Children Bill [H.L.]

HL Deb 17 January 1989 vol 503 cc189-224

House again in Committee on Clause 22.

Lord Mottistone moved Amendment No. 114: Page 19, line 14, at end insert— ("(e) any person who has demonstrated a reasonable interest in the child's welfare,").

The noble Lord said: The amendment seeks to enlarge upon the number of people from whom representations should be considered under subsection (3) of the clause. The people I have in mind are other family members such as grandparents. Being a grandparent, I feel strongly because they can be helpful to children of all ages and they could have a close interest.

It is interesting to note that in several of the reports which have examined accusations of abuse to children in residential and foster care, junior members of the social services staff have often spoken for the child concerned. However, they have had no way of ensuring that the child's and their own worries can be taken into account. That is a surprising omission from subsection (3). Such people are specifically excluded by subsection (4). It is suggested to be important that where members of staff have become aware of a child's complaint and the child may not wish to pursue it for fear of some reprisal, the staff member can do so on their behalf. There may be other independent visitors or friends visiting the children in residential or foster care. If the provision contained in my amendment were adopted, they would also be able to make representations under the paragraphs of subsection (3). I beg to move.

Lady Kinloss

I support the amendment. The NSPCC and the National Children's Bureau believe that it is vital that interested parties such as relatives, grandparents or a teacher should be able to make a complaint on the child's behalf. That applies especially in the case of young children, vulnerable young people and disabled children. For example, there may be a mentally handicapped child in a home who has been abandoned by his parent or parents. In those circumstances, there would be no one in the paragraphs (a) to (d) who could make a complaint about the child's treatment in care.

The National Children's Bureau states that it is interesting to note that in several of the reports which have examined accusations of the abuse of children in residential and foster care junior members of staff have often spoken for the child concerned. However, they have had no way of ensuring that the child's and their own worries can be taken into account. It is important that where members of staff have become aware of a child's complaint, and that the child may not wish to pursue it for fear of some reprisal, the staff member can do so on their behalf.

The Lord Chancellor

My noble friend Lord Mottistone mentioned the fact that junior members of staff are excluded; but subsection (4) is intended to secure the presence of an impartial person in the procedure. Therefore it would not be appropriate for a junior member of staff to be that person and it is right that they should not be named in subsection (4).

I am anxious that the representation procedure should be reasonable. However, the amendment does not help a great deal. It provides for: any person who has demonstrated a reasonable interest in the child's welfare". That presupposes a demonstration to somebody so that there is an adjudication procedure as a preliminary to making a representation. It would be better if one could define the category so that a person was either in or out of it and not leave the matter too wide.

I concede that there may be difficulties in that respect but I consider that the amendment is too wide. I am also a grandparent and therefore I have an interest in securing the child's welfare. Indeed, some other categories may be thought of. I invite my noble friend and the noble Lady, Lady Kinloss, to consider whether the problem can be avoided by a form of classification of people who may be allowed to make representations.

On the other hand, I am sure that my noble friend and the noble Lady will be aware of the need to ensure that if the representation procedure is to work it cannot be open to everyone. It must be a reasonably selective procedure. At the moment none exists, and we are making a considerable advance by introducing it. Therefore one does not wish to have a provision so wide that the time of local authorities is continually taken up with trying to determine such matters instead of looking after the child. There are disadvantages in the provision being too wide and I hope that my noble friend will consider that the matter requires further consideration.

Lord Mottistone

Yes, I understand my noble and learned friend's anxiety about making the provision too wide. On the other hand, I suggest that the fact that a junior member of staff and a grandparent, for example, are not covered by subsection (3) is a fault of that subsection, and it needs to include more people. Our attempt to describe them in the words: any person who has demonstrated a reasonable interest in the child's welfare". was an attempt to fill that gap. My noble and learned friend believes that it is too wide and must be defined more closely: but I believe that there is room for the provision of someone else in the subsection.

I have the impression that my noble and learned friend is sympathetic to that suggestion. I should be grateful if he could say that he is sympathetic and that he will try to find a phrase which will cover it.

The Lord Chancellor

I meant to imply that, and I shall give further consideration as to how best it can be done in the light of the examples that have been given. However, it is a difficult problem and all members of the Committee will have their own predelictions in the matter. I certainly intend to consider it further, and my noble friend can have that assurance.

Lord Mottistone

That is very kind of my noble and learned friend. I am grateful that he will I look at this matter to see if he can cover the sorts of people about whom we are talking. Of course we shall do the same, observing what he said about our attempt. With that undertaking, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 115: Page 19, line 16, leave out ("Part") and insert ("Act").

The noble Lord said: The Law Society and the Children's Legal Centre join hands in hoping that the Committee will agree to this amendment. I can state the purpose of it very shortly. It is to ensure that the complaints procedure to be established by subsection (3) relates to all parts of the care system and, for example, covers any grievance of any child looked after by a local authority whether under a care order or voluntarily. I beg to move. That was short and sweet!

The Lord Chancellor

I shall endeavour to be sweet but I am not sure that I can be quite so short.

The requirement in Clause 22 is that local authorities should establish procedures for considering representation about the discharge of any of their functions under Part III of the Bill in relation to a child. The proposal that the procedure should apply in respect of all aspects of the care system is unclear. That could be taken to extend to court matters and matters of that sort and it would be wholly inappropriate for local authority representations procedure to be capable of examining matters that go before the courts and for which an appeal is provided: for example, applications related to the way in which they were operating a particular application to the court. This provision achieves, and I hope that Members of the Committee will agree that that is sufficient, that all local authority functions under Part III will be subject to this procedure. Part III of the Bill extends to all a local authority's responsibilities in respect of services for children in need and for children whom they look after, whether or not they are subject to a care order.

I realise that there are other provisions to which one might wish to extend the availability of a representations procedure, such as those relating to children who are not looked after by local authorities but who arc accommodated in voluntary or registered children's homes or privately fostered. We can certainly look at that sort of matter. However, I believe that to cover the Bill as a whole is going too far. However, we are looking at that particular aspect.

I believe that the powers to make these regulations in respect of voluntary or registered children's homes are sufficient to enable us to make regulations of this type in respect of these also, but we shall certainly look further at the point. However. I believe that it would be going too far to cover the whole Bill.

Lord Mishcon

I am grateful to the noble and learned Lord for pointing out something which had not occurred to me: namely, that this might cover court proceedings. I should not have thought that it did. He has been good enough to say that he is looking at the question of extending this beyond Part III because there are certain other categories of children who should he covered by the complaints procedure, and, with that kind undertaking, I am satisfied and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 116: Page 19, line 22. at end insert (", and that a complaints procedure manager should be identified to ensure an effective and speedy response to complaints.").

The noble Lord said: This amendment is grouped with Amendment No. 117. I believe that the noble and learned Lord indicated earlier this evening his approach to Amendment No. 116 and I was not particularly encouraged by his words. That is why I am particularly anxious to also speak to Amendment No. 117. in the hope that I shall he more successful.

However, confining my remarks to Amendment No. 116 at present, we believe that an officer should be made unequivocally responsible for the receipt and the investigation of complaints. Unless there is a complaints procedure manager or the holder of a similar post, people will find it very difficult to know to whom to make a complaint or, indeed, how to make a complaint. We are advised that currently many complaints go all over the place. Some go to the Director of Social Services, some to known managers, others to elected members and indeed some become lost within the system. Therefore, it is recommended that there should be a named and identified complaints officer who should act as a channel for all complaints to ensure that they receive the same treatment and are dealt with effectively.

Such an appointment is described by the various voluntary organisation as being crucial for clients and also important for all staff and politicians so that they can become used to using the correct channels. Amendment No. 116 rests on that argument.

Perhaps I may move on to Amendment No. 117. A worrying inadequacy of the present complaints procedure, where it exists, is the virtually complete absence of the complainant when a complaint is considered. There is much dissatisfaction that the complainant cannot appear before the committee or the panel to justify his complaint. If he is not present, his views may not be taken fully into account or he may feel that they have not been taken fully into account or feel that the grounds of his complaint have been misunderstood. Therefore, openness is better than secrecy in the hearing of complaints. I beg to move.

The Lord Chancellor

The essential factor in this provision is the obligation on every local authority to establish a procedure for considering any representations made to it. In order to define that as a reasonable procedure we have provided for the persons who may make the complaint or representation the essential independent element in the consideration of the representation, subject to the undertaking I have already given to my noble friend. We have also provided that the authority shall have due regard to the findings of those considering the representations and to whom it shall intimate its decision and so on.

Those are the essentials that the procedure must follow. There are varying conditions in the local authorities and, in this situation where something new is being provided, it seems right to give the local authority the obligation of considering what is best in its area. The regulations provided for in subsection (5) will ensure a minimum. I should have thought that the kinds of matter which are dealt with in Amendments Nos. 116 and 117 are matters which fall to be considered in the light of the regulations as a whole. After all, I believe that the regulations are required to be reasonably comprehensive although they are providing for a minimum.

I should not wish to carry forward a distinction into the procedure as between representations and complaints. That goes back to what we were talking about earlier. There will be one procedure for every form of representation or complaint, assuming that complaint is expressly mentioned. Therefore, I believe that these matters are properly dealt with in the regulations. Obviously we wish to secure an effective, speedy and adequate consideration of complaints.

It may be that in some places a single officer should be designated. There may be other ways in which the matter could be handled, so long as it is clear that a procedure for initiating complaints will not lead to the complaints being overlooked. So long as the local authority has a system for ensuring that, I do not believe that it is right to go into detail on precisely how it should be done. It may be that a particular elected member should have that responsibility—perhaps the chairman of the social services committee. Therefore, these are matters which must depend on the arrangements made in the local authority concerned.

As regards the second amendment, again that must depend on the arrangements that are required for consideration of the complaint or representation. I should have thought that the requirement that the child or his representative should be present was a matter that would be the subject of consideration when the regulations are being made. Moreover, one must not overlook the possibility, as I mentioned earlier in relation to reviews, that some representations may require to be speedily dealt with.

9 p.m.

Lord Prys-Davies

The response from the noble and learned Lord the Lord Chancellor is a little worrying; at least, I find it so. The details to be covered by the complaints procedure are not spelt out, apart from the need for an independent element which is contained in subsection (4). That is in sharp contrast to the matters which are to be covered by the review cases procedure.

Here we have only two requirements—that there should be a procedure and that there should be an independent element. For example, we are advised by the National Children's Bureau that the existence of a complaints procedure alone would be useless in protecting children. That is the bureau's conclusion. Therefore, I should have thought that the Government could move to meet the amendments by including a reference to such matters in the regulations. For my part, I am disappointed and I shall have to take further advice. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 117 not moved.]

Lord Prys-Davies moved Amendment No. 118: Page 19, line 28, leave out ("regard to the findings of those considering the representation") and insert ("consideration to providing redress to a complainant where a complaint is upheld").

The noble Lord said: Subsection (6) requires that the local authority shall, have due regard to the findings of those considering the representation". However, it is felt that subsection (6) gives too much discretion to the local authority. It is felt that when the complaint is upheld it should be acted upon provided the situation or the conduct complained of is capable of being remedied. I accept that that is not made clear in the amendment as drafted.

However, unless the situation is remedied the procedure will be of little value. That is the basis of the amendment. The right to complain will hardly be worth having if it does not carry with it the right to a remedy if the situation is capable of being remedied. We are told that where a complaints procedure is in existence, redress or remedy is often forgotten about. I beg to move.

Lord Meston

I support this amendment, which is an almost verbatim version of Amendment No. 119, but I wish to develop the arguments a little further. It seems to me that it is one thing to allow procedure which enables complaints to be ventilated but another thing to provide for actual redress for the individual complaint. It may be that the representation or complaints procedure will ensure that, in general terms, the same situation will not occur again; but it does not necessarily follow that the individual who has complained will obtain the redress which he or she seeks.

That needs to be spelt out in the Bill, because if it is not the body dealing with the complaint may feel that it has no power to give any teeth to the complaints procedure. There is a risk that if redress is given and there is no provision in the Bill specifically providing for redress to be given someone will suggest that the redress has been given ultra vires. In the circumstances I believe that the amendment, or an amendment like it, is not only desirable but necessary.

The Lord Chancellor

This amendment proceeds on the footing that only complaints are at issue. The amendments propose that the obligation is to give due consideration to providing redress (as in Amendment No. 119) and consideration to providing redress (as in Amendment No. 118). Therefore, the amendments propose due consideration or consideration to providing redress.

I venture to suggest that representations include complaints and it is on that footing, as I said, that we are proceeding. An obligation to have due regard to the findings of those considering representations is, I believe, a stronger obligation than to consider whether to provide redress. To have due regard to the findings is surely a stronger obligation and requires that the authority should take the findings with considerable seriousness. Merely to consider whether to provide redress does not seem to be as strong as that.

Therefore, in the interests of achieving a good result I should have thought, subject to the point about complaint, that what we have in the Bill is better than what is proposed. In the light of those considerations I hope that the noble Lord, Lord Prys-Davies, who has moved the amendment, and the noble Lord, Lord Meston, who is thinking of moving his amendment, will agree that the position is perhaps best left as it is.

Lord Meston

With respect to the noble and learned Lord, I think that my amendment adds the requirement to give due consideration, whereas Amendment No. 118 takes out the words in the Bill and substitutes the requirement to give consideration. For that reason, I suppose I ought to prefer mine, and indeed, on balance, I think 1 do. But, with respect to the argument of the noble and learned Lord, it does not strike one, reading it, that "having regard to the findings" is as strong as a specific provision requiring consideration to be given to providing redress. Certainly my impression is that the strength to which he alludes simply is not there in the Bill. Of course, not every representation is a complaint and not every complaint will require a redress. It is for that reason that both amendments simply require consideration to be given to providing redress.

Certainly the intention underlying the amendments is to make sure that the authority is in fact empowered to provide redress. It does not have to do so but it has the power. If it is in the Bill in this form, there can be no complaint or argument, that the local authority is acting outside its legitimate powers if it decides that some form of redress is appropriate. I do not know what the noble Lord, Lord Prys-Davies, intends to do, but perhaps the noble and learned Lord would at least undertake to have another look at this.

Lord Prys-Davies

We are of course concerned with a representation which is a complaint. I should have thought that merely to call on the local authority to give due regard to the consideration could be pretty meaningless, whereas in our amendment we are asking the local authority to direct its attention to a remedy or a relief or a redress. It may in some circumstances be no more than an apology, but I agree with the noble Lord, Lord Meston, that to press the local authority for a redress or a remedy or a relief, where the situation is capable of being remedied, is stronger than asking the authority to give due consideration to the findings. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 119 not moved.]

Lord Prys-Davies moved Amendment No. 120: Page 19, line 40, leave out subsection (7) and insert— ("(7) Information about policies and procedures relating to the discharge of these functions shall be available to children, their families and representatives.").

The noble Lord said: We fully support the underlying principle of subsection (7) that the local authority must publicise its complaints procedure, but again the subsection allows complete discretion to the authority as to how the procedure is to be publicised. The evidence we have received from almost all the organisations reveals a consensus that the local authority should be under a duty to take steps to ensure that the parents, the children and indeed the staff are clearly informed of the existence of the complaints procedure and of their right to make a complaint. It occurs to us that this information might form part of a readable information booklet for children and parents. That is obviously a matter which would properly be left to their discretion, but, unless the local authority is under a duty to bring the procedure to the attention of children and parents, they may not become aware of its existence.

As I mentioned in relation to another amendment, the existence of a complaints procedure by itself is not a safeguard but knowledge on the part of parents, children and staff of its existence would be a much-needed safeguard. I beg to move.

The Lord Chancellor

Again, I think we are aiming at the same objective. It is a question of precisely how one arrives at it. Without adequate publicity, a procedure such as is envisaged in this part of the clause would be considerably reduced in effectiveness.

In my view, the clause which the present amendment seeks to delete has two features which have much to commend them. First, the clause requires publicity to be given, rather than, as here proposed, information to be available. Clause 22(7) therefore puts the onus on local authorities to communicate to the public the existence of the representations procedure. A general duty to publish information regarding services provided under Clauses 15 to 17 is provided in Schedule 2. Paragraph 1(2) specifically requests that reasonable steps be taken to target information at people who may benefit from such services. Therefore I think the sort of information package to which the noble Lord, Lord Prys-Davies, was referring would reasonably be referred to at that place.

Secondly, Clause 22(7) gives local authorities an element of discretion as to the amount, nature and direction of publicity which is undertaken. In contrast, the proposed amendment would impose an absolute duty to make available to certain persons information regarding policies and procedures. I venture to think that the Bill is to be preferred here for its relative flexibility. I am sure that noble Lords will agree that local authorities should not be forced to make available information in inappropriate circumstances. For example, I do not see why authorities should be required, with no exception, to provide information about their policies on representations procedures to persons who may not be in receipt of services under this part of the Bill. It is difficult to see that anything further is required than that publicity be of a proper and targetted kind.

Availability of information in relation to the services to be provided is required under Clauses 15 to 17. My view is that the proposal which we have is a better way of dealing with the complaints procedure, particularly if the amendment of my noble friend Lord Mottistone to widen the scope of those who may complain is to be given effect to any extent. We are both left considering that particular matter.

9.15 p.m.

Lord Prys-Davies

I am grateful to the noble and learned Lord the Lord Chancellor for his response. We were particularly anxious that the procedure should be made known to parents and children because they are the people who will probably originate the complaints. But the noble and learned Lord has referred to Schedule 2, and we shall have to consider the provisions in the schedule. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Banks moved Amendment No. 121: Page 19, line 42, at end insert— ("( ) Independent appeal panels shall be established to make final and binding adjudication on complaints.").

The noble Lord said: I beg to move Amendment No. 121. If there is a complaint or representation about the way in which a local authority has carried out its duties under this part of the Bill we feel that there should be a means of appeal against any decision which the local authority is competent to make. We feel that that appeal should be heard by people who are not involved in the particular case or in the running of the section of the social services department involved.

Therefore in this amendment we have provided for the establishment of independent appeal panels which would decide on behalf of the local authority on any matters presented to them. We think that such a system would be fair and designed to increase confidence in the complaints procedure. The panels would deal only with such matters as the local authority would be required to decide upon in any event. Of course there are such appeals panels already in existence in connection with some local authority social services departments.

In a local authority setting there are limitations on independence, particularly given the importance of including on any panel someone with experience of the work of social services. Appeals panels already in existence typically comprise three people: one, an elected member (possibly the chairman or the vice-chairman of the social services committee); another, a senior social services worker unconnected with the sections of the department actually involved; and the third an independent person selected from a pool of independent people who are not employed by the department.

We believe the availability of an appeal to such a panel would strengthen confidence in the fairness of the complaints or representation procedure. I beg to move.

Lord Mishcon

All of us appreciate that in many cases throughout this land local authorities have behaved with the greatest of care and consideration regarding the children under their care. But your Lordships will also remember some dreadful cases that have occurred which show that some local authorities have not behaved as they should have done. Things have been concealed when they should not have been concealed; people have not been reproved when they should have been reproved; and things have not been investigated properly when they should have been investigated.

The Committee may be satisfied that the citizen will regard as independent something that takes place in the town hall of the local authority against which the complaint is being made. The average citizen will not. However the tribunal is made up, when parents walk into that local town hall they will regard it as a complaint against the very people to whom they want to complain. In an attempt to satisfy public opinion and to ensure that we try everything we can to avoid some of the dreadful cases that have occurred—I agree that they are the minority of cases—some such speedy procedure—I emphasise the word "speedy"—is necessary. It is important that in regard to children speedy decisions are made even when dealing with complaints. I hope that there can be a speedy procedure for independent panels of appeal to operate where required. I support the amendment.

Earl Russell

I should like to support my noble friend. The amendment adds something to the other amendments about the complaints procedure. It adds the word "independent". It is possible, to put it no higher, that complaints will be directed against the local authority. Whether those complaints are proved or not, it seems to be equally in the interests of the local authority and of all other parties to have them investigated by somebody whose findings will command confidence. There is at least a possibility of a suspicion that the local authority will be regarded as judge and party in its own cause. That is why the word "independent" adds a great deal of strength and attraction to the amendment.

The Lord Chancellor

I listened carefully to the noble Lord, Lord Banks, as he proposed the amendment. I am inclined to think that the independence was secured by the presence of at least one person who was neither a member nor an officer of the authority. Other members might not be concerned with a particular case but might well be officials of the authority. In any event, with the independent element to which I have referred already, what we have is a large step forward. We want to ensure a working machinery. We do not want a system that is hedged about with complaints procedures, appeals, further panels, judicial review, and so on. A child has to get on with living. I agree that there is also scope for people who administer complaints procedures and appear in them to live as well. But the primary purpose is to bring the situation to the attention of the local authority by reference to an independent person.

It is difficult for me to accept that elected local authorities should be tied hand and foot by appeals panels of this kind. After all, the members of the local authority are elected representatives of the people in the locality. They are obliged to have regard to the representation procedure decision taken by a system which includes an independent element. I should have thought that that was a wise arrangement in a practical matter. To try to build further structures of appeal and so on upon it would be to build a structure which is too heavy and apt to divert useful resources from taking care of the children to procedures which might have less than desirable effects.

Lord Mishcon

I sincerely hope that the noble and learned Lord will have second thoughts about the matter. I have no doubt that all he said would apply to planning matters, in spite of the fact that there are appeals for planning procedures. Indeed, all of it might apply to building regulations and many other matters which are dealt with by local authorities where of course other procedures are available.

Indeed there is the procedure of judicial review in regard to anything which any tribunal seems to be doing in the land at present. All that is very healthy. However, I should have thought that much more important than a planning application and building regulations is the complaint of a child or a parent that something is going terribly wrong with the way in which care is being administered.

For all the eloquence of the noble and learned Lord, I wish that I had precisely the same picture of the elected representatives of local authorities as being always experts on matters concerning children or indeed upon many aspects of life. It is one of the features about which many of us are apprehensive. With powers being taken away from local authorities, as they have been, and funds not being available to them, the same type of member which some of us remember in local authorities does not appear to be coming forward for election.

The same applies to local government officers. Let us be perfectly frank—they are not made of the stuff that local government officers were made in days gone by, as I remember from my many years in local government. We must be realistic about this. The point is that we are dealing with human lives and complaints involving children. Everyone in the Committee cares much about this matter, otherwise we would not be here at this hour discussing it at the Committee stage. But to deny the right of an appeal panel to an aggrieved parent or an aggrieved child is quite wrong; it would hardly add to the administration. I repeat, if we have an appeals procedure for nearly everything else in the land and a judicial review where we have not, what about the children?

Lord Banks

I am most grateful to the noble Lord, Lord Mishcon, and to my noble friend Lord Russell for their support on the amendment. The noble and learned Lord the Lord Chancellor thought that it would be too complicated and heavy. However, the noble Lord, Lord Mishcon, pointed out the number of other cases where similar procedures are followed. Indeed I mentioned in my remarks that it already works with some social services departments, and it is merely a question of extending what already exists over the whole field.

The noble and learned Lord set a great deal of store by the independent person who is provided for in the Bill and who would be involved in the making of the initial decision. That provision is certainly good as far as it goes, and is to be welcomed. However, here we are trying to provide an appeal against the initial decision if someone should feel so aggrieved by what has been decided. We feel that that additional appeal would give greater confidence in the system. However, in view of what the noble and learned Lord has said, I should like to consider the matter further and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Banks moved Amendment No. 122: Page 19, line 42, at end insert— ("( ) Every local authority shall establish procedures to monitor complaints and other representations, and shall review procedures and practices in the light of such information.").

The noble Lord said: If we believe that a fair complaints or representation procedure should be an important part of local authority care, then it is equally important to keep that system under constant supervision. That should be achieved by arranging, as the amendment does, for the establishment of a procedure to monitor complaints and representations. Reports on the work of the complaints procedure would provide the local authority with information as to whether the procedure was working in practice and what changes, if any, were necessary.

As things stand, complaints are rarely monitored, and their potential value in terms of quality control and the identification of gaps in the service is not often utilised. The results of the monitoring should influence policy development, service promotion, training and managerial systems. I beg to move.

9.30 p.m.

The Lord Chancellor

As I said earlier, the clause and the part of the Bill that we are considering put a new obligation on local authorities to establish a representation procedure. That development by itself will lead to consideration and reconsideration of their practice. The Secretary of State will have power, by regulation, to set minimum standards to which the local authority would have to adhere.

I should expect local authorities, as a matter of good local authority practice, to monitor their operations. I doubt that any further statutory obligation is required. The matter will be provided for in guidance. It is entirely reasonable that that should be so. I am not sure that it would be easy to put such obligation into the Bill. I shall consider whether anything requires to be added to the power given to the Secretary of State by regulations on that head. As I said in relation to Clause 22(2), it is doubtful whether a mere power to provide minimum regulations in respect of the procedure would entitle the Secretary of State to oblige the authority to have any sort of monitoring system, so I am willing to consider that point.

Lord Banks

I am grateful to the noble and learned Lord for that reply. He said that he expected that local authorities would monitor the work of the complaints system; but expectations are not always fulfilled. I was glad to note that the subject will be referred to in guidance. I am grateful to the noble and learned Lord for his willingness to see whether there is anything further in that respect that he feels he can do. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 123 had been withdrawn from the Marshalled List.]

Lord Prys-Davies moved Amendment No. 124: Page 19, line 42, at end insert— ("(8) Every local authority shall ensure that parents are informed of case conferences and invited to attend for all or part of the conferences unless, in the view of the Chairman of the conference, their presence will preclude a full and proper consideration of the child's interests. Regulations shall specify what information shall be made available to parents before the conference.").

The noble Lord said: The amendment refers to a case conference. A case conference decides whether to place a child, whether or not he is in care, on a child protection register and is therefore an important decision. However, it is rare for a parent to be informed of a case conference in relation to his or her child, let alone to be invited to such a conference. We often have a case conference without the parents being present. That omission has been heavily criticised. The Cleveland parents were not invited to a case conference.

In her report, Lord Justice Butler-Sloss recommended, in general, that parents should be informed of case conferences and invited to attend for all or part of the conference. Amendment No. 124 is identical to the recommendation made by Lord Justice Butler-Sloss. We are content to rely upon her wisdom, but if further evidence is required I understand that it can be found in the decisions of the European Court of Human Rights and in the most recent advice to professional workers by the British Association of Social Workers. I beg to move.

The Lord Chancellor

The noble Lord, Lord Prys-Davies, in moving this amendment referred to the conclusion of Lord Justice Butler-Sloss in the report on the Cleveland inquiry in which she said, among other things: The child's interest must be the determining factor and the extent to which parents can be involved must be tempered by the nature of the matter under discussion". In this matter, therefore, I urge your Lordships not to attempt to set a legislative rule. Questions on participation in case conferences would be best dealt with in guidance issued by the Secretary of State where a flexible approach can be adopted to the many and various situations which can occur. In fact guidance on the lines of this amendment was issued in circular LAC(88)10 issued on 6th July 1988 when the Cleveland Report was published. The Committee should note that Clause 18(4) of the Bill requires a local authority, so far as it is practicable, to ascertain the wishes and feelings of the child, his parents and any other person with parental responsibility before making any decision with regard to the child. This is a new statutory obligation.

That brings me to another aspect. Case Conferences are not statutory. The noble Lord has explained when they normally take place. But they are not statutory and there is no definition in this amendment or in the Bill of what a case conference is. It is a system which has been developed for seeking to get a good decision at the stage to which the noble Lord has referred. But since the system itself is not on a statutory basis, it is wise, I believe, that the matter should be dealt with as a matter of good practice by guidance, reinforced by the new provision of Clause 18(4) which of course has effect on every decision, including the decision which a case conference would take.

Lord Prys-Davies

Once again I am grateful to the noble and learned Lord the Lord Chancellor for his reply. He reminded the Committee that relevant guidance was issued last year in respect of case conferences. But we have been pressing for guidance on parental participation to be incorporated in the Bill or in regulations. It would appear that, notwithstanding the advice which has been issued, local authorities are on the whole slow and unenthusiastic about following the guidance. However I note the reference of the noble and learned Lord the Lord Chancellor to Clause 18(4) of the Bill. I am sure that that will be helpful.

In the light of the reply we shall consider whether to bring this amendment back for further consideration. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22, as amended, agreed to.

Clauses 23 and 24 agreed to.

Clause 25 [Miscellaneous]:

The Lord Chancellor moved Amendment No. 125: Page 20, line 46, leave out subsections (1) and (2).

The noble and learned Lord said: This amendment would remove a superfluous reference imposed on local authorities by Sections 1 and 2 of the Child Care Act 1980 which are replaced by provisions in Part III of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Schedule 2 [Local Authority Support for Children and Families]:

Lord Mottistone moved Amendment No. 126: Page 76, line 20, at end insert ("; and (c) publish information on such other services as the authority consider appropriate.").

The noble Lord said: Amendments Nos. 126 to 130 are all aimed in the same direction. I shall talk to Amendments Nos. 126 and 127 separately and 128 to 130 together. It is essential that local authorities have strength and power in duties to promote strategies to prevent child abuse in all its forms. The purpose of these amendments is to enshrine these in primary legislation in order to concentrate the attention of local policymakers on the necessity to provide a range of preventive services to children and families.

I turn to Amendment No. 126 in particular. Local authorities often work in partnership with voluntary sector agencies to provide a range of welfare and educational services to the local community. There are also many community-based organisations which provide services that benefit children and parents. Examples include playgrounds and out-of-school provision for older children. All these have the potential either directly or indirectly to improve the quality of a child's family life.

If a local authority considers these services appropriate, they should be publicised in order to provide an extended range of services as a choice for families. An authority might also consider it appropriate to publish information on services provided by profit-making organisations which provide relevant facilities or services. I think that that could usefully be added to the end of paragraph 1 of Schedule 2. I beg to move.

Lady Kinloss

These amendments seek to do two things. They seek to allow local authorities to publish information on services provided by people other than the statutory authorities, which often work in partnership with voluntary organisations. Given that many services, particularly those for under-fives, are provided by voluntary or community groups, it would be useful, if local authorities thought it appropriate, for these services to be widely known about.

Amendments Nos. 128 to 130 seek to give statutory recognition to the emotional abuse of children. I believe there is no strict legal definition of emotional abuse. However, it must be stressed that this is a form of abuse recognised by the NSPCC and is a working definition commonly used by social workers. A child can be said to be emotionally abused in situations where, for example, he is constantly taunted or shouted at or where he is manipulated by parents who have a disagreement with each other. I accept that in some circumstances, such as a particularly nasty divorce, there may be little a local authority can do. However, family centres and child guidance, which are mentioned later in the schedule, could be of enormous benefit to the emotionally abused child in other circumstances.

Lord Hylton

For a long time now we have heard a great deal about partnership between the statutory and the voluntary sectors. Everyone agrees with this, but of course it does not happen uniformly across the hoard. Some places are very much better at it than others. Nevertheless this seems to be an opportunity in the Bill to make sure that it really happens. We acknowledge that the Government have taken certain steps since they came to power to encourage giving to charities. They have sought to help the voluntary sector in other ways. I do not see how the Government can resist this amendment and I personally support it very strongly.

The Lord Chancellor

I am not proposing to enlighten the noble Lord, because I accept the principle of this amendment. If my noble friend will allow me to consider how it can be taken on board, I shall certainly agree to do that. It appears to be a useful point for which I am indebted to my noble friend and to all those who have supported it.

Lord Mottistone

I am most grateful to my noble and learned friend. As I understand that he is going to put the amendment into the proper language, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, wihdrawn.

Lord Mottistone moved Amendment No. 127: Page 76, line 27, leave out ("may") and insert ("shall").

The noble Lord said: This amendment strengthens the duty of a local authority, in turning "may" to "shall", to assess the support which an individual child may require. If a local authority knows that a child is in need, it seems only right that the child's needs are assessed. I hope that my noble and learned friend will feel that he can be equally generous with this amendment. I beg to move.

The Lord Chancellor

I think there may be some slight misunderstanding about this. My understanding is that this amendment would require a local authority, rather than allow it, to assess a child's needs for the purposes of Part III, at the same time as any assessment is made of his or her needs under the other statutes specified in paragraph 3(a) of Schedule 2. The purpose of the word "may" in paragraph 3 of Schedule 2 as drafted is to allow the local authority to carry out an assessment of a child's need of services under Part III at the same time as any other statutory assessment which may be appropriate is carried out if it is sensible and practicable that they should be done together. That will sometimes but not always be so. If any assessment had been carried out under one of the other statutes a few weeks earlier, under the amendment the assessment for the purposes of Part III either could not be carried out or would require the earlier assessment to be done again.

The discretionary provision provides flexibility in the matter, which is surely desirable. It is not suggested that an assessment under Part III will not be required but rather the Bill allows flexibility as to when such an assessment should be undertaken. It would be sensible normally to carry out the assessment with the others but there may be circumstances in which that is not possible. Therefore I think that the word "may" is more appropriate to cover that possibility.

Lord Mottistone

I understand what my noble and learned friend has said. I still think that there ought to be compulsion, but we shall consider that question and come back to it at a later stage. At this point I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Lord Mottistone moved Amendment No. 128: Page 76, line 37, leave out first ("or").

The noble Lord said: In moving Amendment No. 128 I should like to speak also to Amendments Nos. 129 and 130. My noble friend Lady Kinloss has in effect told the Committee exactly what the amendments are all about. We are seeking the inclusion in this part of the Bill of an additional form of abuse; namely, emotional abuse. It has no legal definition at the moment and I think that we should have to give it one if my noble and learned friend thought that it was reasonable to include emotional abuse in the Bill.

Emotional abuse is referred to in Department of Health circulars so it is not an entirely new concept. There is no doubt that emotional abuse is used, sadly, in the maltreatment of children. I should very much like to think that we could find some way of including it in Schedule 2 to the Bill. 1 hope that my noble and learned friend may feel that he can help me in that direction. I beg to move.

Lord Mishcon

I should like at once to say that I agree with every word that the noble Lord, Lord Mottistone, said about the need to add something to paragraph 4 of Schedule 2, Part I. I am sure that the noble and learned Lord will agree that it is terribly important that when one places a duty upon a local authority in an Act one has to be careful about the language used because the courts may have to construe whether or not a local authority is carrying out that duty.

At present there is a limitation to the reasonable steps which a local authority has to take; namely, that through the provision of services under that part of the Bill they must prevent children in their area suffering neglect or physical or sexual abuse". There it ends. As the noble Lord said, and as the noble Baroness said before him, we must try to include the category of abuse which many of us know by the term emotional abuse but which a court would find extremely difficult, in my humble submission, to define with any precision.

In an endeavour to meet the very point which the noble Lord has made I looked elsewhere in the Bill. I had a little bit of inspiration. The noble and learned Lord may want to describe it in another way, but I hope that it was a little bit of inspiration. I turned to the definition clause on page 22 of the Bill, where subection (8) states that in that section, 'ill-treatment' includes sexual abuse and forms of ill-treatment which are not physical". That seemed to me to fit the bill, if 1 may use the phrase.

Therefore bearing in mind Lord Mottistone's point, I thought that that was a useful way of dealing with the matter; namely, with the very language of the Bill in another part. I have made the speech that I would have made were Amendment No. 130A to be called. It will not be called, but I promise the Committee not to make that speech again. I hope that the noble and learned Lord will think that the suggestion is an acceptable one.

Lord Meston

I should like to support what has just been said, in particular with respect to the noble Lord, Lord Mottistone, preferring Amendment No. 130A, because it seems to me that emotional abuse, although that is a phrase which is sometimes used, is more generally referred to as emotional deprivation. Emotional deprivation, which is not perhaps so easy to describe as a form of abuse, nevertheless would fit within the definition suggested by the noble Lord, Lord Mishcon.

The Lord Chancellor

I entirely agree that this is an important matter. I am very grateful for the suggestion contained in Amendment No. 130A, and I certainly do not wish to describe it in any less appreciative terms than those used by the author himself. I should certainly like to consider it.

I suspect, though I may be wrong, that in some of the elements that were described by the noble Lady, Lady Kinloss, there may be types of emotional abuse which, as the noble Lord, Lord Mishcon, said, amount to emotional deprivation perhaps, and are in the nature of emotional neglect. However, I think that this phrase will probably be as good as we can obtain.

However, the matter is so important that I think we ought to consider it further. Various suggestions have been made to me; and certainly a number of difficult questions, with which I shall not trouble the Committee tonight, are posed about the borderline and what can happen at the borderline. I think that everyone would agree that we are in a particularly difficult area and the more thought that we can give to the matter, the better. Our thoughts having been stimulated, perhaps we can agree to return to it at some other time.

Lord Mottistone

I thank my noble and learned friend, and indeed other noble Lords and the noble Lady who have spoken on this matter. I think that we have a very good point. My noble and learned friend said that perhaps the word "neglect" might cover some of the points made by the noble Lady, Lady Kinloss. She mentioned being shouted at, taunted or verbally abused, and one cannot call that neglect. That is emotional abuse. There are no two ways about it. The difficulty is probably met by the definition of ill-treatment that the noble Lord, Lord Mishcon, so cleverly dug out of the back of the Bill.

I look forward to seeing a government amendment. In the meantime, I shall get to work and try to produce another one just so that we do not lose the point. It is important that it is written into the Bill. However at this stage I beg leave to withdraw Amendment No. 128.

Amendment, by leave, withdrawn.

[Amendments Nos. 129 and 130 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 130A: Page 76, line 37, after ("abuse") insert ("or forms of ill-treatment which are not physical").

The noble Lord said: I merely want to say that I entirely resent the jealousy of the noble Lord, Lord Mottistone, in endeavouring to get an alternative to Amendment No. 130A.

The Deputy Chairman of Committees (Lord Ampthill)

It seems that Amendment No. 130A is not moved.

[Amendment No. 130A not moved.]

[Amendments Nos. 131 to 133 not moved.]

The Lord Chancellor moved Amendment No. 134: Page 78, line 36, leave out sub-paragraph (a).

The noble and learned Lord said: Paragraph 11(a) of Schedule 2 provides for regulations as to the description of arrangements that may be made under Clause 19(2)(f) which provides for local authorities to make other arrangements for children as seem appropriate. The amendment would remove this provision, which is unnecessary and is potentially restrictive of the other arrangements that may be made. The Committee may remember that I explained this point in relation to Amendment No. 97.

Amendment No. 134 removes an unnecessary restriction in this part of the Bill which is associated with that provision and I invite the Committee to approve it. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 135: Page 78, line 41, leave out sub-paragraph (e).

The noble and learned Lord said: This amendment was discussed with Amendment No. 87.

On Question, amendment agreed to.

Baroness David moved Amendment No. 135A: Page 79, leave out lines 14 to 16 and insert— ("(1) Where a child is being looked after by a local authority, the local authority shall, unless it is not in the interests of the child to do so, promote contact between the child and—").

The noble Baroness said: This amendment is to ensure that local authorities are positively encouraged to promote contact between children in care and their families. The current statutory code of practice on access provides, that local authorities have a positive responsibility to promote and sustain access". That appears in paragraph 3 of the code.

Recent research, in particular that of Spencer Millham and others, entitled Lost in Care, and that of David Berridge and others entitled Foster Home Breakdown, has shown clearly that, firstly, promoting and maintaining close links between children and their families is essential if the objective of reunification is to be achieved, and, secondly, that, even if children are not to return home, enabling them to remain in contact with their families and friends gives them greater security, a sense of identity and a sense of belonging.

Casework carried out by the Family Rights Group, training experience, and the evidence of recent research shows that, regrettably, social services departments do not actively promote and encourage contact between children and their families. All too often meaningful contact is seen as one or two hours a week, often with a social worker or foster carer present. Insufficient attention is paid to making visits between children and their families relaxed and enjoyable for all concerned. It is therefore very important that the legislation gives a lead in stressing the role that local authorities have to play in promoting contact. I beg to move.

Baroness Faithfull

In supporting the amendment of the noble Baroness, Lady David, perhaps I may save time by speaking to Amendment No. 135B. I am asked to bring it before the Committee by the National Association for the Protection of Children in Care. The amendment is very much in line with Amendment No. 100A. The position is the same as that described by the noble Baroness, Lady David, namely, that, Where a child is being looked after by a local authority, the authority shall, so far as is reasonably practicable and consistent with his welfare, endeavour to promote contact between the child". and under (c), any other person connected with him". My amendment inserts "his siblings" in place of "him".

The Lord Chancellor

The Bill as drafted endeavours to deal with this point by stating in Schedule 2, paragraph 13(1) of Part II: Where a child is being looked after by a local authority, the authority shall, so far as is reasonably practicable and consistent with his welfare, endeavour to promote contact between the child and his parents and so on. The effect of this amendment is to leave out "reasonably practicable" and the reference to "endeavour".

The principle is being aimed at, but one has to recognise that it is not right to put duties on local authorities that it is not practicable for them to carry out. We are providing what the noble Baroness wants "so far as is reasonably practicable". It would be most awkward and wrong should the local authority find itself in breach of this requirement in circumstances where it is not reasonably practicable to endeavour to promote contact. For example, there are cases where the whereabouts of the parents of the child are not known. In these circumstances, where the local authority has no way of getting in touch with the parents, it would be impossible for the local authority to carry out a requirement to promote contact. I hope the Committee will agree that this example demonstrates that the qualification "so far as is reasonably practicable" is wise and necessary. We are anxious to secure exactly the same result, but we must try to tailor the words of the obligation to what can be done.

For similar practical reasons we believe that it is important that the duty should require a local authority to endeavour to promote contact. It should not be limited to a duty to promote contact. The local authority could make every effort to promote contact between a child and his family, but its efforts could fail because contact could only be achieved in any meaningful sense by the mutual agreement of those concerned. If the parents or the child refuse to see each other or respond to letters or telephone calls, with the best will in the world the local authority will not be able to promote contact. The proposed amendment would mean that the local authority would find itself in breach of the statutory requirement if it could not achieve the result. That is why we have used the word "endeavour". The principle is exactly the same, but we have tried to tailor the words of the clause to a practical situation. The same applies in relation to Amendment No. 135B and I think I gave a clear explanation when we discussed it with Amendment No. 135A.

We are at one on the principle, but not about the way to express it. I believe that we have expressed it as strongly as is reasonable in relation to all the possible circumstances with which a local authority may be faced. I am sure that both my noble friend and the noble Baroness, Lady David, are familiar with cases in which contacts with parents are not possible to achieve. I myself have had experiences, especially in divorce cases, where it is not possible to achieve those contacts much as one would like to do so. One must continue to endeavour. One does not want to give up just because it does not work once. Therefore the word "endeavour" implies the idea of continuing to work at it in the hope that ultimately it will prevail. I believe this contains the flavour that would be appropriate for this sort of situation.

10 p.m.

Baroness David

I suspected that that would be the answer. I believe that we are aiming at the same end. We are hoping that a rather more positive approach would have a better effect. I appreciate what the noble and learned Lord has said, that we want the same result.

At the moment I shall not push this amendment any further but am prepared to withdraw it. I shall have to reconsider the matter and decide whether we need to raise it again. I must emphasise that we know how important it is for contacts to be kept or established as far as possible between the child and his family. That was the reason for the amendment, but I shall think more about it and for the moment beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135B not moved.]

Baroness David moved Amendment No. 135C: Page 79, line 20, at end insert— ("( ) Where a child is being looked after by a local authority, the local authority shall follow the guidance contained in the Code of Practice on Access to Children in Care.")

The noble Baroness said: This is continuing along the same lines. The statutory code of practice on access was introduced in 1984 and has proved extremely helpful to local authorities, children and families. It sets out general guidelines for good practice in relation to access. It goes into far more detail than would be appropriate for legislation or regulations and it is a vital accompaniment to legislative guidance on the importance of local authorities in promoting contact between children and their families. All the amendment tries to do is to stress that the guidance should be followed. I beg to move.

The Lord Chancellor

The code has been of great value and I am glad to know that the noble Baroness agrees with that point of view. It is the only child care issue subject to a statutory code of practice of this kind.

At present access can only be challenged in the courts by parents or others when access is actually terminated or refused. They cannot challenge a decision severely to restrict access. The code among other things specifically addressed that question of restriction of access, and more generally contact in relation to children subject to care orders.

The new provisions in the Bill bring substantial reform in this area, including most of the matters which are currently dealt with in the code. Paragraph 9 of Schedule 2 requires local authorities to take reasonable steps to enable children living away from their families to live with them, and to promote contact between them and their families where this would be in their interests. Where a child is being looked after by a local authority paragraph 13 of Schedule 2 provides for the promotion and maintenance of contact between the child and his family.

There will be a presumption of reasonable contact between a child in care and his parents and others. Local authorities will be expected where possible to agree on arrangements for contact at an early stage.

We have tried to include in the Bill the main issues contained in the code. It would not now be appropriate to return to the code, a large part of which is overtaken by those changes. I hope that the noble Baroness will consider that we have included important parts of the code in the Bill and that that shows the importance we attach to them.

Baroness David

I think that I am convinced by what the noble and learned Lord said but, as is so often the case, I shall need to read it to be totally convinced. I shall do so during the course of the next few days in order to decide whether I need to come back. I suspect that I shall not but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 136 and 137: Page 81, line 46, at end insert ("or"). Page 82, line 1, leave out sub-paragraphs (d) to (f).

The noble and learned Lord said: With permission I shall take these two amendments together. The purpose of these amendments is to remove inappropriate grounds for dispensing with the need for a parent's consent for a local authority to arrange for a child in care to live abroad. It is important that, where a local authority wishes to arrange for a child to live abroad, there are proper procedures in place to secure the child's safety and well-being. Local authorities do not make these arrangements very often.

Usually it happens when a foster parent with whom the child is living wishes to emigrate or when a suitable relative living abroad wishes to look after the child. At present, under the Child Care Act 1980, local authorities have to apply to the Secretary of State to give his approval to the arrangements. The Government have decided, however, that making arrangements for a child to live abroad is such a serious step and so fraught with potential difficulties for the child that in future a court procedure would he more appropriate.

One of the particular safeguards we wish to provide for is the need for the consent of the parents or person with parental responsibility to be obtained before the court can give its approval. However, as in adoption proceedings, provision has to be made for those situations where it would be appropriate to dispense with the need to obtain the parents' consent. We think, on reflection, that this is adequately provided for in the grounds in subparagraphs (5)(a) to (c). These are where the court is satisfied that the person concerned cannot be found, is incapable of consenting or is witholding his consent unreasonably.

We consider that the grounds for dispensing with consent are uncomfortably close to the existing grounds for a care order which this Bill seeks to set aside and replace and that those subparagraphs in (5)(a) to (c) provide the correct basis for dispensing with consent where appropriate. I beg to move.

On Question, amendments agreed to.

Baroness David moved Amendment No. 137A: Page 82, leave out from beginning of line 40 to end of line 12 on page 86.

The noble Baroness said: I moved my last two amendments admirably briefly but I am afraid that I shall be a little longer in speaking to this amendment. It is extremely important so I give warning that I shall be speaking for several minutes. The purpose of the amendment is to abolish the requirement on parents and children to contribute to the maintenance of children being looked after by the local authority.

I should like to explain the current position. Parents of children in care are liable to make contributions towards the maintenance of those children unless those parents are in receipt of income support or family credit. If the parents are not exempted from payment a local authority must require contributions to be made unless it considers it unreasonable to do so in an individual case.

The local authority has the power to charge all parents the same or to fix the charge according to family income. It is required by law to notify a parent of its proposed weekly charge and the local authority and parent have one month to reach an agreement about the amount to be paid. If agreement cannot be reached the local authority applies to a magistrates' court to obtain a contribution order. The court must take into account the parent's ability to pay but beyond that cannot consider the merits of whether or not a parent should be ordered to pay a contribution.

Perhaps I may turn to the changes proposed in the Bill. Paragraphs 19(1) and (2) of Schedule 2 give the local authority greater discretion to decide not to require contributions to be paid.

I should now like to refer to the problems which exist and which will remain under the new legislation. We believe that the system is unfair to families. A survey by the Family Rights Group on the charging policies of 77 local authorities in England and Wales provided a picture of local authorities chiselling contributions out of the poorest families—contributions which did not amount to much in comparison to the costs of providing care but which caused immediate hardship to the families. For better off families on wages of up to £110 per week—that was in 1981 and would not perhaps be considered to be a very good wage now—the recovery of sums of up to £35 per week for a single child in care and over £l 0 for several, at a rate of up to 75p in the £1 or even £1 in the £1 from their net incomes, transforms the poverty trap into a financial black hole. Not surprisingly many families do not or cannot pay, and arrears are endemic.

A detailed study by members of the Association of British Association Social Workers in Coventry found that 80 per cent. of parents requested to pay contributions were in arrears and in one in 10 cases this necessitated court action. The study stated that the heavy charges made some families reluctant to have their children admitted to care and led others to withdraw them prematurely from care.

The 1983 report of the Joint Working Group on Personal Social Services Charging Policies produced by the AMA and ACC stated: attempts to collect debts can put severe strains on the families of children in long-stay care. Further, if the social services department press for a maintenance contribution for a child in care, that can hinder the rehabilitation of the child with his family".

The House of Commons Social Services Committee report on children in care in 1984 submitted: evidence received shows the damage and difficulties which parental contributions can in some circumstances cause … far from helping maintain links with the child"— that is one of the arguments in favour— a contribution when taken with the financial burden of travelling to visit a child, buying presents, etc, can be the last straw. The NSPCC told us that there were even cases of parents being sent to prison for failing to contribute and the FRG survey showed that most families were in arrears on their contributions. Contributions can cause unnecessary strains, for example, on parents with children in care who have another family to care for, to the extent that they may seek to have a child back to avoid that financial strain, with disastrous results".

Perhaps I may give an example of one or two cases. In a social inquiry report presented to a juvenile court opposing the discharge of a care order, a social worker said that the mother should pay off her heavy debts before she was reunited with her three children in care. Over half the money was owed to the council's finance department for arrears of parental contributions. A father appeared in court recently who was being prosecuted for arrears of contributions in respect of his son to whom he had been denied access by the local authority for the past two years. He could not believe that that gave him no defence in court.

Different parents receive different treatment. Different local authorities have different policies on charging. Currently the parents of children in National Health Service institutions or in local authority educational institutions are not liable for contributions. The effect is that there will be children living in the same institution receiving the same care but the parents of some children are subject to contributions while the parents of others are not.

One local authority noted in 1983: If a young offender is sent to a borstal or detention centre, there is no charge on parents but if the offender is committed to care the parents are assessed to pay. If a handicapped child is in hospital there is no charge but if in care, there is. A child in need of boarding school education in a special school is often committed to care because of the shortage of boarding school places. There is no charge for the boarding school but there is a charge if the child is in care and goes to a day special school. If a mentally handicapped child is cared for by the social services department under the Mental Health legislation there is no charge but if the child is in care under children's legislation there is. It is manifestly unfair.

The House of Commons Social Services Committee noted these anomalies in its 1984 report and concluded by saying that, The ADSS [Association of Directors of Social Services] hinted strongly in their evidence that in view of these anomalies, the high costs of collection as against the low returns, and the frequently aggravating side effects of collecting contributions, there was considerable professional support for abolition of the idea of contributions. It is not clear whether these anomalies will continue under the Bill or whether the effects of Clause 25(6) will be to introduce charges to the parents of handicapped children who arc currently not subject to such charges. Perhaps the noble and learned Lord will enlighten the Committee in that respect. The system is complex, inefficient and costly to administer.

The local authority departments and their staffs have little, if anything, to gain from charging. It is the view of local authorities that the amount of money they collect does not meet the administrative costs of assessing parents' liability to pay, of bringing court proceedings and following up parents who fall into arrears. The joint working party of the AMA and the ACC which published a report in 1983 on parental contributions pointed out that the £2 million collected was insignificant in relation to the £200 million which was then spent on providing accommodation for children in care. It commented that, if charges were dispensed with, there would be a cash saving as well as a saving in staff time. That was contained in paragraph 353. In 1984 the House of Commons Social Services Committee stated: We recommend that contributions should only be levied on parents on the basis of there being an exception and positive reason to do so. In such circumstances we would expect to see full information about such liability to contributions given to parents at the time of a child's entry into care. Subject to this proviso, we recommend the abolition of parental contributions in respect of children in care.

At a meeting of many organisations last Tuesday, chaired by the noble Baroness, Lady Faithfull, this matter was discussed. I was amazed at the unanimity in the room among the associations represented there who supported this amendment and who hope that the amendment will succeed, with the abolition of the necessity for parents to contribute. However, that may not be fully decided and I hope that the noble and learned Lord will be able to give encouragement and perhaps even support the amendment. I beg to move.

10.15 p.m.

Baroness Faithfull

The noble Baroness is right that I chaired that meeting, and that the majority of the people there supported the amendment. However, the noble Baroness will remember that while I do not necessarily disagree with her amendment, there is another point of view to be considered before we finally decide on the matter.

The assessment process and the collection of contributions is expensive. Equally, I have to say that there are two types of cases. First, there is voluntary care—that is, when parents apply for their children to go into care. I am slightly worried that without assessment more parents will apply for their children to go into care when they are in financial difficulties.

Secondly, it depends how the assessment is done and who does it. I was very fortunate in having a most sympathetic assessment officer. It meant that the parents were kept in touch with the department from the point of view both of assessing and of collection. Also there was a sense of dignity financially, in that, even if you were only contributing 50p, £1, £5 or £10 a week for your child, you had a sense of responsibility for your child. It is the purpose of all of us to try to rehabilitate children so that they can go back to their families. The fact that parents had to pay for them, however small the amount, did mean that there was a sense of responsibility for the child.

I have to say that, in a number of cases where no assessment was made, the parents tended to disappear and you could not then rehabilitate the children back into their families. So I am in some difficulty. The noble Baroness has made a splendid case for her amendment but I would ask your Lordships to consider that there is another point of view. What we have to pay for we value: and I think it helps a number of parents to feel that they have not completely lost contact with their children if they have to pay something towards their support, however difficult that may be.

Finally, I would say that never at any time, although I believed in assessing parents in regard to payment for their children, did we ever take them to court. Certainly we would never have wanted them to go to prison for such a debt. Such cases were referred to the then social services committee, which would then decide to wipe off the debt. This is a very difficult and complex situation, but I think that if parents do not pay anything at all for their children they can lose interest in them and lose their sense of responsibility for them.

Baroness David

I always have the greatest respect for what the noble Baroness has to say—

Baroness Faithfull

Not in this case.

Baroness David

Yes, I do. There is only one thing with which I would totally disagree: that is that the parents would push their children into care in order to save money. I find that extremely hard to believe. The other thing is that I am sure the noble Baroness was an extremely enlightened director of social services and that she influenced her authority very well, but I am not sure that happens everywhere and I still feel, on balance, that it would be better to abolish the demand for contributions.

Lord Hylton

I do not expect the Government at this time automatically and necessarily to welcome this amendment with open arms, but the noble Baroness, Lady David, has made out a very strong case for it. She mentioned the possibility, when families do not have to make a contribution, of their using the money in order to travel to visit their children in care, thereby maintaining the family link.

Perhaps I may give some other examples of ways in which parents could use what they would otherwise have to spend on contributions. Taking holidays is another way of maintaining the link between the parent and the child. For example, there could also he saving towards a new home into which to bring the child when it comes out of care. For families which are very disorganised there are courses in home management and home economics, or even practical tuition in parenting. All these may need to be paid for or may require travel and the payment of fares. I recognise that there is very unlikely to be any way of compelling parents to spend their money on these desirable things, but I suggest that it would at least be an improvement if they were given the opportunity of doing so.

The Lord Chancellor

The noble Lord, Lord Hylton, has correctly anticipated the stand which I propose to take. Perhaps your Lordships will not be surprised to learn that I cannot agree to the wiping out of a large part of Schedule 2 by means of this rather neat amendment.

As the noble Baroness, Lady David, pointed out, this provision replaces and simplifies Part V of the Child Care Act 1980 but—this is most important—it lays greater emphasis on reasonableness. I feel sure that the matters to which she referred were under the previous law, while this attempts to deal with the matter by improving the situation.

Paragraph 19 specifically provides that local authorities should consider whether or not to recover contributions towards the child's maintenance and that they may only recover contributions if they consider it reasonable to do so. They must take account of all the circumstances in reaching that decision. It exempts parents from contributions during any period when they are in receipt of income support or family support under the Social Security Act 1986.

It encourages local authorities to reach agreement with the contributors by providing that a contributor is not obliged to make any contribution except as agreed between him and the authority or, failing agreement, as determined by the court, which is required by paragraph 21(3)(6) to pay due regard to the contributor's means. So there are no circumstances in which the court could order a payment which did not have proper regard to the contributor's means.

The authority is further encouraged to reach agreement with the contributor outside the court by the provision in paragraph 21(3)(a) of the schedule that a contribution order made by the court shall not specify a weekly income to be contributed greater than that specified in the authority's initial contribution notice. So there is no question of going to the court to get more than the authority initially sought.

There is further protection for the parent or child that he may withdraw his agreement to pay particular contributions at any time—this is paragraph 20(8)—if, for example. he falls on hard times, or indeed for any reason. Appeals against court orders will be provided for in rules of court while aggrieved parents will also be able to make representations; or, if the suggestion of the noble Lord, Lord Prys-Davies, is given effect, a complaint under the new procedure in Clause 22.

I do not think there is anything objectionable in principle in enabling local authorities which are looking after a child subject to a care order or providing accommodation under voluntary arrangements to ask for contributions from parents, or, if he is over 16, the child towards the cost of his maintenance, provided they satisfy themselves that they can afford to pay and the contributions sought are reasonable.

After all, there will be some savings to the parents by virtue of the fact that an authority is looking after the child. No doubt, as the noble Lord, Lord Hylton, said, if some parents were able to save money in that way they would put it to good use; but not everyone would do that, as he recognised. Accordingly, I believe that the changes we have made are changes which modify the effect of the old law in a constructive way, and have the effect of introducing this overall reasonableness which gives the local authority an area of discretion that helps to avoid difficulty.

I do not wish to go over the ground covered by my noble friend Lady Faithfull because I cannot improve on the words that she used, but that aspect of the matter also has to be taken into account.

The noble Baroness, Lady David, asked about handicapped children. The situation is that local authorities can charge, subject to means, for children looked after. There is no charge for National Health Service provision. If I am at home I have to pay for looking after myself. If I go to a hospital I do not have to do that. That may be regarded as anomalous by some, but one has to take account of the fact that children in care are children the responsibility for whom has been taken over by the local authority, and if the parents are able to pay it seems reasonable that they should be required to pay a reasonable contribution to what otherwise would have been their responsibility.

Accordingly, I hope that the noble Baroness may feel able not to press the amendment. But if she were to do so I hope that the Committee would feel that the reasonable provisions in this part of the law should be given effect.

Baroness David

I shall not press the amendment at this time of night but I am not entirely convinced by that response. There are still anomalies. I shall read carefully what has been said and I may well come back at the next stage. I suspect that it would be very much simpler to abolish the payments altogether. However, at this moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Local Authority Support for Children and Families]:

[Amendments Nos. 138 to 143 not moved.]

Schedule 2 agreed to.

10.30 p.m.

Clause 26 [Care and supervision orders]:

Lord Irvine of Lairg moved Amendment No. 144: Page 21, line 26, leave out subsection (1) and insert—

1. (" (1) (a) any application by a local authority or authorised person for an order placing the child with respect to whom the application is made in the care of a designated local authority shall be made to the High Court;
2. (b) any application made by a local authority or authorised person for an order putting him under the supervision of a designated local authority or of a probation officer shall be made in the High Court or in a County Court;
3. (c) nothing in this section shall affect the power of the High Court to make a supervision order on an application by a local authority or an authorised person for a care order.").

The noble Lord said: The object of this amendment is to provide that care orders are dealt with exclusively in the High Court; that supervision orders are dealt with either in the High Court or in the county court; and that the magistrates' court has no involvement in either of those sets of proceedings. It is my unique talent for timing that leads me to move this substantial amendment at this hour, but I fear that I have to speak to it in a little detail in order to do it some justice.

I should like to set out the arguments for excluding magistrates from dealing with applications for care or supervision. I would be the first to pay tribute to the huge contribution made by lay magistrates to the administration of justice. Their commitment is unquestioned. The purpose of this amendment, however, is to argue that it is unacceptable that decisions which may lead to the permanent severance of a child from his parents should be taken by a lay bench. Care proceedings involve the sifting of complicated evidence and the assessing of a large number of separate incidents and issues in order to draw conclusions from their cumulative effect. In addition, difficult questions of law have to be applied to the facts as found. That requires legal training and competence of a high order and it is unreasonable to expect magistrates to achieve that standard.

The involvement of magistrates in care proceedings is a hangover from their duties as guardians of the Poor Laws, and, like their role in illegitimacy cases, is simply out of date. The almost invariable experience of practitioners is that such cases before magistrates take much longer than before a trained judge. In addition, the difficulty of ensuring that magistrates are available to continue hearing a case until it finishes, particularly when its length cannot be accurately assessed before the issues are investigated during the hearing, often means that many weeks and sometimes months can elapse before a case is finally concluded.

In view of the excellent emphasis in the Bill on the need for expedition, that is highly unsatisfactory because of the unsettling effects on the child concerned and also because it results in most of the detailed evidence at the first sitting not being correctly or properly remembered at a later hearing, which therefore tends to concentrate on the most recent parts of the evidence. Again, the experience of most practitioners is that an experienced judge will cut through matters that are peripheral so as to narrow the issue and save time by inviting the parties to concentrate on what really matters.

At the moment there is no provision for exchange of statements or affidavits in magistrates' court hearings. That practice in the High Court and in the county court means that the judge has read the papers beforehand and so is able to see what the issues are and direct the hearing to deal with those issues.

If magistrates are to continue to be used, then plainly there will need to be a system of exchange of written evidence and also a requirement that the magistrates themselves should read the papers in the case before the hearing. I should be interested to hear if the noble and learned Lord the Lord Chancellor wishes to say anything on this aspect of the exercise by the magistrates of their present functions.

It is not difficult to conclude that the magistrates may well feel overwhelmed with the volume of documents available to them, and the necessity to go through them before the hearing must entail an onerous imposition upon the free time of unpaid lay persons.

The common practice by which a professional judge will take an initiative which often results in a case settling is almost unheard of before a bench of magistrates. That is of greater importance in family cases than in any other class of case because the emotions which are almost always generated by those proceedings make it very difficult for the parties—that is, spouses, parents, social workers, and so on—to co-operate subsequently. That is what I have to say about the magistrates' jurisdiction.

I now turn to the arguments in favour of the High Court dealing exclusively with care cases. A care order removes from a child the right to be brought up by his own parents. It may also lead to severance of all contact between parent and child and may well lead to adoption. So the point is this: should not a professional judge of the highest calibre be made available to decide an issue of this gravity, which goes to the heart of family life?

I raise next the question of whether the county court bench is not much less suited than the High Court to deal with complex care cases. The circuit judge necessarily applies the whole gamut of the legal trade. Family cases are traditionally recognised as highly specialised. No doubt that is why Queen's Bench Division judges never try family cases. The breadth of the duties and the functions of the circuit judge surely makes him much less qualified than his counterpart in the Family Division of the High Court for those specialised and important cases.

Of course we welcomed the indication that the noble and learned Lord the Lord Chancellor gave on Second Reading that special training is to be given to county court judges dealing with children's cases. Perhaps the noble and learned Lord will think it right to elaborate on that aspect when replying to the amendment. Is what is envisaged a trained and interested pool of circuit judges who will give themselves enthusiastically to this class of case? But how can that be achieved consistent with all their other duties?

It must also be said that there are serious organisational difficulties which tell strongly against the county court in this class of case. The county court is not well organised to deal with cases which last longer than a day. The busy county court judge has to deal with the workaday problems of a busy centre and it is very rare that a substantial case can start much before 11.30 or 12 o'clock because of other matters which must be got out of the way. So, if the case goes over a day, especially if this was not anticipated when listed, it is almost impossible to continue into the next day, and a split hearing with all the attendant shortcomings will result.

Finally, one great advantage of the High Court in this area is that the judges travel the country administering a uniform standard of justice born out of regular contact with the mainstream thinking of the High Court judges and the Court of Appeal.

Therefore the amendment proposes care orders for the High Court, supervision orders for the High Court or the county court and no involvement of magistrates in either of those areas. I beg to move.

The Deputy Chairman of Committees (Lord Grantchester)

If Amendment No. 144 is agreed to, I cannot then call Amendments Nos. 145 or 146.

Lord Meston

The timing of the noble Lord, Lord Irvine of Lairg, is impeccable. Moving an amendment of this type at this time at night means that there are fewer magistrates to take offence at what he has just said and at what I am about to say, because I support everything that he has just said.

The problems in this area of the law are to some extent derived from the involvement of the lay magistrates, invaluable in many ways as their contributions otherwise are. There is the problem of assimilating and assessing evidence, dealing with hearsay evidence and assessing diagnostic evidence, especially in sexual abuse cases. There is a lack of any provision for affidavit evidence or the advanced disclosure of evidence in the matrimonial courts. A bench of three magistrates who are all unpaid part-timers cannot sit more than a few days consecutively on what may be complicated cases which need a speedy resolution.

As advocates we all know that appearing in front of a professional tribunal, which can take on a perhaps more involved inquisitorial role in court, enables proceedings to be shortened because a judge can say, "You do not need to trouble to address me on points A and B; I just want to hear what you have to say on points C and D." A bench of magistrates does not operate like that. It has to have everything explained to it at some length. It does not have the ability or confidence to shorten the proceedings and to refine the issues down to the short points on which it needs to hear evidence and argument.

If we are to have a system under the Bill in which the public is to have confidence, we must have one which ensures the highest calibre of tribunal to deal with these difficult cases. If one is entitled to have a county court judge decide which of two insurance companies should pay for a relatively trivial motor accident, surely one is entitled to at least a county court judge or a High Court judge to decide the most important matters of whether a parent should be allowed to keep or see his or her child ever again. I support the amendment.

The Lord Chancellor

The amendment is of a piece with those that we shall come to later which would exclude the magistrates' courts jurisdiction under other parts of this Bill and which seek to fix in primary legislation which tier of court should hear particular matters. However, in relation to this particular amendment, I should emphasise that the Government recognise the seriousness of intervention in the family that a local authority's applicaton for a care or supervision order represents. As I made clear in my Second Reading speech, one aim of the Bill is to match the weight of the case to the level of court. There are however factors other than weight to be taken into account in deciding which court should consider a particular case.

One example is complexity. Some cases relating to care and supervision may be straightforward while others may be much more complex with, for example, no direct evidence of physical abuse and perhaps with conflicting medical and other expert evidence. It is also generally accepted that delay is itself a major risk to children and their families, and given finite court resources the decision about where a case should be heard will sometimes need to take account of the harm that delay may cause. Further, stress has been laid on the need to hear all cases relating to the same child and his family in the same court if possible. This amendment would impede the Bill in taking those matters into account by fixing rigidly that all care cases had to be taken in the High Court.

Children and their families will not be helped if this Bill provides inflexible rules about where applications should be made which, on the one hand, ignore important factors which should influence where an application is made, and on the other hand ignore the realities about the likely availability of judge and court time in the superior courts and the consequent need to ensure that the most difficult cases are not delayed because the superior courts are saturated by cases which could properly be dealt with at a lower level.

I understand that there are complex cases that take a long time, but there are also shorter cases which take rather less time.

I shall explain again in greater detail when we reach amendments on Clause 69 what the Government have in mind in relation to jurisdiction generally. However, what is already clear on the face of the Bill is the Government's determination to create a flexible system which will enable subordinate legislation to be made about where cases should start and which will provide for the transfer of proceedings between courts if that seems desirable.

The purpose of the starting rules will be to ensure that cases start in the court where they are most likely to be heard, thus reducing overall delays and the expenditure of resources caused by transfer.

Although we recognise that a proportion of care cases justify hearing by a county court or in the most difficult cases the High Court, we expect that a considerable number, perhaps the majority, will continue to be dealt with by magistrates. Accordingly, apart from cases where there are already other family proceedings pending, we intend to provide by order that, at first at least, applications for care or supervision orders should be made to magistrates.

The Government are aware that criticisms are made from time to time of care proceedings in juvenile courts. However, as the scope of the reforms in the Bill demonstrates, those courts have to, and are continuing to, operate at the present time a system of law and procedure which is seriously flawed and which no court could reasonably be expected to administer without considerable difficulty. That said, the juvenile panels have developed considerable experience and expertise in this field and have devoted themselves to it with great commitment. The Bill improves care law and procedure. We will be taking powers to transfer the care jurisdiction to the domestic bench. All that should help to lay to rest the criticisms now levelled at the arrangements for care proceedings.

However, we recognise that some cases will be so complex as to require a professional judicial officer to hear them. We therefore intend to provide for the transfer of cases from the magistrates' court to a registrar who will then allocate the case within the county court or the High Court. If a magistrates' court or justices' clerk does not transfer a case to a superior court, it is intended to make provision for an aggrieved party to challenge the decision.

I would only add that the powers we intend to take under the Bill are such that should practice show that the majority of care or supervision cases need to be heard in the county courts and the High Court it will be possible either to allow or to direct that initial applications for care and supervision orders should be made to a superior court. We regard this power as being of the utmost importance. At present there is relatively little information of a general kind available about the nature and complexity of care cases and, in any event, the changes under the Bill would render that information of little value for planning the future. Our intention therefore is to keep the operation of the care and supervision aspect of the Bill under close review and to be ready to make any changes necessary to ensure that the best jurisdictional arrangements exist for dealing with the cases involved.

On a severely practical note, it must be very doubtful that the county courts and High Court could absorb the extra cases. On a broad estimate, the amendment could involve about 10,000 extra applications before those courts. On average the cases might take perhaps two and a half days. In terms of full-time judges that would mean fairly extensive finding of new judges. Cost aside, and despite the fact that registrars would have a part to play, that figure, I think, shows that this amendment would create very considerable difficulties.

The system in the Bill is designed to ensure that we can match cases to courts. I believe that an amendment which seeks to say at the outset that all care cases should go to the High Court and supervision cases to the county court or above is contrary to achieving the kind of flexibility and the system which the public expects for the determination of these matters. For these reasons, I would not feel able to accept this amendment.

Lord Irvine of Lairg

if I may say so, the noble and learned Lord the Lord Chancellor has made a most detailed and interesting answer which I shall read with care. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

I think we have probably reached the moment in the day when we should adjourn the Committee. I beg to move that the House do now resume.

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

House resumed.