Children Bill [H.L.]

HL Deb 06 February 1989 vol 503 cc1384-420

Consideration of amendments on Report resumed on Clause 15.

The Lord Chancellor moved Amendment No. 20: Page 11, line 36, at end insert— ("(8A) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support or family credit under the Social Security Act I 986.").

The noble and learned Lord said: My Lords, I wish to speak also to Amendments Nos. 56 and 63. Your Lordships will remember that in Committee I undertook to consider whether provisions equivalent to paragraphs 19(2) and 19(4) of Schedule 2 should be applied in respect of the repayment of assistance given to children in need, or their families, under Clause 15(6).

Paragraph 19(2) provides in respect of contributions towards the maintenance of children looked after by local authorities that an authority may only recover contributions from a contributor if they consider it reasonable to do so. The Government are still considering whether that principle should be incorporated into Clause 15. Paragraph 19(4) of Schedule 2 is a provision which should rightly apply in respect of the repayment of assistance. That provides that a person shall not be liable to make such payments when in receipt of income support or family credit. That is a clear and unequivocal provision which would not require the wholesale reassessment of the means of those concerned. That was a point made by the noble Lord, Lord Meston, in connection with his amendment in Committee.

Clause 15 will therefore provide that assistance may be subject to conditions of repayment, in whole or in part; the local authority must have regard to a person's means before imposing such a condition. In any event, the person will not he liable to make repayments while in receipt of the specified benefits.

The scheme makes it entirely clear that repayments will not be required which are beyond the parents' means. In considering that point, it became clear that there were certain other places in the Bill where the effects of paragraph 19(4) could also be appropriately employed. Clause 20(7) provides for assistance to be subject to the same provisions concerning repayments as in Clause 15(7) and (8). The second of the group of amendments accordingly extends the new exemption to those young persons.

Similarly, in Clause 24(1) local authorities are empowered to make such charges for services provided under Clauses 15 and 16 (except advice, guidance and counselling) as they consider reasonable. Subsection (2) prevents them from charging more than the person can reasonably be expected to pay whenever his means are insufficient for him to meet the full charge. There is much to be said for exempting persons from paying such charges while in receipt of income support or family credit for the reasons I have already given, and so we propose to amend Clause 24 accordingly.

The net effect of the group of amendments is to provide that wherever the local authority has a power to impose a charge or require repayments under the Bill, persons who are in receipt of income support or family credit should not have to pay. I hope that that will be considered an appropriate response to the concerns expressed on a previous occasion by the noble Lord. I beg to move.

Lord Meston

My Lords, I am sure that we are all grateful to the noble and learned Lord for his explanation of the amendments and what they seek to achieve

Lord Prys-Davies

My Lords, we wish also to thank the noble and learned Lord the Lord Chancellor for these amendments. They appear to us to be very helpful. However, we might wish to consult young people who have recently left care in order to make sure that the amendments fully cover the mischief which was identified in Committee.

On Question, amendment agreed to.

Lord Carter moved Amendment No. 21: Page 12, line 4, at end insert— ("( ) If one or both parents of a child have a disability, this fact alone shall not be sufficient reason to assume that the child is in need.").

The noble Lord said: My Lords, an amendment in these terms was moved at Committee stage by the noble Baroness, Lady Masham, and then withdrawn. The noble Baroness, who is not able to be present today, has asked me to say that she supports my amendment and hopes, as a number of us do, that the Government will feel able to accept it.

The amendment deals with a sensitive topic, a situation where one or both parents a re disabled. It seeks to ensure that this fact alone should not be sufficient reason to assume that a child is in need. It is intended to make the situation entirely clear through the legislation, thereby ensuring that social workers and others understand the Government's intentions quite clearly and do not bring undue or discriminatory pressure to bear where one or both parents are disabled.

RADAR—the Royal Association for Disability and Rehabilitation—is aware of a number of cases where disabled people are afraid to have children in case the children are removed from them. I think we all agree that people with disabilities having many other problems to deal with, should not have the burden I have described added to them.

The noble and learned Lord the Lord Chancellor suggested in Committee that the matter should be dealt with through guidance notes with the Bill. We feel that that runs the risk of being unsatisfactory. Will the guidance be available when the Bill becomes law? If so, the guidance may have a high profile when the Bill is new but could over time run the risk of being honoured more in the breach than in the observance. Will the guidance have any form of statutory authority?

At the Committee stage the noble and learned Lord the Lord Chancellor pointed out entirely correctly that the Bill is child-centred: it is not parent-centred. It is fair to point out that Clause 15(1) makes clear that it is a general duty of the local authority to promote the upbringing of children in need in the family circle; as the Bill says, "by their families". There is a genuine concern about the matter among the disability organisations. If accepted, the amendment would go a long way towards allaying their fears.

To sum up, the amendment has two objectives: to provide protection for disabled parents against the inappropriate intervention of child care agencies; and to give assurance to people with disabilities that their right to be parents will be respected. I beg to move.

Baroness David

My Lords, I should like to add my support to the amendment. It would be a great reassurance to disabled parents to know that the Bill contained this provision. I am delighted to find the name of the noble Baroness, Lady Faithfull, attached to the amendments. She has raised the important point that the children of disabled people may be a heavy burden in many ways on the social services. They need a great deal of support. I hope that the major reassurance provided by the amendment can be incorporated in the Bill.

Baroness Faithfull

My Lords, the amendment would safeguard a number of disabled people who are well able to provide a good home. However, I regret to have to say that there is sometimes a climate of opinion in an area that disabled people cannot give a good home. The amendment would go a long way towards providing disabled people with the reassurance they need.

It is understandable that some disabled people should admit themselves that they cannot give the children a good home. Nevertheless it is most worrying that when disabled people are able to provide a good home they should be prevented from doing so. The amendment will go a long way to help both them and their children.

Lady Kinloss

My Lords, I wish to support the amendment. RADAR thinks that although the number of disabled people directly affected by the amendment is likely to be fairly small, the issue is a major anxiety for some people with disabilities. I am sure that the matter would be dealt with in regulations but I suggest that it should be included in the Bill.

Many disabled parents have raised children quite successfully and there have been no difficulties. In other cases, it has been appropriate and necessary for statutory agencies to be involved. The amendment proposed would not alter this in any way. RADAR is aware of disabled people who are afraid to have children in case the children are then removed from them. Their fears are almost certainly without foundation, but it is difficult to allay them because it is known that disabled people have had their children removed from them, in some cases inappropriately.

The noble and learned Lord the Lord Chancellor, in agreeing with the sentiment of the amendment at Committee stage, said that he would be prepared to deal with the matter in guidance. Unfortunately, as the noble Lord, Lord Carter, has said, guidance tends to have a higher profile when the Bill is new but is consulted less in subsequent years. The objective of the amendment is to give assurance to disabled people that their rights to be parents will be respected. Many people have fears which may be without foundation but which would be allayed if the amendment were accepted.

Lord Prys-Davies

My Lords, there is only one additional point I wish to make in support of the amendment. Since the amendment or a similar one was discussed in Committee, we have heard from the Association of Directors of Social Services that it supports the amendment. If it is the association's judgment that the amendment would be helpful in practice, that is a very strong argument for inserting the requirement in the Bill.

The Lord Chancellor

My Lords, in Committee, in response to the amendment already referred to, which was moved by the noble Baroness, Lady Masham, I pointed out that there was no question of a child being taken to be in need just because the parent or parents were disabled. I think that when one looks at the statutory provisions that is clear.

The circumstances of the parents and even parental disability will only be relevant if the circumstances of the child are as set out in the clause. I need not read it again. This means that for a child who is not disabled to be regarded as a child in need there has to be a clear basis for believing that the child will not achieve or maintain a reasonable standard of health or development or that his health or development is likely to be significantly impaired without the provision of services. Parental disability will not in itself be sufficient. It would have to be clear that the parents were not able to meet the child's needs and that his health or development was likely to be prejudiced as a result. So it is dealt with negatively. These conditions are not met merely by the parent being subject to a disability. I believe that that is made clear in Clause 15 as at present drafted.

The proposition in the amendment is, as I said earlier, wholly unobjectionable in itself but declaratory statements of this kind tend to raise doubts about the effect of the main provision, in this case, Clause 15(9), and are, I believe, best avoided. Unless one can rely strongly on the main words, those words tend to be watered down in effect.

I have received a letter on the subject from the Royal Association for Disability and Rehabilitation, referred to as RADAR. I have looked again at what was said in Committee about problems experienced by disabled people. There may be some confusion between the provisions of Part III, which deal with the provision of services to children in need and families on a voluntary basis, where the parents need not have any arrangement imposed upon I them, and the provisions for local authority care in Part IV.

Concern was expressed about cases where a disabled parent was worried that her child might be removed from her and placed in local authority care. But the protection against inappropriate removal into care is to be found not in Part III but in Part IV of the Bill. It does not add a declaratory statement to the provisions on voluntary arrangements in Part III. Part III is intended to stimulate voluntary arrangements as a way of dealing with the problem. It puts those arrangements first.

Part IV deals with the compulsory measures and safeguards those measures in words which, I believe, are strong and definite. It states that a child may not be placed in care without court proceedings, almost certainly an investigation by a guardian ad litem representing the child's interests and the court being satisfied on the rigorous grounds set out in Clause 26(2) and the welfare condition in Clause 1. I cannot imagine this careful procedure ever resulting in a child being placed in care just because his parent or parents are disabled. I hope that RADAR will be able to reassure people who approach it with such concerns accordingly.

I said in Committee, as the noble Lord, Lord Carter, and the noble Lady, Lady Kinloss, have reminded us, that I thought the immediate issue could be dealt with in guidance on the Bill which would, of course, be issued to local authorities and others before the legislation comes into force. I have indicated that before everything comes into force a good deal has to be done. 1 should be very surprised if social workers did not refer frequently to the guidance while they were becoming familiar with the new law. That will help establish the right foundation for future practice.

The proposal has been made by RADAR that it would like its point covered in regulations as an alternative to being provided for on the face of the Bill. But the difficulty about that is that the present regulation-making powers in the Bill are not concerned with identification of children in need. We have tried to do that on the face of the Bill. If your Lordships were inclined to believe that guidance might cover the point, we can do it in such a way that RADAR knows the precise terms of the guidance and where it is to be found. In this way RADAR would be able to reassure people who approached it. If a social worker showed any inclination to act contrary to what I am saying, RADAR could refer to the guidance.

I believe that the best bastion against improper interference in any family, not only in one where there is a disabled parent, is to have clear terms on which, and only on which, interference is justified. We have tried to do that very carefully and, I hope, successfully. I hope that in the light of that consideration the noble Lord will feel able to withdraw the amendment.

8.30 p.m.

Lord Carter

My Lords, before I decide what to do with the amendment, perhaps the noble and learned Lord could help me. Clause 15(9)(c) makes clear that the disability of a child is a fact to be taken into account. That paragraph also refers to the family. The situation may not be uncommon where disabled parents with particular conditions have a disabled child. Does that make any difference to the way in which the legislation will be interpreted?

The Lord Chancellor

My Lords, the point about Clause 15(9) is that it focuses on the circumstances of the child. It is the child who has to be disabled. It does not of course follow that the child will require any particular services, although he is disabled, but it puts the child into the category where his situation must be considered. That distinguishes him altogether from the parent. There is no question of a child being held to be in need simply because his parent, or indeed both parents, are disabled.

Lord Carter

My Lords, that is extremely helpful. I am very grateful to all noble Lords who have spoken in support of the amendment. The words of the noble and learned Lord the Lord Chancellor were extremely helpful. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Mottistone moved Amendment No. 22: Page 12, leave out line 18 and insert— ("consistent with their duties under section 15(1) of this Act").

The noble Lord said: My Lords, in Committee we raised an amendment to remove the words "as they consider appropriate" from the relevant part of this clause. We did that because we thought there was a problem here. We considered we should not leave the decision entirely with a local authority. On 20th December 1988 my noble and learned friend said among other things that Part III required a local authority to provide services appropriate to the needs of the child. What we have sought to do here is to replace the words "as they consider appropriate" with a reference to Clause 15(1) which ends with the words, services appropriate to those children's needs". We hope that that is more satisfactory. It does not overcommit a local authority, but it refers it exactly to the point that my noble and learned friend made in Committee. I beg to move.

Lady Kinloss

My Lords, in supporting the noble Lord, Lord Mottistone, I should add that the debates in Committee highlighted the fact that the words "as they consider appropriate" would mean that it would he impossible for a court to determine whether a local authority is adequately fulfilling its duty. Setting Clause 16(1) within the context of a local authority's general duties may make it easier for courts to get a grip on a local authority which is providing inadequate services for children.

Lord Prys-Davies

My Lords, I want very much to support the amendment; we think it an important one. It emerged in Committee that although the Bill often appears to place a duty on local authorities in relation to children in care or their families, on closer examination that duty is found to be framed in such a general way, or the local authorities have been given so much discretion, that they can in practice decide not to exercise it.

It is felt by almost all the organisations we have consulted that it is vital that the Bill should narrow the discretion of local authorities. We believe that the amendment tabled by the noble Lord, Lord Mottistone, achieves that end. The wide discretion makes it very difficult for children or their families to use even judicial review to argue that a local authority has failed to comply with a statutory duty or has failed to exercise its discretion accordingly.

This amendment would narrow the discretion of local authorities where there is an identified need for the provision. We appreciate that the noble and learned Lord the Lord Chancellor is not attracted to the merits of cross-references. But without a cross-reference we fail to see that the Bill places on local authorities a duty adequately to attempt to meet the need for facilities when that need has been identified.

Baroness David

My Lords, I wish to say something now, as I gather that it will not be well received if I speak after the noble and learned Lord has spoken. The range and level of services should be appropriate to children's needs rather than what a local authority considers appropriate. That is very important. I have before me a document which tells me the percentage of three and four year-olds in nursery schools, nursery classes and infant classes. I am well aware that this is not the same as day care. However, I am sure it gives one a good idea of how different local authorities produce very different services.

At the top of the list in my document, Salford is mentioned with 85.6 per cent. provision for three and four year olds. I am afraid that the bottom four councils on the list are all Conservative councils with 16.2 per cent., 15.7 per cent., 11.7 per cent. and 8.2 per cent. ratings. So one can obviously not rely on local authorities to produce a good service if they provide what they consider to be appropriate. We need something much stronger in the Bill to make sure we get a good service. I hope this amendment will be strongly supported.

The Lord Chancellor

My Lords, as my noble friend has explained, the purpose of the amendment is to strengthen the duty to provide day care by tying Clause 16 with Clause 15(1) and the authority's general duty to promote the welfare of children in need. I believe that it is unnecessary because as drafted the authority's duty or powers in Clause 16 cannot be exercised inconsistently with its duty under Clause 15.The words in Clause 16(1), "as they consider appropriate", have to be read in conjunction with the general duty to safeguard or protect the welfare of children in its area who are in need. Day care is a "facility", and Clause 15(1) requires the authority to provide services appropriate to the children's needs. Clause 15(1), by virtue of Clause 77(1), includes "facilities". Accordingly, Clause 16(1) is already emcompassed by the general duty under Clause 15(1).

The substitution of the phrase suggested in the amendment would not require local authorities to do anything different to promote the welfare of children in need who are aged under five. The loss of the phrase "as they consider appropriate" would remove the need for local authorities to decide whether to provide or pay others to provide day care for children in need. That would mean that the provision of services would not be subject to any sort of test. Surely that is not desirable.

I think the entire scope of Clause 15 has to be taken into account. We do not want to weaken that. It is a very general and all-embracing clause. It applies to the whole of the rest of this part of the Bill in a way that ensures that what the local authority does under Clause 16 is in fulfilment of its duty under Clause 15.

I hope that in the light of that explanation my noble friend will feel able to withdraw the amendment.

Lord Henderson of Brompton

My Lords, before the noble and learned Lord sits down perhaps I may ask him a question. Is he confident that a court would be driven to read Clause 16(1) in conjunction with Clause 15(1) without recourse to Hansard?

The Lord Chancellor

My Lords, first I should say that I should not seek in any circumstances to drive a court to look at Hansard. I think that they have enough to do without that. The court would seek to construe Part III of the Bill, when it becomes an Act, on the principle that Clause 15 imposes a general duty and Clause 16 gives the local authority the power to take actions which will have the effect of carrying out that general duty. I therefore feel confident that the court would not allow a local authority, by reason of any construction of Clause 16, to fail to carry out the general duty imposed under Clause 15. I believe that to be the true relationship between the clauses. I do not think that it is right to try to create links which in effect take away that primary consequence and thrust of Clause 15.

Lord Mottistone

My Lords, I am most grateful to my noble and learned friend for his careful explanation and to those noble Lords who have supported the amendment. I think the important point about the amendment is the uncertainty that exists about this whole area in relation to certain local authorities. As my subsequent amendents will show, we are seeking ways and means of making sure that local authorities concentrate on the duties which the Bill identifies, without unduly placing too great an imposition on the local authorities.

I am quite sure that my noble and learned friend is right about the overriding influence of Clause 15 on the rest of this part of the Bill. However, one is left with a nagging doubt. It does not relate to the courts; it is not for me to question the courts. There are far too many eminent lawyers in this Chamber at the moment for me to do that. People are not taken to court over this kind of issue in the ordinary course of events. However, 1 should like to see the obligations highlighted rather more than they are in the Bill.

With that proviso, the explanation that my noble and learned friend has given me is more than satisfactory. However, it may be that we shall have to return to this particular matter, if not at Third Reading in this House then in another place. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Mottistone moved Amendment No. 23: Page 12, line 19, leave out ("may provide") and insert ("shall ensure the provision of').

The noble Lord said: My Lords, in speaking to Amendment No. 23 I should also like to speak to Amendment No. 24. That amendment is not shown in the group of amendments but my noble and learned friend has agreed that it might be included. I should also like to speak to Amendment No. 26. It is possible that noble Lords opposite may wish to bring in Amendment No. 25, although it is slightly different in its approach.

The amendments were all developed from an amendment which was moved by the noble Lord, Lord Irvine, at Committee stage, reported in Hansard for 29th December 1988, at cols. 1323 to 1328. The main purpose of the amendments is what I have just been talking about—to find some mechanism for pressing local authorities more to take up their responsibilities in the areas covered by the amendments. We thought that rather than turning "may" into "must" as we did at Committee we should be more delicate, in a way which is typical of the noble House in which we sit, and talk about "shall ensure the provision of". That is not as definite but it is as definite as we dare be.

The important point about the amendment is that although it represents a second bite at the cherry 1 have a brief which is three and half pages long. I shall not for one moment attempt to read it out to your Lordships, even though it is after dinner. I should not dare to do so at the beginning of the day's work.

The brief I have comments on the recent report of the House of Commons Education, Science and Art Select Committee which identified the problems relating to educational provision for the under-fives. It highlighted the various aspects of the "stressful society"—illegitimate birth rate, high divorce rate, single-parent families: you name it—which make the under-lives much more of a charge on the rest of us in some way or another than they have been in earlier years. Sadly, that is not a situation which is getting any better. If anything, it is getting worse.

I could relate a great many details to emphasise that point. However, rather than doing so I shall point out merely that the general concept of the amendments is supported by 18 different organisations which are concerned in the main with children or the problems of ethnic groups. They all feel very strongly that we have to find some way of wording the Bill so that it places more of an obligation on local authorities in the area of looking after under-fives.

It may well be that there is another way of putting this. I gave my noble and learned friend a copy of the brief. I put a note on the bottom saying that I hope that we can find some way of making the point without unreasonably committing the local authorities. I beg to move.

Lady Kinloss

My Lords, all these three amendments seek to ensure that local authorities are placed under a duty to ensure that there is day care available for all children, those under five and those over five, out of school hours and during school holidays.

I think these amendments are essential as a result of an article in the Spectator of 4th February 1989 which quotes the National out of School Alliance as citing evidence that more than 20 per cent. of British five to 10 year-olds are left at home alone during the school holidays and that 15 per cent. of the same age group are regularly left alone after school.

Another area of great concern is the vulnerability of pre-school-age children to abuse and neglect. Nearly 40 per cent. of all referrals to the NSPCC relate to children under five. I do hope that the Government will feel able to accept these amendments.

Lord Banks

My Lords, perhaps I may support very briefly this amendment and also Amendment No. 26, to which the noble Lord referred. That amendment deals with those over five years of age and the provision for them. The point I want to make is that activity out of school hours and in school holidays is important for the children, but its availability and continuation is essential if, in many cases, the parents—particularly, for example, lone parents—are to be able to continue to work.

Baroness David

My Lords, I should like to support these amendments very strongly. There is not only women's need to have their children in day care but also the country's need to have women in the workforce. So it seems to me that there are two strong arguments for this provision, and I should have thought that the noble and learned Lord would have accepted this double reason.

Baroness Faithfull

My Lords, perhaps I may make four points. The first is that it seems to me that under these amendments each local authority should carry out a survey of the needs of their areas. Where there is high unemployment it is possible to have one scheme of things: where there is low unemployment, another scheme of things.

Secondly, there is a suggestion that the local authorities should not necessarily carry this out all by themselves, but should use voluntary organisations in many cases. Many voluntary organisations are only too willing to work in co-operation.

Thirdly, having worked out the scheme it should be monitored afterwards, both for its quality and its quantity. Perhaps I may say that, having talked to the police, it appears that some of the highest juvenile delinquency rates lie in areas where there is no holiday scheme for children and no scheme for children coming home from school with no homes to go to because the parents are out at work. Putting it at its lowest level, to have a good scheme of things in a local area is cost-effective to the country.

The Lord Chancellor

My Lords, the idea behind these amendments is the same for each of them although they are in somewhat different contexts. Perhaps I may look particularly at the first one, Amendment No. 23.

I appreciate the wish to increase local authority responsibility to develop the day care services for under fives. Clause 16 is in the Bill for that very reason; but this amendment goes further than giving local authorities power to develop such services. At present we have a wide range of day care services provided by voluntary groups, private individuals and organisations, as well as by local authorities. There is strength in this variety, and we want to keep it. The Government also want local authorities to decide their own priorities. That is the second point. The first point is to some extent dealt with by the form of the amendment. However, the second point is a different one.

The Government believe that local authorities should decide their own priorities, and matters of the sort that my noble friend Lady Faithfull mentioned would be an important element in that. The present wording gives them discretion to decide the level of their own provision. It is right that for children in need they should be under a general duty to provide day care services. That is the result of Clause 15 taken with the power; but the particular clause into which this amendment goes makes it plain that local authorities are not restricted to providing day care for children within their area who are in need. It says that they "may provide" day care for children even though they are not in need, so it enlarges the power of the local authority to provide even when children are not in need.

However, we believe that it would not be right to go further and impose a duty on them to ensure the provision of day care services to all children whether or not they are in need. That would be to take over the responsibility of a local authority to allocate resources according to the needs of its particular area. It would require local authorities to channel substantial resources—not necessarily their own, for it could include voluntary organisations' resources—towards day care services at the expense of other local authority services.

While I can see that we want to encourage local authorities to develop services, we believe that we have done so appropriately by requiring them to provide the services for those in need and by giving them power to do so even if children are not in need and then to decide, in the light of all their priorities, how far they can go in giving that facility. The kind of considerations which have been mentioned would certainly come into that category.

I think that is as far as I can go. The same point applies in a slightly different context to all the other amendments to which reference has been made.

Baroness David

Before the noble and learned Lord sits down, may I ask him a question about the phrases "may provide" and "as they consider appropriate"? Could they provide nothing if they thought that that was appropriate?

The Lord Chancellor

My Lords, they could provide nothing so long as there were no children in need, but if there were children in need they would have an obligation to provide. They have a power to provide for those not in need; so if there are no children in need they may provide nothing. I hope that I am making this clear.

Baroness David

My Lords, I was seeking to clarify the definition of "children in need".

The Lord Chancellor

My Lords, the phrase "children in need" is defined in Clause 15(9). I am happy to read it out again, but we have already dealt with it. The phrase "in need" is a short expression to help shorten the Bill because the full definition is rather a long one. If there were no children in need the local authorities would not need to provide, but they have an obligation to provide for children in need and a power to provide for those who are not in need.

Baroness Seear

My Lords, before the noble and learned Lord sits down may I ask him for further clarification? It may be my fault because I do not know the contents of the Bill sufficiently well, but does "in need" include the very many cases where the mother is out working? Is that a definition of "in need"? As the noble Baroness, Lady David, has already said, an increasing number of women not only wish to go into industry but will be required to go into industry as a result of the falling school-leaver rate. It would be a great help particularly with regard to school holidays, where again and again there is great difficulty. If that is the meaning, can the phrase "in need" be extended to cases where both parents are in employment?

The Lord Chancellor

My Lords, no, I think that the definition of a child in need is of a more general kind. Clause 15(9) states: For the purposes of this Part a child shall be taken to be in need if—

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

One can well see that in some circumstances, and depending on the length of time for which the situation arose, if a child were left alone (as I think was one of the circumstances suggested) for a long period that would certainly come into this category. However, I believe that it is a sensible way of approaching this matter to oblige the local authority to do something in the case of children in need and giving them a power to do so in other cases and then leaving it to them responsibly to allocate their resources between all the desirable aims that they might have before them.

Lord Simon of Glaisdale

My Lords, my noble and learned friend has referred back to Clause 15(9), which has always seemed to me to be a very satisfactory definition of "in need". I do not know whether he has had a chance to consider the point that I made in Committee that that definition is expressed to be for this part of the Bill and that the words occur constantly in other parts also, in particular in the schedules. If my noble and learned friend has not been able to take that point up yet, will he be good enough to look into it before the next stage? My suggestion was that the definition should be contained in the interpretation clause, perhaps with a reference back to Clause 15(9).

The Lord Chancellor

My Lords, perhaps I may answer that point. 1 have had an opportunity to consider the question. So far as I can see—but I am subject to correction if my noble and learned friend can point out an example—the phrase "in need" is used in this sense in Part III and the schedule which is a schedule to Part III. I am not aware, although I am very happy to be corrected, that the phrase "in need" is used in this context in other parts of the Bill. The words "in need" arise in other parts but it is a specific need. I believe that I am right in saying that this definition would operate only in a context in which children were "in need" without further specification. If my noble and learned friend has examples of such a context in other parts of the Bill, I should be extremely grateful if he would be kind enough to bring these matters to my notice. Perhaps when we have the meeting to which we referred earlier we could look into this also. However, I have had an opportunity of considering the matter and that so far is the result of my deliberations.

Lord Simon of Glaisdale

My Lords, with the leave of the House, I am most grateful to my noble and learned friend. 1 will do the homework that he has set me. However, there is the question whether the schedule is properly described in this part because it is invoked by a provision in this part.

Lord Mottistone

My Lords, the matter has become very complicated. I thank my noble and learned friend for going as far as he could and for some clarification. We had perhaps overlooked this matter at an earlier stage. There is a nagging feeling that will no doubt remain for some time to come with the people who are concerned about this on the ground. However, at this stage I do not think that we can go further on this point in this part of the Bill. I expect that it may arise again at a later stage before the Bill becomes an Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Lord Prys-Davies moved Amendment No. 25: Page 12, leave out lines 32 and 33 and insert— ("(5) A local authority shall ensure for children who are attending any school such daycare provision and other supervised activities as appropriate—").

The noble Lord said: My Lords, this amendment and Amendments Nos. 27 and 29 that are grouped with it are based on the advice that we have received from the National out of School Alliance—an organisation which is solely concerned with care after school and in school holidays for children over five years of age. It is nevertheless supported by about 20 other voluntary organisations.

I could adopt the general argument that was canvassed by the noble Lord, Lord Mottistone, on Amendments Nos. 23 and 24 and give the facts and figures which would show that the demand for such facilities are far outstripping the supply. I shall not at this late hour of the day burden the House with the statistics.

It is fair to say this. I am advised that the United Kingdom lags far behind most other European countries in providing out-of-school child care facilities. Apart from the weak provision in Clause 16(5) the Bill is silent on the needs of young children over the age of five years outside school hours or during school holidays, although the need for such facilities continues well beyond the age of five. The National out of School Alliance tells us that it continues until the age of 16. Subsection (5) states that, A local authority may provide for children who are attending any school such care or supervised activities as they consider appropriate". I am advised that that is less than that required by current legislation, which is to be found in the Nurseries and Child-Minders Regulations Act 1948. What is worrying the voluntary organisations is this. The 1948 regulations are due to be amended and we have not seen the amendments. I am advised that the existing 1948 legislation is inadequate. But if it is contemplated that the duty is to be weakened, or indeed removed, that would amount to turning the clock back. What are required are not less but more facilities and not more but higher standards.

I have mentioned that it is feared by the voluntary organisations that the Government intend to relieve the local authorities of the duty to provide day care facilities for children over the age of five. I have not taken instructions on this point but it seems to me that Amendment No. 29 is a compromise. If the Government intend to remove this duty altogether from the local authorities, we would argue that there should be a duty to ensure such facilities for children up to the age of eight years. Moreover, such provisions should comply with the requirements of the 1948 Act. That means that the term "supervised activity" should be defined as an activity taking place on premises specified in subsection (1)(a) of the 1948 Act, rather than an activity supervised by a responsible person as provided in the Bill. Moreover we would say—and, what is more important, those with whom we have consulted would say—that it should comply with the requirements of the statutory code of practice aimed at maintaining high standards in such premises. That is the point of Amendment No. 27. I beg to move.

Lord Banks

My Lords, I should like briefly to support this amendment and those associated with it, to which I have put my name. As has already been made clear, these amendments are intended, first, to underline the importance of this type of activity for children under five and, secondly, to lay a duty on a local authority to ensure that it is provided. I know that we discussed that when we debated Amendment No. 26, but I hope that we have not by any means disposed of it as yet.

The activity out of hours and in school holidays is, as I mentioned earlier, important for the parents in enabling them to go to work. If these amendments are agreed to, steps will have been taken, by means of a code of conduct and by ensuring that all children under eight remain within the protection of the Nurseries and Child-Minders Regulation Act 1948, to ensure that the highest standards will prevail. I hope that the noble and learned Lord will respond sympathetically.

Baroness David

My Lords, I should make clear before the noble and learned Lord replies that we are asking not that the local authorities should provide all these services but that they should ensure that there is some provision within their areas. That is slightly different, but it is a very important point. There is also another point about the workforce; women find it very difficult to take full-time work and also to collect their children at 3.30 or 4 o'clock to take them home. There will be a gap until 5 or 5.30 and there should be some provision that they can use, whether it is provided by the authority or some voluntary organisation. Some arrangement should be made. I hope that the noble and learned Lord will look kindly on this amendment.

Lord Mottistone

My Lords, I should like briefly to support the amendments for the reasons I gave for my amendments earlier: that there is this problem of young children being neglected because their parents have to go out to work. All these points have been raised before. I still do not believe that we have sufficiently proved that there is an obligation upon the authorities. They have a job to do that they have not really picked up yet in some parts of the country.

The Lord Chancellor

My Lords, we have dealt with Amendment No. 26 to some extent already, but there is no harm in dealing with it in relation to Amendment No. 25, since I covered it in general before. With Amendment No. 25, the situation is that we are dealing with out-of-school care, including holiday arrangements for school-age children. There are two types which one should perhaps take separately—local authority provision and private and voluntary provision. I shall return to the first in a moment.

I had hoped that we could debate our proposals in the context of government amendments to replace the Nurseries and Child-Minders Regulations Act 1948, but this has not proved to be possible. The 1948 Act does not deal with local authority provision, but with registration of private and voluntary facilities. I am sorry that it has not proved possible for these amendments to be included. We have had rather an unfortunate experience on our team, in that the draftsman has injured his back. Although his assistant has continued working on the Bill and the principal draftsman is working on it but from his sick-bed, this has slowed down the work on the Bill. I am anxious to have the principal draftsman's views on most of these matters if I possibly can. That is why we have not managed to pursue this quite as fast as I had hoped.

Our aim is to adjust the regulatory requirement to the needs in a more discriminatory way. This means for the under-fives an improved and more readily enforceable registration system. For school age children it means a relaxation of control, combined with strong guidance on the quality of provision which has hitherto not been available sufficiently. We have to draw a line somewhere and at the moment we believe that age five is the best place to do that.

As to local authority provision, the Bill provides not only a discretion under Clause 16(5) but also a duty under Schedule 2 to take steps to reduce the need for court action and to discourage juvenile crime. All this in the context of the general duty under Clause 15(1) to provide for children in need services in terms of that clause. Out-of-school provision could be part of a programme under Clause 16(5) and the Schedule 2 duty.

In view of what has been said we shall look again to see whether the wording is appropriate. However, I do not believe that we can go to the length of imposing on local authorities the overall duty required by Amendment No. 25 or, in its alternative, Amendment No. 26.

As regards residential holidays, there is in the Bill control over holidays which take place in institutions which qualify as voluntary homes (Schedule 5, paragraph 7) or registered children's homes (Schedule 6, paragraph 10). As regards other schemes, the debate was set out in paragraph 78 of the White Paper and was followed by a consultation paper.

I undertake to consider the matters further but I do not believe that we can go to the length of imposing on local authorities the general duty to provide such facilities or to ensure that they are provided. The overall responsibility of the local authority in the allocation of resources must be taken into account. Those who are working have a responsibility in relation to their children. That is an important aspect, and there may be need for co-operation and co-ordination in that area. At the moment I take the view that it would be unlikely that we could go to the length of imposing on local authorities such a general duty as that proposed. However, we undertake to look further at the point that has been made, particularly in respect of Amendment No. 25.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord for his helpful response to Amendment No. 25. I hope that he will also have regard to Amendment No. 29 and the suggestion that the age limit should be eight years rather than five years. I believe that the organisations will be disappointed if the age limit is drawn at five years.

We look forward to seeing the amendments to the 1948 regulations. We trust that they will take on board some of the concerns that have been expressed during the course of this short debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

9.15 p.m.

Baroness David moved Amendment No. 28: Page 12, line 35, at end insert— ("(5A) The local authority shall, together with the education authority, keep under review the provision of day care within the authority. (5B) The review under subsection (5A) shall include a plan for future provision, and the results of the review shall be published at least once every three years. (5C) When exercising its duties under subsection (SA) the local authority shall take into account the views of:

1. (a) relevant voluntary organisations within the authority, and
2. (b) the district health authority, or district health authorities, within the area.").

The noble Baroness said: My Lords, the amendment is close to the subject which we have been discussing. Its purpose is to give a duty to local authorities to review the provision which will draw attention to gaps and inconsistencies in provisions. It links the education authorities with the social services. I believe it is important that education authorities are part of any such review because they provide a great deal of the care involved in looking after under-fives in nurseries. It is also important that voluntary organisations and the health service should be taken into account. They will represent the providers of under-fives services and also the views of the users of such services; that is parents, health visitors, doctors and so forth.

The publication of the review which is requested in the amendment will be an important tool in enabling the authority to plan provisions in a careful way. It will also enable ratepayers to have a clear picture of the existing provisions and of the way in which their local authority plans to increase and improve such services. I beg to move.

The Lord Chancellor

My Lords, Amendment No. 28 amends Clause 16, which is included in the Bill because we want all local authorities to develop an interest in day care for the under-fives.

The amendment raises the interesting suggestion of giving local authorities a duty to work with other bodies, including the local education authority and voluntary bodies in the field. If the suggestion can be developed I am sure that it will be of importance. We should like to consider the matter and perhaps on that basis the noble Baroness will withdraw the amendment. The matter requires to be considered further as the Bill progresses through its parliamentary stages: I do not have in mind the Third Reading in this House.

Baroness David

My Lords, obviously with that reassurance from the noble and learned Lord, I beg leave to withdraw the amendment and look forward to what will come out of it.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Lord Prys-Davies moved Amendment No. 30: After Clause 16, insert the following new clause: Amendment of the Housing Act 1985. . The following shall be inserted after section 65(4) of the Housing Act 1985— (5) Where they are satisfied that he has a priority need and that due to homelessness or threatened homeless

1. (a) a child might be made the subject of a care order, or
2. (b) a local authority would have to provide accommodation for or otherwise look after a child under any section of the Children Act 1989, or
3. (c) a child would have to be cared for by a person other than his parents,

then they shall have a duty to secure that suitable accommodation becomes available for his occupation forthwith."").

The noble Lord said: My Lords, with Amendment No. 30 I shall also speak to Amendment No. 31. It might assist the House if I say just a few words about the background to these two amendments. We are advised by the Family Rights Group and the British Association of Social Workers that the starkest fact to emerge from local authority and university studies is that a significant number of children are being received into care for no other reason than homelessness and the most recent DHSS figures, which are for the year 1986, show that 519 children were taken into care because their parents were homeless. I appreciate that the Committee was told by the noble and learned Lord the Lord Chancellor that homelessness itself would never be sufficient reason for initiating care proceedings, but the figures which I have given seem to indicate that in practice successful care proceedings are being instituted on that ground.

I now turn to the two amendments, Nos. 30 and 31. Amendment No. 30 would place a duty on the local authority to ensure suitable accommodation for the needs of the family and our preference would be for this amendment. It is an amendment to the Housing Act 1985. The 1985 Act only establishes a local authority duty to provide homeless families with accommodation if they are deemed unintentionally homeless. If they are deemed to be intentionally homeless, the housing authority is only under a duty to provide temporary accommodation for such period as it considers will give families a reasonable opportunity to secure their own accommodation.

In practice we know that families who are deemed to be intentionally homeless are put into bed-and-breakfast accommodation with all the health and welfare hazards which this involves for children. One might add that the chances of families being able to find their own affordable and suitable long-term accommodation are pretty remote.

We are advised that the position has worsened since the Court of Appeal judgment in April last yea in the case of Tower Hamlets ex parte Monef, which confirmed that while there is a general duty to prevent reception into care, there is no duty to take any specific action such as the provision of accommodation for a family. Indeed the Court of Appeal went so far as to say that it is entirely for the local authority officers to decide how they implement their duty to prevent reception into care. The court also stressed that there was no statutory duty to provide permanent accommodation and that if Parliament had decided otherwise that duty would have been clearly expressed in the legislation. Here is an opportunity to place such a duty on local authorities.

If it is said that this is not a Housing Bill and that it cannot therefore place a duty on housing authorities, how do we remedy the mischief? If we avoid the issue this evening, it will seem to some people that this is a case of passing the buck. I invite the noble and learned Lord the Lord Chancellor to apply his very considerable talents and skill, let alone his radical approach, to finding a solution to this mischief.

If Amendment No. 30 is not acceptable, Amendment No. 31 would be a second best, but no more than that. It would at least place a duty on the local authorities to request the help of a local housing authority in accordance with the provisions of Clause 23. We appreciate that under Clause 23 of the local authority may request the help of any local housing authority, but we feel that this should be spelt out as a duty. If it is expressed as a duty, that would focus minds on the need at least to discharge that duty. I beg to move.

Baroness Faithfull

My Lords, we are in some difficulty with this amendment, which nevertheless I support, because we are straying into another department and another Act. Our difficulty is that under Clause 15(9) we are looking at a child in need and the Bill lays a duty on the local authority to look into the needs of children. As the noble and learned Lord has said, a child in need is defined in Clause 15(9).

If a child has to be taken into care only for homelessness, that child is in need. If it is not put into good accommodation—and I have to say that in this country a number of children are in very bad accommodation which is affecting both their health and their education—then Clause 15(9) is not being fulfilled. If we were to look at this from the point of view of the social worker who is dealing with the case, the social worker looks at Clause 15(9) and knows that she must deal with a child in need. On the other hand, the child is going to have to be taken into care if there is not adequate accommodation; so the social worker will be in some difficulty as between two Acts and two departments.

Therefore, although it seems to me rather strange to put into the Children Bill something that really refers to housing, if it is looked at in the light of Clause 15(9) it is not quite so strange because it is absolutely fundamental for every child, wherever possible and practicable, to have a home and a home where it can develop along the right lines.

The Lord Chancellor

My Lords, as the noble Lord, Lord Prys-Davies, said in introducing this amendment, it has been to some extent discussed in Committee. The principle behind Amendment No. 30 is that the social services department should not be required to provide accommodation for a child or seek a care order in respect of a child simply because his parents are homeless. It is suggested that it should be the duty of a local housing authority to secure that suitable accommodation is available in such circumstances.

I believe that the present law achieves what is necessary in this regard. Section 59(1)(b) of the Housing Act of 1985 provides that, a person with whom dependent children reside or might reasonably be expected to reside", has a priority need for accommodation. The local housing authority has a clear duty under Section 65 of that Act to secure that accommodation becomes available for homeless persons who have priority need. It is true that it does not include the words "suitable" or "forthwith" referred to in the amendment; but it deals with the fundamental duty of the local housing authority to secure that accommodation is available. That is the principal point and it exists, as I say, in Section 65.

In so far as your Lordships in considering these amendments are seeking to amend the Housing Act 1985, I have to say that the Department of the Environment is currently reviewing homelessness legislation and any amendments at this time would be premature. However, I undertake that the matters which have been raised by your Lordships in connection with this amendment will be drawn to the attention of my right honourable friend the Secretary of State for the Environment.

The second amendment is closely related but concerns a responsibility not of the housing authority but of the social services department. This does not seek to impose a duty on the housing authority but refers instead to the provision of Clause 23 which concerns co-operation between authorities. This amendment proposes that the local authority should not provide accommodation for the child solely because the person caring for him is homeless. Under this Bill homelessness alone cannot be a reason for a local authority to accommodate a child. Of course, it could be one aspect of some form of neglect which could form the basis of such an application but homelessness by itself could not.

As I said, the housing authority will have a duty to accommodate under these circumstances and, moreover, Clause 23 enables a local authority to seek the assistance of the housing authority. This request will effectively activate the housing authority's duty and I do not believe that this amendment adds to those provisions.

Reference was made to homeless families being accommodated in bed and breakfast accommodation. As has been pointed out, that is not suitable. The Department of the Environment has advised local housing authorities in its code of guidance that the use of bed and breakfast accommodation should be only as a last resort. The department makes clear that such accommodation is generally unsuitable for families with children in particular. The code of guidance recommends that housing authorities should instead make use of short life housing or of properties leased from other bodies.

I hope I have said enough to show how these matters arc appropriately dealt with and that the noble Lord will feel able to withdraw the amendment.

9.30 p.m.

Lord Prys-Davies

My Lords, we thank the noble and learned Lord for his reply to the debate on these amendments. We believe that the amendments identify a mischief. It is a disgrace that children should he separated from their families because of homelessness or the state of their housing. We should have thought that Amendment No. 31, which is certainly our second best amendment, might have been accepted because it merely points to the need for local authorities to exercise their duty under Clause 23.

As to the main amendment, Amendment No. 30, I am grateful for the undertaking given to the House by the noble and learned Lord that he will draw the attention of his right honourable friend to the subject matter of this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Provision of accommodation for certain children]:

[Amendment No. 31 not moved.]

Baroness David moved Amendment No. 32: Page 13, line 17, leave out subsection (3).

The noble Baroness said: My Lords, this amendment seeks to ensure that local authorities not only provide accommodation for 16 year-olds in extreme circumstances. Under Clause 17(1), the local authority must provide accommodation for all children if they are orphaned, abandoned or their parents are prevented, for any reason, from providing them with suitable care. Clause 17(3) adds a further duty in relation to 16 year-olds. The authority must provide them with accommodation if it considers that the young persons' welfare would otherwise be seriously prejudiced.

This is a probing amendment to discover why the additional duty exists in relation to 16 year-olds. What circumstances are envisaged whereby the young persons' welfare is seriously prejudiced but the parents are not preventedfromcaringforthemadequately—that is, whereby subsection (3) is necessary in addition to subsection (1)? If there are such circumstances, why are they special to 16 and 17 year-olds and not to younger children?

The reason for subsection (3) is not apparent from the face of the Bill and it may, unfortunately, suggest to local authorities that they ought to eject 16 year-olds from care if their welfare is not seriously prejudiced, thus worsening the leaving care situation. We have had many anxieties about that. It is hoped that subsection (3) has something to do with giving this older age group greater rights to self-determination. Is that so?

The Bill already provides for them to be accommodated in care against their parents' wishes and the noble and learned Lord said that there is nothing to prevent 16 and 17 year-olds from discharging themselves from Clause 17 care; so presumably this group will not be caught by the recovery of absconding children provisions which we are told are soon to he tabled by the Government.

Given the above, it is difficult to see why the separate criterion for admission to care under subsection (3) is needed. I beg to move.

The Lord Chancellor

My Lords, I believe that I should try to explain the background to this because in a way it is slightly strange to find the noble Baroness seeking to excise from the Bill a duty on the local authority to provide accommodation for any particular group.

Baroness David

My Lords, I said that it was a probing amendment.

The Lord Chancellor

My Lords, a child is defined in the Bill as, a person under the age of 18". Clause 17 places a local authority under a duty to provide accommodation for any child in need within its area if it appears to it that he requires accommodation because there is no person who has parental responsibility for him, he is lost or abandoned or the person who has been caring for him is prevented from providing him with suitable accommodation or care. In the case of children of 16 or over the responsibility of parents to provide accommodation is not clear. As the noble Baroness mentioned and as I said before, at that age children are largely self-determining and it is generally accepted that they have a right to choose where they live. Parental responsibility diminishes as the child's capacity to make mature judgments increases. We therefore wish to clarify the local authority's obligation to provide accommodation to youngsters aged 16 and 17 years who are in need where they consider the welfare of such children will be seriously prejudiced without the provision of accommodation.

I must emphasise, however, that the youngster in question would be under no obligation to accept the accommodation which the authority is obliged to provide if he did not wish to do so. The child would only be obliged to live in accommodation provided by the local authority if he was the subject of a care order. Otherwise he can, as I have already said, choose where he wishes to live.

The idea of this amendment is to place a duty on the local authority as regards the older children aged 16 and 17 who no longer have a right to be accommodated by their parents. As I have said, they are largely self-determining and it seems right that the local authority should have a duty to provide accommodation for them if the circumstances are as described in the provision.

Baroness David

My Lords, I said that this was a probing amendment. I shall read with care in the morning what the noble and learned Lord said rather fast. If needs be I shall come back with something again. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 33: Page 13, line 25, leave out ("in a community home").

The noble and learned Lord said: My Lords, with this I should like also to speak to Amendment No. 34. In the light of the observations that were made in Committee on Amendments Nos. 81 and 82, I agreed to re-examine the wording and the effect of Clause 17(5). These amendments are the result of that deliberation and I think that they meet the points that the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady David, made at that time. They represent a recognition of a possible ambiguity in that Clause 17(5) could be considered to refer only to homes which cater solely for persons aged 16 and over. We wish to make clear that these should be homes which can take children aged 16 and over, whether or not children under that age are also accommodated there.

These amendments also remove paragraphs (a) and (b) from subsection (5). I accept the point made by the noble Lord, Lord Prys-Davies, that in some instances it would be impracticable and even unhelpful to restrict the power to accommodate a young person to those who are working or seeking work nearby or who are disabled. On reflection I can see that this provision is unnecessary and I believe that the amendment will provide a more appropriate degree of flexibility. I beg to move.

Lord Elwyn-Jones

My Lords, I rise to thank the noble and learned Lord for meeting us most graciously and generously with these amendments.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 34: Page 13, line 27, leave out from ("one") to end of line 33 and insert ("in any community home which takes children who have reached the age of sixteen.").

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

Lord Prys-Davies moved Amendment No. 35: Page 13, line 41, at end insert— ("(7) Where a local authority provide accommodation under this section they shall enter into an agreement in writing with any person who has parental responsibility for the child, or in the case of a child of sixteen or seventeen, the child himself. (8) The agreement in subsection 7 shall include details of the type of accommodation to be provided, schooling, contact and the notice which is to be given by either side before the child returns home. The period of notice may only be a period of up to and including 8 days.").

The noble Lord said: My Lords, in Committee we discussed a similar amendment. The noble and learned Lord told us that, while the Government fully accepted the principle of agreements, they were opposed to incorporating in the Bill a statutory requirement that the local authority should enter into such agreements. It was suggested that we should rely on the powers in the Bill to make regulations and we were told that this would cover the agreements of the kind suggested in the amendment.

The Family Rights Group, the National Foster Care Association, the National Children's Home and Barnardo's inform us that they cannot rely on regulations. Two days after the noble and learned Lord had suggested that reliance be placed on the regulations, the new regulations on the boarding out of children were published. These govern foster placements and will come into force in June of this year. They are particularly important because the majority of children are placed with foster parents. While these regulations provide for written agreements to be entered into between the local authorities and the foster parents, the natural parents are not to be involved in the agreements.

The regulations governing placement with parents were also published two days after our discussion in Committee but those regulations do not apply to children in accommodation provided by the local authority. They apply only to children in compulsory care placed at home. In the light of the regulations published since our discussion in Committee, the voluntary bodies say clearly that they cannot rely on regulations. In Committee the noble and learned Lord also felt that our original amendments were potentially restrictive. We would not wish the agreements to be restrictive. Under the new amendment the matters to be covered in the agreement need not be confined to the matters specified. However, if on reflection this wording could be further improved to meet the point made by the noble and learned Lord we would welcome the improvement.

I should like to say a few words about the need for a notice where this is provided for in the agreement. The noble and learned Lord was opposed to a requirement that there be 24 hours' notice. It was said that it would be an obstacle to the freedom of voluntary arrangements and that it would discourage parents from entering into voluntary arrangements. It is accepted by all the organisations that most parents will behave responsibly in accordance with the arrangements with the local authority, but there may be a risk that people will be anxious if a period of notice is required. However, it is thought that that risk would be greatly diminished if the regulations made it clear that a period of notice need not be required in every case and that it would be negotiated in each individual case depending on the age of the child and the length of stay in accommodation.

I am advised that if a requirement of notice does not exist there is a far greater risk that local authorities will not be prepared to use voluntary arrangements for short-term requirements. I trust that the noble and learned Lord will give favourable consideration to the amendment in its new form. I beg to move.

Lord Meston

My Lords, I support the amendment, particularly in so far as it provides for a period of notice to be given before a child is removed from what we presently call voluntary care. If a child goes into voluntary care for a predetermined period—for example,togive the mother a period of respite or to enable her to undergo an operation—there is, generally speaking, little risk that the child will be removed from care without agreement. But there is still a risk, especially if the father is estranged.

However, if the child goes into care for an indefinite period there is a risk that the child will be peremptorily removed. The timing of the removal may be quite inappropriate. It may be at any time of night or day; it may he at a period in the child's life when it is quite inappropriate to remove him or her from where he or she has settled, having regard to schooling and various other matters which may have become part of the child's way of life. Indeed, as we discussed in Committee, the condition of the parent attempting to remove the child may be quite inappropriate. Children in those circumstances have quite enough to cope with without being shuttled about at the whim of their parents.

As I understand it, the Government's answer to the problem is to say, "Well, the local authorities have a general duty to safeguard the child concerned and they won't therefore allow the child to be removed arbitrarily". It seems to me that that general duty of the local authority is not adequate when placed alongside Clause 17(8), which provides a completely unqualified entitlement on any person who has parental responsibility for a child to remove the child from accommodation provided under that particular part of the Bill.

One must remember that the reality of those situations is that decisions must be made quickly, on the spot, by social workers, foster parents or those in charge of children's homes who are sometimes faced with irate and irrational parents. There must be a mechanism whereby people are obliged to give notice if they intend to remove the child, without necessarily detracting from the basic entitlement which the Bill seeks to give in Clause 17(8).

I should remind your Lordships that under the existing law, as I recollect it, there is a provision for the giving of notice if a child has been in voluntary care for six months. That is a somewhat arbitrary period but, nevertheless, there is no evidence of which I am aware that it works badly. But in so far as the existing law is arbitrary, the Bill goes too far the other way and I suggest that the amendment gets the matter just about right.

9.45 p.m.

Baroness David

My Lords, I wonder whether the noble and learned Lord when he replies could tell us why, as the suggestion that there should be a written agreement was included in the White Paper, and I think went into the previous consultations, it has not been included in the Bill. I think that that omission is quite a disappointment to many of us in the House.

The Lord Chancellor

My Lords, as regards the first amendment, it would require local authorities providing accommodation for a child to enter into a written agreement with the parents (or the child himself if 16 or 17). The second would specify the details which should be included in the agreement; namely, schooling, contact and the period of notice which must be given on either side before removing the child.

I feel that the amendment is restrictive because by specifying the matters which the agreements shall cover it may not be capable of covering matters other than those specified. We want such agreements to be flexible enough to accommodate any matter which is appropriate to the circumstances of the individual case. When we last debated the matter I said that the regulation-making powers already in the Bill for the various types of placement are wide enough to provide for the circumstances in which agreements would be required—namely,voluntary arrangements—and the subject matter which the agreements should cover. I am convinced that that is the better approach.

Secondly, I question whether the amendment is necessary. I do so on this basis. There are various types of accommodation which local authorities can provide—with foster parents, in a community home, in a voluntary home or in other ways specified in Clause 19(2). The Bill makes provision for the different types of placement to be governed by separate sets of regulations. That allows the different features of the particular types of accommodation to be provided for. Thus at present we have separate sets of regulations to govern foster placements, community homes, voluntary homes, registered childrens' homes and so on. As 1 have said, the powers under the Bill for the different types of placement are broad enough to make provision for voluntary arrangements to be recorded in writing and to contain specified matters. It is not necessary to duplicate those powers. I hope that your Lordships will accept that. We believe that the powers are wide enough to make provision for voluntary arrangements to be recorded in writing. That is my answer to the noble Baroness's question.

I must emphasize that we are fully committed to the principles of providing for written agreements in relation to voluntary arrangements and the Bill as drafted allows for that. The Government made a firm promise in the White Paper and I stressed that we would keep our promise when we debated the matter in Committee. I am aware of the concerns which have been expressed about the new Boarding Out of Children (Foster Placement) Regulations 1988, which have recently been made under the current law. They do not include provision for written agreement with the parents. But the reasons are technical—the powers under which those regulation are made are thought not to be wide enough to provide for these agreements. When the Bill is implemented, the new regulations will make provision for the agreements. That is as firm an undertaking as I can give. I confirm that that is the position.

As to matters covered by the agreements, we would expect them to set out desirable arrangements for a schooling contact notice to parents of proposed changes in placement and arrangements for return of the child, but we would not want to compel parents to agree to a requirement in the term put forward by this amendment. The essence of the agreement is that it is voluntary.

Turning now to the second linked amendment, that would provide for a period of notice to be given before a parent can remove a child from accommodation provided by the local authority under a voluntary arrangement. For the reasons already mentioned, I have to reiterate the strong reservations that I expressed in Committee. If we provide that a period of notice will have statutory force then an element of compulsion will be introduced and the essential character of the arrangements will be altered. It is very important that the arrangement should be fully voluntary. If it is not, that could undermine the confidence of parents as regards approaching the local authority for help. As the noble Lord, Lord Meston, said, there is at present no period of notice required for children who have been in voluntary care for up to six months, so to make this a requirement of all such arrangements is a new concept. The idea that we should make this type of arrangement compulsory is a step backward rather than forward.

The regulations that I have just mentioned should address as one of the matters to be included in written agreements the practical arrangements for the child being returned to a person with parental responsibility. We of course accept that the child should be protected from being precipitately removed by a parent if that would put the child at risk, but there are ways of dealing with difficult situations without resorting to compulsory notice periods. In a serious case an emergency protection order can be obtained, but it is also important to realise that Clause 3(5) gives powers to a person who is not a parent but who is caring for a child to do what is reasonable to safeguard or promote the child's welfare. For example, 1 consider that a foster parent would be able to prevent a parent who, by reason of alcohol or drugs, was in no fit state to remove the child from doing so. The combination of that power and the emergency protection order should be sufficient to deal with any difficult situation which may occur.

It is important that we do not lose sight of the essential principle behind a voluntary arrangement; that it is voluntary: compulsion should arise through due process and a court order. This will be to the benefit of the vast majority of families who will be able to use local authority services in a new, and more productive, free partnership.

I should perhaps add that although the regulations have been unable to specify agreement with parents for the reason that I have mentioned, the matter is addressed in paragraph 156 of the guidance that accompanied the regulations. Perhaps I may read briefly from that guidance. The aim should be in relation to the involvement of parents for the plan for a child to be discussed with parents and for agreement to be reached with them. The parents should also know and, wherever possible, have agreed to the elements in the placement agreement which affect the child and parents. The parents are not asked to sign agreements, but Regulation 7 requires that the parents be given written notice of the placement, including the name and address of the foster parent and the agreed access arrangements, having regard to the code of practice on access, and any other matters relating to the care and welfare of the child". The reason why it does not go as far as we would hope to go under the Bill is the technical one which I mentioned.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord for his explanation of the shortcomings of the regulations which were issued last December. I also note the undertaking given in that respect. I anticipated that the noble and learned Lord might well take the point that our amendment was potentially too restrictive. We should gladly and willingly come back with an improved amendment if we thought it would be acceptable to him. It appears to those whom we have consulted that they accept that partnership underlies much of the thinking upon which the Bill has been built and that an agreement along the lines indicated in the amendment would reinforce that partnership.

The half dozen or more organisations that are very concerned with the amendment will wish to study carefully the words of the noble and learned Lord. All I can do at this stage is to thank him for replying to the discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35A not moved..]

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

The Lord Chancellor moved Amendment No. 36: Page 14, line 27, leave out ("and").

The noble and learned Lord said: My Lords, I propose to move Amendment No. 36 and to speak to Amendments Nos. 37 and 38. Clause 18(4) at present provides that before making any decision with respect to a child whom they are looking after or proposing to look after, the authority, so far as is reasonably practicable should ascertain the wishes and feelings of the child, his parents and any person who is not a parent of. the child but has parental responsibility for him. However, in Clause 22(2)(d) dealing with reviews of cases we say that regulations may provide for not only those persons to be consulted but also any other person whose views the authority considers to be relevant.

While we must take care not to overburden authorities, we think it would be logical to have the same provisons as to consultation on decisions and reviews. Amendment No. 38 would make a consequential amendment to Clause 18(5) to ensure that the authority gives due consideration to these views. I beg to move.

Lord Mishcon

My Lords, on behalf of those in your Lordships' House who made this point at the Committee stage I should like to say that we are deeply grateful to the noble and learned Lord for the amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 37 and 38: Page 14, line 29, at end insert ("and ("(d) any other person whose wishes and feelings the authority consider to be relevant,"). Page 14, line 36, leave out ("or (c)") and insert ("to (d)").

The noble and learned Lord said: My Lords, with the leave of your Lordships I beg to move Amendments Nos. 37 and 38 en bloc. I have already spoken to them.

Lord Meston moved Amendment No. 39: Page 14, line 36, leave out ("and").

The noble Lord said: My Lords, perhaps I may also speak to Amendment No. 41 since it is obviously part and parcel of the same provision. These amendments follow upon an amendment which I moved at Committee stage and which was prompted by a case in which I was involved. I was struck by the lack of co-ordination between a social services department and an education department in one local authority and the lack of co-ordination between the social services department of one local authority and the education department of another local authority in relation to a child who had special educational needs.

In moving that amendment I struck a chord, it appears, with the National Children's Bureau, which has long been concerned by the lack of emphasis given to health care and educational achievements of children in care. The same problem was noted apparently by the House of Commons Select Committee on Social Services report on children in care in 1984.

More recently those problems have been borne out by an article in the latest edition of the journal Adoption and Fostering. That journal cites evidence that coming into care creates a high risk of educational failure for the children concerned. It also cites evidence that social workers tend to overlook the importance of education, or at least do not give education sufficient weight in deciding how to deal with a particular child.

It is inevitable—one comes across this again and again in practice—that by the time a child has come into care he may well have attended a bewildering number of schools. He may have moved on several times and not put down any roots. Alternatively there is the situation of a child whose home life is in complete turmoil and who finds that the school which he or she attends is increasingly a fixed point of great importance in his life.

The National Children's Bureau has reached much the same conclusion in relation to the lack of importance which is placed on the health needs of children in care. It is with those points in mind that I have been emboldened to bring forward the amendment again at this stage. I hope it adds no great burden to local authorities. It does not add greatly to their duties. I hope that the amendment does nothing other than add something which is entirely desirable and a matter of common sense. On that basis I beg to move.

10 p.m.

The Lord Chancellor

My Lords, in making any decision about a child that it is looking after a local authority must of course give consideration to the child's health and educational needs whenever those are relevant to the decision to be made. But those are matters which are central to the child's welfare, and in subsection (3) of this clause the authority is placed under a duty to safeguard and promote the welfare of any child that it is looking after. This welfare duty bears on all matters arising in respect of these children, including decisions made with respect to them, and it is not necessary to pick out certain aspects of the child's welfare in subsection (5). Indeed, as I have argued before, there are positive dangers in emphasising particular elements of the welfare duty in this way because it may raise doubts about the completeness of the duty and therefore dilute it. It is essential that nothing is done in the Bill to undermine or raise questions about the comprehensiveness of the authority's welfare duty to these children.

It may also be of use to refer to Clause 23 and the reference there to education authorities and health authorities as authorities to which a request may be made by a local authority responsible for a child's welfare for advice and other such matters. I hope that the noble Lord may feel that his point is covered in that way, and perhaps particularly that the references in Clause 23 are helpful.

Lord Meston

My Lords, as the noble and learned Lord says, these are matters which are or should be central to the needs of the child. Accordingly, I suggest they should be on the face of the Bill. The reason I sought to have them on the face of the Bill is that the evidence apparently suggests that there is a failure to give due consideration to these aspects of children's needs.

The noble and learned Lord seemed to suggest that putting them on the face of the Bill would somehow distort or give undue emphasis to those points which I seek to highlight. That of course is a point of view. With respect, I suggest that in so doing I should no more be giving undue emphasis to the educational and health needs of the child than the matters set out in the existing Clause 18(5)—including the wishes and feelings of the child, religious persuasion, and such matters—give undue emphasis to influencing the operation of the local authority. I believe that what I propose in the amendment would be a positive improvement of the Bill and not a distortion of it.

Nevertheless, at this hour of the night I do not intend to press the point. I beg leave to withdraw the amendment on the basis that I may wish to come back to it at a later stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 and 41 not moved.]

Lord Mottistone moved Amendment No. 42: Page 14. line 38, at end insert— ("(5A) The local authority shall draw up a plan to meet the individual needs of every child in their care within 28 days of the child being provided with accommodation with them.").

The noble Lord said: My Lords, at Committee stage there was widespread support for the concept of every child in local authority care having a plan drawn up to meet its individual needs. The amendment is similar to an amendment which I moved at Committee stage (Amendment No. 94) but would cover children accommodated as a result of a care order and children in voluntary care. It also gives local authorities a reasonable deadline to work towards.

The problem of children drifting in the care system is widely recognised and was referred to at Committee stage. DHSS (as it then was) research studies point to that, and there is much anecdotal evidence from young people who have left care. A similar problem occurs in relation to children who are in voluntary care. Unless positive action is taken, even very young children can find themselves in voluntary care for considerable periods of time with the danger that the child is then unable to return home as he or she is unable to re-form the bond with parents.

Whenever and wherever possible children should not remain in care. The best place for a child to grow up is within the caring family situation. Unless there is determined action to facilitate the child returning home, or other suitable arrangements made, the child may spend a considerable time in limbo.

Subsections (3), (4) and (5) of Clause 18 indicate clearly who should be consulted in the drawing up of a plan and the circumstances which need to be taken into account. Clause 22 deals with the matter of reviews of cases. The plan could be evaluated and amended during the review process. It would give the local authority, the child and the parents a yardstick by which to work.

My noble and learned friend has indicated that the plan must be laid before the court if a care order is being considered. However, at that stage a plan is likely to be embryonic and lacking in detail. The 28–day period stipulated in the amendment allows time for the relevant consultations to take place and also allows for a detailed social work assessment to be made at the same time. I suggest that the amendment does not conflict with any general principle or other provision of the Bill and provides a way to facilitate the intentions behind both Clause 18 and Clause 22. I beg to move.

Lady Kinloss

My Lords, as I said earlier during the consideration of this Bill, the problem of children drifting in the care system is a widely recognised one. The noble Lord, Lord Mottistone, has already mentioned that point. I support the amendment, and the noble Lord has explained it so well that there is nothing further to say.

The Lord Chancellor

My Lords, I think we share common objectives in this matter. I have already mentioned, as have the noble Lord, Lord Mottistone, and the noble Lady, Lady Kinloss, the need to avoid children drifting in care. The rules of court would provide for a plan to be laid out in the application. I agree that in all probability it would not be very detailed at that stage, but it should be sufficient to allow the court to understand what is proposed.

Clause 22 will place a duty on local authorities to review the cases of all children whom they are looking after, not just those in care, as this amendment proposes, but also those who are looked after under arrangements other than a care order. These powers will lead to detailed regulations dealing with the reviews. Planning for the child is the central purpose of the review and Clause 22(2)(c) specifies that the regulations should include provision: as to the time when each case is first to be reviewed and the frequency of subsequent reviews". So 28 days might well be the right time at which to start.

We think it important that an initial planning meeting be held as soon as practicable after a local authority takes over the care of a child and we shall wish to specify the period within which this should take place. It may well be appropriate for these regulations to specify 28 days, but this is one of the detailed matters on which we wish to consult when we draw up the regulations. There will therefore be a further opportunity not only for the noble Lord but for those whose comments he has communicated to us to give their views then.

It would be right to have the detailed matters regarding the plan as the subject of regulations and the Bill contains firm provisions to enable that to be done. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment, having regard to the fact that we are very concerned that the system set up under this Bill should avoid the difficulties that have been mentioned, particularly the difficulty of children drifting without their cases being properly considered.

Lord Mottistone

My Lords, I thank my noble and learned friend for that reply. As always, I am not very happy about things turning up in regulations later on after Parliament has had the chance to consider these matters, but perhaps this is a place where regulations are the right solution. I shall look with care at what my noble and learned friend has said. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 43: Page 14, line 38, at end insert— ("(5A) Where, in exercising their duties under subsection (5) of this section, a local authority is satisfied that a child has sufficient understanding to make an informed decision and wishes to do so, the local authority shall give first consideration to the child's wishes.").

The noble and learned Lord said: My Lords, whereas existing legislation provides only for regard to be given to the wishes and feelings of the child in care, as we see, Clause 18(4) provides that local authorities give equal consideration not only to the child's wishes and feelings but also to those of his parents and anyone else with parental responsibilities and to his racial origin and cultural background.

The fact that "the child" appears in Clause 18(4)(a) is irrelevant in so far as it may be thought to point to a position of importance. The amendment that I move seeks to ensure that, where older children are concerned, their wishes and feelings are given first consideration. In law, this does not mean that the child's wishes are given overriding or paramount consideration, but simply that they come top of the list of factors that should be taken into account.

This provision would clearly be very important where, for example, a parent and young person were in conflict with each other or where a young person did not wish to be fostered by a family of the same cultural or religious background, although that might be a somewhat unusual situation. For the avoidance of these dangers of potential conflict we think that it is valuable to emphasise that: the local authority shall give first consideration to the child's wishes". I beg to move.

Lord Simon of Glaisdale

My Lords, perhaps I may express a little hesitation about now re-introducing the phrase "first consideration". We had the phrase "the first and paramount consideration" from the Guardianship Act of last century up to the Guardianship of Minors Act 1971. My noble and learned friend the Lord Chancellor in Committee gave detailed reasons supporting the use of the word "paramount" without the word "first".

The words "first consideration" have, so far as I know, been considered twice: once judicially by Lord MacDermott in a case called J. v. C.; and, if I may say so, in the other instance by myself extrajudicially on the Guardianship of Minors Act. We differed profoundly without either knowing what the other was saying. 1 think Lord MacDermott used "first consideration" in the sense that it was a consideration that was first to be thought of by the court. I rather think that my noble and learned friend Lord Elwyn-Jones is using it in the same sense. I ventured to say that the first consideration was more important than any other but that paramount consideration was more important than all others. That obtained general assent in your Lordships' House on that Bill, and in the other place.

There being considerable doubt what the first consideration means, I very much deprecate reintroducing the words in this amendment. On the merit of the amendment, I have nothing to say. As a matter of drafting, I cannot help feeling that it would be a mistake.

10.15 p.m.

Lord Henderson of Brompton

My Lords, on the merits of the case I have something to say, although not on the drafting. I hope that the noble and learned Lord the Lord Chancellor will consider this sympathetically. It seems to me that when a child is what we would now call a grown up—when he is over, say, 16—it would be most extraordinary not to place first, whether paramount or not, a child's wishes in this context. I would ask any noble Lord who has a child of that age whether he would, for instance, answer to the name of "child". I very much doubt it. Many of these so-called children are twice one's height and weight and everything else. It would be more than one's life was worth, let alone one's fatherhood, to dare to call a person of 16 or 17 years a child, and not to give paramountcy to his wishes in circumstances where he does not have a father or mother to look to.

If one cannot put an upper age limit to children, and one has to leave it as a child of any age, the onus is on those to disprove the case for the noble and learned Lord's amendment, rather than otherwise.

The Lord Chancellor

My Lords, I agree that the use of the word "child" in relation to some of these people is rather a legalistic way of going about the matter, but it is not easy to see how to replace it.

The important matter is that the Bill puts on the local authority the duty to safeguard and promote the child's welfare. That must be the consideration that ultimately rules. We have said that due consideration must be given to the wishes of the child: we have done, so far as we can, what the noble and learned Lord asked of us by putting that first in the list. For what it is worth, that is the position. It will often happen that more than one consideration will come into the equation. There might be two children, both with different points of view, but it would be wise to keep them together. The noble and learned Lord's amendment would put us in difficulty in that connection. The overriding view would be that the children should stay together as that would be best for their interests. They may not see it that way, for children fall out sometimes, but one always hopes that they will fall in again, so their wishes at a particular time may not be the best test of what should happen to them.

I believe that the Bill has the balance about right by requiring the authority to give due consideration to the child's wishes, the ultimate result depending on all the circumstances. However, this is a difficult issue. I do not mean to suggest that our minds are closed to considering the matter further, but at present we believe that the Bill is about right. However, we are willing to keep this discussion going and not to close the book on it.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord for that response. I shall not exchange cudgels with the noble and learned Lord, Lord Simon of Glaisdale, on this. I certainly do not feel inclined at this late hour, or indeed at any other hour, to go to the stake on the issue; but I am grateful that the noble and learned Lord the Lord Chancellor is willing to consider it and perhaps we can look at it jointly and calmly at an earlier hour next time. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Dundee

My Lords, I beg to move that further consideration on Report be now adjourned.

House adjourned at twenty-two minutes past ten o'clock.s