Children Bill [H.L.]

HL Deb 16 February 1989 vol 504 cc294-352

3.33 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the Bill be now further considered on Report. Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 35 [Discharge and variation etc. of care orders and supervision orders]:

The Lord Chancellor moved Amendment No. 92B: Page 29, line 39, leave out ("of") and insert ("for").

The noble and learned Lord said: My Lords, this is a minor amendment which does not affect the meaning of Clause 35(1) but is merely intended to improve the drafting. I beg to move.

Lord Elwyn-Jones

My Lords, I welcome the noble and learned Lord on his safe return from what must have been a very exciting visit to the United States.

The Lord Chancellor

My Lords, I am grateful to the noble and learned Lord for his kind remark.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 93: Page 29, line 40, at end insert— ("( ) Where no appointment is made under subsection (1) the clerk to the justices shall record the reasons for non-appointment and submit these in an annual report to the Secretary of State.").

The noble Lord said: My Lords, in moving Amendment No. 93, which adds a provision that may be made by the Secretary of State by regulation under Clause 35(9), may I also by leave speak to Amendments Nos. 98A to 100 and 128A in the grouping as these stand in my name and it could save your Lordships' time. Also in the grouping are Amendments Nos. 96 and 97 which stand in the name of my noble friend Lady Faithfull and other noble Lords and Amendment No. 94 which stands in the name of the noble Lord, Lord Mishcon. All these amendments are complementary.

Lord Mishcon

My Lords, I hesitate to interrupt the noble Lord in the midst of his initial flow, but he mentioned Amendments Nos. 94 and 114 as coming within the present grouping. My list of groupings, which I thought had been approved, shows Amendments Nos. 94 and 114 separately. It is logical that they should be separate.

Lord Campbell of Alloway

My Lords, the noble Lord must have misheard, because I did not mention Amendment No. 114.

Lord Mishcon

My Lords, the noble Lord mentioned Amendment No. 94 as being included in this grouping. I pointed out that it is separately grouped with Amendment No. 114.

Lord Campbell of Alloway

My Lords, I am grateful to the noble Lord. I am relieved from referring to Amendment No. 94, but in a sense it is complementary. I am obliged to him.

The key amendment of this group is perhaps Amendment No. 98A in Clause 35, which is repeated in Amendment No. 128A in Clause 73. This key amendment stands in substitution for the provision made under paragraph (b). The object of this group is to establish a new regime for the guardian ad litem service to be introduced by the Secretary of State by regulation under Clause 35(9). Amendment No. 95, in the name of the noble and learned Lord, Lord Simon of Glaisdale—I hope I do not have this wrong—seeks to delete Clause 35(9). I oppose that amendment as wholly inconsistent with the other amendments to which I speak but not at this stage of the proceedings.

Lord Simon of Glaisdale

My Lords, Amendment No. 95 was one of those amendments that were broadly similar to an amendment I moved earlier objecting to waste of space and time in particularising in permissive terms a general power that had already been given. I was not proposing to move Amendment No. 95.

Lord Campbell of Alloway

My Lords, I am obliged to the noble and learned Lord, who is always helpful. That has cleared the yard-arm of Amendments Nos. 94 and 95. Now I can get down to the object of the amendments which stand in my name. I am obliged to all noble Lords.

The object of the amendments to which I speak is to seek to reflect the ethos of the Butler-Sloss Report so as to ensure a measure of co-ordination on a national basis. It is, quite frankly, to avoid children slipping the net of care and to implement the overriding principle of the Bill: the welfare of children.

Each amendment deals with a disparate aspect or facet of this central problem. Each amendment will be moved separately at the appropriate time. Amendment No. 93 is concerned with statistics without which there can be no co-ordination to correct the existing imbalances. Amendments Nos. 98A and 128A are concerned with the co-ordination of funding and the administration of the guardian ad litem service. Amendment No. 100 and Amendment No. 99 (which is a drafting, consequential amendment) are concerned with co-ordination to ensure that there are sufficient people to provide the service to meet the demands wherever such demands arise.

All these amendments, as a package and separately, have the support of many institutions: the British Association of Social Workers, the Independent Representation for Children in Need, the Voice of Children in Care, the Children's Society, the Children's Legal Centre, the Family Rights Group, the British Agencies for Adoption and Fostering, the National Children's Homes, the National Children's Bureau and the Law Society. Perhaps more important is the support of the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Mishcon, my noble friend Lady Faithful and the noble Lord, Lord Seebohm.

Amendment No. 93 is designed to meet the need for accurate statistics. They are not presently available. Statistics are required on the use of the provisions and the local exercise of the courts' discretion in appointing guardians ad litem. That is related to the rise in the number of panels which operate waiting lists and the shortage of guardians ad litem. According to my information, that acts as a disincentive to the courts to appoint guardians ad litem.

Without accurate statistics the Secretary of State is wholly unable to take any informed or effective action in order to correct the imbalances which now exist. The imbalance is related to an uneven distribution of enforcements as a result of the present system for the provision of funds.

That brings the House straight to the key amendment, No. 98A, for which I must accept total responsibility in drafting. The key to the package reflects the spirit of the proposed new regime. Recent history has taught us that the funding and administration of this important and crucial service should not lie within the exclusive remit of the local authorities. It should be subject to a measure of specific financial provision under central funding and a measure of central control under the supervisory powers of the Secretary of State.

If the Governemnt would take on board that principle, the machinery of drafting could be left to the experts. The principle stands as a principle and my noble and learned friend the Lord Chancellor will acknowledge that it is an area which calls for a philosophical approach.

It is a question of principle, because without specific allocation of central funding, co-ordination on a national basis is not possible and it is wholly requisite. That is especially so because the rates for work vary between £6 and £15 an hour. Human nature being what it is, that inevitably leads to a drift towards the higher-paying authorities. The delays which exist in some local authorities are wholly unacceptable and result from the shortage which is brought about by the drift.

Amendment No. 100 is designed to ensure that there are sufficient number of guardians ad litem on each panel to meet the demand. Amendment No. 99 is consequential drafting. In the result, if your Lordships were to accept the amendments, a relationship between the size of each panel, the population to be served and the local rates of reception into care would be established and maintained. At present there is absolutely no relationship and the situation is largely haphazard.

Furthermore, if the amendments are acceptable, panels, and therefore the guardians ad litem, would be seen to be independent of the local authority. Therefore the courts and the public—and the public aspect is of considerable importance—would have far greater confidence in the independence of the professional advice given.

In conclusion, the hope must be that noble Lords who have heard the argument may believe that we should learn from the lessons of history and listen to the unanimous plea of so many charitable institutions. The hope must also be that my noble and learned friend the Lord Chancellor may be able to welcome aboard the spirit of the amendments. I beg to move Amendment No. 93.

3.45 p.m.

Lord Mishcon

My Lords, the House will be most grateful to the noble Lord for moving the amendments in the way he has. I should like to concentrate on a simple principle which I believe should be the main issue. I know that he will agree. I should like to leave the detail—not just to be worked out for itself because it must also be covered by the general principle—so that we do not lose sight of the main theme of the amendments.

The main theme was echoed throughout your Lordships' House on Second Reading of the Bill and in Committee. It is that a guardian ad litem is a person who has the solemn responsibility of looking after the best interests of the child. Sometimes the best interests of the child lead to a conflict with parents. Sometimes the best interests of the child lead to a conflict with the local authority. As a principle behind all the amendments one is endeavouring to ensure that the guardians ad litem on the various panels which exist and which will exist are completely independent, especially of the local authority. It is not to the local authority that they ought to look for their appointment. It is not to the local authority that they ought to look for their pay.

In my view, it is the solemn duty of your Lordships' House to ensure that that independence is securely written into the Bill. It is that simple principle which I hope your Lordships will see fit to adopt and the noble and learned Lord the Lord Chancellor to accept.

The machinery has been worked out with great care by those who have dealt with this series of amendments. They have done so in order that one cannot throw that principle aside on the basis that it is all very well to have the principle but how will it be carried out in practice. I should like to pay tribute to those who have taken great care to ensure that the amendments include practical proposals such as those outlined by the noble Lord, Lord Campbell of Alloway. The principle is sacred: the independence of the guardians ad litem for the sake of the children they will be looking after.

Lord Seebohm

My Lords, I do not need to make a long speech having heard the very clear way in which the principles were expressed by the noble Lords, Lord Campbell of Alloway and Lord Mishcon. I believe that everybody in this House agrees that the independence of the guardian ad litem is an essential part of the Children Bill. I should like to concentrate on one aspect; namely, the question of finance. I believe that unless it is properly financed, there is no hope that we shall get this off the ground.

I should like to read a very short quotation from the British Association of Social Workers report on guardians ad litem published in July 1986, which stated: The first point to emerge is an amazing diversity in the various local arrangements, which has led to a very patchy service. Local authorities were given less than 5 months to liaise wit h the courts, set up the scheme, recruit, appoint and train panel members and establish complicated administrative arrangements.> Shortages of resources undoubtedly influenced the composition of the panels because administering authorities, with no additional central funding, have been placed under considerable pressure to fulfil their statutory obligations with the minimum posssible outlay. The best interests of the child may be paramount in law but they are certainly not in economics". Therefore, I believe that we have to give very serious attention to the question of funding. I see no way of doing that other than by having specific allocations through the rate support grant to meet the needs of employing an adequate number of guardians ad litem.

Lord Banks

My Lords, in Committee I moved a series of amendments designed to establish the independence of the panels of guardians ad litem from the local authority. At the end of the discussion I withdrew those amendments after the noble and learned Lord the Lord Chancellor explained that it was the Government's intention to develop the panels on a regional basis. It seemed that that would provide an opportunity to distance the panels from any particular local authority.

It seems to me that Amendment No. 98A, which the noble Lord, Lord Campbell of Alloway, described as the key amendment, provides a way of following more or less the route which the noble and learned Lord indicated that the Government would take. At the same time it ensures the independence of the panels from the local authority. For that reason, I support the series of amendments and in particular the key Amendment No. 98A.

Baroness Faithfull

My Lords, the setting up of this service was an imaginative concept on the part of Her Majesty's Government. At the last stage of the Bill, as the noble Lord, Lord Banks, said, the noble and learned Lord said that the setting up of a regional structure was being considered. It is the question of the structure of the guardian ad litem service on which I should like to comment.

I am rather worried about the regional structure. I believe that it rather depends on how large the regions are. At the moment the service is what one might call a home service. Those who carry the great responsibility of being guardians ad litem need to work with a group of people with whom they can share their worries and consult. When they have to work so much alone, however good they may be I sometimes doubt that they can always give the best service unless they are both supported and helped.

One very much hopes that there will be a structure set up with a proper management team so that each—I shall not say "region" because I am rather worried about how large the regions will be—will be organised to some extent and so that it is possible to know, as my noble friend Lord Campbell of Alloway said, that the service is not patchy, as the noble Lord, Lord Seebohm, said. At the moment it is very patchy.

There is the question of the way in which guardians ad litem are appointed. I take note of the way in which the panels of guardians ad litem are appointed in Scotland. I wonder whether we should not have many more guardians ad litem if we advertised for them, laying down exactly what it is that we seek and need. I know many people who would be very glad to be guardians ad litem and would be very suitable but who have not been approached and do not know to whom they should apply. Therefore, I ask for a much more structured service than we have at present.

Lord Elwyn-Jones

My Lords, I should like to speak to Amendment No. 93. Clause 35(1), which concerns the provision of guardians ad litem, states: For the purpose of any specified proceedings, the court shall appoint a guardian ad litem of the child concerned", and it goes on: unless satisfied that it is not necessary to do so in order to safeguard his interests". That is a very broad exception and limitation on the general provision and might tempt the court dealing with the matter to take a somewhat casual view of the duty to appoint guardians ad litem in appropriate cases. For that reason, the amendment provides: Where no appointment is made under subsection (1) the clerk to the justices shall record the reasons for non-appointment and submit these in an annual report to the Secretary of State". At least that would lead the court to think again before relying on the exception to the admirable general provision of the necessity to appoint a guardian ad litem where the child's interests are concerned.

Lady Kinloss

My Lords, the Finer report on one parent families has begged for a comprehensive family court since it reported in 1974. Although that is not proposed in this Bill, there are some very hopeful signs, especially if the noble and learned Lord is prepared to say a little more on how the guardian ad litem service will help the court to decide which cases should be heard in which level of court.

In the Bill at present the function of a guardian ad litem is to investigate the circumstances of a local authority's application for care proceedings. A guardian is appointed by the court to investigate independently and yet is paid by the local authority whose practice he is investigating. That is a clear conflict of interest.

A regional commissioner of children would be able to head the organisation for guardians ad litem and also be in charge of the process for deciding which cases should be heard by which court. That takes the administration of guardians away from local authorities.There is a further concern that after the Bill is passed, the task of deciding which case goes to which court may fall to justices' clerks, some of whom are unqualified.

4 p.m.

The Lord Chancellor

My Lords, these amendments raise matters of considerable importance, as has been plainly indicated already. We discussed this matter to some degree in Committee. The guardian ad litem service is comparatively new, having been set up in about 1984. The Bill seeks to build on what we have and to improve the service in a way that I indicated previously.

However, there are one or two specific matters that I should deal with separately. First is the matter referred to by the noble and learned Lord, Lord Elwyn-Jones, in Amendment No. 93, dealing with the recording of discretionary decisions. As the noble and learned Lord pointed out, Clause 35(1) requires the court in care and related proceedings to appoint a guardian ad litem for the child unless it is satisfied that it is not necessary to do so in order to safeguard his interests. In those rare cases where no appointment is made this amendment would require the clerk to the justices to record the court's reasons. It would also require him to submit an annual report of those reasons to the Secretary of State.

I hope to cover the point made by this amendment. First, there will be power to make rules of court covering the appointment of a guardian ad litem. There are already powers in Clause 64 for the Secretary of State to direct the clerk of each court to transmit to him information which relates to children. I agree entirely with what has been said by my noble friend Lord Campbell of Alloway—that one of the great difficulties in this area is the absence of reliable statistics and information. One of the purposes of the power to which I have referred is to enable us to gather that information. This item would certainly be one such item of information to be gathered. It would not by any means be the only item. I believe that it would be right to have this point covered in the general powers because, apart from anything else, we want to obtain such information not only from magistrates' courts but, for example, from the county court if that was the level at which the case was being dealt with and that court decided not to appoint a guardian ad litem.

The precise scope of all the information we require will need to be considered carefully in relation to the Bill as a whole and that was one of the aspects of implementation to which we referred on Second Reading. There are unlikely to be many decisions not to appoint a guardian ad litem and the information that the Secretary of State requests could certainly include the information covered by Amendment No. 93. I do not think there will be anything between us on the principle of that.

I turn now to Amendments Nos. 99 and 100. The combined effect of the amendments would be to include an additional power which would allow regulations to be made for ensuring that the number of guardians ad litem on each panel is sufficient to meet local demand. I believe that the amendments are not necessary as there are already existing powers under Clause 35(7) which allow regulations to be made to require that the number of persons on a panel is sufficient to meet demand for guardians ad litem in a particular area. Indeed, regulations made under existing powers in Section 103 of the Children Act 1975 include a provision which has a similar effect. The precise definition of "local demand" is also a little difficult but I believe that we have that matter covered in the general regulation-making powers.

Amendments Nos. 96 and 97, taken together, would remove the power to require two or more local authorities to make arrangements to jointly manage a panel and replace it with a power to provide for the appointment of regional commissioners for children. Powers to make provision for the constitution of panels would also be removed. Clause 35(9)(b) would be limited to provision on the administration and procedures of panels. The effect would be to cast doubt on the power to require local authorities to manage panels and to do so jointly. There is also a difficulty in that regional commissioners are not defined. It would appear from the amendment that their function would be to manage the panels of guardians ad litem; though Amendment No. 126, proposing an amendment to Clause 68, indcates that they would also be responsible for allocating cases to particular courts.

I will outline the Government's response to the last part of that proposal when I speak to Amendment No. 126, but I should say that in the Green Paper published by the Lord Chancellor's Department in the summer we envisaged that the child protection office would have some function in this connection. It was felt by the consultees generally that this allocation of cases between courts was in the nature of a judicial function and, therefore, best handled in that way; so I have not gone ahead with that idea but rather to the judicial allocation and supporting arrangements which I shall deal with in some detail when we come to Amendment No. 126.

Amendments Nos. 96 and 97, to which I have just referred, are not particularly well adapted to the purpose that we wish to pursue. The powers presently provided in Clause 35(9)(a) refer to the administration of the family. As I explained in Committee, this would allow a person to be appointed to manage the panel. Indeed, as I explained, it is our firm intention to require panel managers to be appointed to take charge of panels organised on the basis of a combination of local authority areas. For that reason we also wish to resist the proposal to remove the power for the Secretary of State to make regulations as to the constitution of panels and also the proposal to remove the powers to require two or more local authorities to make arrangements for the joint management of panels.

I believe that what we have is the power to require local authorities to come together, but not necessarily on a regional basis. It could be on a sub-regional basis, though the precise size of the unit will depend on the circumstances. The precise objective is to achieve a better management structure than can be achieved at the moment. Many noble Lords will know that the advice issued by the Department of Health to local authorities in connection with the present arrangements gives very strong guidance on the need to have somebody in charge of the management of the panels. As paragraph 2.6 states, there is a need for a clearly identifiable person responsible for the overall management tasks. That would of course be facilitated still further if we could arrange for authorities to be grouped.

One of the purposes of this grouping is precisely to distance the individual members of the panel from the local authorities so that it would be possible to obtain a degree of independence which is not possible under the present arrangements; though I have to say that independence depends essentially on the character of the person appointed and these are individual appointments by the courts. We are seeking to build on these arrangements and improve them in order to achieve the principle to which my noble friend Lord Campbell of Alloway and the noble Lord, Lord Mishcon, in particular, referred. Accordingly, I believe the powers that we have provided are the right powers for the present development and that the direction that we wish to take is in accordance with what your Lordships' are seeking.

I come now to the matter particularly mentioned by my noble friend Lord Campbell of Alloway, the noble Lord, Lord Seebohm, and referred to by others; that is, the proposal in Amendments Nos. 98A and 128A to introduce provision for financing the local panels by means of a specific allocation of funds. This proposal would certainly need to be considered very carefully by the Government as a whole in consultation with local authority associations. It is obvious that targeting funds for specific activities reduces the local authorities' discretion to provide services according to local needs and priorities. It could also reduce their ability to respond to the wishes of their electorates. I have said before, and it is worth repeating, that the balance between local and central government control is a fine one which we have to be careful to get right. I have heard arguments on both sides of that matter from different parts of the House on a number of occasions.

There may be a case for the provision of specific government financial support for some aspects of local authority services arising from the Bill. I assure my noble friend and other noble Lords who have supported these amendments that we shall consider further what can be done in that direction. I need not remind your Lordships that the question of local authority financing is an extremely complicated one. I wish to have this matter considered because a number of departments are involved including the local authority associations. I hope that your Lordships are prepared to take it from me that I will take this matter into consideration, but I cannot preempt the result. I cannot say in advance what the result will be as regards this particular mechanism. If I may be given the opportunity to do that, I believe that we shall have a consideration of value.

These amendments also propose that the panels should be administered by an advisory service to the magistrates' courts answerable to a joint regional authority and subject to the supervisory control of the Secretary of State. The administration of the service by an advisory service to the magistrates' court answerable to a joint regional authority in accordance with the amendment leaves the position unclear as these bodies are not defined. I appreciate what is behind it but the precise way in which they will operate is not defined.

At present the Bill provides for regulation of the administration of panels in Clause 35(9). For example, these powers would allow the Secretary of State to require local authorities to establish procedures to manage the panel with advice from representatives from the courts. They would also allow the Secretary of State to require specified local authorities to co-operate in the provision of panels in specified areas. Any system that is established would need to take account of the role of the guardians ad litem not only in the magistrates' courts, as this amendment particularly does, but also in the county courts and maybe in the High Court.

As I said when we last debated the subject, we accept that there have been some difficulties in the way panels have been managed and organised, but I believe that it is wise, when a service has been recently set up, to try to bring about improvements on what we have got rather than go for a wholesale change at this juncture. The present arrangements allow for joint panels but do not require them. There is a single panel in existence for inner North London. The experience of joint panels shows that this is a way to improve the present situation. The Secretary of State having power to require that is a welcome, satisfactory and wise development.

Steps to improve the existing arrangements are already in train. Last summer the department issued a guide on panel administration to which I have already referred briefly. This contains a great deal of advice on the better management of panels with particular reference to first ensuring the professional independence of the guardian ad litem service provided to the courts while improving its effectiveness through management and monitoring. It also encourages the courts to participate in administering this service.

An example of the first point is that advice is given on who should act as panel co-ordinator. I have mentioned that already. The second point is that there should be advisory groups on which the courts are represented. We shall continue to pursue that kind of development. As I have said, in addition we propose to develop more panels covering a number of local authorities, regions or subregions. We know that one of the main difficulties has been that guardians ad litem represent children in cases where the local authority which manages the panel and pays the guardian ad litem is very often the same local authority which appears as applicant to the proceedings.

I understand very well that in some instances this could be seen to lead to a conflict. There have also been difficulties in some areas where the local authority has appointed insufficient panel members to meet the needs arising from the courts in breach of the regulations governing the panels. This has contributed to delays in determining children's cases. Some of these difficulties have undoubtedly been teething problems of the kind frequently associated with the establishment of any new service. We believe that in most areas the service is now considerably improved. That is not to say that we are at all complacent. The proposals in the Bill are intended to deal wherever possible with these difficulties where they exist.

We believe it is important to organise the panels to take in larger groupings of local authorities than is the case in most areas at present, and to appoint panel managers who are clearly responsible for running them. As I said earlier, this approach has been adopted in a number of areas and we wish to build on it. Where the panel manager is more clearly distanced from any one local authority, the possibility of conflict of interest with the applicant to the proceedings should be very substantially reduced and indeed removed. It also allows the panel manager to overcome reservations about his role which can inhibit him from properly taking charge of the arrangements and discharging his function as manager.

A panel manager who is clearly responsible for running the panel will be able to improve the support available to guardians ad litem. He will also be able to take appropriate steps to monitor their work and the operational arrangements to ensure that resources are used more effectively and efficiently without loss of quality. He could also have the responsiblity for taking up the point that my noble friend Lady Faithful] made about attracting people who may be available to serve on panels but who do not know of the possibility at the moment.

I hope your Lordships feel that I have explained our approach reasonably fully and that your Lordships agree that this approach is one that should be supported. I said at Second Reading that the Government have put in hand a rolling programme of reform extending step by step to the various aspects of family law and business, including the organisation of the court welfare services and the panels of guardians ad litem. The organisation of the panels is only one part of a much larger picture. It would not be sensible to make fundamental changes in the way panels are managed in advance of that.

Meanwhile, as I have said, Clause 35 gives the Secretary of State power to make very considerable improvements to the current system. I hope that your Lordships will feel that this is a reasonable way to proceed and that in the light of the undertaking I have given to pursue further the question of the allocation of finance, but without any commitment to the result of that further consideration, your Lordships may feel that the purpose of these amendments has been served.

4.15 p.m.

Baroness David

My Lords, before the noble and learned Lord sits down, would he not agree that without a definite commitment to further resources, which the noble Lord, Lord Seebohm, asked for, there is no certainty that the service will be improved? It is possible that the very uneven service that exists now over a great deal of the country will remain.

The Lord Chancellor

My Lords, the amendment does not deal with the amount of the resources but the manner in which they should be allocated. The question of the amount depends on the total demand. The important point that I have undertaken to consider further is whether this resource should be something that is the subject of a specific grant by central government to the particular authorities or groups of authorities or whether it should remain under the present system. I believe that the amendment seeks to establish a mechanism in the hope that the result will be as the noble Baroness would wish it.

Lord Seebohm

My Lords, before the noble Lord sits down perhaps I may add one more remark about finance. The report by the British Association of Social Workers said that the lack of specific financing more or less ensured the patchy nature of the whole service. Now that there is strong pressure on local government to spend less, this may be one of the vulnerable sources for saving money—

Baroness Macleod of Borve

My Lords, we are on Report.

Noble Lords

Keep going!

Lord Belstead

My Lords, the noble Lord will forgive me. My noble friend Lady Macleod has reminded the noble Lord that we are on Report. Technically, the noble Lord is not in order.

Lord Campbell of Alloway

My Lords, I should like to thank all noble Lords who have spoken in this important debate. I hope I shall be forgiven if I do not mention them by name. In particular, I should like to thank my noble and learned friend the Lord Chancellor for the consideration he has given to the contributions to this debate from all sides of the House, for the consideration he has undertaken to give in the future and also for the consideration which he has already given to this subject, as is wholly apparent from his mastery of it.

In dealing with the run of the amendments I shall in due course ask leave to withdraw Amendment No. 93, accepting wholly my noble and learned friend's good offices and undertakings in this regard. As to Amendments Nos. 99 and 100, having heard what my noble and learned friend has said, I accept that they are largely unnecessary and in those circumstances I shall not move them. I found wholly convincing the arguments of my noble and learned friend on Amendments Nos. 96 and 97 and I am satisfied that there is a determination on the part of the Government to achieve a better management and to foster the principle of independence to which the noble Lord, Lord Mishcon, referred. Therefore I shall not support those amendments, but it is for my noble friend Lady Faithful] to decide whether or not to move them.

Amendment No. 98A is a key amendment. I am grateful beyond belief for the reception it received at the hands of the noble and learned Lord. He said, and truly said, that funding and any new regime on funding requires careful consideration by government. He also said that there may be a case for it. On administration, he has taken the point that the definition is wide. It is purposely left wide. He has taken the point that consideration will have to be given to funding and to the mechanism of the administration. When consideration is given the hope must be that the noble and learned Lord will give due weight to the contribution of the noble Baroness, Lady David, and that of the noble Lord, Lord Seebohm, who managed nonetheless to make his effective contribution second time round without leave. In those circumstances, as the spirit of the amendment is acceptable to the Government, I shall not dream of moving it when the time comes. I respectfully beg leave to withdraw Amendment No. 93.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 94:

Page 30, line 36, at end insert— ("Where appropriate the panel should consist of people with knowledge and experience of the child's religious, social, cultural, linguistic and racial background.").

The noble Lord said: My Lords, with the leave of the House I shall also speak to Amendment No. 114. I can be brief in my plea to the noble and learned Lord to accept the amendments. The chief interest covered by them is the child refugee. When we were talking before about guardians ad litem we were referring to people who would look after the interests of the child who comes before the court for various reasons. It may be cruelty, it may be because the child is out of control, and so on. The refugee child comes to this country, which has always had a reputation for its graciousness towards refugees, for different reasons—reasons of persecution of families, of parents and of creeds.

A guardian ad litem will have to be appointed for that child who comes here possibly completely unable to speak English and having the very individual problem of whether or not this country will be one of temporary resort and refuge and whether there may be a hoped for return to the country of origin. He may have a different ethnic or religious background. Most of these children—I shall not say all of them—would come to London, the place to which most refugees have come in the past. Therefore when one is setting up regional panels of guardians ad litem it would be good to secure that in appropriate areas there would always be a guardian ad litem—there may have to be more than one—with specialist knowledge of the problems of refugee children.

One hopes that this will be a fairly inconsequential matter in numbers, though not in the sense that every single child in trouble of this kind and with problems of this kind is an important matter for us to consider. The numbers of children who have been admitted into this country as refugees, and unfortunately may have to be admitted as refugees, because of problems of which we are all aware, is quite considerable. Therefore we hope that the amendment can conveniently cover the problem. I beg to move.

Lord McNair

My Lords, my name also appears on the two amendments. The noble Lord, Lord Mishcon, has moved Amendment No. 94 so fully that there is no need for me to say any more about it. However, perhaps I may say a word about Amendment No. 114 in case, when we reach it, it should not be moved.

It would ensure that the admirable principles outlined in Clause 18(5)(c) are also reflected in the regulations set out in Schedule 4. I invite noble Lords to imagine themselves in the position of one of these unaccompanied minor refugee children to whom both the amendments refer. The child may be of either sex, but if I may I shall use the masculine pronoun in order to save time. He has left his family behind, far away. He does not know whether or when he will ever see them again. He is in a strange land, a stranger and afraid in a world he never made. He faces the long and difficult task of completely reorienting his life.

How can he hope to succeed in this daunting endeavour unless he can share his experiences, his hopes and his fears with somebody who can communicate with him in the only language he can speak and understand? It is such a short and simple amendment. Surely it should and could be included in the regulations.

4.30 p.m.

The Lord Chancellor

My Lords, this amendment is concerned with the subject with which I dealt earlier at some length, although in a rather different context. The wording refers to the powers of the Secretary of State to make regulations to provide panels of guardians ad litem and would add that, Where appropriate the panel should consist of people with knowledge and experience of the child's religious, social, cultural, linguistic and racial background". There is an obvious difficulty in the language of the amendment in that one is seeking to appoint people to a panel before one has an actual child; indeed, one is really thinking of a range of children. The amendment focuses on a particular child, but that is a matter which will have to be dealt with. Apart from that, the concern which underlies the amendment is, I think, dealt with. Clause 35(9)(e) makes provision for regulations, as to the qualifications for membership of a panel". Clause 75(2) permits regulations to make different provision for different cases. The powers allow regulations to be made on the employment of people with appropriate skills and qualifications to meet the needs of the cases coming forward from the courts. That would include those with experience and knowledge of particular racial and cultural characteristics of the community, where this is appropriate. Guidance already makes it clear that local authorities should employ the most appropriate mix of staff by experience, background and skills to ensure a balanced panel membership. It refers to the need to have members with experience and knowledge of ethnic minority cultures as well as particular skills in working with certain types of cases; for example, adolescents or drug users.

I think that I can assure noble Lords who have proposed the amendment, and those who have supported it, that the detailed regulations made by the Secretary of State after the Bill is enacted will take account of the matter. Obviously, as the noble Lord, Lord Mischon, said, some areas of the country may have greater problems in that regard than others. The power to make regulations which affect different areas in different ways may be useful in that connection.

The guidance which we have at present to some extent deals with the matter. Indeed, I believe that it could well be the subject of regulations when the regulation-making powers are available. We shall certainly look to see whether we can make them as general as possible in covering the matters which have been referred to in the amendment. I understand the problems perfectly and believe that this is the best way to deal with them. I am sure that the noble Lord appreciates better than I that the panels must be, so to speak, there and waiting for cases and that we must therefore try to deal with the range of cases which the panels are likely to have to face.

Lord Mishcon

My Lords, I am most grateful to the noble and learned Lord for the way in which he has received the amendment. Knowing him as one does, I would not have expected anything else. As I understand him, he has said that, while the powers may not be quite as specific as one would require at present, very definite consideration will be given to them in the regulations which eventually emerge to ensure that the point raised by the amendment is properly covered. I think that I can ask no more than that. Indeed, I am most grateful for that assurance and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 95 to 100 not moved.]

Schedule 3 [Supervision Orders]:

The Lord Chancellor moved Amendment No. 101:

Page 86, line 47, at end insert— ("( ) that he take all reasonable steps to ensure that the supervised child complies with any requirement included in the order under paragraph 4 or 5;").

The noble and learned Lord said: My Lords, this amendment is in response to an undertaking which I gave in Committee to consider a proposal in Amendment No. 192 tabled by the noble and learned Lord, Lord Elwyn-Jones, to add to the requirements which may be placed on the responsible person with his consent in a supervision order. It is a matter of adding to paragraph 3 of Schedule 3 the provision that the responsible person, who is defined in paragraph 1 of the schedule, may be required to: take all reasonable steps to ensure that the supervised child complies with any requirement included in the order", in respect of psychiatric and medical examinations and psychiatric and medical treatment. That provision will encourage the responsible person to take an active role when a supervision order is made, but will not affect the ability of the child, where he has sufficient understanding to make an informed decision, to prevent requirements as to examinations and treatment being included in the order. I beg to move.

Lord Elwyn-Jones

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor. If I may say so, this is a useful addition to the Bill.

On Question, amendment agreed to.

Clause 36 [Orders for emergency protection of children]:

Lord Mottistone moved Amendment No. 102.

Page 31, line 26, at end insert ("; or (c) (i) his parent; (ii) any person who is not a parent but who has parental responsibility for him; or (iii) any person with whom the child is living, has failed to comply with a child assessment order without reasonable cause").

The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 103 and 104—which is the key amendment, the others all being consequential upon it—and to Amendments Nos. 106, 107 and 109. I have tabled these amendments, which are identical to the ones put down in Committee, because subsequent to that my noble and learned friend the Lord Chancellor kindly wrote to me on 2nd February commenting upon the debate which took place on the amendments. He ended his letter by saying that he would be interested to hear, and would certainly consider very carefully, any further arguments on Report. Accordingly I have put forward these amendments primarily to give me an opportunity to produce further arguments and to enable us to move the case on a little further.

In Committee my noble and learned friend suggested that there was no need for a child assessment order as all the situations in which the child might be in need of protection were covered by the emergency protection order, or by the interim supervision order. However, I am advised by the NSPCC that it still feels that there is a strong case for the introduction of a child assessment order.

The first argument in favour of the child assessment order hinges on the grounds for the emergency protection order. The court will only grant an emergency protection order if there is reasonable cause to believe that the child is likely to suffer significant harm. The society underlines the word "significant". There was much debate on what the term "significant harm" meant in relation to the grounds for care proceedings.

The Law Society has warned that the term "significant harm" may lead to protracted litigation in care proceedings. Indeed that argument could be extended to emergency protection orders. There are circumstances where the court would be unlikely to grant an emergency protection order because of the "significant harm" test. But the court would grant a child assessment order on the grounds that the child "may be suffering harm" which are the terms expressed in Amendment No. 104.

Perhaps I may give your Lordships an example of a hypothetical case. I have a few of them with me, but one will do in order to make the point. For example, a local authority is informed that a child of the "X" family is continually heard crying and is very rarely seen. A social worker calls on the family but is told that the child is with her grandmother. While in the "X" family home, the social worker notes that there are no toys to be seen and that standards of housekeeping are lax. The social worker returns to the office and contacts the local health visitor. The health visitor reports that she is slightly concerned that when last seen the child "A" had a nasty bruise on her leg which was said to be the resultof a fall. The health visitor also thinks that Mr. and Mrs. "X" find it difficult to maintain basic standards of hygiene although they are obviously trying.

By now the social worker is seriously worried about the child. On two subsequent visits to the home there is no sign of the child, although Mrs. "X" seems friendly and co-operative to the point of admitting that she has, "let things get on top of her". After a fourth visit the social worker arranges for the child to go to the local health clinic. However, the appointment is not kept as Mr. "X" claims that the child had a tummy bug on the day of the appointment.

Many social workers will recognise that type of problem. There are numerous minor ailments and injuries. Mother agrees to go to the clinic and then does not appear. The pattern adds up to a general feeling of concern but with little concrete evidence. Despite being an experienced and skilled practitioner, the social worker has failed to gain access to the child on four occasions. The social worker now has a difficult choice. There are three options. The first is to continue to negotiate for a medical examination of the child, but that does not appear to be feasible. The second is to apply for an emergency protection order or an interim supervision order. They are unlikely to be granted because a supervision order also requires evidence of significant harm. Furthermore, it may result in the traumatic removal of the child from the parents. The third option is to take no further action. None of those options seems right. However, a child assessment order could probably be granted, allowing the children to be medically examined and not being perceived by Mr. and Mrs. X as being overly intrusive into their family life.

A child assessment order fills the gap in an otherwise excellent child protection provision. It would be a useful tool for social workers in those borderline cases where there is serious but not urgent concern for the child, as in the example that I have given. The proposed grounds for the order complement rather than conflict with the grounds for an emergency protection order.

I shall comment briefly upon the arguments against a child assessment order advanced by the Association of Directors of Social Services. I should perhaps explain that the Director of the NSPCC saw representatives of the Association of Directors of Social Services at a meeting kindly organised by my noble friend Lady Faithfull. They had inconclusive discussions because the directors of social services appeared to be determined on that point. It is a great shame. I hope that as time goes on a rather wider section of directors of social services could be invited to give their views on that matter.

Those people argued that the two orders would be confusing for social workers. That argument can be rebutted as follows: first, social workers dealing with child abuse will have to receive training and guidance on the new legislation regardless of any other circumstances. The use of the two orders can be dealt with at that stage. Secondly, the availability of the two orders opens up options which will give the social worker a choice as to how to work with individual cases. The example I gave illustrates the type of case where that choice would be necessary. The association also argued that the child assessment order does not afford the child any protection in the interim period when an examination reveals that the child should be the subject of an emergency protection order. That is true. However, there are circumstances where that applies also to emergency protection orders; for example, where a social worker calls at a home and finds that the child needs protection. The social worker will have to leave that child until the emergency protection order can be obtained.

If an examination reveals serious injuries or other forms of extreme damage to the child, the police can take the child immediately into police protection. That can occur in either of the two cases if there has to be a gap. The Association of Directors of Social Services ignores the benefits of a child assessment order. It can be obtained where there is serious but not urgent concern for the child. Further, parents are likely to be much more co-operative in circumstances where a child assessment order has been used; and, finally, it gives social workers a greater freedom of choice when working with families.

I hope that the difference of opinion between the experts can be brought to a conclusion. There is a need for an assessment order within the orders available to cater for children in need. We should try to push the matter on. I shall not press it at this stage. There will be later occasions. We shall have a brief opportunity on Third Reading, but the matter can be pushed on further in another place.

I hope that during the course of the next two or three weeks the Government and the Association of Directors of Social Services will come to see that it is worth providing such an order in the interests of the child. I beg to move.

4.45 p.m.

Lord Meston

My Lords, this is an important series of amendments, especially Amendment No. 104, which seeks to introduce into the Bill what was clearly deliberately left out; that is to say, the child assessment order. If the concept of the child assessment order is not included in the Bill we shall be left with the emergency protection order only to deal with the type of situation that the noble Lord, Lord Mottistone, has described.

As the noble Lord said, the experts have two conflicting but equally respectable points of view. It will be important in the future for those who have to decide whether to grant an emergency protection order that they know why, if it is to be the position, Parliament deliberately omitted the child assessment order. As I understood it, two reasons have been put forward for not including a separate child assessment order in the Bill. The first was the reason put forward in the Cleveland report, to which the noble Lord referred; that is to say, that it would be somehow confusing for those who will have to administer the Bill when it becomes law. The second reason was that advanced by the noble and learned Lord the Lord Chancellor on Second Reading—that the child assessment order would come to be seen as the softer option, bringing with it the risk that in circumstances in which a court should be asked to make an emergency protection order it would be tempted to make the lesser order because it seemed the less drastic.

The argument runs that the result will be that the child will be afforded less protection than it needs. The contrary argument is the one that the noble Lord, Lord Mottistone, has advanced; if the emergency protection order is perceived to be too drastic and is not granted in circumstances such as he described, there will be no fallback for the social worker or the court. The risk therefore arises that there will be a serious gap in the legislation. That is a gap which we should now seriously think about filling.

Lady Kinloss

My Lords, I support the amendment moved by the noble Lord, Lord Mottistone. The child assessment order should not be viewed as an alternative to the emergency protection order but as an order that can be used when the only available alternative may be to do nothing. The court will grant an emergency protection order only if there is reasonable cause to believe that the child is likely to suffer significant harm. There has been much debate about the word "significant" in relation to the grounds for care proceedings. Does the noble and learned Lord think that the word should be defined in the Bill? We have all too often seen how fine a line there is between child safety and the child being at possible risk.

Baroness Faithfull

My Lords, I wish to put the other point of view on behalf of the Association of Directors of Social Services and on my own behalf as an ex-director of social services. Suppose we take, as the noble Lord, Lord Mottistone, did, a child or perhaps two children, Jack and Jill. If Jack and Jill have suffered some harm, as was described by the noble Lord, Lord Mottistone, and the health visitor thinks that the children have been bruised, the social worker might be unable to persuade the parents voluntarily to go to a medical centre. I suggest that if a child has not been harmed or damaged by the parents, 90 per cent. of the parents will go voluntarily. Therefore we are talking of only a small number. If they will not go voluntarily, why not? It is either because they do not like the social worker or because they have something to hide.

Both orders, the emergency protection order and the assessment order, need a magistrate's permission. Suppose the magistrate issues a child assessment order and the child arrives at the clinic. The doctor examines the child who has been badly damaged and cruelly hurt. What happens then? Under the child assessment order the child cannot be taken into care or removed from the home. Therefore probably he will have to stay at the clinic, the doctor and the social worker must be present and the social worker must go back to the magistrate in order to obtain permission for the emergency protection order. That is the foundation for suggesting that an emergency protection order is the better of the two, particularly as it does not necessarily activate the removal of the child. That is the second important aspect. If an emergency protection order is granted by magistrates, it can be withdrawn. The order does not necessarily mean that the child is immediately removed from the home and that a permanent order is made. There is a 72-hour limit during which the child can remain at home for further investigations.

Looking at it from the point of the view of the social worker, I imagine myself having a child assessment order, taking the child, with the parents, to the clinic and then finding that the child is badly damaged. What can I do then? I can do nothing but go back to the magistrate. What do I do with the child? I must go to the magistrate; the doctor or the nurse must stay with the child. It might be one, two or three hours before I find the magistrate to take the emergency protection order. The difficulty is in the practicalities of the case.

I entirely agree in principle with my noble friend Lord Mottistone in all that he has said. I think that the NSPCC and the directors of social services are very close. There is just that one practical difficulty. Jack, Jill and the social worker could be sitting in the clinic, the doctor might say, "This child has been badly damaged". One then has to go back to the magistrate and it will be a very disturbing situation for the children. Therefore I hope it will be possible for regulations to be drawn up concerning the emergency protection order for social workers and others.

There is one further point. The case of Kimberly Carlile was mentioned and it was suggested that if there had been a child assessment order that case would not have happened. I dare to suggest to your Lordships' House that there would have been other ways of dealing with that case. I had a similar case in which I invoked Section 40 of the Children and Young Persons Act. There are other ways of dealing with these cases.

My noble friend Lord Mottistone says that he will not press this to a Division today. I very much hope that between now and the next stage of the Bill it will be possible to face all the difficulties of these two cases so that the Association of Directors of Social Services and the NSPCC may come to an understanding. However, I cannot support the amendment as it stands.

Baroness Seear

My Lords, perhaps 1 may ask a question since I am ignorant in this matter. Following the point made by the noble Baroness, Lady Faithfull, I can see the practical difficulty that one may be stuck in the clinic needing the protection order. Would it not be possible that, in issuing the assessment order, the magistrate may also issue a provisional protection order in the event that the assessment proved that the child needed the protection? Then there would be no need, if the assessment went the wrong way, for a return to the magistrate. But if the assessment did not go the wrong way the protection order would not be used. Is there a way of combining the two?

The Lord Chancellor

My Lords, there can be no doubt that this is an extremely important matter and one on which it is possible for informed people to take opposite points of view. I think that that is perhaps not an uncommon situation.

The answer to the noble Baroness, Lady Seear, is that in a sense the emergency protection order has a provisional character. Where the social worker is granted an emergency protection order there is no need for him or her to remove the child or to take further steps in relation to the child if on medical assessment it turns out that nothing further is necessary. We have built into the emergency protection order the kind of provisional element that the noble Baroness has mentioned.

There is another point which I think is worth mentioning. Perhaps noble Lords will be kind enough to look at Amendment No. 104 in the name of my noble friend Lord Mottistone. Subsection (5) says: Where there is a failure to comply with a child assessment order without reasonable cause, the applicant shall immediately apply for an emergency protection order". That suggests to my mind that my noble friend and those advising him took the view that if there was a refusal to go along to a medical assessment without reasonable ground, the result would be that the court should infer that the child was likely to suffer harm unless some action was taken. Otherwise subsection (5) seems to be rather pointless.

Therefore I believe that the answer to the noble Lord's example is that the court, faced with the kind of concern that the health visitor would have in this case, would conclude that it was suitable for an emergency protection order. Then if the social worker going along to pursue that order discovered that the injury was completely accidental and that the parents were most concerned about it and would do everything possible to prevent injury, no further action would be taken.

I believe that it is important from the point of view of trauma to the household not to have too many different types of order. One needs a single effective mechanism which the social worker can initiate and under which he or she can operate according to the emergency circumstances. The great advantage of the emergency protection order we have proposed is just that. If at any stage no further action is called for, the person holding the order is under an obligation not to take any action. On the other hand if as the situation develops action is called for, the emergency protection order arms the person to whom it has been granted with the authority to proceed.

It is obvious that once it has been discovered that something is going wrong, delay at that stage could be very damaging indeed. As I said, my noble friend's amendment contemplates that something has gone wrong: one cannot carry out the child assessment order, one has to go back and find the magistrate in order to proceed. The inference is that failure to cooperate is pretty good evidence that there is a serious risk to the child if there is some prima facie evidence such as in my noble friend's example that that is so.

I think I have pointed out, as my noble friend Lady Faithfull has said with her experience, that a social worker faced with some refusal to let her see the child has a considerable problem. I think in practically all the cases in which a child has been injured the parents will be only too anxious that the child should be seen by a doctor and a refusal to co-operate in that, in most cases anyway, would be indicative of something rather seriously wrong.

If access is refused therefore we would say, where there is a prima facie indication that something's going wrong, that the proper step is to try and investigate. If you cannot, if you are frustrated in your investigation by action taken by the parents or on their behalf, the next step should be an application for an emergency protection order.

The serious concern that led to the approach to see the child in the first place, combined with the refusal to allow him to be seen, makes action urgent and should, together with the relevant surrounding circumstances, be adequate to meet the grounds for an emergency protection order, contrary possibly to the view expressed by my noble friend and the NSPCC.

If the social worker can see the child and judges that a medical assessment is needed, the social worker should usually be able to negotiate an assessment. As my friend Lady Faithfull pointed out, that is a matter for the negotiating skills of the social worker. If the parent has nothing to hide one would expect that to work. Where the parents refuse to co-operate the social worker will need to be able to show that emergency action is justified. This must be right wherever a court intervention is proposed.

Accordingly I believe that the emergency protection order covers the various situations that have been described, and that the inbuilt provisional nature of the emergency protection order—provisional in the sense that further action need not follow it—is a good feature of it and means that it will fit the cases.

I believe that there is a problem if one has too many options. The noble Lady, Lady Kinloss, asked me about "significant harm", and would it be best to define "significant". I could only do that in other words, and every word is open to some form of construction. I believe that the word "significant" in this context will signify for a court the kind of threshold that would be right for intervention by an outside body. A merely small matter that could have no consequences would not be significant. Anything that was likely to produce consequences for the child would be good enough.

I must say that so far we have not thought of a better word to describe that kind of threshold. If any noble Lord at any stage has a suggestion to make we should be glad to hear it. The noble Lord, Lord Mishcon, made a marvellous suggestion at an earlier stage that is now incorporated in the Bill, and I am sure that his imaginative capacities have not been in any way reduced by that success.

The child assessment order would necessarily be a major interference in family life. One can make it as little as one likes but it is a compulsory intervention that is in question, and it would raise the unsettling prospect of further intervention. If one is going to do that one must have a reasonable ground for it. With regard to "may suffer harm", I suppose it is true that anyone may suffer harm. It is not a very definite test. Therefore at the moment I do not feel that we are at the stage where it would be right to include this.

The factors weighing for and against the inclusion of the order have been pretty fully debated and I do not know that it would serve any useful purpose for me to go over them all again. I hope that the experts may come together in the course of the time between now and Third Reading. This is a matter of sufficient importance and difficulty to endure in its consideration as the Bill goes to another place. Therefore I do not really know that we would want to finalise the matter here. I hope that the debate will continue and reach a productive conclusion.

In the meantime I do not think that sufficient has been said for the Government to accept that this new order should be put into the Bill at this stage. My noble friend Lord Mottistone and the noble Lady, Lady Kinloss, have been eloquent in its support, but there is perhaps matched eloquence the other way, and we feel at the moment that we should best leave matters as they are.

Lord Mottistone

My Lords, I thank my noble and learned friend for the full reply that he gave, and I thank the noble Lord, Lord Meston, and the noble Lady, Lady Kinloss, for their support. In so far as there were one or two kind words, I thank my noble friend Lady Faithfull as well.

I have just a couple of points to make before we put this one to bed at this stage. First, with regard to the example that my noble friend Lady Faithfull produced of the two children—I do not know why she doubled up on them; the second one did not seem to be useful—who were going to have their assessment and their medical examination, it turned out that the examination revealed serious injuries. My noble friend asked, "What would they do then?"

I said in my introductory speech something that neither my noble and learned friend nor my noble friend took up. If an examination reveals serious injuries or other forms of extreme damage to a child, the police can immediately take the child into police protection. There is a way out while you wait for the emergency protection order to be sought. I hope that people might have a view about that.

I gave the example of the child who was not there, not able to be seen, and was cause for concern for the health worker when four visits did not produce the child, or the parents did not respond to the arrangement for a medical examination. My noble and learned friend said that he thought that under those circumstances the court would grant an emergency protection order. Now I wonder. It is not for me to question my noble and learned friend but I know one or two magistrates, and there are one or two sitting on the Benches here. It says in Clause 36(1): the court may make the order if, but only if"— it is very firm— it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm". I should have thought that some people might say—ordinary people, like magistrates, and I am not sure that clerks to the justices might not say this—"It is all very well; you have come to me and told me this story about this child who you have not been able to see four times and the parents did not take it to see the doctor when you said they should, but I do not think that that is evidence of significant harm". They might say that, and I do not see why they should think it was significant harm. It depends on how the story is told and the circumstances if we create this particular situation.

If we are to drop this idea of a child assessment order we have to tackle more seriously what is really required to issue an emergency protection order. We have to decide whether we really want to say "significant harm", and if we do whether, as was suggested by the noble Lady, Lady Kinloss, we need to define "significant harm" in this repect. If we do not we are going to find some people saying, "That is not significant harm. That is not evidence of possible significant harm", when the case may be of the sort that I described earlier.

So I would not be happy we should let this matter drop. I am certainly not happy that one gets perhaps a rather limited view from one committee of the Association of Directors of Social Services, rather than a full comment of a number of them. I would be much happier if we could have points of this type very carefully looked into.

My noble and learned friend knows that I have a second example with which I will not bother your Lordships now, because I have given him a copy of it together with all the remarks that I made. Perhaps he will be able to consider this further pressure against the business of significant harm. That is where the problem arises and that is where—as your Lordships will see if you read the report of what I have had to say—I brought the matter in at the first instance. However, at this stage I do not wish to proceed any further, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 102A:

Page 31, line 43, at beginning insert ("shall take and").

The noble and learned Lord said: My Lords, we have provided in Clause 36(3)(a) that the action which a person who has parental responsibility as a result of an emergency protection order may take should be limited to that which is reasonably required to safeguard or promote the welfare of the child. While I think it is right, in view of the nature and duration of the order, that such a restriction should exist—that is the provisional nature of the order which I was talking about earlier—I believe that the applicant should in addition have a clear duty in respect of the child's welfare. The effect of this amendment is therefore to require the person to take such action as is reasonably required while retaining the limitation that he should do no more than that. I beg to move.

On Question, amendment agreed to.

[Amendment No. 103 not moved.]

5.15 p.m.

Baroness David had given notice of her intention to move Amendment No. 103A:

Page 32, line 17, at end insert— ("( ) A direction under subsection (4)(b) shall not affect any legal right the child had to refuse consent to the medical examination.").

The noble Baroness said: My Lords, I mentioned this amendment last week when we were discussing another similar matter, and the noble and learned Lord was good enough to say that he would think about the matter again. Therefore I shall not move this amendment.

[Amendment No. 103A not moved.]

[Amendment No. 104 not moved.]

Baroness David moved Amendment No. 105: After Clause 36, insert the following new clause ("Emergency Protection Orders: Court procedures. .—(1) Where the court is satisfied that there are grounds for making an emergency protection order and there is reasonable cause to believe that one or more members of the child's household may be prepared to give undertakings to the court for the protection of the child, such as vacating the home or severing contact with the child, the court may adjourn the hearing in order that the following persons shall attend court as soon as is reasonably practicable—

1. (a) the child
2. (b) a parent of his
319
3. (c) any person who is not a parent but who has parental responsibility for him
4. (d) any person with whom he was living immediately before the application

(2) In such circumstances the court shall not make an emergency protection order if, on receipt of such undertakings, it is satisfied that the child would be safe. (3) In the event of breach of such an undertaking the court may make an emergency order.").

The noble Baroness said: My Lords, the purpose of this amendment is to provide for the court to accept undertakings as an alternative to making an emergency protection order. At Committee stage, the noble and learned Lord acknowledged the importance of this issue and said that it was an area where the Government were considering making proposals of their own and there was no debate on the issue. No such proposals appear to have emerged, so this amendment is therefore a probing one in order to find out what the Government are now thinking.

The intention behind this amendment is to provide alternatives to the automatic removal of children from home as a means of their protection from abuse. Although applicable to all forms of abuse, it is likely to be most helpful in the area of child sexual abuse. Clearly children must be protected from abuse. However, removal from home is usually a very traumatic and distressing experience for children. It is also well established that continuity of care is extremely important for children, so if there are alternatives to removal from home these should be pursued.

Although Lord Butler-Sloss made no reference to this in the report of the Cleveland inquiry, she subsequently expressed the view at a joint Law Society and National Children's Bureau conference on child sexual abuse in September last year that such alternatives should be explored. Government guidance issued at the same time as the Butler-Sloss report Working Together in paragraph 6.3.c. states: It is recognised that sexual abuse does not necessarily call for an immediate emergency response or removal of a child from home. It may be appropriate for arrangements to be made with the carer or parents so that the child may remain at home.

There are some local authorities which have addressed the issue by trying to secure the removal of the abuser from the home in preference to removal of the child. The London boroughs of Islington, Camden and Haringey have policies of working with and supporting the non-abusing parent, usually the mother, to enable her to protect the child in cases of child sexual abuse.

That may involve supporting the mother to take legal action to exclude the abuser from the home, and in some cases the mother and child are removed from the home together to a safe place. Non-abusing parents can obtain injunctions in wardship or family proceedings excluding the abusing parent, although owing to the property element there may be some difficulty in obtaining such injunctions in family proceedings if the matter is contested.

The only remedy for the local authority in applying for an exclusion order against an abusing parent is in wardship proceedings. The High Court has inherent jurisdiction to exclude a parent, if this is in the best interests of the child, by way of order or undertaking but this provision is very rarely used. Given the restrictions in the wardship jurisdiction proposed by this Bill, it is unclear whether the local authority would obtain leave to make such an application under Clause 71(4), and if so whether this could be done in an emergency.

There is no such provision in the juvenile court and this amendment is aimed to remedy the defect. It is not proposed that the juvenile court should have jurisiction to make exclusion orders. Any contested application may take in excess of a day, and the question then arises as to whether it would be safe for the child to remain at home pending the outcome of the hearing.

The acceptance of undertakings is a more realistic option in the juvenile court. The advantage of undertakings given to a court in preference to entirely voluntary arrangements lies in the fact that such undertakings are enforceable. An undertaking constitutes a court order and the provision for the enforcement of court orders in the magistrates' court is contained in Section 63(3) of the Magistrates' Courts Act 1980. That would be provided in my Amendment No. 134. The provisions in Section 63(3) of the Magistrates' Courts Act apply to domestic proceedings in the magistrates' court, including access disputes, and there is no reason why they should not apply to the breach of undertakings if the section is amended as in Amendment No. 134.

The wording of the amendment does not deal with the question of whether the person giving the undertaking accepts responsibility for the abuse or has been found to have perpetrated the abuse. Social workers report that some men voluntarily leave households in order to avoid further trauma for the child, and as in domestic violence cases, many men are prepared to give undertakings if it does not require any admission of culpability.

Concern will no doubt he expressed about whether or not persons giving such undertakings are likely to honour them and thus whether the child will be properly protected in such circumstances. First, a great deal will rely on the social worker's assessment of the man's integrity and the family dynamics before recommending to the court that the hearing should be adjourned. Secondly, close social work monitoring will be needed by unannounced visits following the court hearing. It should also be remembered that breach of the undertaking may attract court penalties which is a deterrent to most people.

In order for the objectives of this amendment to work, guidance will have to be issued to social workers and other professionals about the need to consider alternatives to removal before applying for emergency protection orders. I believe this to be a very constructive proposal, and I hope that the noble and learned Lord can look on it favourably. I beg to move.

Lord Mishcon

My Lords, I want to say only a brief word in support of this amendment on which I believe I am right in saying I spoke at Committee stage. But whether I did or whether I did not, is not very relevant. Many members of the legal profession, as I think the noble and learned Lord might well know, are in favour of this amendmet. They feel it would be extremely useful if in cases especially of child abuse and matters of that kind where the presence of a certain individual is the one that gives rise to the emergency order there was a clear power for the court to accept an undertaking that the person concerned would vacate the house and therefore relieve the emergency problem. An emergency order is obviously a traumatic experience for all members of the family, not least the child.

It is conceivable that the court would have that right in any event. The High Court may well have the right not to make an emergency order in a particular case provided that an undertaking is given. However, I am advised that that situation is in doubt. It would be preferable for that to be clearly stated on the face of the Bill. The penalties for a breach of an undertaking to the court would be made obvious. Furthermore, there would be the protection that if the undertaking is not observed an emergency order can be made. That is clear in the amendment. In the view not of welfare officers but of lawyers, it is thought that that would be a very useful provision to have in the Bill.

Lord Meston

My Lords, this is an attractive amendment particularly if, as the noble Baroness suggested, it fills one of the gaps left by the curtailment of the wardship jurisdiction.

I have only one slight misgiving about the amendment, which is a drafting matter. We are all familiar with the state of affairs in which the social worker prevails upon a member of the household—usually a boyfriend or stepfather—to promise to leave and obtains a promise from the mother not to allow the man back into the house. It then emerges that the man concerned has not left after all or is popping back for weekends or for meals. There then follows a cat and mouse game with the social worker trying to catch the man out: the social worker coming to the front door, the man hopping out through the back door and the mother trying to hide the extra plate on the table. That is a very familiar state of affairs.

The situation gives rise to concern about the phrase in subsection (2) of the amendment, which provides that: the court shall not make an emergency protection order if, on receipt of such undertakings, it is satisfied that the child would be safe". I should prefer the subsection to include words such as "the court, on being satisfied that the undertaking has been complied with". It is one thing to put the undertaking before the court, it is another for the court to be satisfied that the undertaking has been complied with.

I should also like to echo the words of the noble Lord, Lord Mishcon, as to the potential sanction for the breach of an undertaking. If such undertakings are to be given and accepted, it must be made absolutely clear at the time to the person being required to give the undertaking that the undertaking has teeth. As the noble Lord said, the potential penalties should be made obvious at the time.

Baroness Faithfull

My Lords, I should like to add one point. The amendment states that: the following persons shall attend court as soon as is reasonably practicable". There are two very sad cases at the moment in which husbands have been excluded from their homes. They have stayed away and honoured their agreement with the local authority but the local authority has done nothing for months. As a result the husbands and their wives have been separated for months. I feel that whether a man is guilty or not—and in some cases he is not guilty—unless cases are dealt with quickly the delay contributes to the break up of families.

The Lord Chancellor

My Lords, although this amendment was considered in Committee, we did not have an opportunity to debate the matter at any great length. I am glad to have had an opportunity to hear the views of your Lordships today. We shall certainly consider all those views very carefully.

We are, of course, sympathetic to the general aim of protecting the child, not only from abuse but also from the disruption and distress which removal of the child can cause by providing instead for the removal of the alleged abuser.

Undertakings are sometimes used as a common substitute for a court order in county courts and the High Court but are not used formally in magistrates' courts as they cannot be enforced.

The second part of the noble Baroness's amendment addresses that point. If we were to go down that road we should have to make provisions on the lines of the second amendment and perhaps deal expressly with general principles which are understood in the higher courts.

As the noble Baroness referred to the point, perhaps I should say in passing that I do not believe that the restriction on wardships in the Bill would prevent the High Court granting injunctive relief excluding an adult from the house. I shall address that point at greater length when I deal with the amendment to Clause 68.

A key factor in undertakings is that the court has to be sure that the person who gives one fully understands the scope of what he is promising to do and the fact that he may be punished if he fails to keep his promise. It would probably not be sufficient for a local authority simply to tell the court that a person had given an undertaking or signed a document to that effect. The court would insist that he (or at least his lawyer) attend court and have the consequences of disobedience explained to him.

While the consequences of disobedience in the higher courts may be punishment for contempt, magistrates' courts do not have direct powers to commit for contempt, although default can be punished. Amendment No. 134 addresses that situation. In any event, breach of an undertaking has to be proved to the same degree as if it were breach of an injunction. In that regard, an advantage of undertakings over injunctions is that there is no rule insisting on service of the order. There must still be service of notice of the application to commit coupled with the particulars of the breaches alleged. Clearly, therefore, the primary purpose of enforcement would be to punish the breach rather than to ensure future performance of the undertaking, given the short duration of an emergency protection order.

To some extent that point is dealt with in subsection (3) of Amendment No. 105. I have no doubt that it could also be dealt with by the provisional issue of an emergency protection order subject to the undertaking being performed. If there was a breach of the undertaking, in some circumstances it would be right to have an emergency protection order which could be activated immediately.

My noble friend Lady Faithfull has mentioned a point which I think requires consideration; namely, the period of the undertaking. Unless the person concerned applied for the undertaking to be discharged (for which provision would also have to be made) the undertaking would presumably last until the local authority decided whether to bring care proceedings and, if so, the court decided whether an interim care order was justified. In addition, under the interim order a voluntary undertaking to leave the home may avoid the need to remove the child, but that could be negotiated voluntarily by the local authority having care of the child without the intervention of the court.

A possible alternative is compulsory exclusion. The Bill already provides for care applications to be made in the course of domestic violence proceedings in magistrates' or other courts. It could perhaps also provide for a local authority application for an emergency protection order to be made in the course of such proceedings. It would also theoretically be possible to allow a local authority to apply for ouster, non-molestation, personal protection or exclusion orders on a child's behalf. However, that raises serious issues. Many would consider that to permit a local authority to apply for a court order which would have the effect of forcibly separating husband and wife was objectionable in principle. Both in principle and in practice it is likely to be acceptable only if the other party to the relationship agrees both to the application and to the order and is prepared to co-operate in its enforcement. The best guarantee of that is providing, as does the present law, that the wife must make the application herself. In other words, modifying the existing remedies in order to allow local authorities to apply for ouster in the context of emergency protection of children from abuse would present many difficulties.

In further consideration of the position I think that we shall want to look at voluntary leaving, perhaps backed up by an undertaking or a consent order. The Law Commission is looking at compulsory orders in its ongoing review of family law and will no doubt look to see how they might best fit into the sort of situation we are now considering.

I apologise for speaking at such length but the amendment is an important one. It deals with questions which we shall have to consider further. One possibility we are considering is to make it clear that in certain circumstances a local authority can arrange accommodation when a person leaves the family home voluntarily. That can be done already as part of a preventive service under Schedule 2 but it could be specified. Beyond that we need to consider whether court endorsement would add anything useful to such an arrangement. In an emergency, which all these cases are in a sense, I do not think that we should provide for the court to adjourn without making the emergency protection order for which the grounds are met. I mentioned earlier a possible suspension of the emergency protection order provided that the undertaking was complied with.

Anything of this sort may involve some additional court hearings, so there are factors to be taken into account when considering how useful such a provision might be. Your Lordships may take it that we are considering this matter carefully and the comments made here will be very much taken into account. I hope that the noble Baroness will feel that moving this amendment has been of use in furthering the debate.

Baroness David

My Lords, I should like to thank everyone who has spoken, given support and, indeed, pointed out some of the difficulties and the problems. I should particularly like to thank the noble and learned Lord for his careful response which was not at all too long. I am glad that this matter will be considered further. I do not know whether it is too much to hope that it will have been considered further by Third Reading. There is such a long time before that debate. However, we shall certainly read his comments with great care and perhaps return with a revised amendment on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 [Local authority's duty to investigate]:

[Amendments Nos. 106 and 107 not moved].

[Amendment No. 108 had been withdrawn from the Marshalled List.]

Clause 40 [Powers to assist in discovery of children who may be in need of emergency protection]:

[Amendment No. 109 not moved.]

Clause 42 [Rules and regulations]:

5.30 p.m.

Lord Mottistone moved Amendment No. 110: Page 39, line 22, after ("authority") insert ("and the applicant").

The noble Lord said: My Lords, this amendment seeks to amend Clause 42(3) which deals with the transfer of responsibilities between local authorities. However, as the clause is drafted, the NSPCC or any other authorised person could find a local authority assuming parental responsibility for the child even where the society was the original applicant for the order. In some circumstances, it would be quite correct—for example, where the society has taken an emergency protection order but there is agreement that the local authority then acts as the "key worker" for the child. However in other circumstances, the transfer of the order without previous discussion could damage the ongoing social work relationship with the child. An emergency protection order is a dramatic event in the child's life. A consistent approach and continuity will be very important to the child who is likely to be distressed and vulnerable.

My amendment could ensure that the local authority and the original applicant for the order were in agreement that the transfer of the order was in the child's best interest. It is quite simple. I hope that my noble and learned friend will be able to accept it. It is a development from Amendment No. 205 which we discussed in Committee. I beg to move.

Lady Kinloss

My Lords, I should like to support the noble Lord, Lord Mottistone, on this amendment. At present, the clause works on the presumption that the applicant and the local authority will both agree that it is in the child's best interests for the order to be transferred. That might not always be so. As the noble Lord said, the amendment has the advantage of making explicit that both the original applicant and the agency seeking to have the order transferred must be in agreement that the proposed transfer would be in the child's best interests.

The Lord Chancellor

My Lords, as my noble friend has explained, we touched briefly on this matter at a late hour in Committee. Clause 36(1) enables the court to make an emergency protection order on application by any person. In the majority of cases this will be the local authority in whose area the child is ordinarily resident which will then investigate the circumstances of the case and decide whether to apply for a care order or supervision order or provide services under Part III. Clause 42(3) provides that, where that local authority is not the applicant, it may take over the applicant's responsibilities under the order in accordance with regulations made by the Secretary of State. The amendment would require that both the authority and the applicant be of the opinion that transfer of responsibility under the order would be in the child's best interests. The particular applicant in mind is the NSPCC. The amendment does not, however, provide for failure to agree.

There are three types of case to which these regulations might apply. One is where an emergency protection order is obtained by one local authority in respect of a child who is ordinarily resident in another's area. It will be the second authority (the one in whose area the child is ordinarily resident) which will normally have the general financial responsibility in respect of the child. If a care order were made, the child would be placed in that authority's care and if it considers that it would be in the best interests of the child for the order to be transferred, it is hard to think of any ground on which the other could reasonably withhold agreement to the responsible authority taking over. Requiring the applicant's agreement would in that case be unnecessary.

The second type of case is where the applicant for an emergency protection order is neither the local authority nor a person authorised to initiate care proceedings under Clause 26(8). This person's responsibilities can at most last only as long as the emergency protection order is in force—a maximum of eight days. If the matter is not to run into the sand, the local authority will need to become involved at an early stage. Once again, it is difficult to see in this type of case why the agreement of the applicant to the authority's taking over responsibility for the order should be required. In that case, it would. be a natural development.

I accept that the circumstances would be different in the third type of case—the one about which my noble friend and the noble Lady, Lady Kinloss, are particularly concerned—where the applicant for the emergency protection order was also authorised to bring care or supervision proceedings under Clause 26(8). Only the NSPCC would at present be in this position. As my noble friend Lord Mottistone argued, it could be difficult for the child or other family members, where they have established a relationship with the NSPCC officer, suddenly to find that the local authority has taken over the case. I would make two points in that connection. First, subsection (3)(c) requires the authority tc have regard to the child's best interests and it should certainly consider whether a transfer of responsibility would have the effect feared by my noble friend. Secondly, as I suggested in Committee, we certainly intend that the regulations will deal specifically with cases involving authorised persons. Requirements could well be placed on the authority designed to promote a co-operative approach, even if we could not go quite as far as the amendment and require the authority and the applicant to agree. We must envisage the possibility, however remote, that they might not agree. However, if at the end of the day there is no agreement the authority, with its wider responsibilities, including the responsibility in Schedule 2 to take steps to reduce the need to bring care proceedings, must be able to determine the matter according to its view of where the best interests of the child lie. Having said that, I think it unlikely that the local authority will always want to take over the benefit of the emergency protection order from an authorised person and thereby, because of Clause 26(6)(c), prevent the latter from initiating care proceedings.

Given the NSPCC's experience and expertise, to which my noble friend has from time to time drawn attention, I should expect the two frequently to cooperate in a proper assessment of the child's circumstances and seek to agree how the case should be handled, including whether the order should be transferred to the authority. It would be reasonable to expect that in some individual cases it would be the NSPCC that takes the lead; in other cases, it might be proper for the local authority to do so. We shall certainly look for ways in the regulations of ensuring that any issues of disagreement are explored particularly carefully and sensitively between the two so that the authority's decision is a fully informed one and the authorised person understands the reasons for it.

For those reasons, I do not think that an amendment which would allow the local authority to be restricted by any applicant for an emergency protection order in carrying out its responsibilities would be wise. I hope that my noble friend and the noble Lady will accept that we shall do what we can in the regulations to promote the co-operation that they have in mind and, on that basis, be prepared to withdraw the amendment.

Lord Mottistone

My Lords, I thank the noble Lady, Lady Kinloss, for her support and my noble and learned friend for so carefully considering this matter. I accept the fact that my amendment as it stands is flawed because of the second example given by my noble and learned friend. His first example of the local authority exchange would fit in with my example of where that would be appropriate to happen. His third example involving the exchange between the NSPCC and the local authority is the example with which we were seeking to deal. However, it is a fact that anyone can be an applicant and to that extent we have gone too wide. I accept my noble and learned friend's undertaking that regulations will deal with this particular situation carefully and tackle any anomalies that may arise. With that undertaking, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 111:

Page 39, line 25, leave out from ("shall") to end of line 28 and insert ("make application to the court for such a transfer.").

The noble Lord said: My Lords, Amendment No. 111 is put before the House because of a worry that I should like to explain. Clause 42(3) provides that the Secretary of State may make regulations to provide that where (and this is the case at which we are looking), an emergency protection order has been made … the applicant for the order was not the local authority within whose area the child is ordinarily resident, and that local authority"— in whose area the child is ordinarily resident— are of the opinion that it would be in the child's best interests for the applicant's responsibilities … to be transferred to them", without more ado, the local authority in whose area the child is ordinarily resident, for the purposes of this Act, can be treated as though it were the original applicant. It does not have to go to the court. It does not have to explain to anybody. It would be an automatic following through of such a regulation.

I shall tell noble Lords of the worry. There are other examples that I could give. Let us take for ganted that a family has been complaining to its local authority about certain situations which it thinks exist in a household with regard to a child. Let us take it for granted that the family or individual—it may be an uncle, or anybody—reporting to the local authority finds that the local authority is doing nothing. It is a lax local authority. Without going through any complaints procedure, or whatever, the uncle manages to arrange that the child is removed to another local authority. That local authority is a very active one. It immediately makes an application. It obtains an emergency order.

Are we to provide that the original local authority in which that child was ordinarily resident can, by a stroke of the pen and without any justification, say, "We do not like that slur upon this local authority. We think it is in the child's best interests that we have the carrying out of the protection order"? In those circumstances, by using the pen, and it being unnecessary to go through any other procedure, the local authority in whose area the child is normally resident becomes the original applicant.

Quite obviously, there are circumstances when it is perfectly proper that that local authority should exercise those powers as though it had been the applicant. In order to protect the position, this amendment provides that there ought to be an application to the court. It can be a quick one. In a formal case one imagines that it would not take two minutes. It would be by consent of all parties. However, in the example that I am considering at this moment it would not be quite that. It may well be in the child's best interests in all the circumstances that the local authority which obtained the order should carry it out and that it should not be transferred to the child's normal resident authority—if I may call it that—by a stroke of a pen. I beg to move.

Lord Simon of Glaisdale

My Lords, Amendment No. 112 has been grouped with this amendment. The noble Lord, Lord Mishcon, and others have put their names to it. I put the amendment down with a group of others on the ground that even if the clause stands unamended, subsection (4) is unnecessary.

It is a theme that we debated earlier. If I presume to be less than satisfied with the defence of this draftsman's nonsense—if I may say that without disrespect—it does not justify my continuing to raise this matter. This is not a particularly blatant example. It is only a waste of three and a bit lines, whereas most of the examples have gone on for the best part of a page.

However, in dealing with Amendment No. 110 my noble and learned friend on the Woolsack gave a mass of matters that would be covered by the regulations and which are not stated on the face of the Bill. Of course the Secretary of State may make regulations. Among the regulations that he may make are obviously regulations as to the time of transfer. It is entirely unnecessary to have subsection (4). It does not come under the justification of my noble and learned friend that it lets the Houses of Parliament know what the Secretary of State has in mind. Obviously he has a great deal in mind if what my noble and learned friend said on Amendment No. 110 is right, as I have no doubt it is.

As my name stands first on Amendment No. 112—I was not going to move it originally—I think my proper course would now be to follow the action that the noble Lord, Lord Mishcon, takes on Amendment No. 111, if that is convenient to him, and commends itself to your Lordships generally.

5.45 p.m.

The Lord Chancellor

My Lords, I sought to explain in relation to Amendment No. 110 how in general terms we would expect transfers of emergency protection orders to operate. Our principal concerns are that the local authority within whose area the child is ordinarily resident (and which will usually be the body best placed to consider the child's needs) is able to take over responsibility for the child and inquire into what further action, if any, is required without unnecessary hindrance to the authority and disturbance to the child.

In some, probably very exceptional, cases the applicant for the emergency protection order will be a private individual, say, a doctor or concerned next-door neighbour, who will have neither the resources nor the powers to take matters further and in any case will probably have acted solely with a view to bringing the social services department into the picture. In other cases—and this is the example to which the noble Lord, Lord Mishcon referred—the applicant will be another local authority in whose area the child has been found, or into which he is placed—the noble Lord's example—but which is only too happy for the authority in whose area the child is ordinarily resident to take over responsibility for the case. Then there is the kind of case we have just discussed, where a person who is also authorised to bring care proceedings is involved, and where the wider responsibilities of the local authority have to be considered.

It is important to notice that we are talking only about transfer of the emergency protection order—nothing else. I have moved an amendment to put a responsibility on the holder of the emergency protection order to take steps that are needed for the protection of the child so that once an emergency protection order is transferred the statutory duty comes on to the person holding the order to take these steps. A return to court on this matter would not contribute to the progress of the case since the issue would simply be that of transfer and the merits of the case for the emergency protection order would not be subject to review at this time. It would mean that the local authority's attention would be diverted from the child's concerns to what would usually be, for the reasons I have given, a formality.

I believe that the main point the noble Lord made about a rather lax local authority in the past not having done anything when a relative wanted the local authority to do so is taken care of by the amendment I moved, which, as a result of the making of the protection order and the transfer regulations applying, would put a statutory duty on that local authority to take action to protect the child so far as was necessary. The ultimate responsiblity for making a care order or for applying for a care order would be on that local authority, because the authority in which the court considers the child is ordinarily resident—this is dealt with in Clause 26(7)(a)—is the local authority to apply for a care order. The point is best dealt with in that way.

I do not believe that a court order in that situation is in any way necessary or would contribute to the expedition of the case. I believe that the concern which has been addressed is dealt with by the amendment I have moved already. Therefore I hope your Lordships will feel that this is not an amendment which should be added to the Bill. The matter is appropriately dealt with otherwise, and to add an unnecessary court hearing, as suggested by the amendment, in every case of transfer would be a negative rather than a positive development.

Lord Mishcon

My Lords, as always we have had a reasoned reply to the amendment. I know that the noble and learned Lord will forgive me if I say that while I respect the reasoning, I do not accept it. To say that a local authority ought to carry out an order is the obvious. We all know cases where the local authority for one reason or another both at member and at officer level does not come up to the standards what we all expect of local authorities. We all know that and we cannot blink our eyes at it. Unfortunately, there have been many examples in the past where local authorities have been blamed for their lax conduct, as have their employees and their members, in regard to children. We are trying to protect children.

I cited an example of where a child was deliberately taken out of a local authority area in which he was normally resident because it was not thought to be in the best interests of the child to stay for one reason or another. It is possible that the chief social worker in charge rubbed the family and the child up the wrong way; I would not know. But no action was taken. There are other examples that one knows. Deliberately the child is moved to another area and the local authority is given its emergency protection order. There should not be just an automatic procedure by which that child is taken back—it is true that there is a statutory obligation to carry out the terms of the order—to the original local authority from which at least one member of a family or a friend might think it was expedient for tile child to be removed. Nobody can interfere with it.

I am asking for a court to sanction it. I repeat that it would involve just two minutes in an ordinary case. But in the extraordinary case where somebody wants to argue against the transfer, that person ought to be able to do it and not be faced by a provision passed by Parliament, as we are doing now, that the court has no authority and cannot interfere in such a situation and that the local authority in which the child was ordinarily resident has the rights.

Obviously it would not be prudent to press this amendment now. While the noble and learned Lord was speaking, I felt I read between the lines of his reply that he had not had an opportunity to consider the type of case about which 1 was thinking and about which some people are worried. With respect, all I shall ask him to do in the light of this discussion is to consider whether there should not be some procedure so that in the exceptional case somebody can apply against the transfer rather than that it should become an automatic bit of machinery. I shall merely ask him to be good enough to consider what I have said between now and Third Reading to see whether something could not be done to deal with the kind of circumstances I have mentioned, which are not as extraordinary as one might think. If the noble and learned Lord tells me that that consideration can be given, I know what my words automatically will be.

Lord Simon of Glaisdale

My Lords, I do not know whether I need to ask leave of the House to speak again, in that Amendment No. 112 has been grouped with Amendment No. 111. If I do need the leave of the House, I crave your Lordships' indulgence to say just one sentence. My noble and learned friend on the Woolsack said nothing to show why subsection (4) is necessary. Why is it necessary to particularise that the regulations may specify the time of the transfer when anybody looking at the situation would say "Of course the regulations may do that"? It goes without saying. This is a minor matter compared with all the other issues of regulation that my noble and learned friend dealt with on Amendment No. 110. However, having said that, when Amendment No. 111 is called I shall follow the noble Lord, Lord Mishcon, as I said I would, and not move it.

The Lord Chancellor

My Lords, with leave, I shall consider what the noble Lord has said. I still feel rather strongly that it would not be right to make a provision for a court application in this situation. The argument that I advanced is intended to deal fully with the case he made. But I am always in the business of considering what has been said. We are always anxious to be made wiser by doing that. I could not give any possible commitment to bring forward an amendment to deal with this matter, because my impression is fairly strong that we have dealt with the matter properly already.

I misunderstood slightly the course that my noble and learned friend Lord Simon of Glaisdale was proposing to take, but I consider that the time question is the important one. There are other matters, but that is the way it appeared to us when the Bill was drafted. I am grateful for the approach he has taken.

Lord Mishcon

My Lords, I tried to frame my words carefully and I did not call for any commitment from the noble and learned Lord. I knew that I would not be likely to get one. However, I asked for a commitment that in his graciousness he would consider the matter which I regard in all humility as being very important: that of giving the opportunity at least for somebody to go to the court to plead that a transfer should not happen. He has kindly undertaken to consider the matter again without any commitment of any kind. On that basis, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112 not moved.]

6 p.m.

Clause 43 [Provision of community homes by local authorities]:

[Amendment No. 113 not moved.]

Schedule 4 [Management and Conduct Community Homes]:

[Amendment No. 114 not moved.]

Clause 49 [Registration and regulation of voluntary homes]:

The Lord Chancellor moved Amendment No. 114A:

Page 45, line 17, leave out from ("is") to ("but") in line 18, and insert ("carried on by a voluntary organisation").

The noble and learned Lord said: My Lords, this amendment is intended to make clear that a voluntary home to be registered by the Secretary of State under Part VIII is a home carried on by a voluntary organisation, which is defined in Clause 76 as a body (other than a public or local authority) whose activities are not carried on for profit. A home carried on by any other private body, whether or not it is supported by voluntary contributions or endowments, has to register with the local authority as a registered children's home under Part VIII. The present definition of voluntary homes at Clause 49(3) leaves room for confusion as to which part of the bill applies to homes privately run for profit which receive support of this kind.

It is obviously desirable to make clear that definition. I beg to move.

On Question, amendment agreed to.

Clause 50 [Duties of voluntary organisations]:

[Amendment No. 115 not moved.]

The Lord Chancellor moved Amendment No. 115A: Page 45, line 43, leave out ("and").

The noble and learned Lord said: My Lords, I should also like to speak to Amendment No. 115B. These amendments reflect Amendments Nos. 36 to 38 which we considered earlier in Report stage and which will require a local authority to ascertain and give due consideration to the wishes and feelings of any other person, in addition to those already specified, whom it considers to be relevant when making any decision in respect of a child it is looking after. Amendments Nos. 115A and 115B would impose a similar duty on voluntary organisations in respect of any child who is accommodated by them or on their behalf. We shall be making similar amendments to Clause 54(2) which concerns the responsibilities of persons carrying on registered children's homes. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 115B: Page 46, line 2, at end insert ("and (d) any other person whose wishes and feelings the organisation consider to be relevant,".

On Question, amendment agreed to.

Clause 52 [Returns of information]:

The Lord Chancellor moved Amendment No. 115C: Page 47, line 21, leave out Clause 52.

The noble and learned Lord said: My Lords, I should also like to speak to Amendments Nos. 123A, 123D, 123F, 124A, 124B and 124C. This series of amendments would rearrange certain provisions in the Bill, principally those in Clauses 63 and 64, but they will not actually change the substance of those clauses.

At present Clause 52 provides for returns of information to be transmitted from voluntary organisations to the Secretary of State. Clause 63 provides for the Secretary of State and local authorities to conduct or assist other persons in conducting research, and for the Secretary of State to provide financial support for specified activities including child care training. Clause 64 concerns returns of information from local authorities and from the courts, and the Secretary of State's duty to lay an abstract of information before Parliament each year, and related research.

Partly as a result of considering the most appropriate location for the additional provisions on training, which I shall be moving later, we concluded that a better structure would be to concentrate in Clause 63 the Secretary of State's powers to give financial support and for Clause 64 to contain all provisions regarding the collection and use of information: that is to say, returns of information, research, presentation of information to Parliament and, if Amendment No. 124D to be taken later is accepted, the review of training by the Secretary of State. Further amendments in my name make minor clarifying amendments to the references to child care training in the proposed revised Clause 63.

These immediate amendments are limited to effecting the improvements to the arrangements of these clauses and, as I have said, make no changes of substance. I beg to move.

On Question, amendment agreed to.

Schedule 5 [Voluntary Homes and Voluntary Organisations]:

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 116: Page 99, line 38, leave out paragraph 7(2).

The noble and learned Lord said: My Lords, I should like to point out for the record that the Marshalled List should read: leave out paragraph 7(2)". Only part of the paragraph is surplus. The amendment is not moved.

[Amendment No. 116 not moved.]

Clause 53 [Children not to be cared for and accommodated in unregistered children's homes]:

The Lord Chancellor moved Amendment No. 116A:

Page 47, line 29, leave out subsection (2) and insert— ("(2) The register may be kept by means of a computer.").

The noble and learned Lord said: My Lords, this amendment replaces the present subsection (2) of Clause 53 with one allowing local authorities to keep their register of registered children's homes by means of a computer. There is a similar provision in respect of voluntary homes at Clause 49(2). The present subsection (2) adds nothing to subsection (1) which makes clear that no child may be cared for or provided with accommodation in a children's home, whether on behalf of a local authority or placed privately, unless it is registered in accordance with Part VIII. I beg to move.

On Question, amendment agreed to.

Clause 54 [Welfare of children in children's homes]:

[Amendment No. 117 not moved.]

Clause 55 [Persons disqualified from carrying on, or being employed in, registered homes]:

The Lord Chancellor moved Amendment No. 118: Page 50, line 6, leave out from beginning to ("(2)").

The noble and learned Lord said: My Lords, I should also like to speak to Amendment No. 119. I have said on previous occasions that we wish to align the various provisions of the Bill wherever possible, and this is a further example. These amendments will therefore make the offence provision at Clause 55(4) and (5) reflect the equivalent provisions at Clause 60(1)(d) and 60(2). These relate, respectively, to offences of employing persons disqualified from caring for children under Clause 58 in a registered children's home, and privately fostering a child while living in the same household as a disqualified person or in one in which such a person is employed. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 119: Page 50, line 9, at end insert— ("(5) Where a person contravenes subsection (2) he shall not be guilty of an offence if he proves that he did not know, and had no reasonable grounds for believing, that the person whom he was employing was disqualified under section 58.").

On Question, amendment agreed to.

Schedule 6 [Registered Children's Homes]:

Baroness David moved Amendment No. 120: Page 104, line 23, at beginning insert— ("( ) The Secretary of State shall make regulations prohibiting the use of secure accommodation in registered children's homes.").

The noble Baroness said: My Lords, the purpose of the amendment is to prevent private children's homes from using secure accommodation. In the debate in Committee on this issue the noble and learned Lord agreed that the Government had no intention of approving secure accommodation in either voluntary or private registered children's homes. However, he said that the Bill had made provision for this in case at some later time the Government changed their mind on this point. Some noble Lords were mystified by that comment because firm commitments had earlier been made that that would never happen.

As the noble Lord, Lord Campbell cif Alloway, pointed out, this is a very unsatisfactory state of affairs. If the Government do not wish to exercise these powers now, and do not intend for the foreseeable future to do so, they should wait until they have reached that point and then explain to Parliament why they need the powers.

The noble and learned Lord the Lord Chancellor also said that he could not see why the mere fact that the organisation is voluntary makes it impossible for the organisation to provide that help to the child—by "help" he meant locking him up in secure accommodation—if it should be necessary. He repeated that observation a number of times.

The amendment leaves aside the question of voluntary organisations and focuses solely on private homes. These are establishments which do not have long and distinguished track records in child care. In fact, they are as yet unregulated so no one knows how many there are or how they are run. More importantly, unlike voluntary organisations, they are run for a profit. I believe that to be an extremely important consideration.

There are very sound reasons why we should not allow profit-making private secure units for children. First, research has shown that the use of secure accommodation is to a significant extent dependent on the number of locked places available within the care system. Where there are secure beds, they are likely to be filled. That makes the secure accommodation issue quite different from the question of privatising prisons. There the growing number of prisoners arises from courts imposing custodial sentences and not from the number of prison places available. However, in the child care system, even with strict approval of privately-run secure units, there would be no way of stopping a flourishing market in privately-run units taking troublesome teenagers off social workers' hands and locking them up. That phenomenon has already been witnessed in the United States and should be resisted in this country.

Secondly, it is abhorrent that profits should be made from locking up children. The noble and learned Lord may wish to dissociate himself from the idea that secure accommodation for children is in any sense a prison or has any connotation of that sort. Unfortunately, secure accommodation, however much the staff within help the children, is indeed a prison in that it locks up children. Certainly the young people within secure units would not agree with him. It does not help the child care system to deal with euphemisms and wish away reality. It is that sort of approach which allows lock-ups which should be used sparingly as a last resort to become a commonplace method of dealing with difficult young people.

Finally, this amendment places on the Secretary of State a mandatory duty which should deal with the objections of the noble and learned Lord, Lord Simon of Glaisdale, when he said in Committee that he thought the amendment I then moved would have no effect. I hope that has dealt with that problem and I hope he agrees with that.

I believe that this is a very important amendment. I feel strongly about it and I hope that the noble and learned Lord will be able to accept it. I beg to move.

Baroness Elliot of Harwood

My Lords, perhaps I may support this amendment. For something like 10 years or more I was responsible for a children's home. In no circumstances could the atmoshpere have been better as regards home, family, and so on; it was wonderful. If one suddenly puts into a home a child who is to be locked up, then that sort of atmosphere will be absolutely impossible. I believe that it would be madness to allow such a thing to happen in a home as described in the Bill. I hope very much that the noble and learned Lord will accept this amendment.

6.15 p.m.

The Lord Chancellor

My Lords, of course I recognise the purpose of this amendment; namely, that registered children's homes should not in any circumstances restrict the liberty of their residents; hence the proposed requirement that the Secretary of State must make regulations prohibiting the use of secure accommodation in such homes. I believe that no one could suggest that this amendment does not place a mandatory duty on the Secretary of State.

Noble Lords may recollect that, when we debated a similar amendment at Committee stage, I explained that the reason for the existing regulation-making power dealing with secure accommodation in subparagraph (2)(i) of paragraph 10 of the schedule, which incidentally is unaffected by the amendment under discussion, though clearly is not compatible with it, was that the Secretary of State wished to retain some flexibility to respond to possible future changing circumstances on this issue, if he considered it appropriate to do so. As I said on the previous occasion, at this stage the Secretary of State has no current intention to grant his approval to the use of secure accommodation in private children's homes, and thus the restriction of the liberty of residents will not be legally possible. To that extent, therefore, there is nothing between us.

Where we part company, so to speak, is on the issue of whether this should be an irrevocable state of affairs. The noble Baroness, in moving this amendment, and my noble friend Lady Elliot of Harwood in supporting it, have made it quite clear that in their/view there is no place for private children's homes using secure accommodation, and that such provision should be confined to establishments provided by central and local government. I do not necessarily subscribe to that view. In principle, there is nothing to suggest that a private children's home could not provide an equivalent standard of care in a secure facility as is found elsewhere in the local authority sector. Such facilities would be required to meet the same standards of physical provision as are imposed on local authorities, to satisfy the same standards of care and treatment, and comply with the same legislative safeguards.

The question is posed: what are the likely changing circumstances which would lead the Secretary of State to consider giving his approval to the provision of secure accommodation in a private children's home? While I cannot forecast what might happen in the future, it may be helpful to bear in mind that secure accommodation within the child care sector is currently provided by local authorities in community homes or directly by the Department of Health in two youth treatment centres. The provision of secure accommodation by local authorities is discretionary. It is entirely up to them whether they provide a unit, or indeed close an existing unit.

Because of the relatively small demand for such accommodation, most units are provided by one authority on behalf of a group of authorities, or a region of the country. If a unit is closed, perhaps against the wishes of the other using authorities, it leaves a potential vacuum which may need to be filled. It may be, and I am speaking hypothetically here, that rather than a local authority meeting the shortfall in accommodation, a registered children's home may offer to make appropriate provision. If that is what the local authorities want, then the Secretary of State would be able to respond to that situation.

The noble Baroness referred to my use of the word "help". 1 believe that the only proper use of secure accommodation in the care situation is in the shape of help. I agree that that involves restricting the child's liberty, but that is done in the interests of the child, either to protect the child from injuring himself, having regard to his history of absconding, or to prevent the child from injuring others. I do not believe that it is right—and this is the point which I tried to emphasise by using the word "help"—to think of accommodation in a secure unit as in any sense punishment or anything of that sort. That is not the idea behind it. However, in the provisions of this Bill it is in the nature of a form of protection which unfortunately some children need but which requires to be very carefully controlled. The Secretary of State has power to do that by regulation.

It is possible that the Secretary of State may never wish to give his approval to the provision and use of secure accommodation in private children's homes. But this Bill is intended to establish a long-term framework for the provision of services for children and, as such, we think it is appropriate that it should contain powers for the Secretary of State to respond to changing circumstances in this admittedly difficult area, if he thought it necessary to do so.

Another way to look at this is that when one comes to look at protection in respect of secure accommodation, which we are considering in the light of the amendment moved earlier by my noble friend Lord Campbell of Alloway and which has been mentioned once or twice, it is right that the protection and procedures which have to be followed should be tested hard so that they should be applied appropriately to any form of secure accommodation. I hope that with that further explanation the noble Baroness may feel able to withdraw her amendment.

Baroness David

My Lords, I am not at all satisfied with the reply of the noble and learned Lord. It is totally repugnant to me that private homes, where one pays for children to go, should have the ability to lock up children. I believe it is a matter of principle and I disapprove strongly of it. The noble and learned Lord says that children are not shut up for punishment. I believe that in some cases they may well be. Admittedly that could very often be to save themselves from doing damage to themselves or others. However, I feel very strongly on this matter and I believe it would be simpler to test the opinion of the House.

6.19 p.m.

On Question, Whether the said amendment (No. 120) shall be agreed to?

Their Lordships divided: Contents, 47; Not-Contents, 67.

DIVISION NO. 1
CONTENTS
Airedale, L.	Blyth, L.
Ardwick, L.	Broadbridge, L.
Banks, L.	Cledwyn of Penrhos, L.
Birk, B.	Cocks of Hartcliffe, L.
Blackstone, B.	Cottesloe, L.

David, B.	Masham of Ilton, B.
Elliot of Harwood, B.	Meston, L.
Elwyn-Jones, L.	Milner of Leeds, L.
Ewart-Biggs, B.	Mishcon, L.
Foot, L.	Mountevans, L.
Gallacher, L.	Pitt of Hampstead, L.
Galpern, L.	Ponsonhy of Shulbrede, L. [Teller.]
Graham of Edmonton, L. [Teller.]
	Ritchie of Dundee, L.
Greenway, L.	Russell of Liverpool, L.
Hatch of Lusby, L.	Seear, B.
Henderson of Brompton, L.	Seebohm, L.
Howie of Troon, L.	Shannon. E.
Hunt, L.	Simon of Glaisdale, L.
Irving of Dartford, L.	Somers, L.
Jeger, B.	Stewart of Fulham, L.
Lawrence, L.	Stoddart of Swindon, L.
Lloyd of Kilgerran, L.	White, B.
McGregor of Durris, L.	Willis, L.
McNair, L.

NOT-CONTENTS
Abinger, L.	Macleod of Borve, B.
Arran, E. [Teller.]	Malmesbury, E.
Ashbourne, L.	Margadale, L.
Astor, V.	Merrivale, L.
Auckland, L.	Mersey, V.
Balfour, E.	Monk Bretton, L.
Belstead, L.	Morris, L.
Bessborough, E.	Mostyn, L.
Boyd-Carpenter, L.	Mottistone, L.
Brabazon of Tara, L.	Mountgarret, V.
Brougham and Vaux, L.	Munster, E.
Carnegy of Lour, B.	Nelson, E.
Carnock, L.	Norrie, L.
Colwyn, L.	Orkney, E.
Crathorne, L.	Orr-Ewing, L.
Davidson, V.	Oxfuird, V.
Dundee, E.	Pender, L.
Elliott of Morpeth, L.	Quinton, L.
Elton, L.	Rankeillour, L.
Erroll, E.	Reay, L.
Ferrers, E.	Renwick, L.
Gisborough, L.	St. Davids, V.
Henley, L.	Saltoun of Abernethy, Ly.
Hesketh, L.	Sanderson of Bowden, L.
Hives, L.	Skelmersdale, L.
Home of the Hirsel, L.	Strange, B.
Hooper, B.	Swinfen, L.
Hylton-Foster, B.	Thomas of Gwydir, L.
Kimball, L.	Trafford, L.
Kitchener, E.	Tryon, L.
Lauderdale, E.	Ullswater, V.
Lindsey and Abingdon, E.	Vaux of Harrowden, L.
Long, V. [Teller.]	Westbury, L.
Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.28 p.m.

Lord Elwyn-Jones moved Amendment No. 121: After Clause 56, insert the following new clause:— ("Notification to local authority. .—(1) Except in circumstances mentioned in subsection (2) no person shall foster a child privately unless he has at least two weeks before the child becomes a privately fostered child given notice in writing of his intention to foster the child privately to the local authority in whose area the child is to live. (2) The circumstances are that the child becomes a privately fostered child in an emergency, in which event that person shall give notice within 48 hours thereafter. (3) A local authority may at any time revoke an authority given under subsection (1).").

The noble and learned Lord said: My Lords, Clause 56 deals with private arrangements for foster children. The amendment provides that: Except in circumstances mentioned in subsection (2) no person shall foster a child privately unless he has at least two weeks before the child becomes a privately fostered child given notice in writing of his intention to foster the child privately to the local authority in whose area the child is to live. There follows subsection (2): The circumstances are that the child becomes a privately fostered child in an emergency, in which event that person shall give notice within 48 hours thereafter. Subsection (3) continues: A local authority may at any time revoke an authority given under subsection (1)". This is an important amendment which was discussed at an earlier stage and the circumstances giving rise to the amendment were dealt with in some detail by my noble friend Lord Prys-Davies. These amendments, Nos. 121 and 123, are supported by the Save the Children Fund, which has been very much advised in this matter by the African Family Advisory Service. It appears that 80 per cent. to 90 per cent. of the children who are placed in private foster care in England and Wales are of West African parents. It is estimated that there are about 2,300 West African children in foster homes in England and Wales. Serious difficulties have arisen from the failure of some foster parents to give adequate notice of their intention to receive children into care. The authorities have little or no control over the flow of private foster children into their areas and, as the African Family Advisory Service has expressed it, they are faced with an uphill struggle to keep tabs on the children and to know what is happening to them.

We believe that an effective notification procedure in private fostering has a crucial part to play in affording private foster children a degree of protection. If local authorities are to exercise their powers effectively, at least they should know which homes in their areas are being used for private fostering. In our view, notification of an intention to foster is of crucial importance. That is why we have put down these amendments which are so strongly and authoritatively supported. I beg to move.

6.30 p.m.

The Lord Chancellor

My Lords, as regards Amendment No. 121, it is our intention to make regulations under the regulation-making power in Schedule 7 and specifically paragraph 7(2)(d). I shall refer to that because it deals with the point expressly. It says: The regulations may, in particular … require any person who proposes to foster a child privately to notify the appropriate authority of his proposal", thus requiring prospective foster parents to give notice of their intention to foster a child privately to local authorities.

It is more appropriate for the detailed requirements suggested in this amendment to appear in those regulations along with any other detailed requirements concerning notice, rather than on the face of the Bill, which should deal with primary provisions. It may seem odd, I suggest, to place obligations on prospective foster parents on the face of the Bill but leave corresponding obligations on the natural parents and third parties to regulations. They should also be involved in notification. We shall certainly want to provide in the regulations for a period of minimum notice and for emergency placements. I am not sure that two weeks is quite sufficient given that authorities will have inquiries to make. The point will be considered carefully when the time comes to make regulations.

The offence provision provided for in Amendment No. 123 is, I imagine, intended to be consequential on Amendment No. 121, but it will also be unnecessary as Clause 60(1)(a) already provides for an offence of failing to give the notice which will be required under regulations within the time specified. The words in subsection (1)(a), under any provision made by or under this Part cover regulations made under Schedule 7. The noble and learned Lord has drawn attention to the importance of the matter and we certainly regard it so. The power to make regulations is drawn in terms that focus particular attention on this important matter. In the light of that explanation I hope that the noble and learned Lord will feel able to withdraw the amendment.

Baroness David

My Lords, the noble and learned Lord mentioned Schedule 7, paragraph 7(2)(d), which states: The Secretary of State may by regulations make provision as to require any person who proposes to foster a child privately, to notify the appropriate authority". What happens if he does not? What are the sanctions?

The Lord Chancellor

My Lords, I sought to deal with that by referring to Clause 60(1)(a), which provides for an offence of failing to give the notice required under regulations within the time specified. The words in subsection (1)(a), under any provision made by or under this Part, cover regulations under Section 7. If there is a breach of the regulations under Section 7 there will be an offence under Clause 60(1)(a). I believe that is the answer.

Baroness Seear

My Lords, I have a question that probably arises out of my ignorance. When is fostering not fostering? If parents ask a friend to take a child in for a while, do they have to notify that? I recall that when I was on the staff of the London School of Economics we had a number of African Students. They had arrangements among themselves whereby people they knew looked after their children. Does that constitute fostering or is such an arrangement permitted? Quite a lot of it goes on.

The Lord Chancellor

My Lords, I cannot do better than refer to the definition, which states: 56.—(1) In this Part— (a) "a privately fostered child" means a child who is under the age of sixteen and who is cared for, and provided with accomodation by, someone other than—

1. (i) a parent of his;
2. (ii) a person who is not a parent of his but who has parental responsibility for him; or
3. (iii) a relative of his;".

The other point that should be mentioned is that subsection (2) of the definition clause says: A child is not a privately fostered child if the person caring for and accommodating him—

1. (a) has done so for a period of less than 28 days; and
2. (b) does not intend to do so for any longer period.".

If the arrangement that the noble Baroness has described was with a person who is not in the category of a parent, a person with parental responsibility or a relative and the child was there for longer than 28 days, it will be a fostering arrangement under the Bill.

Lord Elwyn-Jones

My Lords, in the light of the practical significance and importance of requiring notification and the experiences that have been received as regards these West African children, the requirement for proper notice to be given before the fostering takes place is of immediate significance. It should have been included, not in regulations not yet seen in any detail but on the face of the Bill. This is a familiar theme. I fear that we have not had any success in bringing the matter home to roost. We shall have to give further thought to it. There is yet another stage to come. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 [Welfare of privately fostered children]:

[Amendment No. 122 not moved.]

Clause 60 [Offences]:

[Amendment No. 123 not moved.]

Clause 63 [Financial support by Secretary of State]:

The Lord Chancellor moved Amendment No. 123A: Page 56, leave out lines 24 to 44.

The noble and learned Lord said: My Lords, I spoke to this amendment when moving Amendment No. 115C. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 123B: Page 57, line 3, after ("undergoing") insert ("approved").

The noble and learned Lord said: My Lords, in moving this amendment I should like to speak to Amendments Nos. 123C, 123E, 123G and 124D. The most important of these is Amendment No. 124D. These amendments are concerned with the question of child care training. We discussed these matters at some length during the Committee stage. I do not wish to subject your Lordships to a repetition of what I said on that occasion. Amendments Nos. 123B, 123C, 123E and 123G are to some extent consequential on Amendment No. 124D. They concern a change in the definition of child care training which removes the qualification that it must be approved by the Secretary of State. An additional definition of "approved child care training" is, however, introduced.

The Secretary of State will still be empowered to contribute towards costs and expenses incurred by persons providing or undergoing approved child care training, but his duty to review training extends to all child care training. A duty to review would be of limited value if it were restricted to only a part of the general training provision that is available. I believe that Amendment No. 124D, which is the principal amendment, together with other measures, many of which I mentioned on that earlier occasion, will fully meet the concerns expressed by our Lordships.

This amendment will require the Secretary of State to keep under review the adequacy of the provision of child care training. It requires him to consider all manner of child care training, including training for those working in residential and day care settings as well as field social work. Specialised training needs—for example, court work or those skills particularly needed in a multi-disciplinary setting—would be covered, as would be the need to extend and develop post qualifying courses, a task that has already begun through the joint working group with local authority associations, training and professional bodies to which I referred at Committee stage.

A systematic process of review requires that representations from key bodies are taken into account; and that is provided for in the amendment. Key bodies will he involved including representatives of employers and the Central Council for Education and Training in Social Work who will be able to provide necessary data, in addition to that obtained through the annual collection of data for report to Parliament. By this means it should be possible to obtain an overview of the sufficiency of training required.

We have listened carefully to the contributions made to the debate in this House and elsewhere. These amendments will provide for the Secretary of State to take a valuable overview of training needs in this area. I beg to move.

Baroness Faithfull

My Lords, at the previous stage of the Bill I moved an amendment on training for social work. I believe profoundly that the Bill will not succeed unless social workers in all spheres are well trained. I welcome the amendments and I thank the noble and learned Lord and all concerned for the great thought that has been given to them. I am sure that the world of social work will be grateful.

Lord Elwyn-Jones

My Lords, I similarly welcome what has been introduced by the noble and learned Lord. It meets the anxieties that were previously expressed. We are most grateful.

Baroness David

My Lords, we are grateful that there is something about training in the Bill because there was nothing originally. Thanks co the noble Baroness, Lady Faithfull, the Government have thought fit to put something in. That is very good. The amendment states: The Secretary of State shall keep under review the adequacy of the provision of child care training … shall receive and consider any information". But will he have to do anything about it? I do not see anything in the amendment, which may be due to my own stupidity. I should like to have a reassurance that, having considered the adequacy and perhaps finding it inadequate, something will be done about it.

The Lord Chancellor

My Lords, the Secretary of State has a responsibility to keep under review the adequacy of the provision of child care training. That continuing responsibility is put on him. I do not think the provision specifies in any detail precisely what he would be expected to do about it. That is a matter for the Secretary of State in the first instance and for Parliament in the discharge of his responsibility to Parliament. What is important is that he will have the necessary basis of information which is so vital to proper consideration of the matter.

This is the framework under which the matters can be considered. It would not be appropriate in this Bill to go further than that because, as 1 said at Second Reading, the precise provision depends on the appropriate supply. This amendment does what is wanted in giving the basis for Parliament to consider these matters.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 123C:

Page 57, line 5, at end insert ("approved").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 123B. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 123D: Page 57, line 36, leave out ("section") and insert ("Part").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 115C. I beg to move.

On Question, amendment agreed to.

6.45 p.m.

The Lord Chancellor moved Amendment No. 123E: Page 57, line 37, leave out ("approved by the Secretary of State and").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 123B. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 123F: Page 57, line 41, leave out ("subsection (1)(a)") and insert ("section 64(5)").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 115C. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 123G: Page 57, line 46, after ("purposes") insert— ("and "approved child care training" means child care training which is approved by the Secretary of State").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 123B. I beg to move.

On Question, amendment agreed to.

Lord Seebohm had given notice of his intention to move Amendment No. 124: After Clause 63, insert the following new clause: ("Review of child care training. .—(1) The Secretary of State shall, in consultation with such bodies or persons as may appear to him to be appropriate, keep under review the adequacy of child care training approved by him under section 63(8) of this Act, and the sufficiency of the numbers of persons in such training, for affording the due discharge of the duties of employment therein referred to. (2) The Secretary of State shall lay before Parliament an annual report on the review referred to in subsection (1) above, together with such recommendations as may appear to him to be appropriate.").

The noble Lord said: My Lords, in the absence of the noble Lord, Lord Campbell of Alloway, I shall be dealing with the amendment. It was put down before we knew what form the noble and learned Lord's amendment would take. The noble Baronesses, Lady Faithfull and Lady David, expressed their gratitude for that amendment and I should like to echo that sentiment. We are delighted with Amendment No. 124D which meets our points very well indeed. Subsection (2) refers to an annual report. Whether the noble and learned Lord thinks that that is necessary, I do not know. Perhaps he will give the matter a little thought and if he wishes to bring that in at a later stage he will do so.

[Amendment No. 124 not moved.]

Clause 64 [Returns of information to Parliament]:

The Lord Chancellor moved Amendments Nos. 124A to 124C: Page 58, line 4, at beginning insert— ("( ) The Secretary of State may conduct, or assist other persons in conducting, research into any matter connected with—

1. (a) his functions, or the functions of local authorities, under the enactments mentioned in subsection (5);
2. (b) the adoption of children; or
3. (c) the accommodation of children in a residential care home, nursing home or mental nursing home.

( ) Any local authority may conduct, or assist other persons in conducting, research into any matter connected with—

1. (a) their functions under the enactments mentioned in subsection (5):
2. (b) the adoption of children; or
3. (c) the accommodation of children in a residential care home, nursing home or mental nursing home.").

Page 58, line 14, at end inser— ("(1A) Every voluntary organisation shall, at such times and in such form as the Secretary of State may direct, transmit to him such particulars as he may require with respect to children accommodated by them or on their behalf."). Page 58, line 21, leave out ("and (2) and under section 52") and insert ("(1 A) and (2)").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 115C. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 124D: Page 58, line 24, at end insert— ("(4A) The Secretary of State shall keep under review the adequacy of the provision of child care training and for that purpose shall receive and consider any information from or representations made by—

1. (a) the Central Council for Education and Training in Social Work;
2. (b) such representatives of local authorities as appear to him to be appropriate; or
3. (c) such other persons or organisations as appear to him to be appropriate,

concerning the provision of such training.").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 123B. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 124E: Page 58, line 30, leave out ("the authority") and insert ("local authorities").

The noble and learned Lord said: My Lords, I should like to speak also to Amendment No. 124F. These amendments are merely improvements in drafting. In the context of Clause 64, especially as amended, it is more appropriate to refer to "local authorities" in the plural in these instances. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 124F: Page 58, line 32, leave out ("the authority") and insert ("local a uthorities").

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

On Question, amendment agreed to.

Lord Henderson of Brompton moved Amendment No. 124G: Before Clause 65, insert the following new clause: ("Cruelty to children under 16. . Section 1(7) of the Children and Young Persons Act 1933 (which provides that that section shall not affect the right of parents and others to administer punishment) is hereby repealed.").

The noble Lord said: My Lords, I apologise for arresting this rapid progress but I think we should stop at this station to consider the amendment. I should like to speak at the same time to Amendment No. 130B. The noble Baronesses, Lady David and Lady Elliot of Harwood, and I wish to move the amendment because we think that the position was left in an unsatisfactory state in Committee. The amendments were first moved in Committee on 23rd January. We have tabled them again because we believe that the Children Bill is in large part a response to the universal concern about child abuse. In our view the repeal of Section 1(7) of the 1933 Act is an essential and, I would say, moderate part of that response.

Perhaps I may point out the effect of Section 1 of the 1933 Act. That section criminalises cruelty, including assault, ill-treatment and neglect, which is: likely to cause unnecessary suffering or injury". Section 1(7) of the Act, which we seek to repeal, states that nothing in the section shall affect parents' and other carers' rights to punish children. We also feel, with the greatest possible respect to the noble and learned Lord the Lord Chancellor, that in his response to the amendments put forward in Committee he appears to have been quite simply mistaken—if that is not too indelicate a word—in his opinion that the effect of this repeal would be to create, I quote his words, "complete obscurity".

We very much hope that on reflection the noble and learned Lord will be prepared to accept that, far from creating obscurity or confusion, the amendments would clarify the law. Indeed, that certainly is my aim. The amendments would make clear the fact that our society will not tolerate physical punishment which amounts to cruelty; that is, action: likely to cause unnecessary suffering or injury". Surely it is uncontroversial, given our heightened awareness and concern about child abuse, that parents must be given a clear message that punishment amounting to cruelty—that is, punishment which is "likely to cause unnecessary suffering or injury"—is abuse and should be treated as abuse. I am confident that the noble Lord, Lord Mottistone, who unfortunately is not in his seat at present, will wish to join with me in this repeal because surely he would not wish punishment of children to be such as "likely to cause unnecessary suffering or injury".

I have discovered from research, kindly carried out by staff in the Library, that Section 1(7) has not been debated in Parliament for a century; that is, since 1889. It is true that it was consolidated in 1894, in 1904 and, again, in 1933. But, on each occasion, it was done without debate.

Surely our standards of treatment of children have changed during this century. Is it not therefore time that we removed from our children's law a provision which suggests to parents that physical punishment, "likely to cause unnecessary suffering or injury" is condoned, or even endorsed? That car.not be right and it is for this reason that we seek to remove the provision from the statute book.

The contention that I wish to put to the noble and learned Lord the Lord Chancellor is this. It is the provision contained in Section 1(7) which causes confusion, not its repeal—as the noble and learned Lord sought to suggest in Committee. Therefore it is that proposition which I hope I have persuaded the noble and learned Lord the Lord Chancellor and the House to accept.

I also hope that the noble and learned Lord and the House will accept that the amendment in no way interferes with parents' long-established rights in common law; that is, to use punishment with restraint and moderation. There has been no need for statutory confirmation of that right in common law. The law on assault, including petty assault—which contains no mention of parents' punishment rights—has always been interpreted as excluding petty assaults by parents in the course of punishment.

In Committee two Members opposed the amendments. One was the noble Lord, Lord Mottistone, to whom I have already made reference. The other was the noble Lady, Lady Saltoun of Abernethy, who I see is present in the Chamber. The noble Lady can continue to punish her children with petty assaults, such as cuffing, if the amendment is passed. Indeed she need not have any worries on that score. Similarly, the noble Lord, Lord Mottistone, can continue to beat his children, provided that the physical punishment to his children is used with "restraint and moderation". Therefore he can carry on doing that if he so wishes. I think that that should satisfy the objections expressed by him and the noble Lady in Committee.

After the debate in Committee the Children's Legal Centre sought an opinion from an eminent QC, Mr. Stephen Sedley. I am happy to say that a copy of that opinion has been given to the noble and learned Lord and I hope that he has had time to read it since his return from foreign parts. In his conclusion Mr. Sedley said: In my respectful opinion … the repeal of Section 1(7) is neither otiose nor a source of doubt. It would unify the law of cruelty so as to make it clear that parents have no special right to be cruel to their children in breach of Section 1(1), but only the well-established right, for which Section 1(7) is not required, to punish with restraint and moderation". I should have thought that that was clear enough. Mr. Sedley has good reason to be concerned with such matters. As the House may know, he recently had the unenviable task of presiding over a committee of inquiry into the tragic death of a London child—namely, Tyra Henry—following abuse by one of her kin.

As I have said, the principal reason for my returning to the amendment is to remove any confusion that the law condones cruel punishment, likely to cause unnecessary suffering or injury". I shall leave to others the task of speaking more generally on the matter. I must say that I share the general aim that we should be moving away from hitting children altogether; that is, in the infliction of pain as a form of punishment by parents, or anyone else.

Long ago our society decided that it was unacceptable to hit wives, servants and apprentices. We have gone on, after long and painful consideration, to end judicial corporal punishment. We have ended corporal punishment in the armed forces and, over the past few years, we have ended corporal punishment in state-supported education. Moreover, we recently received an assurance from the noble and learned Lord the Lord Chancellor to end—if not all at once—such punishment in all child care institutions.

In Committee on 7th February, this place failed, to my mind regrettably, but only by a narrow margin, to extend the ban on hitting children, other than with restrained and moderation, by foster parents. That adverse vote was due largely to a misunderstanding of the law by this place; and—dare I say it?— a misunderstanding of the law by the noble and learned Lord the Lord Chancellor.

The amendments give the noble and learned Lord the Lord Chancellor an opportunity to restate the law, I hope in agreement with my submission, and for this place to agree with the amendment without a vote. The amendment also gives the noble and learned Lord an opportunity today to state the Government's attitude towards the punishment of children by their parents in general. If it is too early for him to make such a statement, it would be welcome on Third Reading. I beg to move.

7 p.m.

Lady Saltoun of Abernethy

My Lords, I was delighted to hear from the noble Lord, Lord Henderson of Brompton, that, despite his amendment, I should still be able to smack my children. I should like to assure him that he explained the amendment so well that, even without his specific permission, I realised that that would be the case.

Baroness Elliot of Harwood

My Lords, this is the third time that I have spoken on this subject. I shall not delay your Lordships for long because you must be rather bored by the sound of my voice.

Noble Lords

Never!

Baroness Elliot of Harwood

My Lords, I wish to support the proposals contained in the amendment tabled by the noble Lord, Lord Henderson, and the noble Baroness, Lady David. As the noble Lord said, the amendment does not trespass on parents' common law rights, but would, I hope, discourage them from inflicting moderate corporal punishment. A simple slap would not be prevented.

I am more and more convinced as I read accounts of child abuse that violence by a child is often the result of the way a child has been treated, which is often with corporal punishment. It makes things worse rather than better. Surely in 1989 we do not wish to stick to the methods that applied 50 years ago, and also, according to the noble Lord, Lord Henderson of Brompton, 100 years ago.

When I originally moved the amendment, the noble and learned Lord the Lord Chancellor said that it would interfere with common law rights. I understand that that point has now been made clear and that it does not in any way interfere. I beg the noble and learned Lord the Lord Chancellor to accept the amendment as showing that we are a civilised community and not one that uses the methods of 50 and 100 years ago.

Baroness David

My Lords, the noble Lord, Lord Henderson, has made it clear that our main purpose in tabling the amendments again is to remove any confusion about whether the law tolerates cruel punishment likely to cause cruel suffering or injury. We do not seek to tamper with parents' common law rights to use reasonable corporal punishment. We need to emphasise that point again and again.

I too hope that the noble and learned Lord the Lord Chancellor will now accept that the amendment will not cause complete obscurity but will remove undesirable confusion. I hope that those noble Lords who persist in defending the use of corporal punishment will feel able to support the amendment, because while not tampering with parent's rights, it helps to draw the line necessary to prevent cruelty even when administered in the name of punishment.

I should like to expand on our other reason for tabling the amendment. It is the desire to discourage the physical punishment of children, although I know that some Members of your Lordships' House will not agree with me. We use a number of comfortable euphemisms to describe hitting children—smacking, spanking, etc. That disguises what in every case amounts to the deliberate infliction of physical pain by a large person on a smaller one. That act is bound to be humiliating and degrading for the child.

Our society has only recently come to accept the frequency and seriousness of child abuse. Lord Justice Butler-Sloss—I believe that I am correct in speaking of her as Lord Butler-Sloss despite what my noble and learned friend says—in her much admired report on the unfortunate events in Cleveland, prefaced her recommendations on children which were given pride of place, with the phrase which has been used many times but which is still worth repeating: The child is a person, not an object of concern. The basic argument against hitting children is that they are people and hitting people is wrong. Surely none of us would argue for a return to the days when our common and statute law endorsed the physical punishment of servants, apprentices and even wives.

Most of us would admit having been hit as children. I was and I resented it. We have varying degrees of remorse for having cuffed our own children. I also plead guilty to that. I always felt ashamed afterwards. That does not mean that as a society we should continue to promote the message that physical punishment is acceptable, even desirable. Occasional smacking is one end of a continuum of violence towards children. At the other end are the tragic cases of children killed at the hands of their parents.

Studies of reported cases of serious child abuse in Finland, the United States and New Zealand have found that between 50 per cent. and 100 per cent. of them started as "ordinary" incidents of physical punishment. There are volumes of research findings linking physical punishment in childhood with later violence and with acting-out behaviour and delinquency, as well as with adult depression and alcoholism. We shall only break the cycle of violence against children when we as a society accept that hitting children is wrong, and give parents a clear message that physical punishment is unacceptable.

When the Council of Europe Committee of Ministers, including our own Foreign Secretary, considered in 1985 what should be done about family violence, it adopted recommendation No. 85(4) advising all member states: to review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if violation does not necessarily entail a criminal penalty. The explanatory memorandum states that the Committee felt that corporal punishment was an evil which must at least be discouraged as a first step towards outright prohibition. It is the very assumption that corporal punishment of children is legitimate that opens the way to all kinds of excesses.

I hope that the noble and learned Lord will see the amendment as a positive response to that recommendation. In the United Kingdom, the Government appointed Children's Committee in one of its last reports in 1981—I know that the noble Baroness regretted its demise as much as many of the rest of us—recommended that we should: embark on a progressive programme, governed by a specific timescale, to eliminate the use of corporal punishment on children and young people. It is high time that we took the first step towards ending the acceptability of physical punishment of children in our society. That is the serious purpose of the amendment. I hope that the noble and learned Lord will now feel that he can accept it and write it into the Bill. The step that we are asking for is a small one.

Lord Seebohm

My Lords, my name does not appear against the amendment although it appeared against a previous one. For what it is worth, I should like to make it clear that I still strongly support the amendment.

Lord Elwyn-Jones

My Lords, perhaps I may say what a pleasure it is that the amendment so far has the unanimous approval of the House.

The Lord Chancellor

My Lords, the noble Lord, Lord Henderson of Brompton, introduced the amendment. He suggested, with the courtesy that one would expect, that I got it wrong on the last occasion, in the sense that I said what the present law is. He referred to an opinion of an eminent senior counsel, and I of course have had the advantage of reading that opinion. The question is: is the amendment intended to remove the right of parents to administer punishment?

Lord Henderson of Brompton

No, my Lords.

The Lord Chancellor

My Lords, that is, if I may say so, a very good answer. The proviso that is being repealed, if the amendment is carried, is designed in pursuance of that right. The reason why it is there is because there existed and still exists such a right. I put the question in that way at the beginning because the noble Baroness, Lady David, as she warmed to the subject, particularly towards the end, was looking on this as a move towards the taking away altogether of that right. I shall not express a government view—

Baroness David

My Lords, if the noble and learned Lord will allow me to intervene, I think we all made it absolutely clear that the common law right of moderate and reasonable punishment would remain.

The Lord Chancellor

My Lords, I agree that in certain parts of her speech the noble Baroness said that. However, I also think that on looking at the matter as a whole she was warming to the view that it should no longer be required, exhorting all of us to take that point of view. I shall not—

Baroness David

My Lords, if the noble and learned Lord will forgive me interrupting once again, it is what the amendment says that matters. I myself might prefer to go rather further, but we are now pursuing what the amendment says.

The Lord Chancellor

My Lords, of course there is always a possibility in debates like this that the amendment proposed and what is said in support of it do not entirely match one another. As regards this debate, I can well see the point of view that the noble Baroness and others were advocating. At one stage the noble Lord, Lord Henderson of Brompton, was fairly close to suggesting it.

The point I am making is that the common law recognises a right of a parent to administer reasonable chastisement to a child and but for the existence of the parental relationship that would be a physical assault. If one reads it, Section 1(1) of the Children and Young Persons Act 1933 says that a reasonable chastisement as allowed by the common law might still amount to a breach of Section 1(1). It is to make clear that it does not, if it is only reasonable punishment, that Section 1(7) is included.

I have of course read Mr. Sedley's opinion with great care and I must say that so far he has not persuaded me, nor has the eloquence of your Lordships who have spoken, that Section 1(7) is not an appropriate provision as long as that right remains. If that right is to be removed—and on that point I am not expressing any government view at the moment—then Section 1(7) would certainly call for repeal. But Section 1(7) is there to make it clear that the all-embracing words of Section 1(1) do not cover a situation where moderate chastisement is being administered.

I believe that that is the position, and that to remove Section 1(7), unless one is going to abolish the right altogether, would be to cause confusion. One must well question whether Section 1(1) did not penalise reasonable punishment because punishment inflicts suffering and the suffering is unnecessary unless it is administered in pursuance of punishment. Therefore it is or it may be unnecessary suffering within the meaning of Section 1(1). The people who put the Act together—although it was 100 years ago—wanted to be sure that Section 1(1) did not transgress that provision.

I have read Mr. Sedley's opinion with great care and 1 have taken time to do that. I regret to say that is seems to me that he has not effectively dealt with the point. Therefore I fear I must adhere to the view that to amend or repeal Section 1(7) without facing up to whether the present right to inflict moderate physical punishment is to remain, is to introduce into the law an unnecessary complication and an ambiguity which is particularly important when we have to consider that Parliament has put up the sentence to quite a high level in respect of the Section 1(1) offence.

Mr. Sedley points out that in consequence recourse is had to this section. I understand the reasons which have been suggested, but I believe that repealing Section 1(7) by itself will do nothing but introduce a complication into the application of Section 1(1) of the Act of 1933.

I am not expressing any approval for the conduct that has been described, the kind of excess which has been referred to. But I believe it is important in this very central provision of our criminal law dealing with children that the law should be clear. If it is to be altered then it should be altered in a principled way and not by this type of amendment. I hope that notwithstanding the view that has prevailed up until now, your Lordships will feel that that is the right course to take and that this amendment should not be agreed to.

7.15 p.m.

Lord Henderson of Brompton

My Lords, the noble and learned Lord the Lord Chancellor has made quite plain that he disagrees with the opinion of an eminent senior QC. I think those were his words. It would be quite wrong to put to the vote a dispute between the noble and learned Lord the Lord Chancellor and an eminent senior QC on a matter as serious as this. I should not dream of asking the House to divide on the subject in view of that division of legal opinion.

I asked the noble and learned Lord whether he would give a view of the Government's attitude towards the corporal punishment of children by parents or guardians. Perhaps he might consider doing that if the matter is raised again on Third Reading. For my part, I consider that the dispute—if that is what it is—on the meaning of the law is so serious that it warrants being raised again on Third Reading. In view of the unsatisfactory nature of attempting to settle a matter like this by way of Division in the House, I beg leave to withdraw the amendment on the understanding that we can return to it on Third Reading.

Amendment, by leave, withdrawn.

The Earl of Dundee

My Lords, your Lordships may feel that we have reached a good moment at which to break in order to return to the subject in an hour's time. If so, I beg to move that further consideration on Report be now adjourned. I suggest we resume at twenty minutes past eight.

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