HL Deb 17 January 1989 vol 503 cc113-77

3.6 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

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

Lord Mottistone moved Amendment No. 94: Page 14, line 43, at end insert— ("( ) The local authority shall ensure that a plan to meet the individual needs of every child in their care is drawn up and that a named officer shall be responsible for this plan.").

The noble Lord said: From our discussions already on Clause 18 before, it is clear that subsections (3) and (4) spell out well the duties of the local authority. However I feel that this amendment is justified in order to spell out more clearly how children should be looked after. I think that my amendment will strengthen the rehabilitative duties of the local authority. Each child is a unique individual, and in the words of the Cleveland Report: The child is a person, not an object of concern". Therefore I feel that it is necessary to underline more clearly how these duties might be carried out.

Perhaps I might sum up by saying that it will do no good if we create a sophisticated and sensitive prevention and protection service, only to fail the child personally who cannot live at home. I beg to move.

Lord Campbell of Alloway

I wish to support this amendment very strongly. It is essential to have the amendment to ensure that the framework of the Bill operates according to the true intendment. That is an important omission from the Bill.

The amendment in no way conflicts with any provisions of the Bill. On the contrary, it is in clear implementation of the legislation. The amendment is worth very serious consideration because it involves the drawing up of a plan, the meeting of the needs of each individual child in care and a designated officer responsible who, if unable to retain a responsibility, by implication, if not clearly expressed, hands over to another officer designated by the local authority.

The drawing up of this plan involves a mandatory statutory duty enforceable as such in the courts on judicial review. A duty of consultation arises under subsection (4) as regards any decision. But making a plan also inevitably involves consultation and ought to include those persons referred to in the subsection.

Somewhat of a lawyer's point arises and I raise it for the consideration of my noble and learned friend. A plan for action to be taken is perhaps not in the judicial thinking a decision as to action to be taken within the scope of the plan. Perhaps to some slight degree Amendment No. 94 may require a drafting amendment in that regard. However, subject to that qualification, I support Amendment No. 94. If it were put to a vote, I should support it as it stands, because at a later stage of the Bill any drafting amendment of that kind could be carried.

This amendment would ease the means of reasonable resolution of many very difficult and disparate problems. On Second Reading I referred to one such problem. I frankly confessed that I could not devise any resolution of it. As time is precious I shall accept and produce only one example of the types of difficult problems that may arise.

On Second Reading, at col. 508 of Hansard, I referred to the child mother and the child mother's child. I said that either or both of them were in need of supervision. The mother, being unmarried, enters a voluntary home. She then leaves it to go to bed and breakfast accommodation. That is a serious problem, and 1 shall show how this amendment would, if carried, vastly contribute to a reasonable and humane resolution of it.

On Amendment No. 80, moved by my noble friend Lady Faithfull, reference was made to this problem in the context of priority on housing lists. She was supported by the noble Baroness, Lady David. I supported that amendment. I drew the Committee's attention to its relevance in the context of this amendment. But my noble and learned friend the Lord Chancellor took the point that Amendment No. 80 was concerned with Part III of the Housing Act, as amended, and lay within the remit of another department—the Department of the Environment. So be it. My noble and learned friend said that he had Amendment No. 80 very much in mind.

If one excludes the housing element, this amendment is wholly requisite to deal with the voluntary home and bed and breakfast situation to which I referred. Incidentally, its effect would also be to some degree to ease and indeed resolve the housing element to which reference was made on Amendment No. 80, without introducing any amendments whatever into this Bill to accord equal priority to voluntary homes.

We are concerned with the problem to which I referred; namely, unmarried mothers of 16 to 18 who may have one or more children, and where perhaps the wishes of the mother to go into bed and breakfast accommodation may not be in the interests of the child. A conflict of interests could arise between two children. That is a delicate and sensitive question of balance and is but one way in which this amendment could serve the ends of this Bill and the interests of children.

3.15 p.m.

Lady Kinloss

I rise to support the amendment. When a child goes into local authority care, he may well be suffering from a deep physical or emotional trauma. With the right kind of help the child is able to recover and lead a fulfilled and happy life. Children have very different kinds of needs and what is appropriate for one child may be quite unsuitable for another child. Common sense dictates that each child must have a plan which is designed to meet his or her individual needs.

The Cleveland Report highlighted the importance of multidisciplinary working. It emphasised that this must also apply to a child who is in care. Someone must be responsible for ensuring that a child has access to all the locally available resources. A named officer could take responsibility for this and provide advice on the basis of which a child could make informed choices. If the child is too young to do that for himself, the named officer could help to guide the child.

Children should not be allowed to drift through the care system. On occasion they may even get lost in the system. Therefore a named officer would seem essential. It is much easier for a child or other family members to get information if they know whom to go to. Equally, if a child wants to make a complaint he also knows whom to ask.

Baroness Faithfull

I rise to support the amendment, though perhaps from a different point of view. In order to meet the individual needs of a child, a very skilled initial assessment has to be made of that child's needs. At the moment a kind of tariff system is often operated. First of all, social services departments or perhaps a voluntary organisation try to put a child into a foster home. That fails, so the child is moved to another foster home. That fails, and the child is then put into a children's home. That fails, and finally the child is either sent to a school for maladjusted children or perhaps comes before a juvenile court and is put into youth custody; by which time the child is perhaps 12, 13 or 14 years old and it is too late to influence him to any great extent. I support the amendment in order to press for a skilled initial assessment to be made of a child, so that he is not moved from place to place while he is in care.

As regards the point about a named officer, I know that a number of social services departments think it is impossible to have a named officer because of changes in staff. But every time an officer leaves the case in question should immediately be given to another social worker, so that there is always somebody responsible for the child even if at that stage the new person does not know the child very well. On those two points, therefore, I support the amendment.

Lord Prys-Davies

I too wish to support the amendment. There are children in care who do not have a plan for the future. One of the DHSS-sponsored research studies revealed that social workers did not actively plan what should happen to children when they entered care. The study revealed that the plan which most social workers tend to adopt is a wait and see policy.

In assessing what is happening to a child, what is likely to happen to him and what should have happened to him, the attitude of social workers is one of neutrality. That evidence emerged from a DHSS research study. What is required from the day a child enters care—the amendment is silent on the date when the plan is to appear—is a more positive stance. That stance should necessitate a plan being prepared for each child in care. That will concentrate the mind on the need to map a child's future. Basing my comments on the DHSS study document, that would appear to be essential.

There is another spin-off, if I may use the word. in that the preparation of a plan when a child enters care would also counter the drift and passivity in care cases. The DHSS researchers were startled to stumble across this passivity and drift. We believe that this amendment should be acceptable to the Government because, notwithstanding what is happening at ground level, it is in accordance with government policy. We very much wish to support the amendment.

Lord Meston

I also should like to support the amendment, not least because one would like to think that the drawing up of a plan of the kind that is proposed is what happens already in practice. It is very important to avoid what the noble Lady, Lady Kinloss, has described as a child drifting in care. One knows from experience that children do drift in care and the line of least resistance is often taken. Those in local authorities who are responsible for children often do not think ahead or think ahead far enough. It seems to me particularly important that there should be some such provision in the Bill if the ability of the courts to intervene and to give directions as to what should or should not happen to a child is to be limited.

The only misgiving that one might have is that a plan can become over-rigid. However, I should hope that, perhaps by later amendment or by regulations, provision could be made to limit over-rigidity in a plan, possibly by means of periodic reviews of the case of a child in care. Generally speaking I support the principle of the amendment.

The Lord Chancellor

I should like to say first that I very strongly support the view that the child is to be considered as a person and that all his or her needs and aspirations should be taken into account. Secondly, I believe that all of us would wish to see steps taken to prevent drift, as it has been described by the noble Lady. In a sense, drift is one result of not treating the child as a person but allowing it to become involved in a structure in which its personality and individuality are lost sight of. Therefore, I do not believe that there is any disagreement between my noble friend Lord Mottistone and myself on the basic objectives of the amendment, and the same applies in relation to the other noble Lords who have supported the amendment.

However, there are some more technical matters to be considered. First, the amendment is restricted to children in the care of the local authority. Generally speaking, the provisions that we are considering in this Bill relate to all children whom the local authority is looking after, which, as your Lordships know, is a wider concept than in care. Children in care are in a sense the extreme cases and we hope that it will not be necessary for most children to be in care. The aim is to try to look after them in such a way that they may not need to be taken into care. Therefore the scope of a duty of the kind proposed ought to extend beyond merely the children who are subject to a care order and ought to be more general.

Secondly, I should like to refer to the provisions of Clause 18 of the Bill, which set out a general duty in relation to children looked after by the local authority. As I said, the Government are anxious that the children should be considered individually and that proper account should be taken of their personality and so on. It is necessary that the children who are covered by Clause 18 should be looked after in a way that recognises those factors. It is apparent that in order to look after a child properly a considerable amount of detail is required, and I should have thought that a plan would require some degree of elaboration to be a useful concept.

I suggest to your Lordships that other clauses in the Bill, if properly implemented, will achieve the objective of the amendment. As mentioned by the noble Lord, Lord Prys-Davies, the amendment does not specify a date for the plan.

The first specific point that I wish to make is that we intend that the rules of court to be made under Clause 70 should require a local authority, when applying for a care order, to provide the court with details of its proposals for the child should the order be granted. That will have an effect in relation to the matter raised by my noble friend Lady Faithfull. It may not be possible at that stage to prepare a full assessment of the child's needs but at least the attention of the local authority will be directed to the need to consider the particular child for whom a care order is being sought and to set out to the court its proposals in relation to the child.

As your Lordships will remember, one of the key necessities for an order is that the court should be satisfied that the order will be of some benefit to the child. So the court needs to know, in broad outline at least, what the local authority proposes for the child. At that stage the proposals may be in the nature of an embryo plan rather than a full, detailed plan such as might have been contemplated in connection with this amendment, but they will go into as much detail as possible.

Secondly, under Clause 22, local authorities will be required to review the cases of all children whom they are looking after—children in their care and children who are being looked after but who are not technically in care—at intervals to be laid down. Those reviews will necessarily imply a check on what is required for the child and the nature of the development which is being considered. There is a reference to implementation of such decisions and I shall expect such implementation to be entrusted to a named officer under regulations to be made.

As my noble friend Lady Faithfull has pointed out, local authority staff are apt to change and therefore it would be appropriate to have in regulations a mechanism for ensuring that if a member of staff leaves someone is nominated to take the place of that officer in respect of the child in question.

More generally, both at reviews and in making any other decisions in respect of the child, the responsibilities of local authorities to children they are looking after under Clause 18 require that the local authorities safeguard and promote the child's welfare in the provision of their services. That will require a considered approach and planned proposals for the child. I believe that it is more appropriate that the detailed provisions which are required and which underlie the concerns expressed by the promoters of the amendment should be dealt with in that way. I believe that fairly detailed regulations are required to ensure those objectives. I lay particular stress on the initial requirement in respect of care proceedings, which we anticipate will be provided for in rules of court. There are also possibilities in relation to general guidance and so on, but I believe that most of those matters ought to be provided for under the regulations which the Bill presently provides.

I hope that, in the light of these remarks, my noble friend will feel that the considerations which he has in mind are also very much in our minds and can be adequately catered for under the regulations.

Lord Mottistone

I am most grateful to my noble and learned friend the Lord Chancellor for carefully spelling out how he considers that the aims of this amendment might be met. I am also grateful to him for so clearly understanding our intentions. As we all do, I always have slight misgivings about matters which will appear in regulations before we actually see those regulations. I am therefore riot entirely happy about this situation but certainly I intend to read with great care what my noble and learned friend has said and shall perhaps come back at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

Baroness David moved Amendment No. 95: Page 15, line 8, at end insert— ("(8A) Subject to subsections (8B) (8C) (8D) and (8E) below, the local authority shall ensure that no child whom they are looking after is subjected to corporal punishment. (8B) Subsection (8A) shall not apply when the child is placed with—

  1. (a) his parents,
  2. (b) any person who is not a parent of his but who has parental responsibility for him, or
  3. (c) any relative of his.
(8C) Subsection (8A) shall not apply to a child placed with a local authority foster parent before this Act was brought into force for the duration of that placement. (8D) Subject to subsection (8E) below references in this Act to giving corporal punishment are references to doing anything for the purposes of punishing the child (whether or not there are also other reasons for doing it) which apart from any justification would constitute battery. (8E) A person is not to be taken for the purposes cif this section as giving corporal punishment by virtue of anything done for reasons that include averting an immediate danger of personal injury to, or an immediate danger to the property of, any person (including the child).").

The noble Baroness said: My interest in the abolition of corporal punishment will be fairly well known to the Committee. I have spoken about it before and we have achieved a certain amount of success in this matter with help from all round the Chamber. This amendment is supported by the noble Baroness, Lady Elliot, and the noble Lords, Lord Seebohm and Lord Henderson. I hope that it will also be supported from the Benches to my right. It has support from all round the Committee as well as from a large number of associations. The National Children's Home, Barnardo's, the Child Policy Review Group of the National Children's Bureau, the National Foster Care Association and the Children's Legal Centre have all given their support to the amendment. It has very strong backing both inside and outside this assembly.

This amendment aims to protect all children in care from physical punishment, with two exceptions. The definition of physical punishment is taken from the Education (No. 2) Act 1986 and as such should cause no difficulties to the Government. That is comprised in subsection (8D). There are two exceptions to the authority's duty to ensure that no child in care is physically punished. The first is as is contained in subsection (8B), which covers circumstances when children are sent "home on trial" to parents or other relatives. The authority is under a duty to promote the upbringing of children with their families, and it is obviously important that the need to protect children from physical punishment should not conflict with the children's need to be with their parents and family. The authority would not be able to compel parents and relatives not to hit the child. The only means of meeting its duty under the amendment without this exemption would be not to send the child home, which would not be in the child's best interests. The Secretary of State must issue regulations on "home on trial placements" (as set out in Clause 19(4)) and could require authorities to use their best endeavours to dissuade parents from using corporal punishment.

Secondly, the other circumstance is where the child is already placed in a foster home. Local authorities will be able to stop foster parents from hitting children in care by making that a part of the fostering contract and by setting it as a condition for inclusion on the panel of approved foster parents. However, there will be some children already in foster placements where this new contract is not in place and where the foster parent is accustomed to using a certain amount of corporal punishment. Without the exemption (set out in subsection (8C) of the amendment) the authority would be placed in the invidious position of having to remove such a child who, perhaps, had been living and settled in the home for many years. As I have already said, the amendment is supported by the National Foster Care Association.

The Government are already committed to banning corporal punishment in most child care institutions. In a Parliamentary Answer given in January 1988 the then Minister, Mr. Tony Newton, stated that the Government would shortly be consulting on draft Children's Homes (Control and Discipline) Regulations which would prohibit corporal punishment in residential establishments where children and young people are accommodated as well as amending the Residential Care Homes Regulations (which cater for some children with mental handicaps).

Although welcome, these regulations do not offer adequate protection for children in care. Of course, corporal punishment is particularly inappropriate for that group of children who may have come into care because of physical abuse. There is also a great difference between being hit by one's own parent and by someone who is a comparative stranger.

But the proposed regulations will not cover mental nursing homes. These are a small number of private homes which cater for mentally disturbed adolescents and which are governed by the Nursing and Mental Nursing Homes Regulations. Those regulations were amended in the summer but they did not ban corporal punishment. When the Children's Legal Centre asked the Department of Health why it had not done so, the officer responsible said that he had received legal advice that medical personnel could not use corporal punishment. That is inaccurate. There is nothing in health legislation to prohibit the use of corporal punishment and anyone with the control or charge of children can hit them. In any event the homes have staff who are not medically qualified.

These homes are dealing with the most difficult and disruptive young people, often those whom every other establishment has rejected. They are young people who are therefore very much at risk of physical abuse. In this context I should like to mention the Aycliffe Centre for young people which has at its head Mr. Masud Hoghughi, who came to speak to the All-Party Penal Affairs Group. The centre is the United Kingdom's largest specialised facility for severely disordered adolescents and it caters for a total of 156 boys and girls between the ages of eight and 19 years. It has 50 secure beds and forms the largest concentration of secure accommodation in the country.

These are children who have the most difficult problems and who have probably gone through almost every aspect of child care already. But the centre has a principle of not using corporal punishment or medication for purposes of control, which is very important. That is its policy. It caters for the most difficult of children and is managing successfully without such means.

Banning corporal punishment by regulation in the way in which I have spoken earlier would also leave unaffected the children in foster care. In 1984 the Children's Legal Centre surveyed local authorities' policies in relation to corporal punishment. It established that 10 of the 37 respondents had banned the use of corporal punishment in foster homes; in other words, it had made that a condition before placing a child with the foster parent. Presumably there were others which had such a policy but which did not reply to the centre; and I should hope that there are still more which have followed this course since the date of the survey.

The practice of those 10 authorities—not to mention the many states and countries elsewhere in the world which ban the use of corporal punishment in foster care—shows that the provision of foster care is not impaired by a prohibition of that sort.

Many children are taken into care because of physical abuse by their parents. It is clearly wrong that they should be at risk of physical punishment in care. Local authorities should be setting the example of good parenting by guaranteeing children in their care a non-violent upbringing. Physical punishment passes on the message that violence solves problems. We are all appalled by the extent of violence in our society today and I believe that this Chamber should play its part in expressing disapproval by banning corporal punishment for those who are in the care of the state. I beg to move.

Lord Seebohm

The noble Baroness, Lady David, has made the case for this amendment extremely clearly, as she always does. Obviously I shall not again go into all the details which she has covered so well. However, it seems to me that the intentions of the Government as regards corporal punishment are already determined, as is evidenced by the Education Act 1987, to which the noble Baroness has referred, which abolished corporal punishment in state-supported schools and, I understand, is committed to banning it in most child care institutions.

We are here concerned with children in care. We are concerned in particular with those who arc with foster parents or on leave with parents, which I believe is a very important process in restoring family life to the child. We are also concerned with those in mental homes who are not covered by the proposed residential care homes regulations.

The debate between what I call hitters and non-hitters continues and will continue. But the hitters have lost in Parliament and it is no use raising the debate all over again. It is worth pointing out that Dr. Barnardo homes abolished corporal punishment 12 years ago and are convinced that they took the right decision especially as so many children are in care because of physical abuse at home.

The letters that some of us have received from hitters have misunderstood or misinterpreted the amendments, which make it clear that the rights of parents or relatives in caring for children are unaltered. Under common law they can use reasonable force to control their offspring. Many non-hitters would go a good deal further than this amendment and Amendment No. 259 that comes later. However, that is not what is proposed and I can see no departure from government policy already enacted or declared. I therefore support the amendment.

Baroness Elliot of Harwood

I rise to support this amendment and to endorse all that has been said by the noble Lord and the noble Baroness, Lady David. Children in care are the responsibility of the authority and sometimes of one of the great voluntary organisations, in particular the National Society for the Prevention of Cruelty to Children. In many cases they are in care because they have been abused by their parents or their guardians and are already frightened and probably very difficult to manage. But to inflict more violence will make everything worse. When they are in the care of the public authority, it should not mean more punishment of that kind. Understanding, persuasion and consultation can nearly always prevent the child from becoming more difficult.

Part of the responsibility would be to help the parents to understand the child better. This is where experienced and well trained social workers are vital. It is difficult if children are in mental care, but with the knowledge and experience we have of mental disorder today there is no reason to bring in corporal punishment, which would certainly do nothing to help under those conditions.

I do not think that our laws interfere with families at home unless one of the children's officers or the probation officer finds out that cruelty is being inflicted and report this to the police. They can then intervene and put the parent on trial. Sometimes the mother suffers by the husband who abuses the child and she cannot prevent him; but the children's officer should find out and call in the law on these occasions.

From the Children's Legal Centre I have been given information about what is happening in other European states. It is encouraging. For example, Sweden is one of the countries which has abolished corporal punishment in schools, as has Finland and other Nordic countries, and the result has been a decrease in children coming into care and a decrease in child abuse.

In 1987 the Council of Europe recommended that corporal punishment of children by their parents should be strongly discouraged and in several countries it is illegal. In the modern world there is so much more knowledge of child care and psychiatric treatment, apart from other simple punishments that have nothing to do with corporal punishment. We have already abolished corporal punishment in state schools and it is time that other educational establishments did the same. I should not like our nation to be the only European country which still persists with corporal punishment in the year 1989.

3.45 p.m.

Lord Banks

I should like to support the amendment. I agree very much with the noble Baroness, Lady David, that corporal punishment is particularly inappropriate for children in care, many of whom are there because of physical abuse. I also agree that there is a great difference between receiving corporal punishment at the hands of the parent, whatever view one may take of that, and receiving it at the hands of a relative stranger.

As I understand the position, the Government have pledged themselves to ban corporal punishment in all child-care institutions. This is to be done by means of regulations. I am not quite clear what the position is about those regulations at the moment. I do not know how far the consultations referred to in a ministerial Answer in January 1988 have progressed. However, the proposed regulations, as the noble Baroness, Lady David, made clear, will not cover mental nursing homes. She also told us that they will not affect the position of new foster emplacements, although 10 local authorities have made it a condition of fostering that there should be a ban on corporal punishment. The passing of this amendment will cover both mental nursing homes and future foster emplacements. It will give a comprehensive cover to the ban on corporal punishment, thus giving full effect to what we understand to be the Government's intentions. I hope very much that they will be able to accept the amendment.

Lord Renton

I too am in favour of this amendment but I am not in favour of the exception created by subsection (8C) where foster parents are already looking after the child. To make that exception appears to me to be wrong. We are perpetuating a wrong. I listened to what the noble Baroness, Lady David, said and I did not think that the reasons she gave justified making that exception.

Lord Henderson of Brompton

As my name is down for this amendment perhaps I may briefly support it. I believe that it is only a small step in the direction that we have already taken. It is no more than a logical extension of the abolition of corporal punishment in state schools to state care. It is entirely appropriate that this extension should be initiated in this Chamber, which initiated the abolition of corporal punishment in state schools. It is completing the work that the Government are already doing with regard to state care.

The amendment would extend the abolition of corporal punishment to those children who are in private mental homes or in new foster placements. It cannot be right that they should be subject to corporal punishment. It would be most unfair to abolish it in some placements and not in others. I regard this as no more than a completion of an exercise which was begun some years ago and initiated in this Chamber.

Perhaps we ought to look at the interesting point raised by the noble Lord, Lord Renton. On reflection I cannot see that there is any reason why the relative of the child should be made an exception to the general rule. I do not know whether the noble Baroness would consider that amendment to her amendment. It seems to be an improvement.

However, in view of the reception of the amendment in this Committee, I hope that it can be agreed to in principle without a Division.

Lord Mishcon

There is no point in my repeating arguments so well advanced by other Members of the Committee. I merely say from this Front Bench that we support the amendment. I know that noble Lords will forgive me, should the noble and learned Lord the Lord Chancellor somewhat unexpectedly say something with which I disagree, if I address the Chamber again.

Lady Saltoun of Abernethy

I should like to utter a word of warning here. Foster parents should treat foster children in exactly the same way as they treat their own children. I believe that it is very important that no differences should be made. For that reason I cannot agree with the suggestion made by the noble Lord, Lord Renton. If any form of corporal punishment—even the odd slap, which is what it usually amounts to—is forbidden to future foster parents, it may lose many potential foster parents. I suggest that it may be better for children in care to have the occasional slap from a foster parent, along with the foster parent's children, than for them to be put into a home. I wished to put that thought to the Committee.

Lord Hankey

I hesitate to rise on this subject but I want to express a serious philosophic doubt about how we are dealing with this matter. If disorderly children did not occasionally attack their teachers I should understand fully what we were doing, but teachers and doctors are in trouble. Some children are extremely disorderly. I do not like comparing children with dogs, but I have had a dog occasionally. If one was never able to beat one's dog, he would make an awful muck of the house. It is not that you want to beat him often, but if a dog knows that he will never be bashed he will very soon get out of hand. I do not believe that children ought to be bashed, but I know of extraordinary cases.

I know of a case where a man's daughter let a young man into the house. The daughter was in her early teens. The father discovered what was going on and tried to chuck the young man out but he did not want to go. He said "If you touch me I'll have the law on you. Children are not allowed to be beaten now". I know of another case which I am sure is true of a lady teacher in a school in the Midlands. There was one very disorderly young man. She was arguing with him about something and he began to make it quite clear that he intended to bash her, so she knocked him down. She wondered what was going to happen, for she was a slip of a girl. The other children who had suffered a good deal from this young man were absolutely delighted. They all stood up and cheered and the young man was very abashed. The teacher went to the headmaster to tell him what she had done. The headmaster said "Oh, my goodness; it's very awkward. I'm sure you were right. I'll stand up for you if I can, but I expect the parents will come round".

Next day the parents came to the school. I dare not mention names. They said "We have come to thank you for what Miss So-and-So did to our Johnny. He's been out of hand for a long time and now he's quite easy to live with". I merely express a philosophic doubt. I do not believe that we should be too extreme in these matters. I am not suggesting that the Committee rejects the amendment but we should keep an open mind on this issue.

The Lord Chancellor

The spirit of the amendment is, as has already been pointed out, in accordance with the policy on which the Government have acted in this area generally. I should like to begin by saying a word or two about what has been done in this area by the Government in the prohibition of the use of corporal punishment in the various forms of child care establishment, normally by amendment of the appropriate regulations. It is fair to say that some of these have been completed and some are still in hand. Completed have been the regulations required in the case of homes registered under Part I of the Registered Homes Act 1984 and in the case of maintained schools, and the ones in hand are in the case of care placements in independent schools and in community homes and voluntary homes where draft regulations are at an advanced stage of preparation. In the case of private children's homes the Children's Homes Act 1982 is unimplemented. It is reproduced and amended in Part VIII of the Bill and regulations made under it will prohibit corporal punishment and generally control discipline in such homes.

As regards children who are placed by local authorities in foster homes—boarding out, as it is known at present—the question of discipline and punishment is referred to in guidance issued with revised regulations the Foster Placement Regulations 1988 made in December.

I believe that it is quite important on this subject when one is considering foster parents that we should remember the point made by the noble Lady, Lady Saltoun, because the general principle in relation to foster parents is stated in the boarding out regulations issued in 1955 under which foster parents agree to bring a foster child up as if he or she were a child of their own. Many first-class foster parents and potential foster parents would be lost if they were prohibited from giving even the mildest form of corporal punishment to their children.

The Committee may like to consider whether this problem is not best dealt with by attempting to reach agreement with foster parents. As I said, there are provisions for that and the noble Baroness, Lady David, mentioned them. I understood my noble friend Lord Renton to he referring to her paragraph (8C), not paragraph (8B)(c) to which I believe the noble Lord, Lord Henderson of Brompton, was referring. I believe that there was a slight confusion there. The noble Baroness explained why this provision is put into the amendment: she does not wish to disturb existing arrangements which are working perfectly well in a given situation. The Committee will have to consider carefully this matter because there is a valuable principle involved in saying that a foster parent should treat and bring up the foster child as if it were a child of his or her own. I am sure that those who are good foster parents would wish to do that.

Many foster parents have their own children as well. My knowledge of these matters, such as it is, suggests to me that perhaps the best foster parents are those who are willing to take additional children to foster and bring up along with their own families. I have seen very successful fostering of that kind where the children have been brought into the home at ages that perhaps are intertwined with the ages of the natural family in the home and the whole are treated as one. I have seen badly disturbed and badly treated children being brought into a home where it would be fair to say that corporal punishment was not entirely unknown, but it was very evenly distributed and did no harm that I could appreciate to anyone. I was amazed how quickly these disturbed children responded to the home atmosphere and felt themselves integrated into the family.

There is a risk—I believe that the Committee will appreciate this—of damaging that balance if one tries to distinguish between the rules that apply to the parent and to the foster parent. The amendment deals with that. Therefore I wonder whether all of us who are concerned with this matter should not reflect on this—whether the matter is not best approached by seeking agreement at the time the fostering arrangements are made. The overall object is clear.

There are several small technical matters to address. It would be preferable to aim any such direction at those who bear the responsibility—for example, the foster parents—rather than at the local authority. To put on the local authority the onus of ensuring that no child whom it is looking after is subjected to corporal punishment is a difficult obligation to enforce totally. Circumstances may occur outwith the knowledge of the local authority. In general the regulations which prohibit corporal punishment are directed towards those who have immediate control in the establishment; for example, the management.

There are no present regulations covering mental nursing homes registered by health authorities. I believe that the principle would apply but we have not been made aware of a need for it. We have not understood that evidence exists to show that such incidents have occurred in those establishments. If there is evidence to suggest that it is a problem which must be dealt with, we shall consider the matter afresh and sympathetically.

The present regulations do not directly attack the matter in the case of foster parents for the reason which I have explained to the Committee. In the light of that explanation the noble Baroness may feel that the amendment requires further thought and she may feel able to withdraw it.

4 p.m.

Lord Renton

Having spoken in support of the noble Baroness's amendment, and having heard what has been said by my noble and learned friend the Lord Chancellor, I should like to make a plea to her. A good deal of what was said by my noble and learned friend was not familiar to me and it must affect my judgment on the details of her amendment. Therefore, it would be better to consider the issue further and not be pressed to take a decision now.

Lord Mishcon

I understand the sentiment that has been expressed by the noble Lord, Lord Renton. However, some of us are troubled because, while always extremely clear and frank, the noble and learned Lord has left some of us in doubt about where the Government stand on the issue.

I have been told that the National Foster Care Association has made its position clear and is in favour of the amendment. I and other Members of the Committee understand that we should reconsider the position of foster parents. The argument that they should be in the same position as parents is one to be examined. In order that no Member of the Committee misunderstands the position—and I should hate anyone outside the Committee to misunderstand—I should like to say in parenthesis that the law does not allow parents to bash their children in any way that they see fit. It is only the administration of reasonable punishment that is permitted. I should hate the wrong impression to be created because of the amendment.

Bearing in mind the Government's policy in respect of educational establishments, which has been made abundantly clear, is the noble and learned Lord saying that in principle he agrees with the argument that no institution will look again at foster parents and that no institution under local authority administration which looks after a child shall be permitted to administer corporal punishment? Is he saying that he would like to look again at the case of foster parents in order to equate them with ordinary parents but that the principle of the amendment, apart from the issue of foster parents, is one with which the Government agree? If the noble and learned Lord will tell the Committee I shall be grateful. We can then reconsider the position of foster parents and tidy it up at Report stage.

The Lord Chancellor

I am sorry if I have not made the position sufficiently clear. I tried to explain that the necessary steps have already been taken or are being taken in order to prohibit the use of corporal punishment in the various forms of child care establishments which I described.

The only matter which has not been addressed and which would come within the issue raised by the noble Baroness, Lady David, is the position of health establishments. I understand that there is no evidence to show that any prohibition is required. I further understand that the method of caring for children in such establishments is along the lines described by the noble Baroness at the Aycliffe Home.

In principle the Government take the view that in an institutional setting for child care there should be no question of corporal punishment. Regulations are in place or are being put in place subject to consultation on the matter. However, the case of foster parents is different. In one sense it falls within the principle but it is exceptional. There we are trying to reproduce as closely as possible the natural relationship and one wishes to provide a situation in which that can be achieved.

Equally the local authority is responsible for making the arrangements. The view that has been taken so far is that it is not right to deal with the matter by means of statutory regulations which directly affect it, but rather to try to arrange it through agreements which must be made at the placement stage.

I ought to have mentioned the fact that the guidance that has been given in connection with those agreements stresses that a child, if old enough, should know and have agreed to the content of the agreement reached about his care. The child, if able to appreciate what is happening, should agree with the arrangements. I believe that in this situation that has the attraction of being the best way forward, but I agree that it is a matter for consideration. I hope that that answers the noble Lord's question.

Baroness David

I am grateful for the support which the amendment has received from all Members who have spoken but with the possible exception of those speaking for foster parents. The National Foster Care Association is in favour of the abolition. In their contracts with foster parents many local authorities are already making a condition that there should not be corporal punishment.

I should like to have seen this House slightly ahead of public opinion rather than always trailing along a little way behind. However, after what has been said by the noble and learned Lord about the regulations I believe that it would be only fair to look carefully at any commitments which he may have given and to reconsider the position of foster parents. I reserve my position to come back to the issue at Report stage. I should like to have seen the establishment of the principle of no corporal punishment in state care as it exists in state schools. I give warning that I may come back on Report. I shall look carefully at what has been said and think carefully about the position of foster parents. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

Clause 19 [Provision of accommodation and maintenance by local authority for children whom they are looking after]:

Baroness Faithfull moved Amendment No. 96: Page 15, line 14, at end insert— ("( ) placing him with relatives or friends or other suitable person (subject to any regulations made by the Secretary of State) on such terms as to payment by the authority and otherwise as the local authority may determine;").

The noble Baroness said: The purpose of the amendment is to press local authorities and voluntary organisations to consider relatives and friends and other suitable people as making very good foster parents.

I move this amendment because I have been told that the placement of children in care with relatives, friends and the wider circle of the family has dropped. There are many relatives who are fearful of coming forward and offering themselves as foster parents in case they appear to be interfering or on the other hand who are fearful that they may become involved in family difficulties involving the parents of the child concerned.

A publication by the British Agencies for Adoption and Fostering shows that there has been a steady decline in the number of children who are formally boarded out with relatives. Between 1978 and 1980, when the number of children placed in foster homes rose, the number of those children placed with relatives diminished by 6 per cent. Research has also shown that children who are placed with relatives tend to do better and are happier than those children placed outside the family circle.

Therefore, it may be that the noble and learned Lord will say that this is a matter for regulations Of course, the boarding out regulations are not positive about the use of relatives but it is a way of drawing to the attention of the social work world, both voluntary and statutory, that relatives should be used if practicable and possible.

There are a number of relatives who take in children; for example, following a terrible accident where perhaps the parent of a nephew or niece has died. After a year or so they then find that for financial reasons they cannot keep the child. We ask whether it is possible for those parents to receive grants because one does not wish to remove children from a home where they are very happy. It may be that that is a matter for regulations, but I press Members of the Committee to consider that, where possible and practicable, children should he placed with relatives. I beg to move.

Lady Kinloss

I support the noble Baroness, Lady Faithfull and I agree with what she has said. It is an unfortunate development that the number of children fostered by relatives has declined, as such children appear to do better and are better adjusted.

When the Bill was published, the boarding out regulations had not been placed before Parliament. They were laid on 22nd December 1988 and will come into force in June 1989. The Family Rights Group hoped that the wording of the regulations would be improved and made more positive as a result of consultations carried out by the DHSS. Unfortunately, that did not happen. That seems to make it more necessary to explore and exploit what family members and close friends have to offer young children.

Lady Saltoun of Abernethy

I should like to support the amendment of the noble Baroness, Lady Faithfull. I believe it is very important that, wherever possible and practicable, where there are relatives or friends who are suitable children should be sent to live with people who are familiar to them and not with strangers.

Lord Hailsham of Saint Marylebone

I agree with every word spoken in support of the amendment as regards policy. However, I wonder whether I want that to he written into the Bill. We are passing about 3,000 pages of primary legislation every year. The Liberal Government of 1911, which had the reputation of being a reforming government, passed about 450 pages of primary legislation in that year. I wonder whether our general line that everything which should occur to anybody with any common sense or decency must be written into every Bill is really a good policy.

4.15 p.m.

Lord Meston

They were 450 very good pages. This is something which I wish to see in the Bill. Any positive statutory encouragement to consider the wider family should be supported. I prefer not to see it in regulations. I am afraid that there is a tendency to overlook the wider family; it is a tendency particularly prevalent among younger social workers. They do not consider all the options. Often there are uncles, aunts, grandparents and so on who are ready, willing and able to step in but who are simply overlooked. The consequence is that local authority social workers often create difficulties for themselves in the long run. Accordingly, although it adds to the Bill, we support the amendment.

Lord Elwyn-Jones

I rise to support the amendment. There is merit in positively stating in the language of the Bill itself that local authorities should look, and be encouraged to look, to the child's wider family and friends as a placement for the child. That is obviously desirable but I believe it is worth spelling it out.

As to the size of legislation, one cannot measure its quality either by its size or its brevity. Sometimes the latter is disastrous. It depends on what comes before the House. I am afraid that this avalanche of legislation which this Government, contrary to all their protestations, are putting before us is placing us in difficulty.

The Lord Chancellor

I am sure that the Government are seeking to place before the Chamber the best possible legislation and indeed this Bill is a good example. It must be right not to add unnecessarily to the Bill.

The distinction between the two types of placement in Clause 19 is that Clause 19(2)(a) results in a placement where the persons do not have parental responsibility for the child. In Clause 19(4) the persons in question have parental responsibility for the child. That is the basic distinction between the two. I am sure that my noble friend is aware that Clause 19(2)(a) covers what she wishes to happen and it is a question of giving that prominence rather than anything else.

I am against having a separate category which is neither one nor other of the two which I mentioned. However, having heard what she said, it occurs to me that it may be possible to give prominence to the wider family while still maintaining the same division. In other words, instead of going immediately to: a family or other suitable person", I should like to consider whether we might rephrase that so as to give prominence to the wider family in the way my noble friend desires without splitting the legal categories in a different way from that aready in the Bill.

As far as I recall, under the Child Care Act 1980 there is a split between relatives and friends on the one hand and others on the other. I believe that that has caused difficulties and I should not be surprised to learn that that may have assisted in the downward trend to which the noble Baroness referred. I believe it would he dangerous to split those particular categories so that they have different consequences. However, I shall certainly consider whether we could slightly alter the expression in Clause 19(2)(a) to give particular prominence to that. I cannot commit myself because I did not fully appreciate the nature of the point. I should like to consult parliamentary draftsmen to see whether, without damaging the underlying structure, I can accommodate my noble friend's wishes and the wishes of those who have supported her.

Baroness Faithfull

I am grateful to all those who have spoken, and particularly to my noble and learned friend the Lord Chancellor. I take the point that he makes and I am grateful that before the next stage of the Bill he will consider a rephrasing, not absolutely, so that emphasis is put on relatives and friends. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 97: Page 15, line 28, after ("with") insert ("any").

The noble and learned Lord said: With this amendment I should like to speak also to Amendments Nos. 134 and 135. The purpose of these amendments is to clarify the powers governing the arrangements which may be made by local authorities for placing children in certain types of accommodation referred to as "other arrangements" in Clause 19(2)(f).

Clause 19 lists various ways in which a local authority can provide accommodation for children whom it is looking after. This includes placement with a family in various kinds of residential accommodation or by making such other arrangements as seem appropriate to the local authority. This category of other arrangements covered by Clause 19(2)(f) is intended to include half-way houses, hostels and any other type of accommodation not included in the categories already defined.

We have included a power to make regulations, but in the way in which it is phrased at the moment in the absence of regulations we would not be able to use this power and we want a flexible power to use, subject to regulations. That is the purpose of the amendment.

The two further amendments I have mentioned are designed to remove unnecessary restrictions on the arrangements which local authorities or others with parental responsibility may make. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 98: Page 15, line 31, at end insert— ("( ) Where a child is in the care of a local authority he may be allowed to live with his parents or with a person who is not a parent but has parental responsibility for him in accordance with regulations made by the Secretary of State.").

The noble Baroness said: The purpose of this amendment is to be able to place a child back with his parents, or the persons who had parental rights over the child, with a view to rehabilitating the child. Those of us who work in child care know that there are a number of children who do not want to return home and cannot do so; but there are a number of children who want to return home and to be rehabilitated. However, it is difficult for the local authority or the social worker to place the child back home temporarily, in the first instance, without having some supervisory capacity to control what is going on.

Therefore, the amendment would simply enable children to be placed back with their families while still in care to help a child to merge back with the family. It is a risk that a social worker has to take as regards both the child and the parents. Therefore, to get the order rescinded and then place the child back would not he a wise move. The purpose of the amendment is simply to enable social workers to rehabilitate a child with the family, or those who have parental responsibility, over a period of time while the child is still in care. I beg to move.

Lord Mishcon

I agree entirely with the spirit of this amendment. It is extraordinary to find in the Bill, in subsection (4) of Clause 19, a negative presentation. One knows that the draftsman intended certain things to happen, but one wonders whether the Government intended that the accent should be on the negative. Perhaps the Committee will allow me to read out subsection (4). It states: Where a child is in the care of a local authority, the authority may not allow him to live with—

  1. (a) a parent of his: or
  2. (b) a person who is not a parent of his but who has parental responsibility for him,
except in accordance with regulations made by the Secretary of State". It occurred to those of us who are associated with Amendments Nos. 99 and 100 that the positive way of putting this in order to encourage, where appropriate, that a child should be returned to the family is, as the Committee will see from the amendments not yet moved, to delete the word "not" in the second line so that the subsection reads: Where a child is in the care of a local authority, the authority may allow him to live with … in accordance with regulations made by the Secretary of State". In other words, if the regulations negatived the possibility in the interests of the child, that affirmative way of putting it would not apply.

Therefore, I hope that the noble Baroness will see fit to agree that Amendments Nos. 99 and 100 would be rather more acceptable.

Lord Simon of Glaisdale

I have a point to make on this amendment which relates to Schedule 2, paragraph 13, where, in addition to the parents and the person who has parental responsibility, there is also, any other person connected with him". I am not sure what those words mean, but in any case if they are relevant in the schedule it seems to me that they might also be considered in connection with the amendment. I do not expect an immediate answer, but perhaps my noble and learned friend the Lord Chancellor will undertake to consider that point.

Lord Hailsham of Saint Marleybone

Perhaps I may add a couple of sentences. I agree with my noble friend Lady Faithfull about the desirability of circumstances in which parents should be allowed to retain care and control of a child who is the subject of a care order. However, I wonder whether my noble and learned friend on the Front Bench may think that to make this the subject of a contract between the local authority and the parents, as is done in the case of fostering, would be a better and more flexible way of dealing with the situation than by regulations made by the Secretary of State.

Lord Meston

As reference has been made to Amendments Nos. 99 and 100 and as it seems to me, as it did to the noble Lord, Lord Mishcon, that Amendment No. 98 entirely produces the effect which I certainly intended to produce in my amendments, I suppose I ought to support it. Clearly, the purpose of my amendments and therefore also of the amendment moved is not to add anything to the Bill or, indeed, to alter the Bill in any substantive way but simply to remove two words which produces the same meaning and give a more positive emphasis.

The noble and learned Lord, Lord Simon of Glaisdale, referred to the schedule. It seems to me that the advantage of putting this clause in more positive terms is that it would be more consistent with the positive expression of duties which appear in the schedule. Moreover, it ensures that the local authority does not lose sight of its ultimate target, which is the rehabilitation of children in their own homes if at all possible; but it does not rule out the ability of regulations to put in appropriate provisions to safeguard children and to ensure that they are not returned to their homes if circumstances are not appropriate.

Therefore, whether the Committee accepts Amendment No. 98 or prefers Amendments Nos. 99 and 100 I certainly support the principle.

Baroness David

I have my name to Amendment No. 98 so perhaps I may say a few words about it. I believe that it gives more positive encouragement than merely excluding the words "not" and "except" by Amendments Nos. 99 and 100, though I appreciate that the general purpose is the same. However, I should like to remind the Committee that the House of Commons Social Services Committee in its well-known report in 1984 said that far more skills and resources went into finding new families for children than in trying to get them back with their own. So what we want is positive encouragement. I think that is what is given in Amendment No. 98 and on the whole I would support that amendment.

4.30 p.m.

The Lord Chancellor

Once again, there is very little difference between us on what we want to achieve. The policy underlying Amendment No. 94 is that the allowing of the child to go back with a parent or a person who has parental responsibility for him is to happen in accordance, and only in accordance, with the Secretary of State's regulations. In other words, they are not to be able to do it except on the terms set out in the Secretary of State's regulations.

Parliamentary counsel have been asked to look at this because I have the same feeling as some other people that in a way it might be better expressed positively. My understanding and advice at present is that the only way, in the sort of style that the parliamentary draftsman has adopted to ensure that such a placement occurs only in accordance with the regulations, is by using this method.

Amendment No. 98 has the advantage of being strong and straightforward. However, if one looks at it strictly the local authority may allow the child to live with his parents in accordance with the regulations of the Secretary of State but not necessarily only in accordance with them. There is no restriction here on powers to do otherwise than allow the child to live with his parents and therefore something else is necessary. As an amateur draftsman, I thought of putting in to meet that point some such phrase as, "But only in accordance with the regulations made by the Secretary of State". However I have not yet had the opportunity of confirming with the parliamentary draftsman that the result would be exactly as we would wish it.

However, your Lordships may take it that if you give me the opportunity we will explore this further and see whether there is a way of achieving the policy in a more positive form. The same problem, in so far as there is a problem, arises in connection with Amendments Nos. 99 and 100 because the permission would not necessarily have to be in accordance with the regulations. All these amendments have that particular difficulty but there may be a way of overcoming it in a simple way. In the light of that assurance, I hope that my noble friend will feel able to withdraw the amendment. It may be that Amendments Nos. 99 and 100 can he postponed possibly altogether.

Lord Simon of Glaisdale

With regard to the point that I raised, in a number of places in the Bill there is a reference to, parents or persons who have parental responsibility". So even if the noble Baroness withdraws the amendment I would be most grateful if my noble and learned friend the Lord Chancellor would consider the point that I raised about "persons connected with", which is not defined in the interpretation clause. That might be the right way to deal with it.

The Lord Chancellor

Most certainly. I was taking advantage of my noble and learned friend's kind remark that he was not expecting the answer immediately. I certainly had not overlooked the point he made. I think I have an answer but I would prefer to have more time to consider whether it is a full answer. I would certainly have in mind to let him know what my considered answer is. I certainly did not mean to overlook it.

Lord Simon of Glaisdale

I am most grateful to my noble and learned friend. I never for a moment doubted that he would have an answer, but I am perfectly prepared to wait for his considered answer.

Baroness Faithfull

It is quite obvious that in your Lordships' Committee we all agree with the spirit of the amendment and it is also obvious that there are different views on how it should be dealt with and framed, as was said by the noble and learned Lords, Lord Simon of Glaisdale and Lord Hailsham, and by others. Therefore, with the assurance given by the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 99 and 100 not moved.]

Baroness Faithfull moved Amendment No. 100A: Page 15, line 37, at end insert— ("( ) Where a local authority provide accommodation for children who are siblings whom they are looking after, they shall (subject to the provisions of this Part) secure that they are, so far as is reasonably practical and consistent with their welfare, accommodated together.").

The noble Baroness said: I move this amendment on the recommendation of the National Association for Protection of Children in Care. In a way I am rather moved by this amendment because it is a plea from children who have been in care, many of whom are indeed still in care, that they should not be separated from their brothers and sisters. This seems to be something that we would all accept though I have to say that, sadly, in both the voluntary and statutory sectors, there are times when children are separated from their brothers and sisters. It is quite bad enough to be separated, albeit perhaps rightly, from parents, but to be separated from your brothers and sisters is very hard to bear.

Going back to the last century and looking at the histories of Barnardo children, some of whom were separated from their brothers and sisters, I know that they sought to find their brothers and sisters when aged 50 or 60. That fact really brought it home to Barnardo's how important it is that brothers and sisters should not be separated. Therefore representations have been made to me by the children and young people themselves that, wherever possible and practicable, they should not be separated. I beg to move the amendment.

The Lord Chancellor

Again, I am absolutely clear that it is important that children who are siblings and who have lived together as a family should continue to do so if it can be arranged and if it is consistent with their welfare. I understand that many local authorities already make arrangements where they can for sibling children to be looked after in the same family or children's home. I can see some advantage in making this a statutory requirement, and if my noble friend will allow me time to consider the point further I shall be glad to do so.

The second amendment deals with contact between siblings. I think the paragraph to which my noble and learned friend Lord Simon of Glaisdale referred—paragraph 13 of Schedule 2—is intended to deal with this, and siblings would be within the class of those connected with the child. However, I agree that the point which has been raised needs to be looked at further. I think that it is certainly intended to cover this particular matter, among others.

Baroness Faithfull

On behalf of the children in care who have made this representation, may I say how very grateful they will be to the noble and learned Lord for what he has said. They will be very grateful to him for saying that he will look at this matter again and bring it forward at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19, as amended, agreed to.

Clause 20 [Advice and assistance for certain children]:

Baroness David moved Amendment No. 101: Page 16, line 22, leave out ("advise and befriend him") and insert ("advise, befriend and assist him in the manner of a good parent.").

The noble Baroness said: Grouped with this amendment are Amendments Nos. 102 and 104. The purpose of this amendment is to place local authorities under a specific duty to provide financial assistance, advice and support to young people who have left the authority's care. The phrase, assist him in the manner of a good parent". is taken from the House of Commons Social Services Committee's short report of 1984 which has been much admired.

In the second Sitting of the Committee before Christmas I spoke to an amendment attempting to change the Social Security Act to give young people who are leaving care some financial support. There was a great deal of support in the Chamber. It was realised that there was a great problem with young people who were suddenly thrown out into the world without any family to help them or support them in any way. There are a great many of them. Every year approximately 8,000 young people leave care. The majority have no suitable family home to return to and are therefore forced to live independently.

Ideally, when a young person leaves the family home to live independently a parent would wherever possible provide not only advice and continuing support but also financial assistance. In the same way, when a young person leaves the care of a local authority the same parental responsibilities should apply. The authority should have a duty as a good parent to provide every assistance to a young person making the very difficult transition from care to independent living.

The current legal duties to young people in care are set out in the Child Care Act 1980. The legislation is muddled and uncoordinated. Authorities vary enormously in the amount of practical help they offer to those leaving care. Recently the National Association of Young People in Care, which was an organisation set up to improve conditions for those in care, conducted a survey of local authorities, asking for details of the provision, financial or otherwise, made to young care leavers. Some of the results were disturbing.

Oxfordshire County Council replied that of the total of 754 young people who left its care in 1987 the authority could account for the whereabouts of 193 only. It had no idea what had happened to the remaining 561 young people. Shropshire County Council replied that it was not its policy to provide any young person leaving care with accommodation.

It is clear that many young people, after spending years in local authority care, leave at the age of 18 unprepared, alone and very vulnerable. They may be left to find their own accommodation, which is often a cramped bed-sitting-room or a hostel, or they may even he forced to live in a dangerous and run-down squat. Indeed, many become homeless. Successive surveys have shown that young people who have left care are over-represented in the number of homeless people. Recent estimated percentages have included 25 per cent. in a Centrepoint study last year and 33 per cent. in a Department of Environment study in 1981.

There is added concern for the welfare of care leavers because the situation for them has been worsened by recent social security legislation. I went into that point in the amendment that I moved at the earlier Sitting. Barnardo's has recently produced a report on the impact of social security changes on young care leavers. I read one of its case studies about a young man called Sean when I moved the last amendment. There were several other case studies, and I thought of reading another but decided that perhaps the Committee would prefer me to get on with the business. Sean was just one example, and there were six very moving examples. I expect that a number of Members of the Committee have received the Barnardo's paper, but I shall repeat what one young women in a similar plight who had just left care said when asked what she felt about the situation: "They are just setting us up to fail".

We cannot leave these young people in such a precarious situation. We should remember that the House of Commons Social Services Committee recommended in its short report that local authorities should be placed under a duty to prepare young people for leaving care and to support those leaving care, to quote the report, in the manner of a good parent". That is where this phrase comes from.

The amendment has the support of Barnardo's, the British Association of Social Workers, the Children's Society, the Children's Legal Centre, First Key, the National Children's Homes, the National Foster Care Association, the National Children's Bureau, the National Association for Young People in Care, the Save the Children Fund and the Voice of the Child in Care.

This is a problem which has been recognised, and I hope that the amendment—which is a very mild one but it should give some assistance, both financial and otherwise, to young people in a very difficult situation—can be accepted. I beg to move.

4.45 p.m.

Lord Mottistone

My Amendment No. 102 is grouped with Amendment No. 101, and I rise to speak in favour of No. 101. Amendment No. 102 was an error on my part. The NSPCC, which drafted it, wanted me to put down the wording which is in Amendment No. 101, so I think we may forget Amendment No. 102.

It is difficult to add to the splendid remarks of the noble Baroness, Lady David, who has covered the ground very fully indeed. I should like to endorse everything that she said.

I should like to make one or two other comments. I welcome Clause 20, which is splendid. All we are saying here is that it does not go quite far enough. In subsection (1) it says "advise, assist and befriend", and in subsection (3)(a), "advice and assistance", but in the part after subsection (c) with which we are dealing it just says "advise and befriend" and not "assist". It seems rather strange to leave out "assist" when it has been in before. I do not know whether my noble and learned friend will be able to expound on that for us. I should have thought that there was every reason to include "assist".

We have talked about "in the manner of a good parent" before, and I think my noble and learned friend was not in favour of the phrase. However, it is very important to have a standard of that nature. Advising, assisting and befriending can be very arid and can be handled in an unfriendly sort of way, albeit by dedicated people who are trying to do the right thing, if they do not have basic sympathy for the person to whom they have been asked to give advice, assistance and friendship.

It is useful to have wording which is clearer, and what could be better than "in the manner of a good parent"? We all try to be good parents. For some of the time we succeed and for some of the time we do not. Sometimes we even beat our children, but that would not appeal to some Members of the Committee. The fact is that a good parent sets a standard, and I think it is necessary to have something like that included here.

Finally, from the NSPCC's point of view it is particularly important to have an amendment of this nature because all too frequently young people between the ages of 16 and 21—if I read subsection (2) correctly—may themselves be considering family life and parenthood, so it is good that they should be given an example of how they should behave if and when they have a child of their own. All too frequently those who have been in trouble may inadvertently be in the family way.

I hope that my noble and learned friend will be sympathetic to this phrase even if he has been advised that it is not frightfully good from a draftman's point of view. It would be nice to get it into the Bill in order to take the edge off the not necessarily properly balanced wording of the clause as it stands. I hope that we shall have a favourable response.

Lord Campbell of Alloway

I support the amendment. It does two things. It strengthens the obligation by including the duty to assist, which is a relevant and useful obligation. It sets a standard, albeit a variable standard as all parents are variable. Some beat their children when they are very young and some do not. It is better to have a variable standard than no standard. For that reason too I support the amendment.

I seek the assistance of my noble and learned friend because I too remember that the phrase did not appeal to him very much at an earlier stage. If I am correct, the objection was based on the fact that it should have been included, so to speak, in the check list of general principles in Part I. It was an error to introduce an additional standard in one clause in relation to another. That objection, if that be the right objection, would not arise in this case because Clause 1 is only concerned with the proceedings of the court. In this respect we are not concerned at all with court proceedings. We are concerned with a standard and a duty in a totally different context. If my understanding of the objection is right, on that ground the objection would dissolve. I support the amendment.

Baroness Faithfull

I support the amendment. To save the time of the Committee I should like to speak also to Amendment No. 105, which seeks to leave out the words "in exceptional circumstances". The Bill as drafted states: Assistance given under this section may be in kind or, in exceptional circumstances, in cash". I should like to follow the example of the noble Baroness, Lady David, and quote two cases. One Christmas Day I was driving across Magdalen Bridge in Oxford. I saw a figure whom I recognised walking across the bridge. I stopped the car and found that it was a young man aged 18 or so. He had been in care for eight years. I asked, "What are you doing here?" He said, "What else is there to do?" I said, "It's Christmas Day. Aren't you going to spend it somewhere?" He said, "I've got nowhere to go and nowhere to spend it". I realised that he needed help and assistance both in cash and in accommodation. Needless to say I scooped him up and he spent the rest of Christmas Day—never mind where he spent it.

I am a governor of a school for disturbed and unhappy children. We have often found that we have wasted our money, because children leave care and have to find their own way. This home, the Caldecott Community, has set up bed-sitting-rooms under supervision. Vulnerable young people can live there until they are able to live on their own. Our families would help us in exceptional circumstances. They would help financially, with accommodation and in kind. I support the amendment together with my Amendment, No. 105.

Lady Kinloss

I should like to support Amendment No. 101. I agree with the noble Lord, Lord Mottistone, that the words "assist him" are better in Amendment No. 101. I should also like to support the noble Baroness, Lady Faithfull, in her Amendment No. 105. I agree with her that people who leave care will need assistance with money and with finding accommodation. As a parent I have frequently had to help my children with money and in finding them somewhere to live. I support the amendment.

Baroness Macleod of Borve

I should like to support the amendment as strongly as I can. We all know that when young people leave care they can get into trouble because there is so much trouble around. There is nobody to turn to. The figures given by the noble Baroness, Lady David, have shocked me, as I am sure they have shocked the rest of the Committee. The support that should be given to young people is not being given. With this amendment perhaps it will be given in the future. I warmly support it.

Lord Banks

I should like briefly to support the amendment. The noble Baroness, Lady David, told us that each year approximately 8,000 young people leave care. Research indicates that 70 per cent. of young people leaving care go to live on their own. This compares with 0.2 per cent. of the general population of that age. When the noble Baroness moved Amendment No. 70 she reminded us that for those in the 16 to 25 age range benefit available has been reduced. This will affect the most vulnerable, including those leaving care, the majority of whom go to live on their own.

Local authorities will have to assume financial responsibility for topping up in many cases but there is no financial provision in the Bill. The income problems of those leaving care would better be dealt with by social security. The noble and learned Lord the Lord Chancellor said when replying to Amendment No. 70 that the Government would monitor the Social Security Act and the working of the new system introduced in April. He said that all that was said in the debate on Amendment No. 70 would be conveyed to the Secretary of State for Social Security. That is good as far as it goes. Even so I am not hopeful that there will be any substantial change in the near future. In the short term and probably in the long term local authorities will be obliged to stand in. This amendment will strengthen their hand in doing so. With reduced benefits, high levels of youth unemployment and widespread homelessness, all of which affect those leaving care more than proportionately, the need for assistance of various kinds is clear. It is imperative that local authorities continue to treat care leavers in the manner of a good parent.

Lady Saltoun of Abernethy

I should like to support the amendment. At any age to have no one to turn to and to have nowhere to go is a sad state of affairs, but when one is young and vulnerable it is dreadful.

5 p.m.

Lord Henderson of Brompton

I should like to add a word to the debate. I entirely agree with this amendment and with the further amendment which has already been spoken to by the noble Baroness, Lady Faithfull. However, I should like first to congratulate the Government upon including Clause 20 in the Bill. It is a very great advance and they should be positively congratulated in that respect. Here is a lacuna in national life because we do not look after children who leave care and we do not look after children who leave prison.

There are those children who are in custody. Children under 16 receive nothing when they leave custody. If they wish to claim income support they find that they can only receive it two weeks in arrears. Therefore, for two weeks they have nothing at all on which to live.

There is not that much difference between children needing care and those needing custody. They both very much require the comfort that someone can give them in loco parentis. In this instance I can see that there is a case for social security to take that role. On the other hand, at the moment such services are not able to do so because they cannot give income support for two weeks. Therefore, the child receives nothing if he has no home to go to. That point is one of very great importance.

I make no apology for comparing the child in custody with the child in care. In my view there is not that much difference between them; they both very much need our help. Therefore, I hope that, when it comes to having a criminal justice Bill, a provision along those lines will be included in the legislation for the benefit of those who are in custody. But, in the meantime, I strongly applaud the Government for including this clause, which I hope will be improved by means of the amendment.

Lord Prys-Davies

I shall be very brief in what I have to say but I should like to support the amendment moved by my noble friend Lady David. The statutory duty set out in the last limb of subsection (3) is too restrictive because it simply provides for a duty to "advise and befriend". As noble Lords have pointed out, it omits the duty to assist. Of course, social workers will provide advice and moral support. However, I believe that it is pretty obvious that financial support is equally important. That is the advice which we have received from the 10 organisations which my noble friend has already mentioned.

The statutory duty, as expressed in subsection (3), is also inadequate as it does not set out the standard which the local authorities should seek to achieve. Indeed, that point was made by the noble Lords, Lord Mottistone and Lord Campbell. The standard which is recommended in the amendment is that of a "good parent". If the term "good parent" poses a problem of interpretation, I should have thought that it would still be possible to formulate a workable test which requires the local authority to act at least as a parent would act, and that would be consistent with the local authority standing in loco parentis to the child.

The Government will have noted the 10 organisations which support this amendment and the three or four connected amendments. That shows the breadth of support for the amendment outside this Chamber. It is also evidence that the 10 organisations, each with its own emphasis and expertise, have arrived at the conclusion that this amendment ought to be supported.

The Lord Chancellor

I should like to begin by taking up the point that was made by the noble Lord, Lord Henderson of Brompton. Clause 20, as a whole, is a very considerable move forward from the existing law. I believe that it is most important. I also think that it is quite important to understand that it has to cope with many different matters but that it is not intended to cope with social security matters. That is an entirely different field, and I know that noble Lords are well aware of that fact. It must be kept in mind that we are not here to deal with social security legislation in its general provision; we are dealing with a very specific situation. I am sure that Members of the Committee will wish to be careful and to concentrate on this particular situation to ensure that what is proposed is appropriate.

It is true—I shall just mention the point at this stage, but I shall return to it in a moment—that in the original report by the Select Committee it was suggested that local authorities should support those leaving care: In the manner of a good parent". That was the kind of support that was being discussed there. However, when in setting up the interdepartmental working party on child care law, we came to consider the point, and what we should do, the alternative approach which particularises the nature of the support and uses the word "befriend" was favoured. I must say that I find it difficult to understand how you can befriend anyone in anything other than a friendly manner. Surely there is a warmth already included in the clause in that way. I think that perhaps my noble friend Lord Mottistone was not conveying the full effect of the clause.

I agree that it is possible to give advice in an unfriendly manner and even, possibly, to help someone in an unfriendly manner. But when it comes to "befriending" someone, I think that that word does give the impression which we want. It is not too paternalistic. After all, these people are growing up and leaving care. They do not want to be, as it were, overborne by a paternalistic figure. It is a figure of friendship and support, the hand of friendship, that is required. That is what the clause provides for. I must say to Members of the Committee that that is a very good standard and a very apt way of describing the matter.

I think that if most young people read this legislation they will understand what is meant by the word "befriend" or what it means to have a friend. In fact, in view of their history, they may well understand the meaning better than the idea of a good parent, because, sadly, they did not, in some cases—although not all—have full experience of good parents and that is why they got into their present situation. Therefore it is important to talk to them and about them, treating them as people, in language that they can understand. I commend to Members of the Committee the approach that the Bill has taken.

Again, in relation to that aspect, I spoke previously about the phrase: In the manner of a good parent". The point I was making then was quite different from the one which I am making now. If I remember rightly, the amendment in which that phrase occurred was one moved by my noble friend Lord Mottistone. I took the view then that it was the subject matter that was in question rather than the manner in that particular case. The amendment dealt with children in need and I took the view that what was required was a definition of the scope of the subject matter. In other words, the phrase, In the manner of a good parent", describes the manner of looking after them rather than defining the subject and for that reason it was inappropriate. However, this is a different point altogether.

I think that noble Lords may have slightly overlooked the provision contained in subsection (1) of Clause 20. Perhaps the most critical time is when the child is leaving, or about to leave, the care of the local authority. The subsection provides that, Where a child is being looked after by a local authority, it shall be the duty of the authority to advise, assist and befriend him with a view to promoting his welfare when he ceases to be looked after by them". So that is imposing upon local authorities, I think for the first time, a general duty of this kind when the child is about to leave them. The right time must be when the child is still with the local authority but is coming to the end of the care period. Therefore that duty rests upon them. If anyone were going to be a good parent one would have thought that it would be the local authority which had looked after the child. That is what Clause 20(1) deals with.

Subsection (3), with which we are dealing in this amendment, is not quite directed towards that situation. It deals with a situation where a person who has been in care, or who has been looked after, has come into an authority's area. The authority may be the same. The young person may be in a local authority's area after the period of care has expired. We all know that people may be in care in one authority's area and move to another. Subsection (3) covers that situation. That is done by defining in subsection (2) that, 'a person qualifying for advice and assistance' means a person within the area of the authority who is under twenty-one and who was, at any time after reaching the age of sixteen but while still a child— (a) looked after by a local authority". Paragraphs (b), (c) and (d) are then set out.

That is the new situation after termination of care. We are providing here for where a child—I take it as the case that throws up most significantly the difference—has been with one authority and is now in the area of another. That new authority and, of course, if it is the old authority, the old authority, "shall advise and befriend him". That is a continuing situation basically after the age of 16 and before 21. There is a continuing duty to advise and befriend such a person if he was being looked after by a local authority or was accommodated by, or on behalf of, a voluntary organisation. In any other case—in other words, if he was looked after by some other body—it is a power to advise and befriend.

The conditions required to be satisfied are that, it appears to the authority that the person concerned is in need of advice and being befriended". The provision does not mention anything about assistance. One could well have a person who did not require assistance. There may be someone who has sufficient resources but who requires advice and friendship such as the young man who was fortunate enough to meet my friend on Magdalen Bridge on Christmas Day. He was fortunate to have a friend and he could obviously do with some assistance. I was unable fully to follow the detail as to whether the assistance was in kind or cash, but I feel sure that it was generous assistance all the same. That is the type of situation that is being dealt with.

We are not now at the stage of the child who is about to leave care; we are at the later stage. What is said in effect is that if the person was in local authority care there is a duty on the local authority in whose area he is for the whole time until he is 21 to advise and befriend him. If he is in any case other than those covered, the local authority has a power to advise and befriend him.

I shall be moving an amendment to subsection (4)(b) to make clear that it relates to where a child is not looked after by a local authority. Then subsection (5) provides: Where as a result of this section a local authority are under a duty, or are empowered, to advise and befriend a person". That relates to subsection (3), the later stage. Where there is a power to advise and befriend, the local authority also has the power to give the person assistance. The Committee will notice that there is no condition that he requires assistance; so it seems appropriate that in such a situation it should be a power and not a duty to give assistance. That is a drafting point. The draftsman is making a distinction, properly, between the first branch of what comes after Clause 20(3)(c) and the second branch. It is difficult to get assistance properly into that, so the draftsman has provided separately for the assistance where that assistance is vested in the local authority.

There is a duty to assist at the stage at which a child is leaving care. After that, it is a duty in respect of qualifying people to advise and befriend, coupled with a power to give assistance. I submit that that is appropriate. I may be wrong but I rather think that the amendment was put on the basis of the original leaving of care. That is of course an important time. But is is dealt with in subsection (1) where the duty is imposed.

I come now to the exceptional circumstances. The real point is to make it necessary for the local authority to consider the particular circumstances before giving cash; otherwise that power might be seen as part of the social security system. That would be wrong and inappropriate. I hope that my noble friend will see that that phrase—one might think of other phrases—or something like it is necessary to ensure that assistance in cash is appropriately targeted and is not an ordinary regular payment that one would receive under the social security system.

I hope that in the light of the considerations I have put forward the Committee will feel that these amendments, although I fully understand the spirit of them, may not be necessary and that the Bill as it is effectively deals with the matter. It is a new area. I must emphasise that we are taking a considerable step forward. It has been taken with a good deal of thought. While I can see that anything one does may be improved upon. I should like the Committee carefully to consider whether in the particular circumstances to which it is directed, the amendment is an improvement.

5.15 p.m.

Lord Donaldson of Kingsbridge

I should like further explanation as to why the noble and learned Lord has an objection to describing such behaviour as, in the manner of a good parent". He has, in a most interesting way, explained why what he is saying is what he means. However, if one adds a certain aspect to that, does he take the view that one is damaging the provision or that one is being sentimental, contradictory, or what? I have not heard one reason, although I listened with great care, to suggest that the amendment would not improve each of the three stages.

The Lord Chancellor

I tried to point out that, in the manner of a good parent is used as an omnibus description of all that has to be done. It was felt by the interdepartmental working group, I understand—I have given the Committee some references—that some precision was required in this area. What would a good parent do? A good parent would advise; a good parent would offer friendship; a good parent would offer assistance if it were necessary, or give assistance when the person first sets out in life. So instead of saying, "You do what a good parent does", you say, "This is what you do". It is not necessary to say both. It is duplication.

I think, and it is a point of view that attracts me, that one must be careful about getting the matter at the right level. Friendship is a good level. To include in the manner of a good parent does not add anything. The provision is not directed merely to social workers; it is directed to the young people. I hope that the young people who are affected by the provision will read and understand it. I believe that they will understand it well. To many of them, in the manner of a good parent. sadly will not be something of which they have had much experience. Some people are in care for reasons which have nothing whatever to do with their parents' deficiencies. I do not wish to make an omnibus statement about that. But as regards many, it will be so. In a sense that is rubbing in the loss that they have suffered. One also has to be careful about that. On the whole at the moment I tend to prefer what the interdepartmental working group recommended, looking at it in the light of the Select Committee's report. I hope that the Committee feel that it is not so bad after all.

Lord Campbell of Alloway

Perhaps I may ask my noble and learned friend the Lord Chancellor a short question. If he says, "Well, it really does not mean anything", but on all sides of the Committee we thought it did—and some of us, including myself, still think so—does it matter if we put it in?

Lord Mottistone

I must say that speaking as, I hope, the "good parent" of Amendment No. 102, I find my noble and learned friend's arguments most persuasive on all points. I do not know whether the people who advised me will find that; but my inclination would be not to pursue this further and perhaps to come back to it at a later stage if that were necessary.

Baroness David

My inclination is not the same. I have listened very carefully to what the noble and learned Lord has said. I do not think he has addressed himself enough to the situation that exists at the moment and the practical problems of these young people. They really need the assistance.

I have looked very carefully at the point. I agree with the noble Lord, Lord Henderson, that we are very glad to have Clause 20. It is a great improvement on what existed before. However, I do not think it goes far enough in the circumstances that we have today. When the social services report came out in the Commons in 1984, we did not have the present social security legislation depriving these young people aged 16 to 25 of the financial assistance that they received before. We are in a very different kind of game, and I think we must give the local authorities the opportunity to assist. I know it is there in subsection (5) that they may give assistance. I think that the amendment makes it more positive and I like that.

With all the support that I have received from around the House, the number of people who have spoken and who have liked the amendment has been remarkable. As the noble Lord, Lord Campbell, said, what harm would it to do put it in the Bill? It would probably do a great deal of good. In this case I should like to test the opinion of the Committee.

The Lord Chancellor

I think that my noble friend Lord Campbell of Alloway was referring to "in the manner of a good parent". Regarding the duty, the point I make is that for a person to qualify there is no requirement that he should be in need. I quite concede the point that I may be entirely wrong. I do not claim infallibilty; but I do claim to have carefully considered the difficulties with which this provision is designed to deal. I have sought to set out my consideration of those. However, there is no qualifying condition that the person must be in need. He has to require friendship and assistance; but there is no necessity, in order for him to be subject to the duty, that he should be in need. He must be in need if there is to be a duty implied to require assistance. If the amendment implies a duty to assist, it may well involve a duty to assist people who have no need of such assistance. Not every person who has been in care between the ages of 16 and 21 has the need for financial assistance. Some do and some do not.

Baroness David

If I may say so, the phrase, "in the manner of a good parent" gets round that problem completely. A lot of parents do not assist their children if the children are doing all right. Why should a local authority assist with cash if the child is doing all right? I think that "assist him in the manner of a good parent" gets it just about right.

Lord Campbell of Alloway

When speaking broadly of assistance, one cannot talk of assistance unless there is a need for it. The very use of the term "assistance" presupposes surely that there is a need. As the noble Baroness on the opposite Benches says, "in the manner of a good parent" qualifies the matter in any event.

The Lord Chancellor

I am sorry, I do not wish to take up time unnecessarily on this. Obviously if the noble Baroness wishes to press the point, then she is by all means entitled to do so. All I am saying is that there is no necessity, in order to qualify under this clause, that one should be in need. If to have a duty to assist "in the manner of a good parent" means that one need not assist, then I am not sure that we are improving the clarity of the Bill. However, those are matters for the noble Baroness to consider.

Lord Simon of Glaisdale

I am quite sure that it is my fault, but as so often happens when one discusses a number of related amendments, I am not clear in my mind on which amendment the noble Baroness, Lady David, is inviting us to vote.

Baroness David

It is Amendment No. 101.

5.25 p.m.

On Question, Whether the said amendment (No. 101) shall be agreed to?

Their Lordships divided: Contents, 110; Not-Contents, 114.

Addington, L. Kirkhill, L.
Airedale, L. Kitchener, E.
Ardwick, L. Lawrence, L.
Attlee, E. Listowel, E.
Aylestone, L. Lloyd of Kilgerran, L.
Banks, L. Lockwood, B.
Blackstone, B. Longford, E.
Blease, L. Lovell-Davis, L.
Blyth, L. McGregor of Durris, L.
Bonham-Carter, L. Mackie of Benshie, L.
Brooks of Tremorfa, L. Macleod of Borve, B.
Bruce of Donington, L. McNair, L.
Campbell of Alloway, L. Mais, L.
Carmichael of Kelvingrove, L. Mar, C.
Chitnis, L. Mason of Barnsley, L.
Cledwyn of Penrhos, L. Meston, L.
Cocks of Hartcliffe, L. Milner of Leeds, L.
Craigavon, L. Mishcon, L.
David, B. Mulley, L.
Davies of Penrhys, L. Murray of Epping Forest, L
Dean of Beswick, L. Nicol, B. [Teller.]
Donaldson of Kingsbridgc, L. Oram, L.
Dormand of Easington, L. Peston, L.
Elwyn-Jones, L. Phillips, B.
Ennals, L. Pitt of Hampstead, L.
Erroll, E. Ponsonby of Shulbrede, L. [Teller]
Ewart-Biggs, B.
Ezra, L. Prys-Davies, L.
Falkender, B. Rea, L.
Fisher of Rednal, B. Robson of Kiddington, B.
Flowers, L. Rochester, L.
Foot, L. Rugby, L.
Gallacher, L. Russell, E.
Galpern, L. Seebohm, L.
Gladwyn, L. Sefton of Garston, L.
Glenamara, L. Serota, B.
Graham of Edmonton, L. Shackleton, L.
Gregson, L. Shaughnessy, L.
Grey, E. Simon of Glaisdale, L.
Hampton, L. Stallard, L.
Hanworth, V. Stedman, B.
Harris of Greenwich, L. Stewart of Fulham, L.
Henderson of Brompton, L. Stoddart of Swindon, L.
Hughes, L. Taylor of Blackburn, L.
Hylton, L. Taylor of Gryfe, L.
Hylton-Foster, B. Taylor of Mansfield, L.
Irvine of Lairg, L. Thurlow, L.
Irving of Dartford, L. Tordoff, L.
Jacques, L. Turner of Camden, B.
Jay, L. Wallace of Coslany, L.
Jeger, B. Whaddon, L.
Jenkins of Hillhead, L. White, B.
Kagan, L. Williams of Elvel, L.
Kilbracken, L. Winstanley, L.
Kilmarnock, L. Winterbottom, L.
Kinloss, Ly.
Abinger, L. Bruce-Gardyne, L.
Airey of Abingdon, B. Butterworth, L.
Aldington, L. Caithness, E.
Alexander of Tunis, E, Caldecote, V.
Alexander of Weedon, L. Campbell of Croy, L.
Allenby of Megiddo, V. Carnegy of Lour, B.
Allerton, L. Carnock, L.
Ampthill, L. Carr of Hadley, L.
Arran, E. Cathcart, E.
Ashbourne, L. Constantine of Stanmore, L
Auckland, L. Cork and Orrery, E.
Belhaven and Stenton, L. Cottesloe, L.
Belstead, L. Cranworth, L.
Bessborough, E. Dacre of Glanton, L.
Blatch, B. Davidson, V. [Teller.]
Broxbourne, L. Denham, L. [Teller.]
Derwent, L. Montgomery of Alamein, V
Dilhorne, V. Mottistone, L.
Dundee, E. Munster, E.
Elibank, L. Murton of Lindisfarne, L.
Ellenborough, L. Nelson, E.
Elliot of Harwood, B. Newall, L.
Faithfull, B. Norfolk, D.
Fanshawe of Richmond, L. Nugent of Guildford, L.
Ferrers, E. Orkney, E.
Ferrier, L. Orr-Ewing, L.
Gainford, L. Oxfuird, V.
Gardner of Parkes, B. Pender, L.
Gisborough, L. Portland, D.
Glenarthur, L. Reay, L.
Gray of Contin, L. Renton, L.
Greenway, L. Renwick, L.
Gridley, L. Rippon of Hexham, L.
Grimston of Westbury, L. Rochdale, V.
Hailsham of Saint Romney, E.
Marylebone, L. St. Davids, V.
Halsbury, E. St. Germans, E.
Harmar-Nicholls, L. Saltoun of Abernethy, Ly.
Harvington, L. Sanderson of Bowden, L.
Henley, L. Savile, L.
Hesketh, L. Selborne, E.
Holderness, L. Shannon, E.
Hooper, B. Skelmersdale, L.
Hunter of Newington, L. Stodart of Leaston, L.
Johnston of Rockport, L. Strange, B.
Kaberry of Adel, L. Suffield, L.
Lauderdale, E. Swansea, L.
Loch, L. Swinton, E.
Long, V. Terrington, L.
Lurgan, L. Teynham, L.
Lyell, L. Thomas of Gwydir, L.
Mackay of Clashfern, L. Trafford, L.
Malmesbury, E. Trefgarne, L.
Margadale, L. Vaux of Harrowden, L.
Marley, L. Wise, L.
Merrivale, L. Wyatt of Weeford, L.
Middleton, L. Young, B.
Monk Bretton, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.34 p.m.

[Amendment No. 102 not moved.]

The Lord Chancellor moved Amendment No. 103: Page 16, line 26, after ("(b)") insert ("where that person was not being looked after by the authority,").

The noble and learned Lord said: This is an amendment to paragraph (b) that we were considering a moment or two ago. Its purpose is to clarify the intention of this provision—Clause 20(4)(b)—which sets out one of the conditions for a local authority to advise and befriend children who have been but are no longer being looked after by a voluntary organisation, a registered children's home or a private foster parent.

We wish to make it clear that a local authority should inform itself of any services and facilities that another local authority may be providing before it provides services and facilities under this clause as all local authorities will have statutory powers and duties placed on them by this Bill.

This provision is also intended to ensure that local authorities will advise and befriend the young person only if the person—namely a voluntary organisation or a registered children's home—who had the primary responsibility for looking after the child does not have the necessary facilities to do so. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 104 and 105 not moved.]

Lord Prys-Davies moved Amendment No. 106: Page 16, line 33, at end insert— ("6A) Any assistance given in cash or in kind under subsection (6) above shall not count as income in respect of any benefits payable under Part II (Income Related Benefits) of the Social Security Act 1986.").

The noble Lord said: The objective of this amendment is to probe the Government's intention as to how cash assistance given by local authorities to a young person leaving care is to be treated by social security officials. Cash assistance will be given when social services departments consider that income support will be inadequate for a young person's needs.

However, if social security officials then treat the cash assistance as income in the assessment of entitlement to income support, the income support will be reduced. In that situation cash assistance given by local authorities because of special circumstances they will have to be satisfied that special circumstances exist—will be of no use. I understand that in some parts of the country payments which are currently made under Section 27 of the Child Care Act 1980 are being treated as income in the assessment of entitlement to income support. So each £1 of income support given by a local authority will result in the social security department reducing its benefit by £1. For each £1 of housing benefit paid by a local authority, 85 pence is withdrawn from the social security benefit.

One very much fears that that precedent will apply to cash payments made by local authorities under this legislation. The intention of the amendment is to probe the Government's intention. Is it intended that the support given by social security will be reduced because the young person has received assistance from a social services department? I beg to move.

The Lord Chancellor

As I understand it, the purpose of this amendment is to ensure that when a local authority provides a young person with assistance under subsection (6), be it in kind or cash, such assistance is disregarded for the purpose of calculating entitlement to benefit payable under Part II of the Social Security Act 1986. That is the part of the Act which deals with the income related benefits: income support, housing benefit and family credit.

While I recognise the concern about the issue, I do not consider that it is appropriate in this Bill to be introducing changes which affect the principles and application of policy under social security legislation, which is the responsibility of my right honourable friend the Secretary of State for Social Security. I said in relation to matters debated under Amendment No. 70 that I would draw noble Lords' concerns to the attention of my right honourable friend.

I shall give my understanding of the provisions of Sections 27 to 29 of the 1980 Child Care Act to which the noble Lord, Lord Prys-Davies, has referred. There is no specific rule covering those payments in the income-related benefits legislation; nor was there before April 1988. Because they are made at the discretion of local authorities they are covered by the normal rules relating to voluntary payments. As such, local authorities have considerable flexibility to help young people who have been in care without affecting the level of benefit being paid.

For example, I understand that the first £5 of regular payments is normally disregarded so that a local authority could provide an income of up to £5 a week without benefit being reduced. In addition any payments for housing or accommodation costs not met by income support or housing benefit are disregarded in income support, and payments in kind (a subject of the amendment) are completely disregarded in all income-related benefits.

A further easement introduced from 12th December 1988 means that any one-off payments are treated as capital and will not affect benefit unless they take any existing capital above £3,000. I do not think that that is a situation which is likely to arise in the matters being contemplated here. That enables a local authority to make a lump sum payment, if necessary, to meet an exceptional need without affecting income-related benefits. The same principles will apply to assistance from local authorities under Clause 20(6) of the Bill.

That is the information that I have been given, and I believe that it answers the question which the noble Lord raised in connection with the amendment.

Lord Prys-Davies

As I see it, there remains a possible conflict between the local authority social service department and the application of the social security legislation. We should have thought that this would be an opportunity to seek to resolve that possible conflict. It would be helpful if the noble and learned Lord the Lord Chancellor would be good enough to draw the attention of his right honourable friend to that possible conflict and ensure that some guidance is issued so that the payments made by the local authorites do not automatically reduce the level of income support that will be paid by social security.

Baroness Faithfull

Perhaps I may intervene briefly to say that the Secretary of State for Social Security has agreed to accept a deputation from statutory and voluntary bodies on this very matter. That meeting will take place in a fortnight's time and arises from the discussion of the amendment which was moved by the noble Baroness, Lady David, in an earlier session of the Committee.

Lord Prys-Davies

In the circumstances I do not propose to press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Prys-Davies moved Amendment No. 107: Page 17, line 4, at end insert— ("(10) The local authority shall ensure that these children and young people are aware of the assistance which may be given to them by the local authority under the terms of this section.").

The noble Lord said: As my noble friend Lady David pointed out when she spoke to Amendment No. 101, in England and Wales about 8,000 young people leave care at the age of 18 and have to make their own way in society. I do not know how many young people leave care at the age of 16 or 17. It may be said of the vast majority of those young people that they are the children of the poor and that there is much homelessness, unemployment and poverty affecting that section of society. There is plenty of evidence to show that those young people are faced with immense difficulties.

We say that against that background the local authority should be under a duty to ensure that the young people leaving its care are aware that the local authority may be a source of assistance to them. The onus for offering and giving information, advice and support should be on the local authority. It should not be for the young people to seek out that information. I accept that the clause in the Bill is helpful, but we believe that our amendment should be accepted because it places a firm responsibility on local authorities to seek out the young people and give them the advice which they need. I beg to move.

Lord Mottistone

Having read this excellent clause very thoroughly, it seems to me that the particular point covered by the amendment is omitted from the clause as it now stands. There is a great deal to be said for the new proposed subsection (10) which would round off the clause and make sure that the local authority takes the extra trouble that the amendment implies.

The Lord Chancellor

I would not think that there is any difference between us on this matter. However, again there are two stages to the question and I am not certain which stage is dealt with by the proposed subsection (10).

As I said earlier, the local authority which is looking after the child has a duty to advise, assist and befriend him with a view to promoting his welfare when he ceases to be looked after by the authority. That is a duty which applies at the time when the care is coming to an end. I should have thought that that would include giving all the necessary information as to what assistance the local authority can provide and that must be an integral part of the process.

The situation relating to young people who have been out of care for some time is more difficult. I suspect that it is those people with whom the amendment is concerned in particular. Under Clause 20(8) there is a duty on the local authority in whose care the child has been to inform the authority into whose area the child has moved. It may not be very easy for the new authority to fulfil the obligation imposed on it.

If the noble Lord is willing to accept it, I should be very happy to look at the matter further. Perhaps he would also be kind enough to look at it further, because I think that there may be a more difficult problem than at first sight appears. I think that the main issue will be catered for at the time the child leaves the care of the local authority. At that time the local authority should give the child all the information and advice about the services he or she could look for, either in the area of that authority or in the area of any other authority to which the child may move. If the noble Lord will accept that suggestion, I should be very happy to look at the question further. Perhaps we could have a word about the matter in the meantime.

Baroness David

Perhaps I may say a word about First Key, which I believe is the only specialist national organisation which deals with the problems associated with young people leaving care. First Key says that: During the past 5 years or so in the course of work on this topic neither First Key nor other concerned organisations know of more than a handful of individuals who have approached a local authority social service department for the help and assistance which may be available to care leavers under the terms of current legislation". Therefore there is a need for such information to be made available to young people. I think that it is an important matter and I am glad that the noble and learned Lord will be looking at it. But I think that First Key could provide more information if it is wanted.

Lord Mottistone

Perhaps I may say to my noble and learned friend that I do not think necessarily that subsection (1): with a view to promoting his welfare when he ceases to he looked after by them would be taken by every local authority necessarily to mean that it would include informing him about all the aid that he might receive later on quite apart from stage two, which is obviously more difficult. I think that it is jumping to something of a conclusion to assume that from that wording, which is very general and rather more caring than practical, if you like. It does not in fact say that this will include telling the person when he leaves that all the following sets of resources are available to him from local authorities wherever he may go, as the proposed subsection (10) sought to do.

When my noble and learned friend looks again at this point, perhaps he would think about whether subsection (1) is wide enough to cover what this amendment seeks to do.

Lord Simon of Glaisdale

I confess that I may still be confused as I was over the last amendment when I thought that the noble Baroness, Lady David, was addressing her remarks—as indeed other Members of the Committee were doing—to cash assistance. When I read this amendment I thought that it related to cash assistance; but as the Committee has now rejected Amendment No. 101. assistance under this amendment is not limited to cash assistance. Indeed, it refers back to subsection (1) of Clause 20. Perhaps that point could be considered by my noble and learned friend and by the noble Lord, Lord Prys-Davies, when they give further thought to this matter.

Lord Prys-Davies

The 10 organisations that have written to us in support of this amendment tell us of the difficulties experienced by young people in ascertaining their entitlement to benefits and services. I am very grateful for the response of the noble and learned Lord the Lord Chancellor, and certainly we shall return to these organisations for further guidance as to how we can possibly improve and indeed perfect the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20, as amended, agreed to.

Clause 21 [Use of accommodation for restricting liberty]:

Lord Campbell of Alloway moved Amendment No. 107A: Page 17, leave out lines 10 to 15 and insert ("that if he is kept in any other description of accommodation he is likely to injure himself or other persons or suffer significant harm").

The noble Lord said: In introducing this amendment, with the leave of the Committee I should also like to speak to Amendment No. 107C, which is grouped with it. The amendments are tabled at the request of a charitable institution concerned with the welfare of children. I owe the Committee a brief explanation because my name stands against the Motion which follows these amendments; namely, that Clause 21 do not stand part of the Bill. It is not my intention to move the Motion that Clause 21 do not stand part of the Bill. Clause 21 cannot stand part if the principle of Amendment No. 52, which is concerned with secure accommodation, is accepted.

My noble and learned friend the Lord Chancellor has undertaken to look into the matter of principle as to whether that concept should be removed from Part III and placed in Part II of the Bill. It is a complicated matter and I am pleased to see the noble and learned Lord, Lord Elwyn-Jones, in his place because he was concerned with these considerations and understands that it is a complicated matter. Therefore while it is under consideration—and my noble and learned friend has written to me but I have not yet received the letter—I shall not oppose the Question that Clause 21 stand part of the Bill.

Therefore as Clause 21 is in a state of suspended animation, the reason why I have tabled Amendment No. 107A is to ensure by this form of words that secure accommodation would not be available for children who needed treatment in the form of a punishment. It should only be available if strictly necessary.

Perhaps I may quote from a letter that I have received from the charity to which I referred. It says that in their experience—and of course at is not my experience but theirs: those in secure accommodation are often amongst the most abused—abused by their own families and by the system. Children in care sometimes run away—the phrase used by social workers and the police is 'abscond'—simply because of the appalling circumstances surrounding their life. The current law relating to secure accommodation allows running away—absconding—to be used to justify locking children up in secure accommodation. These children need help, not punishment. Running away should not be grounds for a secure accommodation order". Those are precisely the sentiments that were expressed by my noble and learned friend the Lord Chancellor who, when speaking to another amendment, said that in no circumstances should secure accommodation be used as a punishment.

This is a probing amendment to discover whether it commends itself to the Committee as a preferable form of words in order to achieve our common object. That is all that it is.

Amendment No. 107C speaks for itself: No court shall exercise the powers conferred… unless… [the child] is represented by a guardian ad litem". The Committee may think that that is a reasonable provision. But, as before on Amendment No. 52, on this very difficult matter of secure accommodation, with the greatest respect I canvass the views of the Committee. I beg to move.

Lord Mishcon

I wonder whether again we should try to clarify our minds on a very important matter. Anything that relates to a youngster in secure accommodation must immediately evoke the attention and consideration of all Members of the Committee. I had understood, perhaps quite incorrectly, that a history of absconding was not a history of absconding from a home of ill-treatment or school where the youngster was not understood. It may be that I was quite wrong, and I am sure that the noble and learned Lord will enlighten me on this point when he comes to address the Committee; but I took it for granted that a history of absconding meant absconding from local authority institutions. That is how I understood it.

The reason therefore for having to put a youngster into secure accommodation was that there had been a history of absconding from local authority places of an alternative kind; or indeed it might even have involved absconding from foster parents into whose care the youngster had been placed. A youngster was not put into care as a result of absconding from his own home. And the fact that if he absconds he is likely to suffer harm is a conjunctive and not an alternative reason. Therefore my reading of the matter was as follows. Not only does he have to have a history of absconding from places where it would have been for his benefit to remain, but also it is thought that he is likely to suffer harm as a result of absconding again. If that interpretation is right, has the noble Lord, Lord Campbell of Alloway, the same sentiments that he had when addressing us on this amendment?

Lord Campbell of Alloway

It is difficult for me to answer directly as I would wish to do as always because I have no personal experience of the matter. That is why I took the rather exceptional course for me of quoting a letter and disclosing to Members of the Committee that I put this before noble Lords at the specific request of a charity concerned with the welfare of children. In doing so, I should like to pay tribute to my noble friend Lady Faithfull for convening the all-party conference at which the representative from this association contacted me.

I am afraid that I cannot assist the noble Lord. I understand completely my Amendment No. 52 on which I spoke in moving it. That is under consideration. However, it would mean that Clause 21 does not stand part. Clause 21 would go and the provisions would appear elsewhere in the Bill in another and more general form.

6 p.m.

Baroness Faithfull

We are in difficulty here because this is very much a question of social work practice. I know of one child who absconded 10 times. I said to him, "If you abscond once more we shall not look for you. We shall make no effort to get you back." He absconded and was knocked down by a car. Noble Lords can imagine how I felt. I felt that I ought to have kept him in secure accommodation.

It is the luck of the game. My difficulty is this. It depends on the individual case, the individual circumstances, and on meeting the needs of the individual child. It may be rather restrictive to follow the recommendation of the noble Lord, Lord Campbell, and take these words out of the Bill.

The Lord Chancellor

The history that has been given to my noble friend by the charity may not be sufficiently related to the law in the matter. The secure accommodation regulations are not all that ancient. There may be some problem about that. With regard to these regulations, and the provision is repeated in the Bill, a child is not to be held in secure accommodation for absconding—not at all—and still less for absconding from home. The situation is that he is likely to abscond from any other description of accommodation. In other words, short of secure accommodation, there is nowhere that we can keep this child safely. We have no other accommodation, however attractive, beautiful or homely, from which he is not likely to run. That is the first point. One must consider all the other accommodation that the local authority can provide for the child.

The second point is this. It was emphasised by the noble Lord, Lord Mishcon. If the child absconds he is likely to suffer harm. In other words, the provision of secure accommodation is not a punishment but a protection against his doing harm to himself for example, by running away and then suffering harm in the manner to which my noble friend referred.

Amendment No. 107A may have the effect of making secure accommodation more available. It would delete a very important condition for the use of secure accommodation. The point has been illustrated vividly in the example that my noble friend Lady Faithfull has given. I certainly could not accept this amendment. I know that my noble friend is only probing on this point.

On Amendment 107C, I am inclined to think that where secure accommodation and a child's liberty are in question, where the child has a point of view it ought to be possible for the child to express that view through a representative of his choice. The mere existence of a guardian ad litem, however useful, might not be the right course in that situation.

In these circumstances I hope that my noble friend will feel able to withdraw the amendment. I repeat what I said. I am looking carefully at the points that he made in relation to Amendment No. 52.

Lord Campbell of Alloway

I am most grateful to all Members of the Committee who have spoken and in particular to my noble and learned friend the Lord Chancellor. I know that the charity concerned will be relieved to be able to study the contributions of Members of the Committee and to understand that their very real fears are not realistic or justified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 107B: Page 17, line 26, at end insert— ("( ) provide that in any application made under this section in respect of a child who is a ward the child is a full party to the proceedings in his own right and has the opportunity to instruct a lawyer of his own choosing.").

The noble Baroness said: This amendment is to ensure that wards of court have a fair hearing in accordance with the European Convention on Human Rights before they lose their liberty by being put into secure accommodation under Clause 21.

In 1982, after pressure in the House of Lords, the Government took advice from the Attorney-General on the use of secure accommodation in the care system. He confirmed that the existing procedure whereby young people in care had no court hearing on deprivation of their liberty might indeed constitute a breach of the European Convention on Human Rights. Article 5 of the convention provides that everyone deprived of liberty shall have the lawfulness of their detention "decided speedily by a court". Article 6 defines this as a fair and public hearing. Cases on this point have determined that a fair hearing includes the right to a lawyer of choice.

The Government therefore used the 1982 Criminal Justice Act to insert Section 21A into the Child Care Act 1980. This secured that all young people in care could be locked up only under strict conditions set out in Clause 21(1) of the Bill and that after 72 hours authorisation should be sought from the juvenile court. This left wards in local authority care in an anomalous position. With regard to wards the authority had to seek permission from the High Court for any change in their placement including a placement in secure accommodation. With a young person in care, the authority also had to have permission from the juvenile court. This meant that there had to be two separate hearings—an admittedly cumbersome process.

The Government came under pressure from the High Court judges. They had expressed disapproval of a situation where their jurisdiction could be superseded by the juvenile court which could veto an order that the ward be locked up. Local authorities were also protesting about all the legal legwork needed to lock up wards.

Therefore, in 1986 the Secure Accommodation (No. 2) (Amendment) Regulations came into force. These provided that wards be locked up only pursuant to the direction of a judge exercising wardship jurisdiction. This meant that local authorities could not lock up wards on their own initiative, not even for the first 72 hours, and that permission need no longer be sought from the juvenile court.

The provision also had more sinister implications. Although judges were still bound by the criteria set out in Section 21A of the 1980 Act, they were not in the passive role of the juvenile court, simply agreeing to an application. They were in a position to order the ward to be locked up. Moreover, juvenile courts could authorise this only for a maximum of three months followed by six-monthly renewals. The High Court was not bound by these time limits and could order indefinite deprivation of liberty. It was also exempt from the need to gain the Secretary of State's permission to lock up those under 10 years. The new regulations also meant that the local authority could not release a ward even when the conditions ceased to apply. Permission had first to be sought from the High Court. Perhaps most serious of all, wards were to be denied the right to a fair hearing.

Wards of court are not necessarily even parties to their own cases. When they are, they are represented through a guardian ad litem who by practice direction of the court is normally the Official Solicitor. The Official Solicitor, unlike other solicitors in secure accommodation cases, is not under a duty to act on his client's instructions. He sees his duty as conveying the ward's wishes to the court, but advocating the ward's best interests may be seen by him as being quite different from the ward's wishes. The ward will not be present in court when this is done.

At the time these regulations were made, the Children's Legal Centre pressed that wards of court, like all others in care, should at least have the right to instruct their own lawyers. Although the Department of Health and the Lord Chancellor's Department recognise the centre's concern, the only safeguard was the issuing of a practice direction. Before locking up a ward the court should, unless the ward is already represented by a guardian ad litem or there are special reasons why the ward should not be represented, join the ward as a party to the proceedings and appoint a guardian ad litem to protect his interests and ensure that his views are made known to the court.

Local authorities were also advised in the circular to draw this to the attention of the court and to consider someone other than the Official Solicitor being appointed as guardian ad litem. None of this overcomes the problem of the ward. Even if joined as a party and represented by a guardian ad litem the ward would not have adequate legal representation.

The Children's Legal Centre has already encountered one case where the ward did not wish to be locked up but was represented by the Official Solicitor, who recommended that she be locked up. It is also currently making an application to the European Court of Human Rights on behalf of a ward who has been locked up for 24 months, without even being made a party to his proceedings, contrary to the practice direction and circular, neither of which has mandatory force. Given this case the Government may agree to accept this amendment, or they may prefer to put forward their own. If the UK has been in breach of the European Convention in this matter it is very important that it takes steps to remedy the law. To refuse this opportunity to remedy the breach would be deplorable.

The amendment does not solve the problem as to how wards should have a fair hearing, whether this be by reinstating the juvenile court application or by changing High Court procedures. This can be done through rules of court by government. As it stands, Clause 21 is technically flawed in relation to wards. Subsection (7) provides that the court shall exercise powers to lock up children in care only if a child is legally represented, unless he was not eligible for or refused legal aid. I understand that wards cannot have legal aid. The equivalent provision under Section 21A of the 1980 Act placed only juvenile courts under this duty. The words "juvenile court" were changed to "court" because of the Bill's introduction of concurrent jurisdiction. Where wards are concerned they cannot apply for legal aid and are not legally represented.

The Government may argue that the Official Solicitor legally represents wards. The reply is, first, that there is no guarantee that the Official Solicitor will be appointed. Secondly, and more importantly, the Official Solicitor is not a child's legal representative because he will not take instructions from the child. I am sure the Committee will agree that there is a real problem here. I hope that if the noble and learned Lord cannot accept that wording of the amendment he will accept the importance of the points made and make a commitment to come back with his own amendment at Report stage. I beg to move.

6.15 p.m.

Lord Campbell of Alloway

Surely there are two questions. The first is that of legal representation—I am looking at the amendment—and the second is whether a child is a full party, whatever that may mean. The first question surely is met by Clause 21(7): No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court". Whether a child is a ward or not, that is all-embracing. The other question is whether the child mentioned in the amendment is a full party. On the assumption that he is, or would be by some rules of court, under Clause 21(7) he would be legally represented.

On these assumptions it is not quite understood—at least, I do not understand—how there could be a breach of the Convention on Human Rights as regards representation. I spoke to this point on Second Reading, but not in this context. I am sensitive to the fact that, as I said on Second Reading, the child should be a full party, that he should be represented by a lawyer of his choice. I hope that when my noble and learned friend the Lord Chancellor enters into consideration in depth of the principle involved in Amendment No. 52, which stands in substitution for this clause, he will accept that I accept that the Official Solicitor is not the appropriate representative but that the client should have a lawyer of his own choice.

Be all that as it may. I do not quite see why the amendment is necessary and, moreover, why it cures the possible taint of a breach of the Convention on Human Rights.

Lord Meston

I have to admit that I have never come across the problem which was identified by the noble Baroness in explaining the amendment. I felt considerable surprise when she suggested to the Committee that the wardship jurisdiction had been effectively eroded to the extent she suggested. But if there is a problem it must be addressed, though I am by no means sure as to the scale of the problem. In the vast majority of cases, in particular those cases in which there is any apparent difficulty, the ward will be a party to the proceedings. He will be joined. It is almost automatic nowadays and in the vast majority of cases the ward will be represented by the Official Solicitor as his or her guardian ad litem.

As the noble Baroness said, there is no guarantee of that. Perhaps she is right to press that there should be. It also surprised me when she suggested that there were circumstances in which somehow the wardship jurisdiction was superseded by the juvenile court jurisdiction. It has always been my understanding that it was precisely the other way round.

Baroness David

That has been superseded and is not the position now.

Lord Meston

That is what I understood her to go on to explain, and certainly that is right. But be that as it may; it is still a surprising proposition.

The other factor, and one thing that is certain about wardship jurisdiction, is that any move in the placement of the child has to be notified to the court. That is part of the rules. It has to be recorded by the court. If the child is represented by the Official Solicitor he also has to be informed, so if there is any proposal to move a child matters will inevitably come to the attention of the Official Solicitor.

That leads me to the suggestion that there was something deficient in the representation of the child by the Official Solicitor or by some other guardian ad litem. There are other guardians ad litem in such cases, but normally it is the Official Solicitor. Of course he is not merely the mouthpiece of a child in the way a paid lawyer may sometimes find himself as such, but it does not mean that the Official Solicitor is not an independent, intelligent and forthright representative of the child. It would he unfortunate if the impression were given that there is a deficiency in the representation given to a child by the Official Solicitor.

The Lord Chancellor

If a problem exists in this respect there are powers to deal with it, in particular the powers to make regulations as provided to the Secretary of State under the clause. The noble Baroness, Lady David, suggested that in the case to which she referred it was complained that the child's attitude was not represented: it was revealed but not represented. Perhaps in that case the question arises of what is meant by legal representation in the circumstances. It is a difficult issue, but powers are provided to the Secretrary of State to deal with it under the present law if necessary. If the Bill comes into effect, additional powers will be provided.

Will the noble Baroness be kind enough to allow me to consider how I can take the matter further? I am sure she appreciates that such matters are not always easy to solve. I draw attention to a proposal in the Bill whereby the wardship matter may no longer be of importance in this connection. It is proposed that, in exercising wardship jurisdiction, the court should not put a child into care nor direct the child be kept in any particular accommodation. That is a good and satisfactory solution to the problem. I shall be commending it in due course but not without challenge from certain quarters—I hope not from the noble Baroness. If the Bill is accepted by the Committee it is not clear that there will be a continuing problem.

On that footing perhaps the noble Baroness will be content to withdraw her amendment at this stage, see what happens in respect of the wardship jurisdiction proposals contained in a later part of the Bill and, if necessary, return to the matter at a later stage.

Baroness David

I agree with the noble and learned Lord that it is a difficult area. It is particularly difficult for me because I am not a lawyer. It appeared that there was a problem and issues needed to be resolved, as must the position of the Official Solicitor. He cannot always act exactly as the child's representative putting forward the wishes of the child.

I should like to read what has been said by Members. However, I understand from my box that the noble Lord, Lord Campbell, is wrong in saying that subsection (7) cannot apply to wards because they are under a disability of age under the rules of the Supreme Court and they cannot be parties in their own right or instruct a lawyer but are dependent on a guardian ad litem. That is the message that I received from my advisers' box, and I repeat it for what it is worth.

I appreciate the difficulty but I wish to see that the right thing is done. If in this Bill the Committee is presented with the opportunity to do the right thing I think that it should do it. Perhaps the noble and learned Lord will write to me before the Report stage and I shall have the opportunity to come back then should I so wish. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 107C not moved.]

Clause 21 agreed to.

Clause 22 [Review of cases and inquiries into representations]:

Lord Mishcon moved Amendment No. 107D: Page 18, line 18, at end insert ("and shall provide that reviews shall take the form of a meeting.").

The noble Lord said: I should like to tidy up the position of the grouping of the amendment. In the list which has been proposed to the Committee it is grouped with Amendment No. 108 (which is right) and No. 109. Members of the Committee will see that in the second part of Amendment No. 109 there is a provision, requiring the authority to advise the child of the right of application to the court to discharge the order".

That has nothing to do with the point which I am trying to make in respect of Amendment No. 107D and which others whom I support are trying to make in respect of the amendments I have mentioned. It is also grouped with Amendment No. 110, and that is correct.

Lord Mottistone

I should have liked to speak separately to the first half of Amendment No. 109 as distinct from the second half. No doubt it was put together because it looked neat to those in the Public Bill Office.

Lord Mishcon

Perhaps I may quote my noble friend Lady David and say that such box as is available to the Opposition—I should like to know where it is, because I have never found it—takes a different view and does not believe that it is neat. With the Committee's permission, I shall not address any remarks to the second part of Amendment No. 109.

The amendment to which I am speaking deals with an important matter and Members may consider it to be the most important. It is in respect of a child in care who is being looked after by a local authority, and it is the review which must take place every six months. If what the Committee is dealing with in the Bill is to be effective everything depends on the way in which the review is conducted. I have received certain information from the Family Rights Group. In my view it is my responsibility to put it before the Committee in order that it may be properly appraised of the situation at present inherent in certain local authorities' review procedures—or lack of them. Members of the Committee may feel it is right and proper that an amendment should be tabled dealing with the way in which a review must be conducted and the people who should be invited to be present.

Members of the Committee will realise that no part of the law sets out in statute or otherwise requirements in regard to a review procedure. At the moment all that exists in law is a provision that a review should take place every six months. I am told by the Family Rights Group that in many cases reviews are not carried out in the form that Members would ever consider when using the description "review". A DHSS report published in 1980 concluded that reviews, are not carried out or are carried out in a perfunctory manner". There is then a reference to another DHSS report. Members of the Committee may think that that must, of necessity, be a very objective source. That DHSS report of 1986 by the social services inspectors found that, In one authority there had been delays in the reviewing of every case and in another authority it was found that statutory reviews rarely took place". In 1984 there was a DHSS-sponsored research study of reviews in one particular local authority. That found that 70 per cent. of the 230 reviews studied took fewer than 15 minutes to complete. We have talked about a special plan for a child in care. We have talked about the ways in which that could be implemented, if not by those words. We are dealing with some local authorities whose habit in 70 per cent. of their cases has been to conduct a review lasting 15 minutes which will take place once every six months.

Therefore, whether or not this be the right way to do it, I should be interested to hear the views of Members of the Committee and certainly the response of the noble and learned Lord to this matter. I believe that the proper way to do this is to enforce a meeting, which is required only once every six months, with an invitation extended to the parents, or to anyone standing in loco parentis, and to the child, where appropriate, to attend for part of the meeting. However, it should not be done by an exhange of correspondence or the filling out of a form.

Members of the Committee may ask about the filling out of forms. There was another DHSS research study in 1986 which found that where reviews were based on filling in forms the forms were often completed inadequately with a simple word being given in answer to a complex question, that goals set at reviews were usually written in vague terms, that tasks to be done were not attributed to individual workers, that goals set at one review were not examined at all six months later, and that often the same goals were reset without consideration being given to how realistic they were. Members of the Committee will understand why I feel that filling in forms is not an adequate way to conduct reviews.

At this important stage of the Bill where we are dealing with reviews I hope that the noble and learned Lord will feel that this discussion is more than worthwhile and that, in the light of these amendments, the solution may be to ensure that a meeting be held and that the invitations mentioned in these amendments be extended to the parties most vitally interested, if necessary to attend only part of the meeting if that be deemed to be in the interests of the child. I beg to move.

6.30 p.m.

Lord Meston

I share some of the dismay expressed as to the grouping because the amendment which has just been moved deals with the form of the review. The noble Lord, Lord Mishcon, advocates and I support the view that the review should be in the form of a properly constituted meeting. To my mind the separate questions as to participation in the review are covered by the first part of Amendment No. 109 and Amendment No. 112, and the separate question of representation at review is dealt with by Amendment No. 111. As the noble Lord, Lord Mottistone, said, the second part of Amendment No. 109 concerns a separate question altogether; that is, advising the child of the right of application to the court.

Be that as it may, perhaps I may soldier on and speak primarily to Amendment No. 108 which concerns me because in a sense it is the first and most anodyne of the series of amendments dealing with the question of who is to be present at the review. As the noble Lord, Lord Mishcon, said, the whole process of the review is of the greatest importance in a fair system of care because that prevents. or should prevent, children from drifting, which is the expression already used this afternoon. Fairness and the appearance of a fair review procedure is absolutely crucial.

As far as I can tell, the Bill is absolutely silent about who should be present at a case review. There is no clue in the Bill as to who could be present. I believe I am right in saying that there are departmental guidelines on the subject but experience shows that there are discrepancies as between one area and another. It should be an important function of any review that the parents and the children concerned are kept informed. It is also important—and this takes the question of participation a little further—that steps are taken to ensure that those who have something else to add and something else to contribute should have an opportunity to do so—for instance, the local family doctor, the teacher of the child or the wider family. If the child who has been in care has been home on trial, it may well be that there is a family helper. I remember a case in which the review decided that the child should go home. However, had the family helper been present at the review, it would have been told by that family helper that a matter of hours before the local authority social workers decided that the child could go home, both mother and father were roaring drunk. Therefore, one important feature of participation is to enable those carrying out the review to have the best, most up-to-date information from those in the best position to give it.

However, to return to the participation of parents, it is very true that parents resent the fact that decisions seem to be made behind closed doors. They are not present; they are not told what is discussed. They are not told what evidence or points were put forward one way or the other. They are not even provided with minutes of the review meeting, if there was a meeting. The jealousy with which the local authorities cling on to the minutes of the meetings and will not disclose them is a matter of some surprise to those of us who practise in this area of the law. I have never understood why, because they should have nothing to fear. However, that sense of secrecy causes resentment, feeds the hostility which is I am afraid a feature of those cases and is contrary to any concept of shared care.

As to the child's participation, that is a separate question. Generally speaking, the child should be able to understand the implications of what has been undertaken and should be able to understand the time scale of what is proposed for his or her future. It is often good for the child to realise that there are so many people present at a meeting concerned only with that particular child. That is very good for the child and is of enormous value. However, as the noble Lord, Lord Mishcon, indicated, there will be cases when it will be quite inappropriate for the child to be present, and regulations will provide for that. There may be other cases where it is of doubtful benefit for the child to be present. That is something that also needs to be considered by regulations. However, by and large, if the child is not present, there is perhaps a stronger case for saying that the child should have a representative of some sort.

As I said, Amendment No. 108 is perhaps the most anodyne of this series of amendments. It simply adds another enabling, rule-making power to the Bill. For that reason I hope it is the amendment which finds most favour with the Government.

Lord Simon of Glaisdale

I hope that it may be convenient if I make a point that I had intended to raise on clause stand part but which I think is more relevant here.

I certainly have no objection in principle to Amendment No. 107D of the noble Lord, Lord Mishcon. Indeed he seems to make a case for some such specification. My hestitation would be on the word "meeting" without anything further mentioned. A meeting of whom? A meeting where? If that were specified in the form of a meeting of such persons, and so on, my objection would probably go.

I go further. I question the appropriateness of the whole of subsection (2) of Clause 11. It is a formula that the draftsman has used not only in this clause but on several occasions elsewhere. I am very hesitant to criticise the drafting of this Bill where obviously an effort has been made to express the enactment in a way that can be understood by the persons affected by it. Nevertheless, what is done here and elsewhere is to say that the Secretary of State may make regulations of a general nature relating to such and such. I emphasise the word "may". The clause then goes on to say that the regulations may (again "may") in particular make provision as to a number of matters. The obvious reaction is that of course he may. If he may make regulations relating to a general matter, he may make the particular regulations that are subsidiary or incidental. It would be entirely different if it were mandatory in each case.

That was the point (I am sure the noble Lord, Lord Mishcon, will remember) that arose frequently on the Prosecution of Offences Act. Here we have the word "may". The Secretary of State "may" make regulations generally relating to a matter and he "may" in particular make other provisions which are incidental thereto. As I said, of course he may. If the correct answer is that of course he may, then the whole of subsection (2) can be omitted.

The Committee will remember some words that fell from my noble and learned friend Lord Hailsham earlier this evening in which he deprecated unnecessarily adding provisions to a statute. He compared a modern statute with the statutes enacted at a time of great legislative activity under the Liberal Government before the 1914–18 War, to which one can perhaps add this. In the year after the Renton Committee reported, the public and general statutes ran to three volumes. Ten years later fewer statutes than in that year ran to six volumes.

On the whole we over-legislate, not only in regard to interfering with people but in the way of verbosity. If we can, as I think we can here, omit a substantial provision which adds nothing to the generality of what has gone before, I suggest to the Committee that we should do so.

Lord Mishcon

Perhaps I may intervene for one second at this stage. I am not sure whether the noble and learned Lord, to whom we always listen with great respect, is advocating that this should be mandatory in order to mean something; in other words, the Secretary of State "shall" make regulations, because I do not think that any Member of the Committee—

Lord Simon of Glaisdale

I was not going that far, but it would make sense if it were mandatory. It does not make sense as it is purely voluntary.

6.45 p.m.

Baroness Faithfull

I should like to support what was said by the noble Lord, Lord Meston. I believe that it is necessary to have a meeting, or whatever it is called. At that meeting the parents or parent should be present. The child or children should be present but also, as the noble Lord, Lord Meston, said, other people should be present who are dealing with the child; that is, the teacher, the head of the home if the child is in a children's home, and the social worker. In that way, if the matter is discussed between them all, everyone understands everyone else and they are facing in the same direction.

That does not necessarily mean that the meeting will do what the child wants and asks. What is important is that the child understands and has an explanation as to why things are happening and what is being done for him. Difficulties arise when a child does not understand what is happening. Difficulties also arise if the other people dealing with the child—the school, children's home, foster parents—do not understand one another. Therefore, I very much support the review taking the form of a meeting, provided everyone concerned with the child attends that meeting where practicable and possible. The purpose of that meeting should also be clearly understood. It is not necessarily to do what the child wants at that time but that he should understand what is being done on his behalf.

Lord Mottistone

I should like to speak to Amendment No. 109. I shall concentrate on the first part of the amendment which goes with what we are now discussing but, on the assumption that my noble and learned friend has been given advice on how to comment on the whole amendment, I shall say a few words about the second part later.

The first part of my amendment is very like Amendment No. 112 which, of course, I support. However. I prefer my own amendment because it deals with the business of making sure that the child understands. Of course, a child of, say, three months, would not be very suitable at that sort of meeting.

I shall make a few remarks which have been suggested to me by the Children's Legal Centre. It states that the review is, or should be, the crucial time for planning and decision-making for children in care. The local authority is already under a duty, before making any decision about a child in care, to ascertain and give due consideration to the child's wishes and feelings about the decision, as is set out in Clause 18. A review meeting is where people relevant to the child's life gather together to exchange views—my noble friend Lady Faithfull has just made that point—make decisions, formulate plans and allocate responsibility for their implementation.

It is extremely difficult to see how the authority could fulfil its duty under Clause 18 without having the child present at the meeting. Ascertaining the child's wishes and feelings before the meeting—as proposed by Clause 22(2)(d)—would be inadequate since the child would not be in a position to know what others would propose at the meeting; nor would the child be able to challenge any of their views.

The Children's Legal Centre conducted a survey of local authority reviewing policies in 1983. At the same time the National Association of Young People in Care canvassed the views of about 500 young people in care. Fifteen of the 63 authorities replying to the centre said that young people were always invited to their review. Most of the others said that young people were sometimes invited. Reasons for exclusion included the assessed maturity of the child's ability to cope with the review—and there my amendment has a point—the existence of sensitive information and the need for professionals to have private discussions. In practice, the centre has yet to encounter an adequate justification for excluding a young person who is keen to attend. If information or discussion is relevant to decisions about their life they have a right to know it. Obviously, painful information should not be disclosed at a review and the young people should be adequately warned and prepared that upsetting facts exist. I think that is quite an important point and I would hope very much that something along the lines of my amendment might be acceptable. Other noble Lords have made other points in connection with their own amendments.

If I may now turn to the second paragraph of Amendment No. 109, the aim is to ensure that the child is in a position to know of his right, which exists anyhow, to instruct a solicitor to seek a discharge. It seems to the NSPCC that it is important that somewhere in an appropriate place in this Bill the duty should be laid on authorities to make sure that children know they have that right. At the moment the Bill does not include that fact, and that is the point of the second part of Amendment No. 109.

Lady Kinloss

I should like to speak to Amendment No. 109. It is felt by the NSPCC that it is consistent for the child to take part in administrative reviews. I think it is essential, so long as they can understand their right to do so. It is possible that the noble and learned Lord the Lord Chancellor will say that these matters would be better dealt with by regulations but I feel they are better dealt with in primary legislation.

In the second part of the amendment, the child has the right to apply for variation or discharge of an order. Clause 22 also requires that the local authority, when a review takes place, should consider whether an order should be discharged. If the review process is in part to focus a local authority's attention on the continuing necessity for an order, should this not also apply to the child? A reminder to the child on a periodic basis of his or her rights should help the child to clarify what he or she feels to be the best course of action open to him or her. There is little point in giving children rights if they are not able to exercise them, having no knowledge that the rights exist.

The Lord Chancellor

My noble and learned friend Lord Simon of Glaisdale, in speaking to these amendments, really invited a more radical point to be looked at: namely, whether the whole provision of Clause 22(2) is inappropriate. So far as Clause 22(1) is concerned, giving the Secretary of State power to make regulations does have effect and I think it is a very normal way of doing it. If one were to have a duty one would perhaps have to make directions about that in more detail. The Secretary of State certainly means, as part of the implementation of this Bill, to make regulations, and we would hope, before the whole structure is put into position, to have those regulations available. It is obvious that they would need to be the subject of much consultation, and that would be intended. So, assuming that the Secretary of State is to have power to make regulations, he could of course make regulations requiring the case of each child who is being looked after by a local authority to be reviewed in accordance with the regulations. Notwithstanding that general power, however, I believe it is appropriate in what is an important part of the provision at least to provide for particular provisions that the Secretary of State will be empowered to make.

Lord Simon of Glaisdale

Would my noble and learned friend allow me? Both subsections (1) and (2) are permissive and not mandatory, in contrast to subsection (3). If subsection (2) were not there, would it not be permissible for the Secretary of State nevertheless to make regulations on those matters?

The Lord Chancellor

I think it might be arguable, for example, whether he could make regulations covering all these matters. Perhaps the one that is most obvious is the requirement for the authority to monitor the arrangements they had made with a view to ensuring that the regulations were complied with. I think it is perhaps doubtful whether the general power in Clause 22(1), without that specific provision, would empower the Secretary of State to require the authority to monitor what it is doing, but the purpose of this is really to try to set out in fairly clear language what is intended to be dealt with by these regulations. The Secretary of State may well have done that without such power, but I think it is as well that to a certain degree these headings should be specified. Of course it is a question of judgment as to what degree one goes.

I would think that all the provisions proposed in the amendments, subject to the particular point about the local authority advising the child of the right to make an application to the court to discharge an order, would be covered under these specific heads. In particular, the regulation-making power to make provision as to the manner in which each case is to be reviewed would certainly enable the Secretary of State to require that this should he done by way of a meeting.

However, I think the difficulty is to deal with a fairly complicated matter in a way that is going to apply to every possible case. I believe that the total review ought, at any rate in many cases, to include more than just a meeting. It ought to include, for example, getting a report in relation to the child. If, say, a child is having some form of medical treatment, it might be right to get a report from the doctor in order that everyone connected with the matter could study it in advance, and then the doctor could well be asked to attend any subsequent meeting.

The whole process of review may well involve a meeting, but I doubt very much whether it would be right to say that the review should take the form of a meeting: in other words, that nothing should form part of the review which is not a meeting. This is just a point of detail but it illustrates the difficulty of getting into too much detail in the primary legislation. I would take it that the preliminary work of the review would have to be done, generally speaking, in advance of any meeting that might possibly take place.

I agree with the view which has been expressed that, very generally, some form of meeting would be a central part of any review. The bringing together of all the people involved so that they understand one another and are not subject to the mistakes of reporting, or even the nuances that are necessary in some of the delicate cases, is highly desirable. I would say strongly that the correct way to go into the kind of detail that is required to cover all the possible cases is really a matter for the regulations.

I can assure your Lordships that, in proposing the regulations, we should take fully into account all the concerns which have been expressed about what should form part of the review and who should be at it. For my part, I should be sorry to see the power to make regulations too much cut down on the one hand, or made too elaborate on the other hand. Here we have a general list of headings which would enable all the concerns that have been expressed in these amendments to be taken into account.

In relation to the second part of Lord Mottistone's Amendment No. 109, that sets something apart from the review and is a more general matter. I shall certainly consider whether anything needs to be done about that separately.

So far as concerns the details of the review and the way in which it should take place I believe that all the anxieties which have been expressed in these amendments could properly be taken into account in framing the regulations under the headings that we have. I shall undertake that all the matters referred to here will be very much kept in mind in considering the form of regulations to be proposed.

7 p.m.

Lord Mishcon

Some of us are in a difficulty which is inherent in the fact that more and more of our primary legislation depends upon a Minister who, with great veracity and honesty of purpose, tells us about regulations yet to be made. They are not before the Committee. This is not the first time that this point has been raised; but I have to raise it again because of the duty that lies upon us to see that matters which we think are very important, if they are not be in the statute, are eventually to be in regulations.

That is one of the matters that always makes me feel how wonderful it would be if a Minister—one has no doubt having thought about a Bill with great care—saw fit to ensure that the regulations which are always mentioned in Bills were available in draft at the same time as we considered the statute. Then we would all say we had done out duty.

All I can do on this occasion, in addressing myself to the noble and learned Lord and thanking him for the care that he has taken in his reply, is to repeat—I promise not in detail—what I tried to say when moving the amendment. There are examples which have been found by DHSS reviews of the completely unsatisfactory way in which reviews are held by certain local authorities. In my submission, it will be the duty of the Committee to see that that is not repeated after the Bill goes through the House.

The noble and learned Lord has conceded with complete grace that in most cases meetings would be appropriate. I would not insist upon saying that a meeting had to be held in every conceivable case, even when inappropriate, although I do not think it would do very much harm. But can the noble and learned Lord give an undertaking to the Committee that in the regulations which are to come there will be specific regulations as to the parties who will be present at a review in the same form as in this amendment; namely, that the child should have an opportunity where it is appropriate, and the parents and anyone else who really has something to contribute? I think that was an addition to the discussion made by the noble Baroness, Lady Faithfull. Can he also say that the regulations will provide that in most cases, since that would be suitable, there should be a meeting after consultations and reports of an appropriate nature?

If the noble and learned Lord will say that is going to be the position, for my part I shall then say, having the word of the noble and learned Lord which all of us trust completely, that I have done my duty. The regulations will be there and they will cover those points. Without that undertaking, I should really like to give the noble and learned Lord on behalf of the Government an indication of how the Committee feels by testing the opinion of the Committee, hoping that everybody, since we are all in agreement, will vote for the amendment. I do not want to do that if the noble and learned Lord can tell us in specific terms that the regulations will definitely deal with the matters which are inherent in the amendments.

The Lord Chancellor

Regarding the people to be involved in the review, we have sought to deal with that matter in Clause 22(2)(d). That is:

  1. "(i) the child;
  2. (ii) his parents;
  3. (iii) any person who is not a parent of his but who has parental authority for him; and
  4. (iv) any other person whose views the authority consider to be relevant,
including, in particular, the views of those persons in relation to any particular matter which is to be considered in the course of the review; For example, a doctor or someone of that sort would be involved.

I think that deals fully with the matter that—

Lord Mishcon

The requirement is merely to take views.

The Lord Chancellor

I have not finished yet.

Lord Mishcon

That remark was meant for my noble friend Lord Meston.

The Lord Chancellor

It happened to reach me also, and therefore I take advantage of it.

That is the first point as to the parties. As to the form, I must hold to the view that I could not go along with saying that reviews should take the form of a meeting because I think that is too restrictive. I believe that a meeting of some kind will be appropriate generally in a review for the reasons that have been explained. It would be wrong to say that in every conceivable circumstance of review a meeting should be necessary, because there might be requirements for reviews that are precipitated by particular circumstances when some urgent decision was required. However, generally speaking, I should expect a review to include a meeting of those who are able to contribute to the matter.

If something more definite than that is required, I cannot go any further than that today. My view of the matter is that to be effectively conducted these reviews would normally involve a meeting. The amendment goes no further than providing that the Secretary of State could make such provision; so I do not believe that there is much between us on this matter.

The views which have been expressed in the course of this debate will certainly be taker into account in formulating the regulations. I do not believe that in general it is right to try to formulate the regulations until one knows what the statutory power is under which they are to be exercised, and it is proper to have consultations before the form of the regulations is settled. That is the best indication I can give at the present time.

Lord Mishcon

The noble and learned Lord is very kind. He says that there is not much difference between us. Unfortunately, the difference between us is that of certainty and uncertainty. The noble and learned Lord says with complete frankness that he would expect that the regulations "might deal" or that he would expect that "provision might be made". Can he at least say on behalf of the Government that the regulations will provide that in normal cases—I accept that there may be abnormal ones—a meeting should take place by way of the review? If it can be said that in normal cases that is what the regulations will say, although I understand that the noble and learned Lord cannot tie himself to the precise words of the regulations, I shall be personally content not to press the amendment. But if he cannot say that—I shall understand that it is not because of lack of good will—I shall have to press the amendment.

Baroness Faithfull

I am not sure that I understand the noble Lord, Lord Mishcon. I usually do, but on this occasion I am not quite sure that I understand him. The Bill states that the child should be consulted and that the parents should be consulted. One cannot have those consultations without a meeting. It is implicit that a meeting should be held.

Lord Mishcon

The noble Baroness is right; we usually agree. Indeed, on these Benches we shall always have great respect and affection for the noble Baroness because we so much like her views.

Having said that, I should like to point out to her with deep respect that at the moment the clause provides that before any review takes place the views of certain people mentioned in the clause should be taken. It says that the Secretary of State may make those regulations. It does not say in what form the views may be taken. It may be just a chat. It does not say that the person who has expressed the view will be present at the review procedure in order to argue that view. This is all before a review takes place.

The Committee may feel that, because of the scandals that were revealed in the DHSS reports about the way in which reviews have been carried out by certain local authorities in the past, something definite must be done to ensure that reviews for the children being looked after by local authorities take place in every local authority in the future. The noble and learned Lord says that generally a meeting ought to take place and that there should be reports, and so on, before the meeting. I am asking for an assurance that the regulations will so provide. I shall understand if he cannot give such an undertaking. In that case I shall have to press the amendment if only for the purpose of registering the Committee's view in order to ensure, pray heaven, that the regulations do so provide.

The Lord Chancellor

I am not sure that I can take this matter very much further. I cannot undertake that a meeting would necessarily be held involving all the people at the same time. I mentioned the doctor as an example. I am certainly prepared to undertake that the people involved in the review will include people of the kind referred to in paragraph (d)—this meets the point made by my noble friend Lady Faithfull—and I shall also undertake that meetings will form part of the process where it is appropriate to get the people together. That is as much as I can say.

I made it plain that from my knowledge of these matters I would regard it as appropriate normally for a meeting to take place. However, I cannot absolutely tie myself down to saying that a full meeting involving all those people will have to take place in every case. I would regard a meeting generally to be appropriate, and the views of parties of the kind described in Clause 22(2)(d), which very much matches the words of my noble friend, would be taken into account. The meeting would not necessarily encompass all of those but would have to take proper steps to be apprised of their views. In many cases these views would be best given at the meeting. I expect the regulations to proceed on those lines.

Lord Mishcon

The noble and learned Lord cannot be expected to go further than that. I thank him. If he finds that his expectations are not realised by the ministerial regulations which come forward, I ask, but not with great seriousness, that he should find a legal process in order to punish the Minister concerned.

The Lord Chancellor

I think that prevention is better than cure.

Lord Mishcon

In view of the understanding reached with the noble and learned Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

The Lord Chancellor moved Amendment No. 108A: Page 18, line 28, leave out ("authority") and insert ("responsibility").

The noble and learned Lord said: This is essentially a drafting amendment to correct what is either a typographical or a printing error. It substitutes "responsibility" for "authority" in two places, in regard to Amendment No. 108A and Amendment No. 197 to which I also speak. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 109 to 112 not moved.]

Lord Prys-Davies moved Amendment No. 113: Page 19, line 8, leave out ("considering any representations") and insert ("all aspects of the care system, to consider any complaint or other representation").

The noble Lord said: Amendment No. 113 is grouped with Amendment No. 115, to which my noble friend Lord Mishcon will speak. We readily accept that subsection (5) is an important beginning. It introduces a representations procedure which will have an independent element. This is most welcome. However, there is ground for concern that the word "complaint" is not used in the clause. That is the basis of the amendment. Nowhere in the Bill do we find the word "complaint". One accepts that the word "representations" includes a complaint, but we are strongly advised by many organisations that the word "complaint" should itself appear in the subsection.

There are three strong reasons for the amendment. The word "complaint" is a time-honoured word. It is generally used when one wants to draw attention to an injustice which one feels one may have suffered. It is time-honoured but not old-fashioned. Therefore why not use it in the Bill in addition to the word "representations"? We can assume that substantial inarticulateness exists among the client group. A parent or a child may not readily understand that the word "representations" includes the old-fashioned complaint. The Voice for the Child in Care charity believes it essential that the word "complaint" should appear in the subsection. I produce that evidence because from the charity's study and experience over 10 years it believes that the word "complaint" should be there.

That is also the conclusion of recent research undertaken by the National Institute for Social Work in association with the National Consumer Council and the Association of County Councils. They say: Using the term Complaint procedure is vitally and symbolically important to both clients and staff.

Another reason is that if complaint is to be wrapped up in representations, the authorities may not see the need for setting up a clear system for dealing with complaints, quite apart from a system to deal with general comments and representations. We say that because experience shows that there has been a reluctance to set up complaint procedures in most social services departments.

There is a further reason. The amendment would make it abundantly clear that there is a statutory right to make a complaint. That would give assurance and clients would feel protected by the existence of a complaint procedure. The difficulty which has been experienced in persuading social service departments to establish complaint procedures indicates that there is considerable doubt as to whether a client has the right in law to complain and to require his complaint to be considered. Those are the three reasons—we submit, good reasons—for the inclusion of the word "complaint".

Baroness Faithfull

I seek information from the noble Lord, Lord Prys-Davies. I appreciate the need for a complaints procedure. In time gone by, when the authorities were small, the children very often knew who the director or the children's officer was and felt that they could go to that person with their complaints.

I am not quite sure from reading the amendment moved by the noble Lord who the children are to go to. Is the complaint procedure to be set up within the social services department? Will complaints be made to a councillor of the local authority? Or will there be an outside person, such as a chief executive or, even, a local ombudsman? I find myself in some difficulty over the matter. I believe that children, or parents, who wish to make a complaint will not be quite sure that the outcome will he completely objective if the complaint has to be made within the department. Perhaps the noble Lord will give me some guidance.

Lord Prys-Davies

I wonder whether Amendment No. 116 really addresses the problem presented by the noble Baroness, Lady Faithfull, namely, that there should be a "complaints procedure manager". We shall of course come to that aspect later. I hope that then we can deal with the problem that worries the noble Baroness, Lady Faithfull. At the moment, I am speaking to Amendment No. 113.

Baroness Faithfull

I am afraid that the point I raised is not really covered. I wish to know whether the complaints manager will be someone within the social service department or someone outside that department.

Lord Prys-Davies

I have not received any particular guidance as to where this complaints manager is to be located. As I understand it, the important thing is that one knows that there is a complaint procedure and who the complaints manager is.

Lord Campbell of Alloway

I wish to support the amendment in principle because it is a most important one. It paves the way to the establishment of an appropriate and satisfactory complaints procedure. Whether it starts within or without the department is, for this matter, perhaps irrelevant. The main concern of Members of the Committee must surely he that any interested person should be entitled first of all to be represented by a lawyer of his choice in this complaints procedure; that the interests of the child should always be represented; that the local authority should give some sort of reasoned judgment; and that there should be access to the courts of the Family Division for some binding and final adjudication.

Is it not therefore a matter of serious concern that Clause 22 envisages in subsection (4) a complaints procedure where two members—for example, an officer of the local authority and one person who is not—can make a finding which to all intents and purposes is final, binding and conclusive. Why should that be? Is it not a matter of concern that each local authority may establish its own procedure, there being absolutely no requisite for any uniformity?

Further, is it not also a matter for concern in complaints against a local authority as to the discharge of its functions, under Part III of the Bill, that the general responsibility towards children, and their families, should not be subject to some more formal adjudication and review as is envisaged by the amendment? I say that in particular because this mandatory checklist of general principles concerning the welfare of children is only referable to proceedings in courts and not to any determinations, or findings, by a local authority. It may be said that that aspect will be covered by regulations under subsection (5). However, how do we know? Once the Bill has received Royal Assent convention precludes amendment of subordinate legislation.

In conclusion—I apologise for detaining Members of the Committee but I must do so because this key amendment introduces what could be an appropriate and effective complaints procedure—is it not a matter of concern that there are many areas of crucial importance, including this one, which are covered by regulations and not by primary legislation?

There is, apart from the right to challenge, a complete denial of access under the Child Care Act 1980 which is assimilated—I am grateful for that—and very substantially extended by Clause 29. However, apart from that, there is no effective right now and under the Bill for parents, relatives or others to challenge a local authority decision over children in its care. In that context the courts have rightly ruled out access to wardship. Further the Cleveland Report recommended reconsideration in this regard, which Clause 71 rejects. If there were to be access to the Family Division at the end of a properly conducted and constructed complaints procedure, then the whole question of resort to wardship would not arise. I shall only make this point once. I suggest that that is the only effective kind of complaints procedure which this amendment, in substance and in principle, carries with it.

7.30 p.m.

Lord Mottistone

I too support the amendment. The National Institute for Social Work and the National Consumer Council, which work together, have shown that there is a tremendous reluctance to set up a complaints procedure in most social services departments, and even where complaints procedures exist they are rarely publicised. I could continue on that score. On the other hand, their research has shown that using the term "complaints procedure" is vitally and symbolically important to both clients and staff.

The introduction of complaints procedures legitimises the complaints of clients. Staff are concerned about attacks on individual officers, which happen perhaps not so much with young children as with teenagers. They are generally reduced when there is a formal and clear procedure. Again, I could go on about that matter. I could give all the points in favour. However, we do not have much time as we are coming to the end of this period. There may be an opportunity later, if we return to this point at another stage, to push the point strongly.

Lord Meston

I too support the amendment. During the passage of the Children and Young Persons (Amendment) Bill in the summer of 1986, I put forward a probing amendment much along these lines. The argument then, and I think the argument now, is that there should be a specific complaints procedure to deal with matters, which may be relatively trivial or serious, that need to be ventilated and redressed, but which perhaps are not appropriate matters to put before the court.

The importance of a complaints procedure is three-fold. It enables problems to be defused; it enables standards to be maintained and, perhaps most importantly, it enables children to be protected. In some local authorities there are ad hoc arrangements and in some local authorities those ad hoc arrangements work well; but, as has already been said, there is no uniformity. In some areas there is a general reluctance to have any such procedure. The Government's response back in 1986, as I remember it, was that they provided general guidance about these matters to local authorities, and that they were then waiting for the outcome of the White Paper. Well, the White Paper has arrived, and so has the Bill. There is nothing in the Bill specifically about complaints. Since 1986 there has also been the research which has produced the excellent briefing paper, to which reference has already been made, from the National Institute for Social Work.

It had not occurred to me until I heard the noble Lord, Lord Prys-Davies, open his arguments on the amendment that we were perhaps looking at the matter from the point of view of simple semantics and that the word "representations" covered complaints. I suppose that not all representations are complaints, and not all complaints are necessarily polite enough to be called representations. If this is ultimately to be an Act which is to be understood by laymen as well as lawyers, it should be made clear that this is primarily a question of dealing with the effective ventilation or redress of complaints. For those reasons I support the amendment.

The Lord Chancellor

The Bill provides: every local authority shall establish a procedure for considering any representations made to them by and then the list is set out. We have gone a good deal forward from the Government's position at the time to which the noble Lord, Lord Meston, referred when we were awaiting the inter-departmental report which preceded the White Paper. What is here in question is an obligation on every local authority to establish a procedure. That is a big step forward. The only question is whether we should say "any complaints or other representations". In later amendments we find references to "complaints managers" or such people. It is wise to consider whether one wants to have to categorise the particular matters that are being raised with the local authority at any stage. Surely what is wanted is a good procedure which takes account of everything that a child wants to say to a local authority about the way he is being looked after.

As the noble Lord, Lord Meston, said, it may depend upon how politely a matter is expressed as to whether it is a complaint or representation. That shows that "representation" is the correct word. I cannot see why a person who is polite should be dealt with any less favourably than a person who is impolite. If anything, I would go in the other direction. One may not be put off by moderation in representations, and so the word "representations" is designed to cover all possible matters that could be raised by way of complaint. The main matter that might arise could be in the nature of a complaint but it might be expressed in a way that suggested that some change should be made: "Instead of staying here, I should like to stay there". Is that a complaint? It is certainly a representation. It may be regarded as a complaint against the place where the person is staying. He may wish to go somewhere else. The word "representations" appears to cover such circumstances.

To answer the point made by my noble friend Lady Faithfull, the Government's proposal includes an independent person in the procedure. Subsection (4) provides for someone who is not a member or an officer of the authority to take part. There is an independent element in the procedure. The whole procedure must conform with regulations made by the Secretary of State for the purposes of that subsection. In the regulations he will set out minimum standards which are required to be complied with. Some local authorities will do it one way and some another.

I have listened with care to what has been said about the various organisations that have supported the amendment. It is fair to say that no research has been conducted against the background of a situation in which there was an obligation to set up a representations procedure. The old idea has been "complaint". I believe that it is better to talk about a representations procedure—an open procedure—which would cover every form of complaint. It is very much a matter of semantics. "Representations" is a general word, and the procedure is intended to cover all possible types of representation. I therefore believe that the generality in this case is a wise one.

Lord Elwyn-Jones

Surely the man in the street will be impressed by the existence of a complaints procedure. There is something special about complaints. I remember a hymn, "He heard my complaints"—I will not go into the music of it. It is a term that is commonly understood. A provision that does not provide for a complaints procedure will be understood by the man in the street as lacking in something. A complaint is something more positive than a representation in the eyes of the ordinary citizen who is concerned about his interests. One cannot very well redress a representation; one can redress a complaint. Let us have the word "complaint" in please. It does not cost any more.

The Lord Chancellor

I do not know many hymns about representations.

Lord Elwyn-Jones

I can sing one on another occasion.

The Lord Chancellor

I do not know that it is very important. The procedure should cover all forms of complaint and other representations. The word is intended to cover that. If the feeling is very strong about it, then obviously I should be happy to consider this further. However, I do not mean by that to go into all the business about complaints managers and people of that kind. That is a different matter altogether.

Lord Prys-Davies

I very much welcome the last few words of guidance which the noble and learned Lord the Lord Chancellor has given to the Committee. We readily acknowledge that this clause represents a step forward and that the word "representations" is wide enough to include complaints. However if the amendment is resisted at the end of the day I cannot help feeling that the Government are not paying adequate attention to the message which we have received from so many organisations. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran

My Lords, I think that this might be a convenient moment at which to break for dinner. I suggest that we return to the Committee stage of the Bill at 8.40 p.m. I beg to move that the House be now resumed.

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

House resumed.