume that we cannot have these amendments at Committee stage. Or is that still a possibility? I am very glad that we are going to amend another Act. I was slightly rebuked for trying to amend another Act earlier. I gather that it is certainly possible to amend that Act within this Bill.

The Lord Chancellor

It is not quite impossible for the matter to come in during the Committee stage because it arises naturally in the late part of the Bill. However, the best estimate I can give now is that it will probably be the Report stage of the Bill.

I did not intend to rebuke the noble Baroness in any sense. I said that I thought the amendment she so eloquently proposed just before the adjournment would be one appropriately dealt with in social security legislation. However, the issue now before us is very much within the subject matter of the Bill. I therefore hope that we may be able to discuss it.

Lord Prys-Davies

That is reassuring. We hope very much that the amendments will be tabled in this Chamber. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

Clause 17 [Provision of accommodation for certain children]:

Lord Prys-Davies moved Amendment No. 79: Page 13, line 9, at end insert ("and that the intervention of the local authority under this section is necessary in the interest of the welfare of the child").

The noble Lord said: I shall not detain Members of the Committee long over this amendment. The proviso set out in the amendment has been in use since 1948. I understand that it has been particularly valuable. Perhaps I may refer to a letter that I have received from one of the organisations. It states that the proviso stops quibbling as to whether the case comes within the orbit of paragraphs (a), (b) or (c) of subsection (1).

It had occurred to me that the noble and learned Lord the Lord Chancellor might well say that this provision is now redundant given the terms of Clause 1 of the Bill, and that the child's welfare will always be at the forefront of all considerations which arise under the Bill.

9.15 p.m.

The Lord Chancellor

It appears that the intention is to ensure that the duty to accommodate arises only in circumstances where the provision of accommodation is necessary in the interest of the welfare of the child. However, the existing wording of the clause appears to achieve that result. The duty to accommodate arises only in respect of a child who is in need and who appears to the local authority to require accommodation. The wording makes it clear that the duty arises only where it is necessary for the local authority to intervene.

Members of the Committee will remember that the definition of the phrase "in need" carries back to the idea that unless the local authority makes a provision, some form of injury, damage or impairment would accrue to the child. We appreciate that the wording of the proposed amendment is taken from Section 2(1) of the Child Care Act 1980 which imposes the present duty to receive a child into voluntary care. However, as I have explained, within the framework of the Bill Clause 17(1) achieves the desired result by alternative means.

I believe that the framework has been simplified and we are trying to avoid unnecessary duplication. In the light of the explanation that has been given, I believe that the amendment would cause that. If the noble Lord accepts my explanation he may feel able to withdraw the amendment.

Lord Prys-Davies

The explanation given by the noble and learned Lord confirms the belief which I had been nourishing during the past half hour; namely, that the provision is already included within the framework of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull moved Amendment No. 80:

Page 13 , line 9, at end insert— ("except that no child shall he received into the care of the local authority solely by virtue of the fact that the person who has been caring for him is homeless as defined by the Housing Act 1985; and in such cases there shall be a duty upon the local housing authority to provide appropriate accommodation.").

The noble Baroness said: I run into difficulty with the amendment as did the noble Baroness, Lady David, in respect of her amendment which involved another Ministry. My amendment involves the Department of the Environment. Nevertheless, we are worried that children should not be accepted into care solely because of homelessness.

A number of women have to leave home—for example, battered wives, widows and others—land they find themselves without accommodation. They are good mothers and they do not want to be separated from their children. However, because they are homeless they have had to ask for their children to be accepted into care. Alternatively, it has been necessary to take the case before the court in order for a care order to be made. The amendment makes a plea that no child should be accepted into care solely because of homelessness.

My second point concerns the kind of accommodation which a mother and child will be given. I do not have the figures but, unfortunately, there are many young mothers with children living in unsuitable bed-and-breakfast accommodation. I know of a beautiful area in York where there is good accommodation in a hostel. However, the local authority has made arrangements for some of those in the hostel to move to bed-and-breakfast accommodation and it is unsuitable for young children.

This is a probing amendment. It is also a plea, first, for the two ministries to get together in order to work out a system whereby children are not accepted into care, or taken into court as being in need of care, solely on the ground of homelessness. Secondly, appropriate accommodation should be provided for them. I beg to move.

Baroness David

I give all my support to the noble Baroness. I am sorry that the noble Lord, Lord Seebohm, had to leave the Committee at about 9 o'clock. I should like to quote from the noble Lord's report. It was published 20 years ago but it is still apt today: The survival of a family is closely associated with the possession of a secure and separate home. … In our society the maintenance of family life and the care and upbringing of children are dependent upon the possession of an adequate home. Family and housing are inextricably linked; loss of, or the failure to achieve, a secure and decent home places a family in jeopardy. . . . In our view the preventive importance of adequate housing cannot be overestimated". I realise that the Committee is not dealing with the Housing Bill but it has great relevance to the subject about which we are talking. I believe that we should think carefully about what is happening to children in bed-and-breakfast accommodation. We should also be thinking about the young people I was talking of earlier, who equally may be homeless and suffering from that in many different ways.

Lord Campbell of Alloway

I should like to support this amendment. It involves the sort of qualification test which is a sham. This is one side of the coin. I referred to the obverse of the coin on Second Reading: having to go into bed and breakfast to qualify for priority on the housing list if you are a woman, unmarried, with a child.

This is not the obverse. The obverse arises as an illustration of Amendment No. 94, which is to follow; but on this one surely it is right that no child shall be received into care solely by virtue of the homeless consideration. It is a way of avoiding due placement or due disposal, if I may put it in that way, merely because the resources of the local authority, or sometimes those of the state, are not able to cope with the true intendment, and in a sense it is a sham. I support the spirit of this amendment

Lord Meston

Likewise, I support the spirit of the amendment. I wonder whether there is in existence anywhere any statistical evidence as to how many children go into care at present simply because their mother—it is usually the mother—is homeless. One does not need to repeat the problems of such people, because they are so obvious.

I question, however, the second part of the amendment, imposing a duty on the local housing authority. It seems to me simply to duplicate the statutory duties under the Housing Act, because where there are children generally speaking there is a priority need under that Act and there seems to me to be a measure of duplication in that respect. Nevertheless, I certainly wish to support the intention of the amendment.

Lord Trafford

I have every sympathy with the intention behind the amendment, but one or two points about it concern me. First, I should have suspected that if the paramount consideration is always that of the child's welfare, that might well be covered by Clause I, where the paramountcy of the child's welfare would be taken into consideration in the type of accommodation that should be provided in the circumstances. Therefore I doubt whether this adds much to it.

Secondly, I do not have the statistics which were asked for by, I think, the noble Lord, Lord Meston, but quite a number of people would be found to end up in the sort of predicament which would be covered by this amendment. So there would be a quite significant problem. I doubt very much whether the facilities in any sense are available in this respect to deal with such people.

Thirdly, I think the term "no child shall be received" is really rather strong. Finally, as I said earlier in connection with yet another Act and another Ministry when they were being discussed, I do not believe that this is the solution to what is really a bigger problem. So for all those reasons, although I have sympathy with the intention behind the amendment I have considerable reservations.

The Lord Chancellor

Under the homelessness provisions in Part III of the Housing Act 1985, as amended by the Housing and Planning Act 1986, local housing authorities already have a duty to arrange accommodation for homeless people in specified priority need categories, provided that the local authority is satisfied that the homelessness is unintentional.

The categories specified in the Act cover families with dependent children as well as pregnant women, those made homeless by fire or some other emergency and those who are vulnerable through old age or mental or physical disability, or for some other special reason. I should also add that the homelessness legislation is currently under review within the Department of the Environment, and obviously it would he premature to consider any changes to the legislation until the review has been completed.

If a family becomes homeless unintentionally there is a duty under the legislation dealing with homelessness to provide them with accommodation as a matter of priority. It is therefore natural to take it that the children of people who become homeless unintentionally will remain with their families in accommodation provided by the housing authority. The method chosen in the amendment is to place a duty on the housing authority, but that duty already exists.

I should mention that in the Department of the Environment's code of guidance, to which authorities are required to have regard when considering homelessness, they are asked whenever possible to arrange accommodation for other vulnerable people such as battered women without children or young people at risk of sexual or financial exploitation.

If the authority is satisfied that a homeless person in priority need became homeless unintentionally—that is a possibility covered by the amendment—its duty is limited to arranging accommodation for a temporary period. The general result is that when a parent with a child becomes homeless in such a situation the duty arises for the authority concerned with housing to provide accommodation for the family. In certain circumstances it may be necessary to initiate care proceedings or to accommodate the child of homeless parents. However, homelessness itself would never be a sufficient reason for doing so.

There is a point about the drafting of the amendment that I would mention if my noble friend wishes to press it into the Bill. If that is not the case, I do not think that it would be right to take up time with the precise drafting. My noble friend's point is very much in mind.

Baroness Faithfull

I thank the noble and learned Lord for his clear explanation and all Members of the Committee who have supported the spirit of the amendment. One obviously cannot press it, first, because the wording is not quite right and, secondly, because it is really a matter for housing.

I am afraid that the noble and learned Lord is far more trusting than I am. I know of children who are in care due to homelessness. Although I know the homeless legislation very well, it has not always been administered as we would wish it.

We have aired the subject. I very much hope that the noble and learned Lord and the civil servants will bring before the Department of the Environment the comments made in the debate concerning these children. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 81: Page 13, line 27, leave out ("is provided for") and insert ("includes").

The noble Lord said: The purpose of the amendment is to make clear beyond doubt that, while the community home referred to in subsection (5) should include accommodation for 16 and 17 year-olds, it should not have to cater exclusively for that group.

The amendment has emerged from the school of experience. I understand that the children's legal centre had a case where a social service manager refused to allow an 18 year-old to stay at his children's home because the home contained young children. He maintained that the wording the … home is provided for children who have reached the age of sixteen meant that it was solely provided for such children. As I said, the object of the amendment is to ensure that that kind of misunderstanding does not occur again. I beg to move.

9.30 p.m.

Baroness David

I should like to support the amendment. Although the noble and learned Lord has been uttering honeyed words throughout, he has not really given way on anything. I shall be horrified if this amendment is not accepted. It seems to me that it is very obvious and that it could be accepted.

The Lord Chancellor

The idea of Clause 17(5) is to make plain that the authority may provide accommodation in a community home for any person who has reached the age of 16 but is under 21 if the community home is provided for children who have reached the age of 16. Therefore, the sort of answer to which the noble Lord, Lord Prys-Davies, referred, would not be a good answer in the circumstances of Clause 17(5). As a consequence, we do not believe that this amendment is necessary.

A community home might be provided for children who have reached the age of 16. There could be none in it. Therefore, it would be easier to receive into it persons who are aged 16 but under 21. The point made by the noble Lord was that some people in charge of such homes say that the home is provided only for those who have reached the age of 16 and that they are not prepared to take anyone aged 17 or over. This clause makes the position reasonably plain. However, in view of the warning given to me by the noble Baroness, perhaps I should offer to give further consideration to the wording or this provision although at the moment I do not see anything wrong with it.

Lord Prys-Davies

We are graceful for the possibility of a concession. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 82: Page 13, line 28, leave out from ("sixteen") to end of line 33.

The noble Lord said: I am advised that the restriction of subsection (5)(a) that, the home is near the place where he is employed; seeking employment; or receiving education or training; or he is disabled", is unnecessary and unconstructive. In many if not most cases, it is likely that the home will be in the location described and specified in the paragraph. However, in some cases, for example where a young person has gone away to college but needs a place to stay during the holidays, it would not be possible to fulfil the conditions of the paragraph. Therefore, the object of the amendment is to remove that provision on the basis that in practice it is unnecessary and unconstructive.

The Lord Chancellor

I see a good deal of force in that point. I should like time to consider the matter further.

Lord Prys-Davies

I am grateful that we are making progress. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 83:

Page 13, line 41, at end insert— ("; and (c) give due consideration to any physical or other handicap of the child and to his educational needs including any special education needs.").

The noble Lord said: In a sense this amendment speaks for itself. Clause 17(6) provides that the local authority shall do certain things before providing accommodation under Clause 17. This amendment seeks to provide a requirement for the local authority to give due consideration to a physical or any other handicap of the child and his educational needs including any special educational needs. It seeks, among other things, to deal with a tendency, which seems to exist in some areas—I have come across this in practice and it has caused, at the least, delay in placing a child—towards a lack of communication and rather less co-operation than one hopes to find between a social service department and an education department. As I said, that can cause delay in placing a child appropriately or placing a child in the home most convenient to a school, particularly one with any special educational needs. Of course, special educational needs often exist in these cases.

Accordingly, there should be a duty on the local authority at least to consider these needs in the process of deciding where and how to place a child. In addition, the local authority should have to consider any other particular disadvantages suffered by the child in deciding on placement. I beg to move.

The Lord Chancellor

This amendment would require the authority before providing accommodation under Clause 17 to give due consideration to any physical or other handicap of the child and to his educational needs, including any special educational needs.

Strictly speaking the amendment is not necessary. The local authority must address the welfare of the child when considering under Clause 17(1) whether he requires accommodation. The same applies under subsection (3) in respect of children over 16. For the purposes of the Bill, welfare has the ordinary meaning embracing health and development, including educational, social and cultural development. There is no need to specify particular facets of a child's welfare in the Bill and, indeed, it could cast doubt on the extent of the meaning of welfare to do so. The factors which concern the noble Lord, Lord Meston, and his supporters should therefore receive the necessary attention.

The appropriate place to make these factors prominent may be in the guidance to be associated with this legislation. However, I accept that there may be presentational arguments for highlighting some of those aspects of a child's welfare which would not be common to all children provided with accommodation. Therefore, I am prepared to consider this matter further.

Lord Meston

I am grateful for that indication. Of course, the considerations under Clause 17(1) are considerations of whether the duty to provide accommodation arises. By the time we get to Clause 17(6) we are considering how the duty should be exercised. What my amendment proposes is certainly not intended to be onerous for local authorities. As the noble and learned Lord indicated, it is stating what local authorities ought to be doing but, sadly, experience suggests that they do not always do that. However, having said that I am again grateful to the noble and learned Lord and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 84:

Page 13, line 47, at end insert— ("Provided that, where a child has been so accommodated for more than three months a parent or other with parental responsibility should give notice of at least 24 hours.").

The noble and learned Lord said: Clause 17, to which this amendment relates, derives from the White Paper which refers to the concept of a voluntary partnership between parents and local authorities and suggests that, in line with that concept, the present requirement for parents to give 28 days' notice to remove a child who has been in voluntary care for six months should be ended.

The notice requirement was introduced by the Children Act 1975 following cases which left uncertain the status of a child in voluntary care whose parents had requested his removal. This subsection puts the clock back completely and creates problems. Let us suppose that a parent turns up, obviously tight or under the influence of drugs and quite incapable of undertaking the care of the child. Then, according to the Bill as it stands, the obligation is that the child should go into his so-called care. There is a risk of an immediate appearance by the parent in such circumstances and harm may befall the child.

Let us further suppose that the local authority feels that because of the presence of a potentially violent person in the parents' home the child would be at risk if he were returned. In those circumstances the solution would be to obtain an emergency protection order to prevent the state of affairs occurring. The question arises whether the local authority can hold the child until it has made an application for an emergency protection order. The solution proposed in the amendment is to require parents to give notice and to reduce the requirement to the modest period of 24 hours. Therefore, the requirement to give at least 24 hours' notice before the child is removed to other accommodation gives those concerned an opportunity of looking at the actual situation. If the circumstances so require it, an emergency protection order may be obtained. This is a very modest but safeguarding provision. I beg to move.

Lord Meston

I support the amendment. The scenario that the noble and learned Lord outlined of the drunken parent turning up is all too familiar to those who deal in this field. He suggested several reasons for a requirement of at least 24 hours' notice. I suggest another good reason is to prepare the child for the return. If a child has been away from home for three months he or she will have settled down. It should not be right for a parent to turn up, possibly out of the blue and the worse for wear, and suddenly to demand, and being enabled to demand, the removal of the child at any hour of the day or night.

Baroness Faithfull

Based upon experience, I support this amendment. There have been times when it has been heart-rending when a mother has turned up and taken her child straightaway when one has not, as the noble Lord, Lord Meston, said, had time to prepare the child or even to get its clothes ready.

9.45 p.m.

The Lord Chancellor

The clause that we are here concerned with deals with voluntary arrangements. It is the essence of a voluntary arrangement that it should be entirely free. If I leave my child with a relative and go along to pick up the child I would be surprised if I had to give 24 hours' notice. Very often I would give such notice, but there would be no requirement upon me to do so.

The provisions of Clause 3(5) allow a person caring for a child to do what is reasonable to safeguard the child. I have some difficulty in seeing that the kind of cases that the noble and learned Lord, Lord Elwyn-Jones, mentioned are necessarily catered for by the provision of 24 hours' notice. Some people may not have been in a fit state when they gave the notice and may be in an even less fit state by the time the 24 hours' notice has expired. The solution does not address the problem. While I see that there may be a problem of the kind the noble and learned Lord suggested, the solution is in the safeguarding provisions which anyone having the care of a child may take.

The important point is to emphasise the voluntary nature of these agreements. The fewer obstacles to freedom one puts in them the better. I appreciate that these difficulties may exist not only where someone has put his child with a local authority but where he has put his child with his mother. He may turn up not fit to take the child back from his mother. The mother would not say, "Sorry, you should have given 24 hours' notice". She would have other ways of coping with the matter and the local authority would have the same kind of power. While I appreciate that there are problems with the case which the noble and learned Lord figured, I doubt very much whether it coincides with the position with which we are dealing here.

One of the problems about voluntary arrangements is the fear that if the local authority gets its hands on a child—my noble friend knows as much about this point as anyone—it will keep the child. That discourages people from entering into such arrangements. It is better to make arrangements on a voluntary basis if possible than to have to use any form of compulsion. We are in the business of trying to make these arrangements as open as possible. It is a little inconsistent with that idea to have this notice provision, particularly when difficult cases such as those put forward can be dealt with in the way that I have suggested.

It is important in the case of a public body that parents should have equal freedom if they are to have confidence in public forms of care. Most parents will behave responsibly in accordance with arrangements with the local authority. It would be possible for the authority to offer other services if it considered that appropriate or, in cases of serious concern about the child, to consider court proceedings. If the authority had reason to doubt the capacity of the parent to take charge of the child I do not believe that 24 hours' notice would solve the problem. In so far as the problems with which the noble and learned Lord was concerned arise—I acknowledge that they do—I hope he will agree that they are best dealt with by the safeguarding provisions to which I have referred and that he will feel able to withdraw the amendment.

Lord Elwyn-Jones

I shall not press the matter at this time of night. However, this is a most modest proposal for the safeguarding of the child. Evidence has been given by the noble Baroness that there can easily be difficulties. All that is required is that the parent should give the local authority 24 hours' notice. I know that it is not very much, but it is better than a sudden withdrawal and removal without notice. Perhaps the noble and learned Lord will look again at this before we reach Report stage. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 85: Page 14, line 7, at end insert ("or where a child under the age of 16 requests that accommodation be provided for him by the local authority.").

The noble Lord said: This amendment seeks to deal with an area of concern not just about the Bill but about existing legislation which does not allow for a child himself to request that he be taken into care. Clause 17 does not provide for this save in the case of a child who is over 16 years of age. The amendment provides that a child can request that accommodation be provided for him by the local authority in the face of parental opposition to him or her departing from home. Where a child is determined to leave home for whatever reason and he cannot have resort to local authority accommodation, the alternatives are many. They include homelessness and going into other undesirable accommodation.

It is curious in a sense that provision is made for people over the age of 16 to apply in those circumstances to be taken into local authority accommodation, but not for people under the age of 16, who one would have thought were, in the nature of things, more vulnerable. Accordingly it seems to be an area in which this reforming Bill could address the problem and provide the solution as I suggested in the amendment. I beg to move.

The Lord Chancellor

My Lords, the White Paper made a clear commitment to provide accommodation services to support families with children in need. The Bill achieves that under Clause 17. The local authority may provide accommodation for a child if the authority considers that to do so would safeguard or promote the child's welfare. This service would be available to parents or those with parental responsibility and would also be available to children over 16, thereby clearly acknowledging that children over 16 should be able to make their own decisions.

The Bill provides that where a child is accommodated on a voluntary basis—that is to say, without the authority of a court order—a parent can remove the child at any time. Indeed, that is the point which we have just been discussing. However, in the case of a 16 year-old, the local authority will be able to provide accommodation even if the parents of the youngster object. Similarly, the parents will be able to remove a child under 16 at any time but they will not be able to do so in the case of a child over that age who does not wish to return home.

The amendment proposed to this clause would achieve the same effect in relation to children under 16, so that any child below that age would become self-determining in the matter in the same way as a child over that age. These are young children, below school leaving age, who would not be able to support themselves. The Government do not believe that such children, who are by definition vulnerable children, should be exposed to the pressures that this could bring.

The amendment would place an enormous responsibility on a child to make one of the most important decisions in his life—that is, where and with whom he should live. He would, for example, have to decide whether he wished to remain with foster parents or return home to live with his parents, if his parents wished to remove him. That could place an intolerable burden on a young child.

However, the Government have been mindful of the increased concern about the rights of children to self-determination and particularly so since the House of Lords decision in the Gillick case, to which reference was made yesterday. That case indicates that generally, once a child is of sufficient age and understanding to make mature decisions, his views should prevail. We do not believe that the approach the Government have taken in the Bill undermines this. We do not think the views of children under 16 should be ignored. Clause 17(6) places a duty on the local authority to give due consideration to the wishes of the child before providing accommodation and makes specific reference to the need to have regard to the child's age and understanding—reflecting the checklist provisions in Clausel(2). This is surely a proper approach to our duty to protect vulnerable children while at the same time recognising their right to influence decisions made about them.

Let us also consider the position from the point of view of the local authority. If the amendment were accepted, the authority would be faced with a very difficult task indeed. It would lead to disputes which would be difficult to resolve and could only undermine the effective provision of services.

We acknowledge that this is quite a difficult area and 16, in a way, is an artificial barrier, but we are satisfied that the Bill strikes the right balance between giving proper weight to the views of the child concerned and at the same protecting him, so long as he is under 16, from sensitive and onerous decisions. Therefore, in our view, the Bill is best left as it is and the situation should be determined in the light of those considerations.

Lord Meston

I am grateful for the explanation of the Government's view. This is a difficult area but it still seems to me that there is a curious logic in specifically providing for children over 16 who decide to leave home but not, unless the compulsory provisions involving a court order are invoked in the particular circumstances, for children under 16 who decide to leave home.

The noble and learned Lord says that children in such circumstances will be faced with or have imposed upon them the need to make a decision. I am in a sense looking beyond that and considering the situation of those children once they have already made the decision and left home in the face of continuing parental objection to their departure. However, I wish to think about this further. For that reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lady Kinloss moved Amendment No. 86:

Page 14, line 7, at end insert— ("( 11) A local authority may not provide accommodation under this section for any child aged 16 or 17 if the child objects").

The noble Lady said: I beg to move the amendment standing in the names of the noble Baroness, Lady David, and myself. Under Clause 17, 16 and 17 year-olds are recognised as having rights to admit themselves to this form of care. But the Bill does not provide for this age group to discharge themselves. I anticipate that the noble and learned Lord the Lord Chancellor will raise two arguments in objection. The first is that if 16 and 17 year-olds discharge themselves without the consent of their parents or perhaps are young people with no parents at all or parents quite incapable of looking after them, the young people will find that they are without any parent or any suitable parent at all.

Legally that is correct. Until persons are 18 they are deemed to be in the care of somebody, either their own parents or the local authority. In practice, society and the Government recognise that some 16 and 17 year-olds are quite capable of independent life without need for a parental figure. I refer to the DHSS statistics on children leaving care, which include a specific category of children under 18 who are self-supporting.

My second point is that 16 and 17 year-olds may be vulnerable young people who are very much in need of care. If that is the case, the local authorities can apply to the courts. I beg to move.

Baroness David

All I wish to say is that I support the noble Lady. I think that 16 and 17 year-olds should have this right. I hope that the noble and learned Lord will agree.

The Lord Chancellor

The Bill already provides for the views of children over 16 to prevail in cases where they agree to be provided with accommodation if their parents object or wish to remove them. They can stay against their parents' wishes. This amendment would ensure that local authorities have no power to provide accommodation if a child over 16 objects, irrespective of the views of parents.

We are sympathetic to the principle. The local authority, under voluntary arrangements, has no statutory power to hold on to a child unless a care order is obtained. Therefore if 16 or 17 year-olds have alternative accommodation to which they want to go, they can always vote with their feet. They can go and that seems to be that. I do not know that this amendment therefore adds anything to their power to do just that.

Lady Kinloss

I thank the noble and learned Lord for his reply. I shall read it, and perhaps we shall return to the subject at Report stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 87:

Page 14, line 7, at end insert— ("(11) Where a child is to live in accommodation provided by the local authority matters such as placement, schooling, contact and the return home of the child should be settled by agreement between the local authority and those persons with parental responsibility or in whose favour a residence order has been made, or in the case of a child of sixteen or seventeen, the child himself. (12) The Secretary of State shall by regulations set out the broad terms which these agreements should cover.").

The noble Lord said: The provision of accommodation by local authorities which is governed by Clause 17 replaces what is now known as voluntary care. According to the most recent DHSS statistics on children in care, I am told that half are in voluntary care. Therefore this is a very important clause.

The amendment brings into the clause proposals made in paragraph 23 of the White Paper The Law on Child Care and Family Services that arrangements for children in accommodation provided by the local authorities should be set out in written agreements between the local authorities and the parents and/or the children. I understand that there is a body of literature and research findings to support paragraph 23 of the White Paper.

It is important that a framework of written agreements exists. To my knowledge at least three main reasons have been advanced in support of the written agreements. First, they will encourage greater partnership between children, their families and a local authority in making plans for the future of the children. I understand that it is too often the case that the purpose of a child's entry to care is seen differently by parents and local authorities. So an agreed plan or an agreement would help to establish common aims.

Secondly, the written agreements would provide a more secure framework for the children, which, in turn, should encourage local authorities to use the provision of accommodation in longer-term cases. The third main reason is that the agreements will have the benefit of concentrating a social worker's mind on what is administratively necessary in order to make the agreed arrangements work in practice. I hope that the noble and learned Lord will agree that this amendment fills a gap in Clause 17, and that it will be acceptable to the Government. I beg to move.

10 p.m.

The Lord Chancellor

The Committee will recall that the White Paper promised that where the local authority looked after a child away from home with the voluntary agreement of parents—that is, where no court orders had been made—matters such as the initial placement, schooling and contact should be settled by mutual agreement with the parents, to make matters as flexible as possible.

The White Paper also promised that it would be possible to recognise the part that older children can play when they are able to participate in making agreements. The Government also promised that regulations would clarify in broad terms the areas which such arrangements should cover. The Bill seeks to honour those White Paper commitments.

The Bill already includes powers to make regulations to cover agreements of the kind envisaged in this amendment. I refer the Committee to regulations which may be made. I shall give the references as I am not suggesting that Members of the Committee should check them now but they may be of use later.

In the context of fostering placements, the regulations are to be found at Clause 19(2)(a) and paragraph 10 of Schedule 2. Placements with parents are to be found in paragraph 12 of Schedule 2; and placements in various homes and institutions in paragraph 4 of Schedule 4, paragraph 7 of Schedule 5 and paragraph 10 of Schedule 6. The regulations concerning a residuary power in respect of other placements are to be found in Clause 19(2)(f).

Those are all powers to make regulations which would include the power to make provision for the relevant agreements, as I understand these provisions. We are concerned to ensure that the powers to make these regulations are sufficiently wide to accommodate a whole range of agreements, and we hope that the provisions as presently drafted achieve that kind of width.

The amendment proposed is at first sight attractive in that it makes clear provision for agreements between a local authority and parents or, in the case of older children, in their own right. But, as I have explained, if I am right in that explanation the amendment would duplicate provisions already there. More seriously, it would potentially be restrictive of the agreements which could be made in that it implies that agreements could only be made about the matters referred to in the agreement.

As I have already said, we wish the powers to be as flexible as possible so as to be able to provide for as wide a range of agreements as possible. We accept the principle, and we suggest that the power to make agreements should be very wide indeed. I hope that the Committee will be reassured that the Government's commitment in the White Paper has been provided for and covers all that is sought to he covered by this amendment, subject of course to checking the matters that I have raised.

Lord Prys-Davies

Can the noble and learned Lord at this stage confirm whether or not the regulations will set out the broad terms which the agreements should cover?

The Lord Chancellor

I think that it is certainly possible for the regulations to set out the subject matter that the agreements may cover rather than try to set out the terms. That is what I would expect. I would hope that the regulations make provision for the various headings that an agreement could cover, not necessarily exhaustively but indicating the types of heading. I would expect them to include matters referred to in the amendment and leave scope for others as well. The wider the scope for agreement the better in that context. I would expect the agreements to indicate subject matters which could be covered leaving scope for covering matters which we have not thought of.

Baroness David

Perhaps I may ask the noble and learned Lord whether there will be a chance to see any of the many regulations that are to accompany the Bill while the Bill is still going through the House or the other place.

The Lord Chancellor

I have always taken the view that before one drafts regulations one should know what powers one has. Any drafts that could be provided while the Bill is in progress would be provisional. I am not in a position to say at the moment that we shall have the regulations, but I think that if the vires for the regulations is present that is probably sufficient for present purposes. I am in the business of giving as much information as I can, but the drafting of regulations is an exercise not to be undertaken lightly. For my part I believe that one drafts regulations once one knows what powers one has to draft them; otherwise one is apt to make mistakes. I have seen regulations which suffer from defects, because they have been drafted prematurely.

Lord Prys-Davies

We are grateful to the noble and learned Lord for the assurances and the information he has given the Committee. Clearly this is an issue that we shall have to consider with the organisations which have a special interest in the area. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Baroness David moved Amendment No. 88: After Clause 17, insert the following new clause:

("Court orders requiring local authority to take children into care.

.—(1) Where a local authority has been requested in writing to provide accommodation for a child under section 17(1) of this Act and refuses to do so—

  1. (a) the child;
  2. (b) his parents; and
  3. (c) any person who is not a parent of his but who has parental responsibility for him,
may apply to a court for an order directing the authority to do so.

(2) On application under subsection (1) above, the court may make an order for the child to be accommodated by the authority if it is satisfied that the child requires such accommodation as a result of—

  1. (a) there being no person who has parental responsibility for him;
  2. (b) his being lost or having been abandoned; or
  3. (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.").

The noble Baroness said: The amendment proposes a new clause to allow children and parents to take a local authority to court if it refuses to look after a child. At present under Section 3 of the 1963 Children and Young Persons Act parents can apply to the juvenile court for an order requiring the local authority to take care proceedings if they feel that their child is beyond their control. That section has been repealed and nothing has been put in its place. Clause 71(2) even prevents the inherent jurisdiction of wardship being used to safeguard against an authority's unreasonable refusal to receive a child into care. Applications under Section 3 are rare. Given the odium attached to a care order that is not perhaps surprising.

However, the Children's Legal Centre and other organisations now encounter with growing frequency social services departments which are not prepared to receive children into care, usually for resource reasons but sometimes because they do not believe a child's allegations of abuse or minimise the harm involved. The Children's Society's safe house for runaways is handling cases of children who have been refused care but who are so desperate to leave home that they have run away and are living in the streets. Even in those cases the social services departments have refused to intervene.

The Children's Legal Centre was sent anonymously a memorandum issued by a London borough stating that in future no child over 12 may be received into voluntary care. The unlawfulness of that policy is, we understand, being pursued by the Department of Health. The amendment would enable children and parents to apply to the court to direct authorities to receive a child into care if it is satisfied that the grounds set out in Clause 17(1) defining the local authority's duty to provide accommodation are met. It would not enable the court to intervene to any greater extent in the local authority's exercise of its discretion.

I think that we have a serious point here. I hope that the amendment will receive careful attention. I beg to move.

The Lord Chancellor

It is an important principle that it is right for the local authority to withhold its services if the child does not appear to require them. The appropriate course for those who wish to challenge such a decision is then through judicial review. This principle applies to many local government responsibilities. In the case of the example put forward in this amendment, however, I think it is fair to say that there are a number of additional difficulties. Would the court order fall if the applicant failed to accept the accommodation? It is a fundamental principle of this Bill that a child should only be accommodated compulsorily where the grounds in Clause 26(2) are satisfied. The proposal would seem to envisage a half-way house in which the powers and responsibilities of the local authority are not clear.

The grounds for care provide for the situation in which a child is being harmed or is likely to be harmed by his being beyond parental control. In such a case a local authority would be asked to bring proceedings under Part IV of the Bill. We would not wish parents to compel the local authority to seek a care order. The Review of Child Care Law said at paragraph 12(17) that there was some advantage in ensuring from the outset of what might become a long history of compulsory intervention that the social services department was in the lead and firmly identified by itself and others as having the primary responsibility for the child; and of course it has the duty which this Bill places upon it.

Accordingly at the moment I cannot see that this kind of half-way house as proposed by the amendment is suitable to introduce into the Bill. It is very important that the responsibilities of the local authority to provide care should be defined as they are very carefully in Clause 26(2) and that only in that situation should a care order with consequences for the local authority and for the child be possible.

Earl Russell

I take the noble and learned Lord's point that there should not be an obligation on the local authority to provide care when the child does not appear to need it. I think that the question underlying this amendment is how far the local authority's judgment in this matter is likely to be entirely disinterested.

The matter of resources has been mentioned. In many places local authorities are under increasing pressure to keep within their spending limits. There have been cases in which they have been encouraged by that pressure to take a minimalist view of their responsibilities. I believe that what the noble Baroness had in mind was a child care equivalent of something like the Bidborough House case in Camden. In such a situation a child should not be left without care while the Government and the local authority sort out the very complicated problem of spending limits. For those reasons I think that this is a good amendment.

Baroness David

I am extremely grateful for the noble Earl's support. I appreciate that this is a very complicated area. From the evidence that I have put forward I am quite sure that there are real difficulties which should be examined. I shall study very carefully the remarks of the noble and learned Lord and I may well come back to this matter if I can produce further and perhaps necessary evidence. I should like to have the chance to look at that evidence and to consider what I intend to do at the next stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Clause 18 [General duty of local authority in relation to children looked after by them]:

The Lord Chancellor moved Amendment No. 89: Page 14, line 20, leave out ("facilities and").

The noble and learned Lord said: I have spoken to this amendment with Amendment No. 61. I beg to move.

On Question, Amendment agreed to.

Lord Meston moved Amendment No. 90: Page 14, line 29, at end insert ("and shall consult if practical any guardian ad litem of child for the time being if appointed.").

The noble Lord said: Clause 18 sets out the general duty of a local authority with regard to children being looked after by it. In subsection (4) it provides certain duties for the local authority before making any decision with regard to a child whom it is looking after or whom it proposes to look after.

By this fairly straightforward amendment I seek to add a duty on the local authority to consult any guardian ad litem who may be in existence at the time. It is clear from the Bill as drafted that the local authority is expected to have regard to the wishes and feelings of the child and the parents and any other person who has parental responsibility. If there is a guardian ad litem in existence at the time, he or she may well be the best person to guide the local authority as to the true needs and indeed the true wishes of the child.

It seems to me to be a curious omission for consultation with the guardian ad litem not to be included in this part of the Bill which governs the decision-making process. I beg to move.

The Lord Chancellor

Clause 18 provides for the responsibilities of local authorities towards children they are looking after. In particular, Clause 18(4) specifies that before taking any decisions about a child the local authority must, so far as is reasonably practicable, ascertain the wishes and feelings of the child, the parents and anyone who has parental responsibility. This amendment would require the local authority also to consult the guardian ad litem for the child if one has been appointed. This would extend the role of guardian ad litem beyond that provided for in Clause 36 and any rules of court, so far as I know.

I do not think that that is appropriate. We had a suggestion yesterday about putting "guardian ad litem" into English, but I shall use the phrase of the amendment. A guardian ad litem is appointed by the court for a specified purpose—to safeguard the interests of the child for the purpose of the proceedings. His function is to assist the court to reach a decision on the application before it and his role ceases at the conclusion of the case. There is only one exception and that is to consider whether or not to appeal against the decision reached by the court. Unless there are court proceedings, therefore, the guardian ad litem has no function. Responsibility for the care of the child during the course of the court proceedings rests with the local authority, not with the court.

I believe that it is quite important in this area to make that plain. While the court proceedings are going on the local authority has the responsibility. It follows therefore that responsibilities for decisions made about the care of the child during this time also rest with the local authority and not with the court. If the court is required to intervene—if the local authority needs some decision from the court—then the guardian ad litem comes in to assist the court, in accordance with the rules under which he operates, to reach a proper decision. However, the guardian ad litem's responsibilities are to the court. Obviously the local authority should keep the court informed about any decisions made about the care of the child during the course of court proceedings, and a good way of doing that would be to inform the guardian ad litem, who acts as an officer of the court.

Indeed, the recent judicial review decision of R v. North Yorkshire County Council in The Times of 10th September this year indicated that guardians ad litem must be told of major proposals. But that is in order that they may take action in the court proceedings if necessary. It would be entirely inappropriate to confuse the separate functions of the court and the local authority in relation to decisions made about the child during the course of court proceedings. Therefore it would be equally inappropriate for the guardian ad litem to have a statutorily defined responsibility for decisions made about the care, of a case work nature, of the child by the local authority.

I believe strongly that it would be inappropriate to try to involve the guardian ad litem in such decisions. It would be a confusion of his role, that being in relation to the court and the decision which it must take.

Lord Meston

It was not the intention of the amendment to give the guardian ad litem an additional responsibility while the child is in care. It was intended to give the local authority an obligation to consult and not be bound by anything which the guardian ad litem may say. It was not intended to bind the guardian ad litem to take on any additional duties. I hope that that is clear. There is not meant to be an onerous obligation on either party.

The noble and learned Lord rightly says that the guardian ad litem has a duty to the court. However, he or she is also the representative of the child. I sought to suggest that, having concentrated on the child for a period of time, he or she is in a good position to give an expert view to the local authority before any step must be taken.

There is a division of function between that of the local authority in exercising its care obligations and that of the guardian ad litem as a representative for the purpose of legal proceedings. However, I suggest that the integrity of neither function is impaired by the provisions of the amendment.

The noble and learned Lord has indicated that he feels strongly about the matter and I respect that view. I also wish to consider the matter further and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 91: Page 14, line 31, after ("authority") insert ("shall make the child's welfare its paramount consideration and").

The noble Lord said: The amendment seeks to add to the general duty of the local authority that which appears to be omitted from Clause 18; namely, the duty to make the child's welfare its paramount consideration. That familiar phrase is used at the beginning of the Bill in respect of the duty of the court in relation to the child. I suggest that, in logic, it should also be the paramount consideration for the local authority.

I hope that that explanation is sufficient and I beg to move.

The Lord Chancellor

Clause 18(3) substantially reenacts the present law requiring a local authority which is looking after a child to safeguard and promote his welfare. Moreover, Clause 18(6) and (7) permit an authority to act inconsistently with this duty only where it is necessary to do so to protect members of the public from injury. In all but the most exceptional cases, therefore, a local authority's decisions with respect to a child who is being looked after by it must safeguard and promote the child's interests. The proposed amendment seeks to go further. It would apply to local authorities the criteria which bind courts in making decisions about children, which are found in Clause 1(1). The effect would be to make the child's welfare override any other consideration.

The Review of Child Care Law considered the issue. It had been suggested to it that in this context the child's welfare should be the paramount consideration overriding all others. The review said that there are other considerations which are relevant and which must on occasion be permitted to outweigh the best interests of any individual child in care. For example, the details of day-to-day living in a community home must involve the balancing of the interests of all the children there. The interests of one child in care must be viewed in the light of those of other children in his present or future home.

On some occasions, particularly where the child's own behaviour has led to his admission, his interests must be set against the need to protect other people from serious harm, for example; and it must be recognised that local authorities have to discharge their legal responsibilities within the limits of the resources available, so that the best for any individual child or group of children may simply not be available or available only at considerable cost to other children or to other client groups whose needs may be just as great.

The difference here is that one is a court case. The court case is one where the child is being looked at and decisions are being made about that child in the context that the court has responsibility for deciding about that child. In the context of this subject there are other considerations. As a result of these considerations the review decided not to recommend the adoption of the paramountcy principle in this context. This view was supported by the Law Commission when it considered the application of paramountcy in the course of its review of child law. Here I refer to paragraph 3.2 of Working Paper No. 96.

It is simply not practicable to expect parents always to give priority to their children's interests or the best may not be available to them, or available only at considerable cost to others. I therefore urge the Committee to agree that this amendment, while it has an attraction in a way in the fact that the paramountcy principle is used in a different context, is seeking to apply it in a context in which it is not appropriate. Therefore I invite the Committee not to support this amendment. I hope that the noble Lord, in consideration of these factors and in the light of the views taken by the Law Commission as well as the review, will agree that this is not an appropriate amendment to support.

Lord Meston

This was in the nature of a probing amendment. I recognise the wording of the Bill as, in effect, a restatement of the existing law, but it was suggested to me that this amendment would be a means of improving the ethos of local authority child care. Having heard the arguments of the noble and learned Lord, which I fully understand and respect, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 92:

Page 14, line 38, at end insert— ("( ) Where the local authority has ascertained the wishes and feelings of the child under subsection (5)(a) above and is satisfied that the child has sufficient understanding to make an informed decision he shall determine the decision, unless they are satisfied that his welfare would he prejudiced if he did so.").

The noble Lord said: In moving Amendment No. 92 and speaking also to Amendment No. 93, I should say at the outset that our preference is for Amendment No. 92. Clause 18 concerns local authority decisions with respect to a child whom it is looking after or proposing to look after. In making decisions under subsection (5) the local authority is required to give due consideration—having regard to the age and understanding of the child—to his wishes and feelings so far as it can ascertain them, to the wishes and feelings of the parent or someone in loco parentis, and to the child's religious persuasions and ethnic origins.

The proposed amendment suggests that where the local authority has ascertained the wishes and feelings of the child and is satisfied that the child has sufficient understanding to make an informed decision, he—that is to say, the child—shall determine the decision unless the local authority is satisfied that the child's welfare would be prejudiced if he did so.

I have said that I prefer Amendment No. 92 to No. 93 because of the primacy that continues to he given to the paramount consideration of the welfare of the child. This amendment accords with modern ideas of children's rights and with modern ideas of the growing maturity and independence of young people. The effect of accepting the amendment would be that the wishes and consequent decision of a child with sufficient insight would be determinative unless the local authority were satisfied that the child's welfare would be prejudiced by the decision. An informed decision by the child would have powerful effect and would be overriden only if the local authority was satisfied that the child's welfare would be prejudiced.

Members of the Committee may think that the amendment is well in line with the underlying principle in the Gillick decision, to which the noble and learned Lord has referred—namely, the priority of children's right to make their own decision when they reach sufficient understanding and intelligence to make up their own mind. The amendment in no way precludes regard being had to the wishes of the parents or of a person in loco parentis; or, indeed, to the child's religious persuasion or ethnic origins. All that would come in under consideration of the child's welfare.

The purpose of the amendment is to give a very high and contemporarily acceptable value to the child's own wishes, higher than those of the parent or of someone in loco parentis, but always subject to the overriding consideration of the welfare of the child. I am sure that the noble and learned Lord the Lord Chancellor would desire to be associated with progressive ideas even at this late hour. I am therefore hopeful that the amendment will receive an encouraging reception. I beg to move.

10.30 p.m.

The Lord Chancellor

I am all for practical progress, and perhaps that is what the Bill provides.

The Bill does nothing to change the underlying principle of Gillick, which has to be taken into account by all who exercise parental responsibility over a child mature and intelligent enough to take decisions for himself. The Bill does not attempt the next to impossible task of definitively defining the rights and how they interrelate, but, rather, ensures that the child's views are taken into account. There is no equivalent to the court's checklist for local authorities, but the child has first position in subsections (4) and (5) and we intend to emphasise the special position of the mature child in guidance to local authorities on how they should carry out their responsibilities under Clause 18.

We must of course allow for the fact that the children to whom Clause 18 relates include those who are provided with an accommodation service by the local authority under agreements entered into voluntarily by parents. The parents retain full parental responsibility in these cases. I can think of few better ways of discouraging parents from using services of this kind than prescribing in this Bill that in any decisions which subsequently had to be made the child's wishes should always prevail. If the effect of putting a child voluntarily into accommodation by the local authority was suddenly to give that child's views complete domination, one can see that parents might be a little slow to avail themselves of the service.

There are other practical considerations. What if a question arises which affects a number of children being looked after in a community home and it is necessary to decide the question according to the views and feelings of the majority of the children affected? In those circumstances it may be perfectly reasonable for the authority not to follow the wishes and feelings of a child who is in the minority, but the first amendment would allow it to proceed in this way only if following the minority view would prejudice the child's welfare. The authority could quickly become hamstrung by restrictions of this kind. I believe that we need an approach to this question which is sensible and practical. We hope to be able to remove much of the uncertainty that attends this matter by guidance, on which of course there would be consultation.

However, I have some sympathy for the view that whenever practicable, local authorities should give particular weight to the views of mature children whom they are looking after, provided that any emphasis of that kind is given in a way which will not undermine volunteer arrangements and parental cooperation. I believe that that is a better way forward than trying to achieve it by a statutory provision.

I believe that guidance on the way in which the Bill could be applied is better than trying to lay it down. To lay down a regime when a number of children may be involved is difficult to accomplish with any clarity. It is better to leave those views to be taken into account and to give further guidance on how account may be taken of them. In the light of this discussion, I hope that the noble Lord may feel that we are making practical progress and that that is better than apparent theoretical change which is not progress.

Lord Irvine of Lairg

Of course I am inured to disappointment and for that reason I am better able to tolerate the answer that I have received. I desire to separate the wheat from the chaff. There is no suggestion on the part of the proposers of this amendment that the Bill changes Gillick. On the contrary, in many respects the Bill faithfully represents Gillick. The purpose of the amendment is to make this part of the Bill more in accord with Gillick, the effect of which is to give priority to children's rights and for them to make their own decisions when they reach a sufficient understanding and intelligence to make up their own minds. So, far from suggesting that the Bill does not accord with Gillick, we are seeking to bring the Bill more into accord with Gillick.

The noble and learned Lord then said that because paragraphs (a), (b) and (c) place the child first, the parent second and those in loco parentis third, therefore the child's views have first position. With great respect, the order is a matter of total indifference. If it was the other way round, the local authority would still have to give due consideration to those respective matters without according any priority among them. The amendment does not say that the child's wishes should always prevail. It says that if the child is of sufficient age and understanding, his wishes should be attributed higher weight than the wishes of the parents or someone in loco parentis but always subject to the overriding consideration of the welfare of the child.

Therefore, I confess a measure of disappointment at the answer I received. Of course, I shall consider the answer given by the noble and learned Lord when I am able to read and digest it with greater care. However, this may be a matter to which we shall revert hereafter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

The Earl of Arran

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-one minutes before eleven o'clock.