§ Consideration of amendments on Report resumed on Clause 26.
§ Lord Mishcon moved Amendment No. 80:
Page 21, line 29, at end insert—
(c) adjourning the hearing for a specified period of time to permit a programme of rehabilitation and giving directions for its implementation if the court thinks fit.").
§ The noble Lord said: My Lords, the House will remember that there was some discussion at Committee stage in relation to the court being given a specific power to adjourn a hearing for a specified period to admit a programme of rehabilitation, and to be able to give directions for its implementation if the court thought fit. It was felt on that occasion that there was a strong case for seeing whether the court could be given sufficient power to grant a specific adjournment in order to see whether the whole process under the Bill could be avoided when it was a fairly extreme process with a discussion about rehabilitation with a report back to the court.
§ The noble and learned Lord, while graciously receiving the spirit of this, took the view—though I did not think that it was strong enough to deter me from my objective—that it might lead to obligatory adjournments and consequent delay in the Bill when the whole ethos of the Bill for very good reason was to speed up procedures and to provide proper timetabling, and so on.1520
§ Nobody intended that these adjournments should be long or that they should be obligatory. The whole purpose was to provide the court with the discretion to order an adjournment for a specific reason. Obviously, no court would order that unless it was satisfied that there was evidence of a prospect of success. If there was any other provision in the Bill which specifically enabled a court to try to see whether rehabilitation would not work, one would not mind. One could say that it was referred to vaguely in another part of the Bill and the court has an obvious right to do it. However, there is no such provision. While orders for access under Clause 29 may be made within the context of a rehabilitation plan, there is no provision for orders to be made about placement, for example, residential establishments or specific directions such as psychiatric assessments, or attendance at a clinic or a family centre.
§ The noble and learned Lord had one other point which he put very clearly to the Committee on that occasion as he could not support the amendment. He felt that giving the courts direction-making power ran counter to the philosophy behind the Bill, which was that case-management was a matter for local authorities and not the courts. One quite understands that and we were not proposing an amendment giving the courts wider powers. We felt that what the noble and learned Lord was worried about would be if the court could review decisions once a child was in care. We were aiming to see whether, in the court's wisdom, an adjournment could avoid a child being placed in care.
§ It seems that not a scrap of harm could be done by the acceptance of this. Nobody believes that a court will behave foolishly or cause long delays as a result. It could do good in the right cases. Any machinery which leads with wisdom and kindness to seeing that a care order is not made, or that rehabilitation takes place, must be an advantage and not a disadvantage. It is in that spirit that I move the amendment.
§ 8.45 p.m.
§ The Lord Chancellor
My Lords, the effect of the proposal would be to allow the court in care proceedings to make a new kind of order—an "adjournment order"—when an application for an order is made. I have some difficulty with this point. As I explained previously in Committee, the rules of court will provide for adjournments and we do not think that their use should be encouraged unless they are necessary for the case to proceed. Adjournments contribute to delays, which we are anxious to keep to the minimum, and I would not wish to introduce a provision which runs counter to this.
When we last debated the subject, concern was expressed that a court might feel obliged to make a care order in situations where they felt it would not be appropriate for the child to return home immediately after several months in interim care. It was suggested that an adjournment which would allow the court to give directions for a programme of rehabilitation would give the courts a useful alternative. However, this would go against our committed principle that management of cases is a matter for the local authority not the courts. The 1521 function of the courts is to make decisions on the matters which are brought before it, but it is the local authority which has continuing responsibility placed on it by statute for developing and executing plans to promote the welfare of the children concerned. Further, courts are not sufficiently knowledgeable about the availability of local authority resources which might need to be deployed, nor are they responsible or accountable for them. I do not therefore think the proposal in the amendment would be appropriate.
Further, I do not think it should be necessary in view of the changes we are proposing in the Bill. I have already mentioned the power that will be contained in the rules to adjourn. We have included provisions in Clause 33 to restrict the length of interim orders. This and other measures aimed at reducing delays mean that children should not be in interim care for long periods before the case is determined at a final hearing.
The court will under the Bill have an increased choice of orders it can make. In fact, under Clause 1 the care court will be obliged to have regard to the range of powers available to it and will be subject to the duty not to make an order unless to do so would be better for the child than making no order at all. For example, before the case is finally disposed of, it would he possible to make a residence order in favour of the parents together with an interim supervision order under Clause 35(3). Similarly, at the full hearing the court may conclude that a supervision order might be more appropriate. The changes in the Bill introduce a more effective form of supervision than is currently available. The court can make requirements on the parents, and the powers of the supervisor have also been improved. This should increase the usefulness of supervision as an alternative to care.
However if the court decides to make a care order it can use the very wide powers regarding contact which the Bill introduces to ensure that close links are maintained between the child and his family—so long as this is in the child's interests. At present courts can consider matters of access only if access has been refused or terminated. Clause 29 of the Bill includes a presumption of reasonable contact with the parents and others and the court will have powers to make orders as to contact and to impose conditions that it thinks appropriate. Before making a care order the court will be called upon to consider the arrangements proposed by the local authority for contact, so this will always be a matter which the court will be required to examine carefully.
The Bill will also introduce new provisions aimed at requiring local authorities to focus more clearly on returning children home than they are required to at present. Paragraph 13 of Schedule 2 places a new duty on the local authority to promote and maintain contact between the child and his family. We shall also be requiring the local authority when applying for an order to give the court a statement of its general plan for the child. As I explained when we debated this subject in Committee, that will be provided for in rules of court.
In the debate in Committee reference was also made to a proposal which would allow the court to 1522 discharge a care order and order a return to the family over a fixed period. That is sometimes referred to as "phased rehabilitation" and will also be covered. We do not believe that this would be practicable. Local authorities and others need to be clear what their respective legal powers and responsibilities are. Following the discharge of a care order, the order of a mandatory period for rehabilitation work would leave the position of the respective parties unclear. There would, of course, be no difficulty about this being done on a voluntary basis and indeed preparing a child for his return home, including frequent contact visits, should be a normal prelude to the discharge of a care order.
I believe that within the structure required by the Bill it is important to maintain the distinction between the responsibility of the court to decide issues which come before it and the responsibility of the local authority for the continuing management of the child. I understand why the amendment was proposed and we have thought about the matter carefully. However, we conclude that it would not be an appropriate addition to the Bill having regard to the considerations that I have outlined.
§ Lord Dormand of Easington
My Lords, the noble and learned Lord is saying that the rules of court permit such instances to take place. Can he tell the House how often they happen in practice? I understand that the amendment places more importance on the fact that such events should occur before that which is proposed in the two previous paragaphs.
If the spirit of the amendment is to be carried through more needs to be done than the court at present makes provision for. I speak as a non-legal man but I believe that this is an important aspect of the proposal now before the House.
§ The Lord Chancellor
My Lords, although the noble Lord may not be a legal man, I know that he has a great deal of experience relating to children of a variety of ages. The court has the power to grant an adjournment if necessary. I find inconsistent with the principles that we have adopted the idea that in some way the court should be in charge of the rehabilitation programme. The purpose of the amendment is that a programme of rehabilitation should be carried out. As regards rehabilitation and so forth, the local authority has responsibility for the management of the case. Therefore it is not appropriate for the court to say to the local authority, "This is what you must do", and give directions for it. The local authority has that responsibility. To try to put it on the court confuses the responsibility and the allocation of it.
The court must decide, for example, whether a care order should be made. It is a precise question and the conditions are clearly set out in the Bill. The court must say yes or no to that. We believe that there is a danger in giving the court the lesser option; namely, to direct the local authority to do something less than take responsibility for the care of the child.
In so far as adjournment is within the conception or principle of the Bill the court has the power to order that under the rules. However, the purpose of 1523] the amendment is to put the court in charge of a programme of rehabilitation and it is inconsistent with that. If the local authority wants a programme of rehabilitation it has plenty of powers to achieve it. There is no point in involving the court. The local authority has responsibility for that as allocated by the law. There is no point in involving the court, which has responsibilities to say yes or no to applications made to it.
§ Lord Mishcon
My Lords, it is with a little sadness that I reply to the noble and learned Lord. At the same time I should like to thank him for the obvious care which he has taken in order to let the House know his position on the matter.
I had hoped that the noble and learned Lord had allowed in his contemplation the flexibility about which he has often spoken—and correctly so—in regard to the Bill. He wanted to have flexibility and coverage for all kinds of circumstances. He wanted to ensure that, in regard to children, people do not act like machines.
By the reasoning of the noble and learned Lord I believe that the court is bound to act as a rubber stamp. The judge will say, "Do I have enough evidence before me to say that a care order must be made? If I have, I make the care order even though I think that, because of my contemplation of the evidence, there is a chance of rehabilitation. But the local authority does not take that view. Before I make the care order I should like to have a short adjournment to see whether what I have in my mind is not possible".
In spite of wanting flexibility the noble and learned Lord has cut out that possibility. It is not for the court but for the local authority, which, presumably, must adopt an infallibility exercise and character. For those reasons it was with sorrow that I heard what the noble and learned Lord said. I believe that the amendment acts within the spirit of the flexibility of which he spoke and with the respect that I know he has for the judges and magistrates who may be dealing with the matters.
I can carry the argument no further. The armour of the noble and learned Lord appears to be impregnable on the matter. In those circumstances, but with great regret, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9 p.m.
Lord Prys-Davies moved Amendment No. 81:
Page 21, line 30, at beginning insert ("Subject to its duties under section I of this Act,").
§ The noble Lord said: My Lords, a number of amendments were moved in Committee in order to reinstate the White Paper grounds for care. Therefore the Clause 26 grounds for care would include the provision that the order is the most effective means available to the court for safeguarding the child's welfare.
§ The noble and learned Lord the Lord Chancellor reminded the Committee that, by virtue of Clause 1, the court, when considering a care application, was 1524 also under a duty to give paramount consideration to the child's welfare, to have regard to the range of powers available to it and to make such an order only if it considered that to do so would be better for the child than making no order at all.
§ The noble and learned Lord has been most reluctant to accept cross-referencing in this Bill and has defended the elegance of its structure. We appreciate by now, if we did not on the first Committee day, that the Bill must be read as a whole. Nevertheless, in practice this Bill will not be read as a whole. The Government can issue guidance and there may be training programmes which can be initiated. However, the fact remains that over the next few years, if not the next decade or two, social workers and non-legal people in the child care service will look up the care and supervision orders in the contents section of the Bill and will then turn to Clause 26 for the grounds of care, without realising that Clause 1 is also relevant.
§ I believe that I have travelled on this road more than once in Committee and before the House. This amendment has been moved to ensure that within the Bill, and particularly in this clause, there is an essential piece of signposting. As I said, we know that Clauses 1 and 26 should be read together but the purpose of this amendment is to ensure that everybody else knows that. I beg to move.
§ The Lord Chancellor
My Lords, in moving this amendment the noble Lord, Lord Prys-Davies, explained that, having been together with this Bill for some considerable time, we understand its structure and that the welfare requirements placed on the courts by Clause 1 apply in full to all orders which the court makes about children. The introductory words to subsections (1) and (4) make that perfectly clear while subsection (3)(b) applies the check-list in subsection (2) to those proceedings. Therefore, that brings the whole machinery of Clause 1 into the care jurisdiction.
This is a question of judgment but I believe that we cannot underestimate the importance of Clause 1. I believe that it would be unwise to assume that we should encourage people to think that they can read this Bill starting in the middle. I have already undertaken to my noble friend Lord Mottistone to see whether we can put something in to Part I to go forward to the local authorities' duties. I have not yet been able to see exactly how that might be done but I have agreed to consider it. However, this is going in the other direction.
This is a drafting matter. Having taken the best advice I can about it, I have reached the conclusion that we have provided for the correct relationship between Clause 1 and this clause and that the proposed amendment is unnecessary. While I know that the noble Lord has cogently advocated the opposite point of view, nevertheless he may feel able to withdraw his amendment.
§ Lord Prys-Davies
My Lords, I am rather disappointed in the response of the noble and learned Lord, but I am not surprised. At least the response makes for consistency. That has been the line adopted throughout by the noble and learned Lord 1525 and it preserves the elegance of the Bill. However, in the circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn
§ 9 p.m.
Lord Banks moved Amendment No. 82:
Page 21, line 37, leave out ("the parent of a similar child to give to him") and insert ("a parent in similar circumstances to give a child of similar age, ability, temperament and need").
The noble Lord said: My Lords, this is a further attempt to improve the grounds for care stated in Clause 26(2) of the Bill. As the Bill is drafted, the court is required to assess,
the standard of care … which it would be reasonable to expect the parent of a similar child to give".
That wording is open to the criticism that it requires the court to make a subjective decision as to what is reasonable for the parent of a similar child. For example, there is a risk that the court will apply to a family in deprived circumstances the parental standards of the middle class, though such standards are not universally practised. The amendment requires the court to focus on the circumstances of the parent and on the nature and characteristics of the child and thus to compare like with like. I beg to move.
§ The Lord Chancellor
My Lords, this amendment operates on a most important provision. We have had considerable discussion about these matters. I believe that no fewer than three options have been suggested as to how to construct the last part of this clause, and we now have a fourth.
Perhaps I may try to analyse this problem. There are two concerns: one, that "similar child" lacks precision and is open to a range of meanings; and the other, not unrelated, that the phrase would not fix on particular qualities or attributes such as, to use the example I gave in Committee, a child with brittle bones. I agreed in Committee to consider what had been said and to discuss with the draftsman whether we could improve on "similar child" without complicating the matter. I am afraid that for the reason I touched on yesterday we have not been able to bring that to a conclusion. We shall do so as quickly as we can in the hope that the matter may be resolved before the Bill leaves this House.
The difficulty I have with the amendment proposed by the noble Lord, Lord Banks, is that it is too specific. It provides for "a parent in similar circumstances". I assume that that means in similar circumstances to the parent whose child is the subject of the care or supervision proceedings. Perhaps I may take an example. What if that parent were addicted to heroin or were so immature as not to be able to look after a child properly? Would those be appropriate bases for comparison? As for the child, the words in the amendment require all the characteristics to be taken into account, even though for a mentally disabled child "age", if that means natural age, may not be relevant. "Need" is presented as a distinctive characteristic but to some extent must be governed by the other three.
1526 I believe that it is important in this connection for the court to look at what a parent of a similar child could be expected to do. One is looking to try to get a yardstick for testing whether the parent in question has fallen short. If the amendment of the noble Lord, Lord Banks, were accepted, I think the parent, with all that parent's disabilities or lack of qualification to look after the child properly, would have to be taken into account. What we really want to consider at this point is the definition of whether the parent really is able to give the standard of care which "a similar child" is entitled to expect. I took the example of a child with a special characteristic, say brittle bones. In such a case, is the parent in a position to give the kind of care which a child having that particular difficulty is entitled to expect?
Having looked at all these things and having considered this amendment as a fourth option, I am inclined to be confirmed in my initial view that the present phrase, "a similar child", may be the best that we can manage. It is the court that has to satisfy itself whether the conditions for a care or supervision order are met. There is something to be said for leaving it to the court to decide in each case what are the characteristics which "a similar child" needs to exhibit.
I am conscious that this is an extremely difficult and important question and I am grateful to the noble Lord, Lord Banks, for bringing forward the further option. I hope the noble Lord will feel that we have fully considered this amendment. As I say, we are going to give further consideration still to this whole matter and I very much hope to be able to report to your Lordships at Third Reading what our concluded view is. I have no doubt that this part of the Bill will be very closely considered when the matter goes to the other place, but it would be good for us to reach a concluded view upon this important aspect of it.
§ Lord Banks
My Lords, I am very grateful to the noble and learned Lord for the answer he has given. It seems to be a question, in part at least, of whether we are thinking of a minimum standard of care which would apply to everyone or whether we are thinking of a degree of care which would depend on the circumstances of the parent. I am not quite clear which the noble and learned Lord has in mind but I am glad to know that the matter is to be considered further. In view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 83 not moved.]
The Lord Chancellor moved Amendment No. 84:
Page 21, line 43, leave out ("separately or in any") and insert ("on its own or in any other").
§ The noble and learned Lord said: My Lords, this is a simple amendment, consequential upon the inclusion of Part IV proceedings in family proceedings. The amendment has no substantive effect: it is a simply drafting amendment, and I beg to move.
§ On Question, amendment agreed to.1527
Lord Mottistone moved Amendment No. 85:
Page 22, line 18, leave out ("or on behalf of a local authority") and insert ("the local authority except as a consequence of an order made under Part V").
§ The noble Lord said: My Lords, I believe that in the debate we had on a somewhat similar amendment in Committee at cols. 361 and 362, my noble and learned friend and I were probably at cross purposes. I have endeavoured to put down another amendment which I think meets the point that he was perhaps implying.
§ Clause 26(6)(c) prevents an authorised person, which might be the NSPCC, from initiating care proceedings in respect of a child accommodated by a local authority. This follows no general principle as the society would still be able to take proceedings if the child were living at home, placed with relatives, in accommodation with another voluntary agency or in hospital. My noble and learned friend has argued that it would be inappropriate for the society to take proceedings if the child was in voluntary care or was an orphan. The society completely agrees with this view and would not initiate proceedings in those circumstances. However, the clause as presently drafted inhibits the society's ability to take independent action. Once an emergency protection order as been taken, the child may move to local authority accommodation.
§ Even where the society has acted as key worker, which in many cases it does, and has taken the emergency protection order, it would be prevented from carrying through the process where care orders seemed to be necessary. The society takes about 200 place of safety orders (which are to be replaced by emergency protection orders) each year, and approximately 120 of them result in care proceedings. Consultation takes place with the local authority before proceedings are taken.
§ The basis for the society, rather than the local authority, instituting proceedings is that the best interests of the child are met by such action. In the first place, it is more efficient since the society has the evidence, having taken the place of safety order. It is an essential part of the developing social work relationship between the society, the child and the family; and it is an essential part of the continued relationship with the child and the family. Many place of safety orders are taken in respect of children whom they already know and are working with.
§ In addition, this subsection would close down a real alternative to social services provision in circumstances where, for one reason for another, a service could not be provided, for example, during industrial action, though hopefully that would not happen, or—and this is much more likely—where the social services were overloaded and unable to allocate cases. One needs to remember that the social services look after us from cradle to grave; they do not only look after children, as the NSPCC does.
§ Therefore, it is important to realise that various social services operations cannot always cope with everything. As a result it provides an element of choice to child and family about the services available to them. There would be tragic implications if social services were unable to act and initiate proceedings in the appropriate circumstances. I hope that my noble 1528 and learned friend will be able, perhaps not to agree to this amendment but to come some way to making sure that the inhibitions currently presented by Clause 26(6)(c) are modified so that the NSPCC can continue to perform its services to the child public as it does currently. I beg to move.
§ Lady Kinloss
My Lords, if the NSPCC cannot take care proceedings, what happens to a child in circumstances where the local authority, for one reason or another, is unable to initiate proceedings? The child and his or her family would be left in limbo. Much of the emphasis of the Bill is on speeding up care proceedings in the court process. If neither of the two agencies is able to take care proceedings and act, where does that leave the child? This clause as drafted takes away an added safety net for the child.
§ 9.15 p.m.
§ The Lord Chancellor
My Lords, as my noble friend has explained, this amendment would remove the restriction in Clause 26(6)(c) on authorised persons applying for a care or supervision order in respect of a child who is being provided with accommodation by a local authority in cases where the accommodation was being provided following an order made under Part V of the Bill. The present restriction is one of several restrictions in subsection (6) on such applications by authorised persons.
My noble friend has modified his original amendment at Committee stage to limit the relaxation he seeks to cases where the child is provided with local authority accommodation following execution of an emergency protection order. However, it would allow an authorised person to bring care or supervision proceedings in any emergency protection order case where the child had been provided with local authority accommodation, including cases where the local authority itself had obtained the order, or any other person had done so, including where the authority had taken over benefit of the order under regulations made under Clause 42(3).
I have difficulty in seeing that this would be appropriate. As I said in Committee, whenever it provides accommodation under the provisions of the Bill the authority will, by virtue of Clause 18(1) and 18(3), be under a duty to safeguard and promote the child's welfare and to make such use of services available for children cared for by their own families as it considers reasonable. Once the child has arrived in local authority accommodation, these particular duties devolve on the local authority in respect of the child.
Even more pertinently, it will be required by Schedule 2, at paragraph 6, to take steps designed to reduce the need to bring care or supervision proceedings. While the extent to which some of these responsibilities can be carried during the lifetime of an emergency protection order may be limited, the responsibility to find other ways of meeting the child's needs, short of taking care proceedings, will be very relevant. Relaxation of the restriction at subsection (6)(c) would allow authorised persons to cut across those responsibilities.
1529 I fully appreciate the experience and responsibility of the authorised person in question. However, as I said before, the provision for an arrangement under which one authority cuts across responsibilities of another is not likely to be very satisfactory. I do not believe that that is the way to promote co-operative working between authorities and agencies within the framework of clear responsibilities for the local authorities that we wish to see.
Where the NSPCC knows the family or it can contribute in other ways to decisions about the appropriate way of proceeding, the appropriate course is surely to co-operate with the authority rather than having the responsibility to initiate proceedings itself. I suggest that this is the answer to my noble friend's contention that subsection (6)(c), in limiting the power of authorised persons to bring care proceedings, does not follow any general principle. The principle is that when the local authority acquires responsibilities for the child by virtue of providing him with accommodation, those responsibilities should prevail over any other considerations.
Having said that, when a child is accommodated by a local authority it would always be open to the authority to enlist the help of the society in preparing a case, attending as witnesses or even, in appropriate cases, processing the case on behalf of the authority. However, if this did happen the local authority would remain responsible for the proceedings and action could be taken only in a manner authorised by the authority. This would reflect the authority's legal responsibility for the child.
The foundation for this is the placing of the child in accommodation, which triggers the local authority's responsibility. I hope I have said enough to convince my noble friend and the noble Lady that this way forward is not appropriate. Other ways are available on the lines that I have suggested in order to encourage the distinctive and extremely valuable contribution that the society makes and I am sure will continue to make for children in need.
§ Lord Mottistone
My Lords, I am most interested in what my noble and learned friend has said. I believe that there is still a difference of approach here. I am advised that what the society is seeking is a continuation of the present arrangements that work very well when it works closely with local authorities. They share out the job to to speak. The society had detected in this part of the Bill that it will be unable to continue its smooth working in conjunction wth the social services departments of local authorities. That is what it believes.
I am arguing to continue the status quo. My noble and learned friend is seeking to pursue the line that the Bill is trying to take about the future. It may be that the future will be better. I believe that the society would question whether that will be so, because the continuation of a relationship with a child is so important. We cannot possibly conclude the matter this evening. I shall recommend to the society that it talks to my noble friend's advisers, if it may, to see whether there is some way through and that there is nothing lost by this under the new framework. 1530 Perhaps I may leave the matter at that point and withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Banks moved Amendment No. 86:
Page 22, line 37, after ("includes") insert ("neglect:).
§ The noble Lord said: My Lords, this amendment brings forward an amendment that was not moved at Committee stage because a similar amendment was moved and later withdrawn by the noble Baroness, Lady David. The amendment seeks to add the word "neglect" as part of the definition of ill-treatment in Clause 26(8). If neglect is not in this part of the Bill there is a risk that courts will consider that Parliament has deliberately left it out, particularly as in contrast, neglect appears in paragraph 4 of Schedule 2 to the Bill as a category of suffering from which children should be protected.
§ At Committee stage the noble and learned Lord the Lord Chancellor argued that not all neglect will result in harm. That may be right so far as it goes, but the introduction of the word "neglect" will not create a risk of children unnecessarily being ordered into care. The court will still have to find that significant harm has resulted. Under Clause 26, the court will still have a discretion whether or not to make a care order. Under Clause 1(4), the court will also have to consider whether there is any better option for the child. "Neglect" is a readily understood word and its inclusion will help the courts. I beg to move.
§ The Lord Chancellor
My Lords, we considered amendments similar to this in Committee and I explained then why I would not wish to see "harm" defined as including neglect. These arguments still hold, but there is an additional reason why I prefer to resist this amendment, in view of Amendments Nos. 70 and 129 to which I spoke a short while ago.
In moving Amendment No. 70 I explained why we considered it best to give local authorities a duty under paragraph 4 of Schedule 2 to take steps to prevent children suffering ill-treatment or neglect. That is a preventive operation. It is perfectly reasonable that the children should be prevented from suffering neglect. The amendment now proposed would provide for the definition of "ill-treatment" to include neglect. This would clearly be inconsistent in terms of the framework of definitions within the Bill.
Clause 26(8) concerns the definition of "harm" in so far as it is one of the grounds for the making of a care order. It is right that local authorities should seek to prevent children suffering neglect but the provisions of Clause 26(8) are of a different order from those in paragraph 4 of the schedule. As "neglect" does not necessarily constitute actual harm, though it may well cause it, we should resist incorporating it into subsection (8). As I said in Committee, it is essential that in defining "'harm" we consider what actually has occurred to the child. Where neglect produced harm, that will be covered, and a care order will be possible because or by virtue of the harm. I do not think it wise to do any more than this though the notion of neglect as a factor in producing harm is embodied in Clause 26(2)(b).
1531 It is necessary to have a proper basis for the care order. That basis includes as the starting point the harm done to the child. That harm may be produced by neglect. Not all neglect produces harm. Therefore it is not right to have "neglect" in the definition. It is the "harm" that should be in the definition.
I hope that in the light of that explanation the noble Lord may feel that on this aspect we have it right although I see the concern that arises from 1532 seeing "neglect" referred to in the preventive part of the Bill. I hope I have made clear the distinction in context between the two.
§ Lord Banks
My Lords, once again I am grateful to the noble and learned Lord for his explanation. Naturally I feel disappointed that he could not accept the amendment but I see the logic of his arguments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1533
§ Lord Banks moved Amendment No. 87:
Page 23, line 3, at end insert—
("(2) "a care order" may—
§ The noble Lord said: My Lords, this amendment empowers the court on making a care order to give directions as to how it is to be carried into effect. It proposes a discretionary not a mandatory power to give such directions. The power of the court in wardship to give both short-term and long-term directions and guidance has been valued by local authorities and parents. Access to the wardship jurisdiction is curtailed by Clause 70. This amendment seeks to preserve the valuable power to give consequential directions and guidance hitherto exercised in wardship cases.
§ In Committee on 17th January the noble and learned Lord indicated at col. 117 of the Official Report that rules of court will require a local authority when applying for a care order to provide the court with details of its proposals for the child should the order be granted. If the amendment is agreed the court will be able to make a care order without necessarily endorsing every detail of the local authority's plans for the child. For example, the court can say that it agrees with the need for a court order but disagrees with the nature of the placement proposed for the child. The wording of the amendment must be impeccable. It is taken verbatim from Clause 10(8)(a) and (b) dealing with Section 7 orders. I beg to move.
§ 9.30 p.m.
§ The Lord Chancellor
My Lords, the words of the amendment are indeed impeccable in another context, but I suggest that they are not appropriate in this matter. We touched on the question of court directions when considering Amendment No. 80 and I argued that the management of cases is a matter for the local authority, not the courts. The Review of Child Care Law puts this succinctly:One of our guiding principles has been that the court should be able to determine major issues such as the transfer of parental rights and duties where there is or may be a dispute between parents and local authorities, while the management of the case should be the responsibility of the local authority".The expertise of a court lies in its ability to hear all sides of the case, to determine issues of fact and to make a firm decision on a particular issue at a particular time, in accordance with the applicable law. It cannot initiate action to provide for the child, nor can it deliver the services which may best serve the child's needs. Nor, except under the wardship jurisdiction, does it have parental responsibility for the child. Those powers and responsibilities must lie with the local authority.
The present power of the court in family proceedings when placing a child in local authority care to give directions as to provision for the child will be brought to an end to dispose of an anomaly in current practice between care and other proceedings. The court will have powers of direction when making 1534 emergency protection orders but those will be limited to two specific and potentially problematic issues—contact and medical examination—which the holder of the order, whose parental responsibility will be qualified, will not usually be well placed to settle.
When speaking in Committee to an amendment similar to the one we considered earlier—namely, Amendment No. 80—the noble Baroness, Lady David, said that legislation should provide that directions can be given by the court in all proceedings but that in the light of what was said in the White Paper she did not expect the Government to agree. I saw that as an understanding of the scheme in the Bill which, by dint of conferring parental responsibility and the specific welfare responsibilities in Clauses 18, 19, 20 and 22, places full responsibility for carrying orders into effect on the local authority. We attach importance to this principle, which is fundamental. Shared responsibility is a prescription for no proper responsibility at all and may well lead to the phenomenon of passing the responsibility which is so destructive to good administration.
Your Lordships may recall that I said in Committee in another context that we propose to introduce in rules of court a requirement that the local authority discloses to the court its proposals for the child. Indeed, the noble Lord, Lord Banks, has reminded us of that this evening. The purpose of that requirement is to enable the court to decide whether the making of a court order will be of benefit to the child. Unless it knows what will happen in a general way when it gives the child into the care of the local authority it will be hard for the court to exercise that jurisdiction properly. However, once it gives the care of the child to the local authority, then it is the local authority's responsibility.
I hope that I have explained sufficiently our position on the matter and that the noble Lord will feel able to withdraw the amendment.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down, I wonder whether he again wishes to put the view that even if there be a transparent error, or misjudgment, in the proposed directions of the local authority, which the court may see, the court should have no power to intervene to vary what it may see as the local authority's intention with regard to the child. The court's function is care order or no care order and no further.
§ The Lord Chancellor
My Lords, with the leave of the House, I am sure that the noble Lord appreciates that courts can often manage matters in a way which does not require formal power. I have no doubt that in discussion as to whether a care order should be made, the court would have a view about the proposals. It may well be that in the light of discussion in the court, amendment of the proposals will result. However, the responsibility for making the proposals and carrying them out must be that of the local authority.
If, for example, the court's view was that some other course of action for the child would be advisable, it must consider whether it could make some order for the child other than a care order.
1535 The principle that the local authority is responsible for the child's care is the vital principle of the Bill. In the type of case to which the noble Lord has referred, I have no doubt that the court could bring its influence to bear on the local authority's judgment, leading perhaps to improvement in its proposals for the child. It would still be the local authority's responsibility.
§ Lord Banks
My Lords, I wonder whether the noble and learned Lord feels that the power of the court in wardship to give short-term and long-term directions, to which I referred in my remarks, has been unsuccessful or unhelpful in any way or has worked against the welfare of the children. I know that he can say that the court has parental responsibility, and so it is not the same as other cases, but putting that point on one side, does he feel that the operation of the power has been such as to suggest that it should now be abolished?
I understand the principle that the noble and learned Lord is seeking to adopt; that there should be a clear division of responsibility, and one can see an argument for that. In view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Effect of care order]:
§ [Amendments Nos. 88 to 90 not moved]
§ Clause 29 [Parental contact etc. with children in care]:
Lady Saltoun of Abernethy moved Amendment No. 91:
Page 24, line 15, after ("parents") insert ("and relatives").
§ The noble Lady said: My Lords, as I said in Committee when we were discussing Amendment No. 159B, moved by the noble Baroness, Lady David, I should like to see the degree of kinship contained in Clause 29(1)(a) widened to include relatives. For that reason, I prefer this amendment to Amendment No. 92 tabled by the noble Baroness, Lady David, although I shall support her amendment if mine is rejected.
Not all children have grandparents, and many have no siblings. Where that is the case, more distant relatives often become close to the child. In Committee, the noble and learned Lord the Lord Chancellor pointed out that Schedule 2 paragraph 13(1)(c) which provides that:
any other person connected with him"—
"him" being the child—covered grandparents, siblings and more distant relatives. The noble Earl, Lord Erroll, then queried why, if this was so, there were two different restrictions—one in a schedule and one on the face of the Bill.
I have since been advised that what is on the face of the Bill in Clause 29(1) is enforceable by the court, but what is in Schedule 2 paragraph 13(1)(c) is not. For that reason I have come back with this amendment. I think it is very important that the contact with close relatives, whoever they may be and whatever their relationship, should be legally 1536 enforceable. The real point is whether or not what is in the schedule is enforceable in court. I wonder whether the noble and learned Lord the Lord Chancellor could clarify that point. I beg to move.
§ Baroness David
My Lords, I think Amendments Nos. 91 and 92 are linked and it might be convenient and save the time of the House if I spoke to them together.
Noble Lords may be rather surprised to find that I have put my name to both these amendments. First, I thought that I should be very happy to support the noble Lady's amendment on "relatives". Then I wondered whether perhaps it was spread rather wide since whoever is mentioned in Clause 29(1) could be allowed to try to make an application to the court. I thought that it was perhaps more likely that "grandparents" and "siblings" would be acceptable than the wider concept of "relatives". That is why my name appears on the Marshalled List as regards both these amendments.
I hope that having restricted the terms of the amendment to "grandparents" and "siblings"—rather closer relatives than might be envisaged in the wider term "relatives"—it would be more acceptable. I moved the same amendment at Committee stage and the noble and learned Lord said that under paragraph 13 of Schedule 2 the authority was already under a duty to promote contact with any person connected with the child. He said that that was a stronger duty than the one in Clause 29. The significant difference between paragraph 13 in Schedule 2 and Clause 29 was that the first referred to promoting contact and the second to allowing contact. With respect, surely the crucial difference is not between the words "promote" and "allow" but between the fact that the people listed in Clause 29(1) have a right to apply to a court for a contact order if the local authority refuses adequate access.
As in accordance with the provisions of Clause 26 children will only be under care orders because of harm attributable to the parents or because the parents cannot control them, it is clearly important that children have strong rights to contact with other members of their immediate family—that is, grandparents and siblings. The only way in which these rights can be secured is if there is an attached right to go to court if the local authority appears to be unreasonably refusing contact.
A view used to prevail that children in care in a permanent or what was hoped to be a permanent placement should not see members of their previous natural family. That led to children never seeing and often never knowing about the existence of brothers, sisters and grandparents. Much unnecessary heartbreak and loss was caused by that policy. Happily now the situation has changed. I think that everybody recognises that it is possible to have a new family without relinquishing contact with the old.
It seems to me that that is why the amendment is important. I hope that the noble and learned Lord will not think that "siblings" is going too far. There are often very wide differences in age between siblings—10, 12 or more years—and an older brother or sister may very easily be able to take a strong interest in a much younger child.
§ 9.45 p.m.
§ Baroness Seear
My Lords, does this provision really have to be restricted to relatives? After all, one can think of a great many cases where, say, a previous schoolteacher, or a godparent who is not a relation but has a close and valuable relationship with the child, should be allowed contact. Does this really have to apply just to relations?
§ The Lord Chancellor
My Lords, Amendment No. 91 is the amendment being moved. I shall try to deal with the various matters arising in connection with it.
The duty on local authorities to promote contact with children whom they look after is provided at paragraph 13 of Schedule 2, to which the noble Lady, Lady Saltoun of Abernethy, referred. This is a positive duty to endeavour to promote contact, so far as is reasonably practicable and consistent with the child's welfare, between the child, his parents, any other person with parental responsibility and any other person connected with him.
Relatives clearly fall within this latter category. The provision for contact with grandparents, brothers, sisters and other relatives is therefore quite plain, though I do not doubt that this will be made even clearer to those implementing these provisions through guidance, as the noble Baroness, Lady David, pointed out on that earlier occasion. The fact that relatives are not referred to in Clause 29 does not reduce the effect of the duty under Schedule 2. The purpose of Clause 29(1) is somewhat different. Although this has not been raised, perhaps I should try to explain that to show the relationship between these two things. I shall then come back to deal with the matters that are more directly raised.
That provision in Clause 29(1) is intended to give certain persons a presumption of reasonable contact on the making of a care order, and this presumption is limited, rightly I believe, to those persons who have parental responsibility or who did so before the care order was made. It would not be appropriate to enter relatives in such a list as they will generally not have parental responsibility. Where contact between them and the child is reasonably practicable and in the child's interests they will in any event be able to secure contact by virtue of paragraph 13, as I have said.
Clause 29(1) is intended to give a stronger right to the very immediate people. But paragraph 13 of Schedule 2 is much wider in the scope of persons covered. There would be another effect of these amendments, and that would be to permit any relative, or any grandparent or sibling, to apply for a contact order without leave of the court. At present such persons would require leave under Clause 29(3) to apply for a contact order. So my answer to the point about enforcement is that anyone covered by paragraph 13 of Schedule 2 can apply to the court for leave to seek an order in terms of the provision of Clause 29(3)(b).
The usual requirement of leave to apply for a contact order reflects the approach taken by the private law as recommended by the Law Commission. The case for consistency in the public law is strong. Leave is intended as a filter against 1538 unwarranted interference but will not inhibit relief from being granted in cases in which contact is in the child's interest. In all but the most exceptional cases we would expect the local authority's duty to be to promote contact to render court proceedings unnecessary.
That is the real purpose of paragraph 13. It sets out what local authorities are supposed to do. That is basically to promote contact so far as possible and so far as is reasonably practicable with all the people connected with the child, so the child's contacts and connections are disturbed as little as possible by the making of a care order. But if it comes to an enforcement it seems right, when one has such a wide circle as that, that leave should be provided.
As I have just said, leave is intended as a filter against unwarranted interference but will not inhibit relief from being granted in cases in which contact is in the child's interest. The court will be quite willing to grant leave in cases where there is any real interest in the child. Again, as I have said, in all but the most exceptional cases we would expect a local authority's duty to be to promote contact to render court proceedings unnecessary. Even where recourse to the court is required I believe that the need to obtain leave is a valuable safeguard for the child against unwarranted interference.
That leaves only the question raised by the noble Baroness, Lady Seear. In relation to a care order, an application can be made under Clause 29(2),by a person mentioned in subsection (3)".On that application,the court may make an order requiring the authority to allow the applicant … such contact with the child as may be specified in the order".The persons include,any person who has obtained the leave of the court to make the application".I do not think that it would be expected that a teacher would be expressly mentioned in the paragraph but a teacher could well come within the scope of that provision.
There are also other possible methods of establishing a relationship with the child that might be covered. It is a very open provision: leave seems reasonable because one could not have anyone coming along. The necessity for leave gives the court the opportunity to scrutinise the credentials of the person seeking that leave. It is, I believe, a good arrangement.
In cases not involving a care order it would he necessary to apply for a contact order under Clause 7 of the Bill.
§ Lord Simon of Glaisdale
My Lords, I am quite sure that it is my fault, but after what my noble and learned friend has said I confess that I still have no idea what is the meaning of a "person connected with him". I wonder whether my noble and learned friend would consider whether that should not be defined either in the schedule or in the interpretation clause.
§ The Lord Chancellor
My Lords, I am certainly willing to consider whether that should be further defined. I am sorry that my noble and learned friend 1539 is not clear about the matter after my exposition. The result seems to have been to introduce fog rather than clarity. My understanding of the matter is that "connection" includes relationship in any degree. However, I am willing to consider whether the matter should be considered further.
§ Lady Saltoun of Abernethy
My Lords, I am grateful to the noble and learned Lord for his explanation. I am quite satisfied with it, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness David had given notice of her intention to move Amendment No. 92:
Page 24, line 16, leave out from ("his") to the end of line 19 and insert—
("(c) where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d) his grandparents; and
(e) his siblings.").
§ The noble Baroness said: I should like to read what the noble and learned Lord has said, and for the moment I shall not move the amendment.
§ [Amendment No. 92 not moved.]
§ Clause 33 [Interim orders]:
§ Baroness David moved Amendment No. 92A:
Page 29, line I, leave out subsection (8) and insert—
("(8) A direction under subsection (6) shall not affect any legal right the child had to refuse consent to the medical examination.").
§ The noble Baroness said: My Lords, at Committee stage I moved an amendment along the same lines to ensure that courts are satisfied that the competent child consents to a medical examination before making an order for his or her examination as part of an interim care order. The noble and learned Lord agreed to bring forward an amendment to deal with that point and, similarly, in respect of medical examinations in emergency proceedings. Therefore, I did not speak at Committee stage to the amendment on emergency proceedings which was phrased along the lines of the amendment I am now moving. Any such court order would not affect any legal right of the child to refuse consent to the medical examination.
§ In the Committee stage debate I said that the effect of the Bill on doctors and young people was unclear. The reason I bring back the amendment before the noble and learned Lord has put down his own amendment is that it is now understood from Department of Health officials that a court order for medical examination will, as the Bill currently stands, affect children's existing rights to refuse consent to an examination.
These rights are, for 16 and 17 year-olds, the clear statutory rights under Section 8 of the Family Law Reform Act 1969 which reads:
The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian".
For under-16s, the principles of the Gillick case obtain; that is, if the doctor is satisfied that the child has sufficient maturity to understand the implications of the proposed treatment or examination, the child may refuse consent.
§ It now appears that under the provisions of the Bill, although the court does not actually order doctors to conduct examinations and any individual doctor may refuse to carry one out, the court order will mean that a doctor who forcibly examines an unwilling young person, even a non-consenting 17 year-old, will not be guilty of trespass or assault.
This will surely put doctors in an extremely invidious position and could, for example, lead to social services holding lists of specific doctors who are happy to carry out forced examinations. More importantly, it is surely a totally unconstructive approach to the difficult issue of suspected child abuse. We have heard repeatedly in this House the central phrase of the Cleveland Report:
the child is a person not an object of concern".
Surely that is a clear example of treating the child as an object.
§ The point of child abuse procedures should first and foremost be to protect the child and it cannot be in the child's interests to subject him or her to a forced examination. Where older children are concerned, they should be persuaded and not compelled. In Committee I spoke of strapping down children or knocking them out with sedatives, and that is what this provision could lead to.
Certainly, the Cleveland Report is quite clear on this issue. At paragraph 11.40 it states:
One most important element must be the approach of the doctor examining any child, the consideration, kindness, explanation of the steps being taken. But in addition, with the older child of appropriate age and understanding his/her consent should also be obtained. According to Dr. Wynne, teenagers sometimes refuse, but usually come back on another occasion for the examination".
In advice from the standing Medical Advisory Committee, doctors are told:
examination without consent may be held in law to be an assault … Depending on their age and understanding young children may also be regarded by a doctor as capable of giving consent to examination or treatment. In these circumstances it is the child's consent which is relevant".
The Home Office circular to chief officers of police on the investigation of child sexual abuse states that:
a doctor should seek consent either from the child or a parent or guardian, where a child is not of sufficient age and understanding".
§ So, unless the principles of the amendment are accepted, we are witness to a backward step and some of the lessons hard-learned from the Cleveland affair will be thrown away. The wording of this amendment is hardly excessive. It does not define the existing rights of children to refuse consent. It does not ask the court or applicant to satisfy themselves as to the validity of consent. All it does is to ensure that the present relationship between doctors and young people is preserved.
§ Of course, in a number of cases, doctors will be satisfied that the young person does not have the capacity to refuse consent—for example, when the doctor is satisfied that the child has been coerced or terrorised by the abuser into refusing consent. However, where a young person has the age or 1541 understanding to refuse consent, then surely the right approach must be to persuade him or her to agree voluntarily to an examination, not to authorise a legal assault by the doctor.
§ I hope that the noble and learned Lord will reassure us that, if he cannot accept this amendment, an amendment along these lines will be forthcoming before the next stage of the Bill. I beg to move.
§ 10 p.m.
§ The Lord Chancellor
My Lords, Clause 33(6) provides that where a court makes an interim care order or interim supervision order it may give such direction, if any, as it considers appropriate with regard to the medical or psychiatric examination of the child. Clause 33(8) provides that where an interim supervision order is made and the question of medical or psychiatric examination arises the court shall act under subsection (6) and as if paragraphs 2 and 5 of Schedule 3 were omitted from the schedule. These disapplied paragraphs provide that, among other things, no requirements as to medical or psychiatric examinations or treatment may be included in a supervision order unless the court is satisfied that the child, if of sufficient understanding, consents.
The amendment of the noble Baroness would delete subsection (8), the effect of which would be to reapply the provisions in paragraphs 2 to 5 of Schedule 3 because by virtue of Clause 26(10) a full order includes an interim order except where stated and puts in its place the statement about the child's right to refuse consent to a medical examination set out in the amendment.
The noble Baroness has put down a similar amendment in respect of court directions as to medical examinations where it makes an emergency protection order, on which I shall also comment if I may. The noble Baroness moved a similar amendment to Amendment No. 92A in Committee and questioned why the provisions of Schedule 3 do not apply in the Bill where interim care or supervision orders are made. I accepted that it was desirable to clarify this matter and undertook to consider it. Indeed, I thought that it would be possible to bring forward a government amendment to meet her point.
I also agreed, at the request of the noble Baroness, at Committee stage to look again at Amendment No. 196C about directions given when emergency protection orders are made, which is identical to the new Amendment No. 103A. I warned then—I believe that the noble Baroness was not present when I mentioned the matter when the noble Lord, Lord Mishcon, moved the second amendment—that different considerations might lead to different outcomes between the two proposals. Having considered the matter further we find that if consistency on directions and consent is needed it should be between interim orders and emergency protection orders rather than between interim orders and supervision orders.
The circumstances of the emergency protection order and interim order will often be similar apart from the presence or absence of an emergency. The 1542 interim order is made to secure the child's welfare while inquiries are made by the local authority or authorised person and guardian ad liter to help the court decide what is the appropriate disposal for the child. Medical assessment or examination may be an important part of this process without which the needs of the child may not be fully established.
The same will often apply in emergency protection cases. If the child had an automatic right to prevent a medical examination the very necessary process of examination and assessment intended to help the court to establish what course of action was in the child's interest would be frustrated. It is not difficult to imagine cases where the child could be influenced to refuse consent against his interest either directly by an abusing parent or indirectly in the belief that he would get into trouble with his parents if he did not exercise a specific right to withhold consent. This would certainly be an unsatisfactory outcome.
As at present advised, we would be opposed to making the court powerless to order medical examinations in such cases. If the court is to have power to order that the child may be removed from his home in an emergency, or placed in care with effective parental responsibility transferred from the parents, it is surely not objectionable that the court should be able to order action designed to produce the right solution for the child, which order or direction can be made only in accordance with Clause 1.
That is not to say that the child should not be able to challenge a court direction or medical examination if he does not agree with it. The child who is subject to a medical examination direction would be able to apply for variation of a discharge of a direction if he is of sufficient understanding to apply. Furthermore, noble Lords will have noticed that Clause 33(7) specifically provides that a direction may be to the effect that there is to be no examination. In reaching such a decision the court will be able to take account of any views expressed by an older child.
As I have said before, the Government have tried hard to get the balance right when considering the need to take steps to protect children's welfare and the importance of recognising children's independence. We have borne in mind the real risks of embroiling children in disputes and of burdening them with individual decisions. These considerations are equally valid whether we are talking about the participation of children in decisions when their parents divorce or the medical examination of children under court orders. The approach we have taken in the Bill is to take the child's welfare as the paramount consideration.
I hope that the noble Baroness, Lady David, does not feel that I raised her hopes in Committee, only to dash them now, when I promised to clarify the position on consent. For the reasons I have outlined, we do not consider at present that it would be right to put into the Bill the specific provision in favour of the child for which she has asked. I hope that she will be prepared to accept this for the time being and not press her amendment.
This is a very difficult area. I am not entirely satisfied that we have reached the right answer yet. 1543 But it is a difficult area which I hope the noble Baroness will allow us to continue to consider.
§ Baroness David
My Lords, I thank the noble and learned Lord for his reply. I cannot say that I am entirely satisfied. I am disappointed that he has not been able to find a compromise solution, but I shall read what he said very carefully. I certainly reserve the right to come back at the next stage because even he has admitted that it is a difficult area and that the right solution has possibly not been reached. However, for the moment I shall beg leave to withdraw the amendment. I apologise that I forgot to say that I was also speaking to Amendment No. 103A, but the noble and learned Lord dealt with that at the same time.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at six minutes past ten o'clock.