Lords Sitting of 19 January 1989

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Leicester): The LORD CHANCELLOR Oil the Woolsack.

EC Transport Ministers' Council
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether air matters are included on the agenda for the informal meeting of the European Community Transport Ministers' Council to be held on 13th February, and whether it is the intention of Her Majesty's Government to put forward any such items for discussion at that meeting.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, we have not yet received an agenda for the meeting on 13th February. This is an informal Council and it is therefore entirely for the presidency to determine the agenda. However, I understand the presidency has indicated that it would like some discussion of air traffic control issues.
Baroness Burton of Coventry: My Lords, that is a somewhat lukewarm response, but I should like to thank the Minister for having gone to the trouble to give us even that amount of information. I hope he is aware that my being troublesome and persistent in this matter gives him the excuse for being the same.
As regards his reply today, as air traffic control issues are to be discussed on 13th February, can he say whether it is expected that the Commission will table its proposals on the matter? As for the second part of my Question, which the Minister did not answer, is it at all likely that the Government will be putting forward any suggestions concerning a discussion on liberalisation?
Lord Brabazon of Tara: My Lords, in reply to the second part of the Question tabled by the noble Baroness, of course we shall not hesitate to take the opportunity to put forward proposals on further liberalisation and to remind the Council to secure early progress on that issue. We are confident that the Commission will bring forward its proposals by the agreed date of 1st November.
As regards air traffic control matters, the Commission's proposals are being discussed at official level and are not yet ready to be put to the Council. However, we are not yet convinced that the Commission's involvement in air traffic control is necessary. As I have said before, we believe that ICAO and Eurocontrol should remain in the lead.
Lord Underhill: My Lords, the Minister will appreciate that we on this side of this House are giving full support to his efforts on Eurocontrol.
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However, is there likely to be any discussion on the question of aircraft and airport security. either at this meeting or at a future meeting? Further, I should like to ask another question which I hope is not too far beyond the scope of the Question on the Order Paper. With regard to 1992, will there be discussions at some stage on the question of road haulage and also coastal cabotage?
Lord Brabazon of Tara: My Lords, as I said in my original Answer, this is an informal Council and therefore it is for the presidency to decide the agenda for it. So far as I am aware the presidency does not propose to discuss aircraft or airport security.
As regards other measures which come before the Transport Council, we are indeed extremely anxious that progress should be made on the subject of cabotage and we shall be lobbying the presidency to that effect as soon as possible; and similarly on road haulage.
Lord Grimond: My Lords, will the Minister agree that not only the Government but also all air users should be most grateful to the noble Baroness for her constant questioning on this most important subject? However, can he say a little more about the Government's view on air traffic controllers? It appears to me that the delays which caused so much chaos last summer were, at any rate in part, due to troubles over air traffic controllers.
Lord Brabazon of Tara: My Lords, I am grateful that the noble Baroness raises these questions at regular intervals. It gives me an opportunity to put forward the Government's views on liberalisation and other matters. Indeed, I do not think that there is very much between the noble Baroness and myself as regards our ultimate objectives.
Air traffic control problems are a different subject and I have answered many questions about them. There are problems at the moment which we have been seeking to address over the past year, and we shall continue to do so.
Baroness Burton of Coventry: My Lords, in this happy atmosphere perhaps I may ask the Minister whether he is aware that I think I am in complete agreement with him about whether or not the Commission should have a hand in air traffic control. However, I am still somewhat puzzled by his answer because I think he told the House that it was anticipated that air traffic control would be discussed on 13th February. What I am not clear about is whether that is likely to be discussed on the 13th, without the Commission having tabled its proposals. If that is so, it seems a very odd position.
Lord Brabazon of Tara: My Lords, I think the answer is that, being an informal Council, it is not a Council at which decisions can be taken but one at which subjects can be discussed.

Hearing Aids: Standards
3.5 p.m.
Lord Milverton Lord Milverton asked Her Majesty's Government:
What consideration they are giving to ensuring that the standards of conduct among hearing aid dispensers in the private sector are improved.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, setting and maintaining standards of conduct among hearing aid dispensers in the private sector are the responsibility of the Hearing Aid Council set up under the Hearing Aid Council Act 1968.
Lord Milverton: My Lords, I thank my noble friend for that Answer. However, have he or his department studied the paper of the Royal National Institute for the Deaf on hearing aids entitled A Case for Change? Does he agree that it might be a good idea if the issue of the amount of representation of the consumer was added to the Hearing Aid Council's agenda and that possibly a trial period of, say, 30 days, should be given to those in need of hearing aids?
Finally, is he, with his honourable friend in another place, the Parliamentary Under-Secretary of State, and his department, really convinced that all possible doors are closed to dubious sellers who take advantage of the aged and the vulnerable? Further, will he thank his honourable friend for the letter he sent to me?
Lord Young of Graffham: My Lords, the council, which has been in existence for some 20 years, receives an average of about 70 complaints a year all of which are considered either by the registrar or the council's investigation committee. In the past four years three cases have been heard by the council's disciplinary committee and two further cases are the subject of an adjourned meeting.
I believe that the present system, subject to our looking at it further, holds the balance between trade and consumer interests. We are studying the matter to see whether there should be any changes.
Lord Molloy: My Lords, is the Minister aware that those hearing aid dispensers and examiners who operate within the National Health Service should receive the highest praise possible for the wonderful work they do? Is he further aware of their deep regret that many of the products of British science which could help British people who are hard of hearing or nearly deaf are denied them because the products are not obtainable on the National Health Service? Does he not agree that anything which British scientists and British dispensers can produce should be available to all British people, irrespective of income.
Lord Young of Graffham: My Lords, the noble Lord is doubtless aware that I am not the Secretary of State for Health. My responsibility is that I have some supervision over the private sector providers of hearing aids. That is the job of the Hearing Aid Council; that is the matter at which my department looks.
Lord Campbell of Croy: My Lords, is my noble friend aware that while the majority of suppliers appear to behave correctly, the Royal National Institute for the Deaf is most concerned about cases where individuals have been pressed into buying expensive hearing aids which are not suitable for them without any means of redress? Is he further aware of an impression that prevails that the disciplinary committee of the Hearing Aid Council, to which he referred, has only met once during the last three years?
Lord Young of Graffham: My Lords, of course there are existing procedures under the British Code of Advertising Practice for those who advertise misleadingly. That code has now had statutory underpinning by virtue of the misleading advertising regulations which came into force last year and which are enforced by the Director General of Fair Trading.
I am aware of the fair hearing campaign which was launched on 1st November last year. That is being considered by my right honourable colleague the Secretary of State for Health. I am looking at the provision of private sector providers. We are looking carefully into the position at present.
Lord Ennals: My Lords, is the Minister aware, or is his right honourable friend the Secretary of State for Health aware, that there is a good deal of concern about these unsolicited, unwanted and sometimes unwelcome visits from sales representatives? Such visits can sometimes be quite oppressive for the elderly when they are confronted in their homes. Will the Government consider whether some of the proposals for changes in the Hearing Aid Council which are contained in a Private Member's Bill in another place might not make the sort of improvements that have been referred to by the noble Lord, Lord Campbell?
Lord Young of Graffham: Yes, my Lords, we are aware of the proposals for a Private Member's Bill in another place which will slightly alter the balance in the constitution of the council. We are looking very closely at the validity of the number of complaints. At the moment some five members represent consumers on the existing council. They are the people to whom any complaints should be addressed; they should ensure that the council will take the necessary steps. It is a matter which we are considering. We have not yet reached a view, but I hope we shall be able to do so before much longer.
Lord Winstanley: My Lords, will the noble Lord accept that if the most modern hearing aid, the type of hearing aid which is in the greatest demand by people with hearing difficulties, were available in the National Health Service hearing aid clinics, people would be much less dependent on the private sector? Will the noble Lord have a word with his right honourable friend and tell him that it is time that we looked again at the range of hearing aids available under the National Health Service?
Lord Young of Graffham: My Lords, I shall certainly draw this Question and your Lordships'

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comments on it to the attention of my right honourable friend the Secretary of State for Health. I have no doubt at all that he will read the comments carefully.
Lord Molloy: My Lords, perhaps I may thank the noble Lord for what he has just said. Is he prepared to point out that the views expressed on all sides of the House this afternoon require that every Briton be given the best that British science can produce in the way of hearing aids?
Lord Young of Graffham: My Lords, I am receiving a slightly conflicting message: on the one hand, that we should dispense only British products, but on the other hand that we should dispense only the best of products. They may not in all cases always be the same.

Airports: Night Movement Restrictions
3.12 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What relaxations they intend to make next summer in the restrictions on night take-offs and landings at airports in South-East England.
Lord Brabazon of Tara: My Lords, the Government do not propose to relax the night noise restrictions at Heathrow and Gatwick next summer. At Stansted, where there are comparatively few night flights, the restrictions apply only to the noisiest types of aircraft. The case for relaxing these does not arise. A series of measures aimed at relieving air congestion this year is being implemented by National Air Traffic Services hut, in the event of widespread or prolonged disruption, the airport managers are empowered to exempt delayed flights from the quotas.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that comprehensive reply. I ask whether it amounts to this: that in general the Government are not prepared to relax night landing restrictions save in difficulties and emergencies. However, they believe that they have some other method for dealing with the shortage of runways.
Lord Brabazon of Tara: My Lords, our new night restrictions were introduced only last April after widespread public consultation. Our intention remains to see an improvement in the noise climate at airports. We do not wish to renege on promises made to the airport communities. Therefore we do not propose to alter our night noise regime. However, as I said in my original Answer, dispensations can be given in the event of widespread and difficult delays, and those will continue.
Lord Ferrier: My Lords, do my noble friend the Minister and his department fully appreciate that if only British Rail provided adequate rail services to and from Prestwick airport, pressure on other airports would be relieved? If the ancillary air services could be improved the same would apply.
Lord Brabazon of Tara: My Lords. I think that Prestwick airport is a very different subject from the one on the Order Paper and one on which I have only recently written to my noble friend.

Justices of the Peace: Age Limits
3.15 p.m.
Lord Moran Lord Moran asked Her Majesty's Government:
Why the Lord Chancellor will not appoint anyone past the age of 60, and usually not past the age of 55, to be a justice of the peace, and whether they think it right that justices of the peace have to retire at 70 whereas judges are not required to leave office until they are 72 or 75.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I am prepared to appoint older people to the Bench from time to time, but it is very important that the Bench should be broadly representative of the community and should not present an elderly appearance. For the same reasons I would not favour raising the retirement age, which was fixed by Parliament in 1968.
Lord Moran: My Lords, I am very grateful to the noble and learned Lord for that Answer. Did he see the letters published in The Times newspaper of 5th and 10th May last year from two retiring ambassadors? They wished to become JPs and were told by his department that they could not do so because they had reached the age of 60. Despite their experience and the fact that they would now have time to undertake those duties, they could not even be considered.
Is the noble and learned Lord aware that the Prime Minister, whose vigour appears entirely undiminished, is 63 and Mr. Bush, who, after a gruelling campaign, will be inaugurated tomorrow as President of the United States, is 64? As they are capable of discharging their immense responsibilities in their mid-60s, does the noble and learned Lord not think it curious that we should not allow men of experience and sagacity in their mid-60s to act as JPs?
The Lord Chancellor: My Lords, I saw those letters in The Times from people to whom the noble Lord refers as "retiring ambassadors". Retiring ambassadors are unusual people. There is a retirement limit of 70 fixed by Parliament. As far as I know that does not affect the Prime Minister or President-elect Bush. We have to consider the expenditure that is put into the training of magistrates and we hope to get a reasonable return from it. The situation in which I am prepared to appoint people aged over 60 to the Bench is where, in order to complement the categories of people on the Bench, it is necessary to go to those lengths. For example, these days it is very difficult to find people who are in levels of manufacturing industry to go on the Bench during their working lives. It is important however that people with that kind of background should be on the Bench.
In situations like those I am prepared to go above the ordinary limit. I quite agree that there are not

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many people with the credentials of ambassadors available, but on the other hand there are quite a number of people of lesser age willing to serve in most areas who could be regarded as very similar to ambassadors from the point of view of the ordinary person who may be appearing before the Bench.
Lord Renton: My Lords, is my noble and learned friend aware that those over 60 are now a very large age group in our community? These are the days of young old people. If the noble and learned Lord wishes to make the Bench as representative as possible, he should have a fair proportion of these old people as magistrates.
The Lord Chancellor: My Lords, we are talking about the date of appointment. I am fortunate that most people who are appointed to the Bench carry on until the age of retirement and therefore there is a very large number of magistrates who are coming up to 70, the age at which they go on to the supplemental list. So I believe that the balance of the community is very well represented in the present age structure.
Lord Winstanley: My Lords, can the noble and learned Lord explain why the Government have appointed a noble Lord who is 69 years of age to be Vice-Chairman of the broadcasting commission whereas members of the Independent Broadcasting Authority are obliged to retire at the age of 70? Is that anomalous?
The Lord Chancellor: My Lords, I find it a little difficult to see how that comes into the matters raised by this Question.
Lord Broxbourne: My Lords, on this delicate subject—especially in this House—of age and reference having been made to the Prime Minister, the sight of two eminent former Prime Ministers on the Benches opposite prompts me to inquire whether, if they were disposed to add to their services to the state service as justices of the peace, they would be disqualified on grounds of age.
The Lord Chancellor: My Lords, the noble Lord will have noted that the Parliament of 1968 of which the two distinguished noble Lords were Members fixed the age of retirement at 70.
Lord Hailsham of Saint Marylebone: My Lords, does not my noble and learned friend agree that his real difficulty, given the limit within any one Bench to the number of magistrates it can appoint, is that there is always a problem finding a sufficient number of young people to balance the age proportion of those already sitting?
The Lord Chancellor: My Lords, my noble and learned friend is right. That is certainly one of the difficulties. As I said, there are difficulties in particular sectors of the community in getting people to serve who are sufficiently young. Therefore, in the light of that kind of difficulty, I am prepared to
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consider going beyond the normal practice of 55 or 60 as the maximum age for appointment.
Baroness Phillips: My Lords, is the noble and learned Lord aware that age is no indication of the quality of service which an individual can give? All noble Lords know people of 20 who are quite useless from the neck up, whereas we all know people—I, as a magistrate, know such people— of 70 who are absolutely useful in every way. Will the noble and learned Lord consider excluding age as the reason for accepting or rejecting anyone?
The Lord Chancellor: My Lords, I entirely accept what the noble Baroness says as regards whether age is an indicator of fitness. I believe that to be generally acceptable. However, I have to operate, and I am sure the House would expect me to operate, within the structure that Parliament has laid down. Parliament has decreed that 70 is the maximum age. Within that criterion I have to consider getting reasonable service from people who receive induction training before they have to retire. It is for that reason that this general level of age was fixed a long time ago. My noble and learned friend, who asked a question just a moment ago, carried on that practice during his term of office. The provision is not intended to be any reflection on people of 70 or over. It is intended to give proper effect to the arrangements that Parliament made.
Lord Nugent of Guildford: My Lords, is my noble and learned friend aware that one point he made in his substantive Answer is of dominating importance —that is, the appearance of the Bench? It should look broadly representative of the community, especially when so many offenders today are young people.
The Lord Chancellor: My Lords, I am extremely grateful for those comments. That has been a cardinal point in my consideration of these matters since I have had responsibility for them. I know that it was also the case long before I took office.
Lord Elwyn-Jones: My Lords, may there not be an occasion for looking at the problem of recruiting young magistrates in view of the practice now of fairly extensive training before they are appointed which unfortunately acts as a bar and an inhibition to some of the ablest people volunteering their services?
The Lord Chancellor: My Lords, I consider these problems continually. I endeavour to obtain as much assistance as I can to overcome them. Recently I have written to industrialists to try and get their help as regards allowing people to be released for service. As the point has been raised, I must say that the responses have been extremely favourable. Industrialists regard magistrates' service as an important public duty. They will do their best to give support.

Business
3.24 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Children Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Reading of the National Maritime Museum Bill and the Agriculture Improvement (Variation) (No. 3) Scheme 1988 will be taken.

Children Bill [H.L.]
3.25 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LoRD ABERDARE in the Chair.]
Clause 26 [Care and supervision orders].
Lord Mottistone Lord Mottistone moved Amendment No. 145:
Page 21, line 27, after ("person") insert ("or child").
The noble Lord said: The purpose of this amendment is to allow a child to apply for a care order. An older child and his or her parents may be undergoing particular difficulties at home which cannot be resolved. Sadly, local authorities may be forced to consider the cost of voluntary care and their decision is based upon the resources at their disposal. If a local authority decides that voluntary care is not appropriate, a child has no means to leave the family home. Surely the child in these circumstances should have the right to apply to be taken into care. It would then be for a court to decide whether care or supervision would be in the child's interest. I beg to move.
The Lord Chancellor: Perhaps, before coming to the substantive answer to my noble friend's amendment, I might be allowed to say that looking at the Marshalled List of amendments still to be dealt with I think we are making progress in the sense that there are fewer amendments on the Marshalled List today than there were when we started off at the beginning of the Bill some three Committee days ago. I have probably considerable responsibility for the fact that we are moving so slowly because, as the Committee knows, this Bill has been the subject of very careful consideration by a number of people. I have been anxious to try to set out fully all the arguments in answer to the various amendments that have been tabled. But one of the consequences is that we do not make very rapid progress. I feel I must do what I can to contribute to progress. I am sure that others may have perhaps a smaller part to play in that direction.
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On the amendment, I cannot agree that a child should be able to apply for a care or supervision order in respect of himself. Care and supervision proceedings are very serious matters with major implications for the child himself, the parents and others with parental responsibility and, of course, the local authority or supervisor. It is important that the needs of a child are fully investigated before proceedings are brought—a responsibility which in almost all cases a local authority is best placed to meet—and, indeed, a local authority will have a specific responsibility under the Bill to take steps to reduce the need to bring care and supervision proceedings, for instance, by providing other services.
The Review of Child Care Law saw these as good reasons why care proceedings should usually, if not always, be brought by a local authority social services department. I shall not trouble to read out in detail what the review said. The Government accept the view that was taken on that point. It is, of course, always open to a child to go to a local authority and bring his situation to the attention of the authority. The authority then has the statutory duty to see that the child is properly looked after. So if there is a real problem, the basic structure of the Bill will require a local authority to do something about it.
Clause 17(3) makes specific provision for older children in need. It requires a local authority to provide accommodation for children over 16 if it considers that their welfare is likely to be seriously prejudiced if they are not provided with such accommodation. Clause 17(10) disapplies the right of a person with parental responsibility to object to, or remove the child from, such arrangements. For younger children it is, I suggest, more appropriate to rely on a local authority's responsibilities to provide services to children in need and investigate cases of harm or likely harm. I hope that the noble Lord may feel able to accept that as a reasonable explanation of the policy of the Bill.
Lord Mottistone: I am most grateful to my noble and learned friend for a full reply. In view of his earlier remarks I feared that everything might be abbreviated. I shall have to read the response with great care. I think that what my noble and learned friend said filled the gap, but I hope he will forgive me if at this stage I reserve the right to come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
Baroness David Baroness David moved Amendment No. 146:
Page 21, line 31, at end insert—
("; or
(c) adjourning the hearing for a specified period of time to permit a programme of rehabilitation and giving directions to the implementation thereof.").
The noble Baroness said: My Lords, I should like to link Amendment No. 146 with Amendment No. 153 as I think that those amendments should be read together. Amendment No. 153 requires the court to consider the care plan for the child before making an order, and Amendment No. 146 would give the court

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the power to adjourn the hearing to enable phased rehabilitation to take place. It also proposes that the court should be able to give directions as to how such rehabilitation should take place.
I should like to explain the background to the amendment. In the White Paper the Government state that there is no intention to involve the juvenile courts in deciding how the child is to be treated if and when he enters the care of the local authority. We feel that that is wrong for a number of reasons.
Under existing law enormous discretion is vested in the local authority decision-making, subject to its duty to safeguard and promote the welfare of the child in its care. That discretion is only limited by directions of the court if the child is a ward of court or subject to a care order in family proceedings. Orders in wardship are particularly flexible and may provide detailed requirements for rehabilitation of the child to its parents. That is certainly an advantage so far as concens children and parents.
The Bill proposes some limitations on the exercise of the local authority's discretion by providing for the presumption of access—as set out in Clause 29—and by establishing a complaints procedure. However, Clause 71 severely limits the opportunities for local authorities to invoke the wardship jurisdiction and provides that care orders may no longer be made in the wardship jurisdiction. Care orders in family proceedings will now have the same legal effect as in care proceedings. Thus the court will have almost no opportunity to direct the local authority in the exercise of its statutory duties. We find that worrying.
In our experience there are many cases at the time of hearing when social services have failed to make any constructive plans for the child and yet they are able to obtain a care order because it would not be appropriate for the child to return home. As significant is the inability of the court to act on the suggestions of the guardian ad litem about the care of the child. Since their introduction in 1984 guardians ad litem have greatly improved the standard of decision-making. We believe that to be the finding of the DHSS sponsored research at Bristol University, which has not yet been published.
Turning to care proceedings, legislation should provide that directions can be given by the court in all proceedings in which an application has been made for a care order. However, in light of what is said in the White Paper we would not expect the Government to agree to such an amendment. The amendment is therefore drafted as a pragmatic compromise. Phased rehabilitation is probably the most important matter that the court should decide. Even with the improved time-tabling proposed in the Bill a child is likely to have been in interim care for at least three months before the final hearing. Depending on the circumstances an immediate return home may not be in the best interests of the child. If the court takes the view that the child should return home to his parents but that it would be inappropriate for that to happen immediately, there is nothing it can do about it unless the local authority agrees to implement a programme of phased rehabilitation under the care order. Even if the local authority agrees to the proposition it is not
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binding on it and many authorities are slow and unenthusiastic about rehabilitative work with families. The new provisions for contact may remedy that when rehabilitation merely requires increased contact with the family. In many cases, however, rehabilitation needs to take place in the context of a placement, such as mother and baby home or residential family centre, or with specific requirements such as psychiatric assessment.
The dilemma is particularly acute in applications to discharge care orders where the child may have been in care over an extended period of time. That was acknowledged by the Court of Appeal in Re J (a minor) (wardship jurisdiction) (1984) in which a mother was allowed to ward her child because the wardship court had the power to order a period of gradual rehabilitation remedying a lacuna under the statutory scheme. In that case, Lord Justice Cumming-Bruce said:
"In my view there is a lacuna in the statutory scheme which can only be filled by the legislator in order to complete the powers available to … the juvenile court under the statutory scheme".
The Review of Child Care Law recommended that there should be a power:
"to postpone discharge to allow for a gradual return of the child to his family over a fixed period of time, say 3 to 6 months maximum. Such a scheme would have to contain a right for the local authority to come back to the court and ask for rescission of the order if returning the child became in their view impracticable or put the child at risk".
The proposed amendment would also cover applications to discharge care orders in accordance with the provisions of Clause 35(5).
Turning now to Amendment No. 153, which I wish to link with Amendment No. 146, the Government have acknowledged in the White Paper that:
"it will be essential for the local authority to give the court an idea of their general plans for the child,".
The objective of Amendment No. 153 is to place a duty on the court to scrutinise the local authority's proposals so that it can properly consider whether to make an order. If dissatisfied with the amount of information contained in the plans there is no reason why the court should not adjourn the proceedings for fuller information to be supplied. We see that duty as corresponding with the court's duty in relation to access as set out in Clause 29(12).
I think that the effort to achieve a phased rehabilitation is important. I believe that it is linked to what the noble Baroness, Lady Faithfull, tried to achieve earlier in the Bill in relation to plans for children in care. I hope that the noble and learned Lord will look favourably upon the amendments. I beg to move.
The Lord Chancellor: It is convenient to take the two amendments together. Amendment No. 146 would allow a court to make a new kind of order in care proceedings which would adjourn the hearing and permit directions to be given for a programme of rehabilitation.
I have a number of reservations about that proposal. As at present rules of court will provide for adjournments where they are necessary, but I am particularly concerned that we should not encourage the use of adjournments because they cause delays which are generally unhelpful to the interests of the

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child concerned. Where a court adjourns and an interim care order is made we have included provisions in Clause 33 to restrict the length of interim orders to ensure that the case is decided with the minimum of delay. As with Clause 10 in relation to private law applications, Clause 27 makes provision for time-tabling by the courts on applications for care and supervision orders. In addition Clause 27(1) provides that a court hearing an application for a care or supervision order shall have regard to the general principle that any delay in disposing of the application is likely to prejudice the welfare of the child concerned.
The amendment proposed would introduce an order specifically to create delay in the determination of the case. That would run counter to the principle underlying the various measures in the Bill which are aimed at reducing delays. In allowing the court to give directions concerning the implementation of rehabilitation it would also run counter to the philosophy behind the Bill that case management is a matter for local authorities not the courts. That point is fundamental. The responsibility for managing a case should lie with the local authority and if rehabilitation is appropriate that is for the local authority to decide.
Turning to Amendment No. 153, the Review of Child Care Law recommended at paragraph 16.9 that a general statement of plans should be:
"made available sufficiently early to allow the other participants to decide what action, including agreement, should be taken in the light of it before the hearing. That statement should he served on the parties and on any other participants as the court directs."
The Government fully accept that recommendation, and as I have said in response to earlier amendments, we shall be providing for that to be included in the detailed procedures which will be set out in rules of court at a later stage. I think that I said that in reply to an amendment moved by my noble friend Lady Faithfull.
Clause 1(4) of the Bill requires the court, before making an order, to consider whether making the order would be better for the child than making no order at all. We believe that that imposes on the court a duty to take account of the proposed arrangements for the child in reaching that decision. Other parties, who should generally have received the statement of plans in advance of the hearing, will have had an opportunity to comment on them.
I believe that in that respect the noble Baroness's concerns are properly catered for within the structure that we have provided in the Bill. The overriding duty which I mentioned in relation to Clause 1(4) would have the effect of imposing the duty on the court which she seeks.
Lord Mishcon: Perhaps I may immediately follow up the remarks made by the noble and learned Lord at the introduction of this session of the Committee. I think that all Members of the Committee have their heart and soul in this Bill. We are all in favour of it. The only wish of the Committee is to improve the Bill. I do not think that anyone needs to apologise for the detail in which we are going through this legislation. Having said that, I entirely agree with the noble and learned Lord that short speeches are better
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than long ones. I shall therefore endeavour to follow his example on this and other occasions.
As I understand it, the objection of the noble and learned Lord to the power given to the court—I emphasise the word "power"—to adjourn the proceedings to see whether rehabilitation in certain circumstances will apply can surely not be acceptable. Nobody is saying that the court shall do it. Are we to assume that in a suitable case in which the magistrates think that is the appropriate course to take some counsel will jump up and say, "Unfortunately Parliament did not give you the power"?
All this faith in local authorities is something of which, as a former local authority man, I approve; but the thought of having no faith in the courts is something for which the noble and learned Lord surely does not want to be responsible. If he wants to add the words "if it thinks fit" in an appropriate case to have the power to adjourn, I am sure that the mover of this amendment will have no objection to the addition of those words. This is a power to act in an appropriate case, and the court should have it.
Baroness David: I thank my noble friend for his warm support. I appreciate that the noble and learned Lord has taken some time to answer and has given me a detailed reply. I think the matter is important. I also appreciate that there is a great desire for speedy decisions to be made. Things should not be held up, but, on the other hand, if matters are hurried and we do not achieve a good plan, the situation may worsen as a result of speeding up matters. That would be a pity.
I think that the suggestion for a specified period of time (which need not be all that long) to permit a programme of rehabilitation to be set up—it would presumably be set up by the local authority—has a great deal to commend it. I do not want to press this matter now. I shall read very carefully what the noble and learned Lord has said. I suspect that I shall not be altogether convinced by it but I shall certainly read his remarks with great care. I reserve the right to come back on Report, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
The Chairman of Committees (Lord Aberdare): I must tell the Committee that if Amendment No. 147 is agreed to I cannot call Amendments Nos. 147A to 152 inclusive.
Lord Banks Lord Banks moved Amendment No. 147:
Page 21, line 32, leave out subsection (2) and insert—
("(2) A court may only make a care order or supervision order if it is satisfied that the child concerned—

(i)

(a) has been or is likely to be ill-treated by a person having parental responsibility for him or who is living in the same household or such a person has failed or is likely to fail to take reasonable steps to prevent his ill-treatment by another, or

(b) his standard of health or development is or is likely to be significantly lower than that which can reasonably be expected for a child of his age and ability, and that this is attributable to the standard of care which he is receiving or is likely to receive, and

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(ii) there is no other person, apart from the local authority. suitable to provide such care as will safeguard and promote the welfare of the child for the foreseeable future, and

(iii) the order contemplated is the most effective means available to the court of safeguarding and promoting the welfare of the child.").

The noble Lord said: In moving Amendment No. 147, with the leave of the Committee I shall speak also to Amendment No. 156. Coupled together, these amendments seek to improve, without radically altering, the grounds on which a child may be taken into care as set out in Clause 26. The statutory correctness of the grounds on which a child may be taken into care is crucial to ensure that children who ought to be protected by a care order are covered by the statutory wording and also that children who should not be removed into care are safe from such removal. Further on in the Bill it is proposed to restrict the use of wardship jurisdiction as a long stop for children who otherwise cannot be taken into care. Thus the integrity of the grounds for care orders in Clause 26 is of great importance. There must be as few loopholes as possible.
There are three possible approaches to the criteria for care orders: first, a broad welfare test; secondly, a test which looks at the effect on the child of what it has suffered; and, thirdly, a test which looks at the cause of the suffering. Clause 26 concentrates on the causes of the child's suffering. It has been carefully drafted but Amendments Nos. 147 and 156 seem to offer an improvement. These amendments seek to employ the phraseology already used in the Bill but to improve it.
Let us look for a moment at what is wrong with Clause 26 as it stands. Subsection (2)(a) uses the phrase "significant harm"—a phrase that is vulnerable to considerable legal argument. All harm is significant to a greater or lesser extent. Further, the use of the word "harm" takes one on to the definition in subsection (8) of the clause, and that in turn leads to three further definitions in that subsection. That drafting shows just how hard it is to produce phraseology which is both comprehensive and concise.
Clause 26(2)(6) is joined to subsection (2)(a) by the word "and", showing that the requirements are cumulative. It requires the harm to be attributable. There must be doubt whether, for example, sexual abuse by someone such as an uncle who sees the child perhaps once a week can be said to be attributable to the standard of care given by a parent. There must be doubt also whether the clause will cover cases in which children suffer physical injuries the perpetrators of which cannot he identified.
Finally, Clause 26 does not cover the unacceptable risk type of case; namely, where the court is unable to find that sexual abuse has been proved to have taken place but feels that sexual abuse may well have taken place and that there is an unacceptable risk that it may happen again. That is the kind of case in which wardship is so useful as a long stop.
The clause is also questionable in that it asks the court to consider the hypothetical reasonable parent caring for a similar child. What is reasonable for a
340
parent in deprived financial and social conditions may not be reasonable in a middle-class background.
Amendment No. 147 seeks to address those problems. It separates the two distinct criteria which the Bill merges. Subsection (2)(i)(a) of the amendment describes the state of affairs, or likely state of affairs. Subsection (2)(i)(b) of the amendment deals with fault or attribution. The amendment adds two further requirements: in subsection (2)(ii) the court is directed to consider whether any other person can care for the child; in subsection (2)(iii) the court is required to consider any other means of safeguarding the child. That last point appeared in the interdepartmental report and in the White Paper but has been left out of the Bill.
Amendment No. 156 supplements the clause as it appears in either the Bill or the amendment by adding the concept of neglect. I beg to move.
Lord Mishcon: In the light of what the noble and learned Lord properly said at the beginning of these proceedings, I wonder whether it would suit the convenience of the Committee and make for speed if I were allowed at the same time to speak—in the spirit of those amendments—to amendments that have not yet been called; namely, Amendments Nos. 147A, 156A, 156B, 194A and 199G.
While appreciating all that the noble Lord, Lord Banks, has so eloquently said, I must confess that my concern lies in the rather inhibitive wording of Clause 26 as it now stands. This is a most material point. I wonder whether the Committee would mind looking first of all at Clause 26(2) in which are set out the provisions as to when the court may make a care order or a supervision order.
The Committee will see in paragraph (a) that the court has to be satisfied that the child concerned has suffered significant harm. I shall come to the definition clause in a moment. However, perhaps the Committee would kindly pause there. When lawyers point out that much litigation can be caused by something contained in an Act of Parliament, everybody ought to listen very carefully because it is obviously contrary to a vested interest. The Law Society has pointed out its fear that this could give rise to a great deal of litigation and delay because someone could so easily say, "This is not significant harm. It is harm, but it is not `significant'."
In my submission that is made even worse when one reaches Clause 26(8) where "harm"—not "significant harm"—is defined. Members of the Committee will see in subsection (8) that,
" 'harm' means ill-treatment or the impairment of health or development".
The Committee may say, "Goodness gracious me, if one is satisfied that there has been ill-treatment or the impairment of health or development, that should be enough to make a care order especially when ill-treatment is later defined in the same subsection as including sexual abuse, and forms of ill-treatment which are not physical.
Unnecessary complexity—from the point of view of any court and the construction by any local authority or common or garden citizen—is increased

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when one reaches subsection (9). Having defined "harm" as meaning
"ill-treatment or the impairment of health or development"
one has this subsection:
"Where the question of whether harm suffered by a child is significant turns on the child's health or development, the court shall compare his health or development with that which could reasonably he expected of a similar child".
Can we not simplify everything and provide the following: that there has to be satisfaction before making an order that the child concerned has suffered harm? What is harm? Harm is as defined in subsection (8). It means ill-treatment or the impairment of health or development. If there is any question of the court finding itself in some difficulty in relation to health or development, then one leaves in subsection (9) and provides, as does my amendment it is accepted that, where the question of whether harm is suffered by a child turns on the child's health or development, the court shall compare his health or development with that which could reasonably be expected of a similar child.
I ask the noble and learned Lord, for the sake of simplicity, the avoidance of doubt, and the avoidance of much litigation and delay, when he answers this amendment to consider leaving his clause in as it stands but omitting "significant" and altering subsection (9) in the way that I have just indicated.
The Lord Chancellor: I am certainly grateful to the noble Lord, Lord Mishcon, for raising the possibility of discussing that group of amendments with this one. Amendment No. 148 of the noble Lord, Lord Irvine of Lairg, also deals with this matter. I believe that Amendments Nos. 149 and 152 of the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady David, also deal with it. I do not know whether it is desired to approach these separately.
Lord Elwyn-Jones: If it can be done without embarrassment or incoherence it would be useful to have them considered as a whole.
Lord Irvine of Lairg: The only difficulty that I see is that on the one hand the amendments that are before the Committee now are designed to make more detailed and more particular the discretion to be exercised, whereas Amendment No. 148, which stands in my name, would make the discretion much simpler. For my own part I prefer not to move Amendment No. 148 until I have heard the argument on this group of amendments.
The Lord Chancellor: I am perfectly content with that. I thought that it might save a little time.
The grounds on which a care order are to be granted are fundamental to this Bill. They have been the subject of very considerable, caring consideration. The considerations were set out at some length in chapter 15 of the Review of Child Care Law and the review's conclusions were followed in the White Paper. In care proceedings at present, under Section 1(2) of the 1969 Act the court must be satisfied on one of several grounds and also that the child is in need of care and control which he is unlikely to receive unless an order is made. The
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primary conditions, one of which has to be satisfied, include that the child's,
"proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated".
The review considered that the specific grounds in present legislation were open to broad construction and that the primary justification for the state to initiate proceedings seeking compulsory powers should be actual or likely harm to the child. We have adopted this as the primary condition in Clause 26(2)(a) but made clear that the harm should be significant.
Amendment No. 147 uses the terms "ill-treatment" and "impairment of health and development" which we use to define harm in Clause 26(8), but harm itself, and the requirement that it be significant, are lost. I believe that significant harm indicates the degree of ill treatment or impairment with which the court should be concerned and its removal would be unfortunate. I shall elaborate that in a moment. III treatment is not a precise term and could include, for example, instances of verbal abuse or unfairness falling a long way short of significant harm.
A further difficulty is that in contrast to the Bill neither of the two conditions proposed in the amendment provides for the child being beyond parental control. The parents may be taking all reasonable steps to prevent harm befalling the child but to no avail because the child ignores their efforts. It is doubtful whether under the conditions set out in the amendment the court could make a care or supervision order in those circumstances.
The second and third conditions in Amendment No. 147 will, I suggest, be met by the requirements on the court in Clause 1 of the Bill. As regards the second condition, noble Lords will recall that the check list in Clause 1(2), which applies to care proceedings, requires the court to consider among other things how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, are of meeting his needs. Thus the court is required to consider whether other suitable persons are available to care for the child.
The third condition in Amendment No. 147 raises again the issues we considered when debating Amendment No. 6 on 19th December. As I said then, we have provided in Clause 1 for two principles: in Clause 1(1) that when a court determines any question with respect to the child, the interests of the child are the paramount consideration, and in Clause 1(4) that the court shall not make any of the orders available to it unless it considers that to do so would be better for the child than making no order at all. The court must be satisfied that making the order is a positive step towards achieving the paramount consideration. These principles will apply to all proceedings covered by the Bill, including care and supervision proceedings. We think that setting these principles out separately in this way achieves what is intended by this part of the amendment with greater clarity than the approach which was followed originally in the White Paper. Of course, since the White Paper, a good deal of thought has gone into

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preparing the Bill with the assistance of the Law Commission.
On the point that the noble Lord, Lord Banks, mentioned about sexual abuse, sexual abuse outside the immediate family should be grounds for a care order only if there has been or there may in future be inadequate protection provided by the parents. Unfortunately it happens—most sad to say—that children who are being perfectly well looked after are subject to sexual abuse, perhaps because of something that happened on the way home from school or some matter of that kind. Sad things have happened. It would not be proper to have a care order in that situation. The parents could be the first to try to do their level best to prevent it occurring again. Mere sexual abuse outside the immediate family would not normally be a ground for a care order.
I now come to the point about significant harm. I have mentioned already the principal reason for it, but I should like to explain this. The source of Clause 26(2) is the review of child care law.
In paragraph 15.15 of the review it was stated:
"We consider that, having set an acceptable standard of upbringing for the child, it should he necessary to show some substantial deficit in that standard. Minor shortcomings in the health and care provided or minor deficits in physical, psychological or social development should not give rise to compulsory intervention"—
because that is what we are talking about—
"unless they are having, or likely to have, serious and lasting effects upon the child".
I hope the Committee will feel that this must be right. It is not proper to intervene on any level of harm. This is not to say that Clause 26(2)(a) is setting an exact requirement of repeated or serious injury or neglect of a child. Rather it speaks of significant harm; namely, that which, being more than minimal, indicates that compulsory care or supervision may be justified.
As part of the simplification that the noble Lord, Lord Mishcon, proposed, logically he proposed to take this word out of the later part of Clause 26(9). I believe that is right. The problem there is that if I have understood his amendment correctly—that is a serious reservation—he has taken out the question to which the court has to direct its attention. He has no question left to which the court would have to direct its attention in comparing the child's health or development with that which could reasonably be expected of a similar child. The purpose of asking that question in relation to health or development is to decide whether the harm in question is significant. If one removes the word "significant" one is left with Clause 26(9) which does not pose a question.
I believe that what I have said covers the use of the word "significant" in other places. I believe that the later amendments proposed by the noble Lord take the word "significant" out of the emergency protection order and the police protection order provisions. if I am right in this place it would be right to keep it in those places. If I am wrong by any chance in this place, it might be right to take them out in the other places.
4 p.m.
Lord Simon of Glaisdale: With regard to significant harm, in addition to the point made by the noble Lord, Lord Mishcon—about which I am not entirely convinced that an argument might be adduced that there is harm but it is not significant—it seems to me that this word is entirely unnecessary. Indeed, it may be misleading in the circumstances mentioned by the noble Lord, Lord Mishcon, because there is a general principle of the law which applies to statutory construction as well as in other spheres which is almost always expressed by lawyers in Latin, but which really means that the law does not take any notice of matters which are insignificant. Generally, therefore, this word cannot do any good but it might do some harm.
On the more general point. I found when I read the Bill, and in particular the clause, that I formed the same impression which was evidently brought to the mind of the noble Lord, Lord Mishcon, that in an otherwise well-drafted Bill this is quite unnecessarily complicated. Instant redrafting is rarely successful and is almost always fatal when it takes place in the context of a parliamentary debate. I should be grateful if my noble and learned friend would undertake to go carefully through the clause with the draftsmen to see whether it can be considerably simplified.
Lord Mishcon: To obtain nine-tenths of the support of the noble and learned Lord, Lord Simon of Glaisdale, is such a triumph that at this moment I am covered with appreciation of what he said and do not want in any way to detract from his support by criticising anything that he said.
However, to the noble and learned Lord the Lord Chancellor I say this. It is not good enough, I believe, merely to dismiss the argument that there could be no unnecessary litigation because the word "significant" is in the Bill. I ask the noble and learned Lord to consider the case of a parent who is extremely angry that a care order has been made. I ask him to consider that parent going to a lawyer for advice as to whether the order can be upset. If the Bill remains as it is with "harm" in it, a definition of "harm" by the alteration of subsection (9) in the way that I have indicated and taking out the word "significant", no lawyer worth his salt would advise that that could be appealed against unless there was evidence that there was no harm of any kind at all such as was defined in the Bill.
Any lawyer who was anxious to assist the parent could say immediately that the court had no power to make that order because Parliament so directed, unless that harm was significant. We can go into all the evidence produced to the court and say that the court had no right to do it in this case because the harm was not significant and no reasonable court ought to have found that it was. In those circumstances we can have a protraction of proceedings and have a result that none of us wants to achieve.
Let us look at this perfectly logically. The matter is before the court. Harm is proved to the satisfaction of the court on my definition. I repeat that I speak with the voice of the Law Society on this occasion as well and therefore deserve much more merit than if I were speaking on my own behalf alone. The harm

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which the court has to find means ill-treatment or the impairment of health or development. No court will make an order unless the ill-treatment is such that it is anything other than minimal. I adopt what the noble and learned Lord, Lord Simon of Glaisdale, said in that context. When it concerns health or development, where there could be some doubt, it is there that I leave in subsection (9), knocking out the word "significant", and tell the court exactly what it ought to do. We take a normal case of a normal child and see by way of comparison whether we consider that the health and development point is properly proved within that definition.
I hope that in a serious matter of this kind no one would expect me to seek to divide the Committee on such an issue when we are all trying to get the words right, not to achieve victories or defeats—especially not defeats. In those circumstances I invite the noble and learned Lord—I repeat to him that I have a body of opinion behind me of his colleagues in the law —to consider very carefully the points that have been made in relation to this matter. If he will indicate that he will do so, when my turn comes I shall not move the amendments which stand in my name.
The Lord Chancellor: I appreciate entirely what was said by the noble and learned Lord, Lord Simon of Glaisdale. It was that a lawyer may argue that the word "significant" is unnecessary because it is already implied. In other words, if the amendment tabled by the noble Lord, Lord Mishcon, is given effect to, it will make no difference. Bearing in mind the fact that we wish to direct the Bill to people who may not be lawyers, I believe it is right that it should be included.
It is easy to remove the word and then make impregnable any court order for intervention on appeal, however trivial the harm may have been. In effect, the noble and learned Lord is arguing in favour of that, because he is saying that it will not be open to argue that the harm was so trivial that nothing should have happened. That is the purpose of taking out the word and one cannot have it both ways. With the greatest respect, I know that some lawyers make a good effort in that direction but it must be one thing or the other.
The fundamental point is that state intervention in families in the shape of the local authority should not be justified unless there is some level—"significant" is a good word for it and, in any event, it is implied by the general law—at which significant harm is suffered or is likely to be suffered.
I always consider everything that is said in your Lordships' House but I do not want to give an impression that I have come to the view that the word "significant" should come out. I always consider everything that is said but I do not wish to encourage any belief that I may come back to take it out.
Lord Elwyn-Jones: Surely elimination of the word "significant" in the context of subsection (8), where harm is defined as meaning:
"ill-treatment or the impairment of health or development",
and where ill-treatment is later defined as including:
"sexual abuse or forms of ill-treatment which are not physical",
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is not a trivial matter. It is a grave matter but it is already provided for in what will remain if my noble friend's amendment eliminating the word "significant" is accepted.
The Lord Chancellor: That is incorrect, particularly in relation to the impairment of health and development. The noble Lord, Lord Mishcon, agrees that a question of amount or significance, and the extent to which there is a deviation from a reasonable norm, exists in that connection. With the greatest respect, I believe that on this occasion the noble and learned Lord is not quite right.
Lord Banks: The noble and learned Lord prefers the text as it stands in the Bill and in his opening remarks indicated his regret at the loss of the words "significant harm". I believe that I now understand him to say that he is coming round to the point of view that the word "significant" should be eliminated—
The Lord Chancellor: No, I am not.
Lord Banks: At any rate, that was the view expressed by the noble and learned Lord, Lord Simon of Glaisdale.
The noble and learned Lord made a series of other points, including the important point about sexual abuse outside the family. I should like to consider that and the other points that he made to decide whether to pursue the amendment. In the meantime, I beg leave to withdraw.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 147A:
Page 21, line 34, leave out ("significant").
The noble Lord said: I was disappointed with the noble and learned Lord's indication that even though he will read what has been said his mind is against what I regard to be a most important amendment. I say that having in mind what a future court may do and the trouble that the word may cause. The noble and learned Lord did not give me what I wanted, which was a moderate reaction. It is with real hesitation that I seek the opinion of the Committee.
4.15 p.m.
On Question, Whether the said amendment (No. 147A) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 124.

DIVISION NO. 1

CONTENTS

Addington, L.

David, B.

Airedale, L.

Dean of Beswick, L.

Allen of Abbeydale, L.

Dormand of Essington, L.

Ardwick, L.

Elwyn-Jones, L.

Banks, L.

Ewart-Biggs, B. [Teller.]

Blease, L.

Falkland, V.

Bonham-Carter, L.

Fisher of Rednal. B.

Bruce of Donington, L.

Foot, L.

Callaghan of Cardiff, L.

Gallacher, L.

Carmichael of Kelvingrove, L.

Gladwyn, L.

Cledwyn of Penrhos, L.

Graham of Edmonton, L.

347

Grimond, L.

Ponsonby of Shulbrede, L. [Teller.]

Hampton, L.

Harris of Greenwich, L.

Prys-Davies, L.

Hirshfield, L.

Rea, L.

Houghton of Sowerby, L.

Ritchie of Dundee, L.

Hughes, L.

Serota, B.

Irvine of Lairg, L.

Shackleton, L.

Irving of Dartford, L.

Simon of Glaisdale, L.

Jeger, B.

Stallard, L.

Jenkins of Hillhead, L.

Stewart of Fulham, L.

Leatherland, L.

Strabolgi, L.

Listowel, E.

Taylor of Blackburn, L.

Llewelyn-Davies of Hastoe, B.

Thomson of Monifieth, L.

Macaulay of Bragar, L.

Tordoff, L.

Mais, L.

Turner of Camden, B.

Mishcon, L.

Underhill, L.

Molloy, L.

Wallace of Coslany, L.

Phillips, B.

Williams of Elvel, L.

Pitt of Hampstead, L.

Willis, L.

NON-CONTENTS

Airey of Abingdon, B.

Ilchester, E.

Alexander of Tunis, E.

Jenkin of Roding, L.

Arran, E.

Johnston of Rockport, L.

Ashbourne, L.

Joseph, L.

Attlee, E.

Killearn, L.

Auckland, L.

Kilmarnock, L.

Aylestone, L.

Lawrence, L.

Belhaven and Stenton, L.

Long, V.

Beloff, L.

Lyell, L.

Bessborough, E.

Mackay of Clashfern, L.

Birdwood, L.

Macleod of Borve, B.

Blatch, B.

Malmesbury, E.

Blyth, L.

Marley, L.

Boyd-Carpenter, L.

Marsh, L.

Brabazon of Tara, L.

Massereene and Ferrard, V.

Broxbourne, L.

Merrivale, L.

Caithness, E.

Mersey, V.

Campbell of Alloway, L.

Milverton, L.

Campbell of Croy, L.

Mottistone, L.

Carnegy of Lour, B.

Munster, E.

Carnock, L.

Murton of Lindisfarne, L.

Cockfield, L.

Nelson, E.

Coleraine, L.

Nelson of Stafford, L.

Constantine of Stanmore, L.

Nugent of Guildford, L.

Cottesloe, L.

Onslow, E.

Crathorne, L.

Orkney, E.

Cullen of Ashbourne, L.

Pender, L.

Daventry, V.

Pennock, L.

Davidson, V. [Teller.]

Penrhyn, L.

Denham, L. [Teller.]

Plummer of St. Marylebone, L.

Dundee, E.

Effingham, E.

Portland, D.

Ellenborough, L.

Pym, L.

Elliot of Harwood, B.

Reay, L.

Elliott of Morpeth, L.

Renton, L.

Elton, L.

Renwick, L.

Erroll of Hale, L.

Rochdale, V.

Faithfull, B.

Rodney, L.

Ferrier, L.

Rugby, L.

Fraser of Kilmorack, L.

Sainsbury, L.

Gainford, L.

St. Germans, E.

Gardner of Parkes, B.

Saltoun of Abernethy, Ly.

Gisborough, L.

Seebohm, L.

Grantchester, L.

Selborne, E.

Gray of Contin, L.

Sempill, Ly.

Gridley, L.

Shrewsbury, E.

Haddington, E.

Skelmersdale, L.

Hailsham of Saint Marylebone, L.

Somers, L.

Strange, B.

Hanworth, V.

Strathclyde, L.

Hardinge of Penshurst, L.

Sudeley, L.

Hayter, L.

Terrington, L.

Henderson of Brompton, L.

Teviot, L.

Henley, L.

Thomas of Gwydir, L.

Hesketh, L.

Thorneycroft, L.

Hives, L.

Thurlow, L.

Hood, V.

Trafford, L.

Hooper, B.

Tranmire, L.

Hylton-Foster, B.

Trefgarne, L.

348

Ullswater, V.

Wise, L.

Vaux of Harrowden, L.

Worcester, Bp.

Westbury, L.

Young, B.

Winstanley, L.

Young of Graffham. L.

Resolved in the negative, and amendment disagreed to accordingly.
4.23 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 148:
Page 21, line 36, leave out paragraph (b) and insert ("is in need of care or protection").
The noble Lord said: When I first read Clause 26 subsection (2) it was not paragraph (a) which caught my eye but paragraph (b). Paragraph (a) in its use of the word "significant" appeared to me to give protection to the individual before so drastic an order interfering with the liberty of the individual as a care order might he made. Of course there are few interferences in family life by the state more drastic than those which flow from a care order. I believe that a warning is given to magistrates' courts that they should not make such an order lightly. On this point I am fully persuaded by my noble friend Lord Mishcon and I move on to paragraph (b).
The purpose of the amendment, and standing the argument on the previous amendment, which was rightly moved as a separate argument, is to suggest that the exercise of the court's discretion is being made needlessly complex by the addition of paragraph (b). The court's discretion is being made needlessly complex and I suggest that it should be left as simple as possible.
The apparent advantage of the provisions which stand is to require the court to apply a uniform test before any order can be made. Perhaps that misses the point that all orders in this sphere are discretionary and so the importance of any formal test is diminished. This amendment simply prevents the court from making a care or supervision order unless it is satisfied that the child concerned has suffered significant harm or is likely to do so. Once that test is satisfied, it will permit the court to make a care or supervision order if it takes the view that the child is in need of care or protection.
That was the original test set out in the 1933 Act, which worked very well. Perhaps I may say that I have often heard the noble and learned Lord the Lord Chancellor in other contexts say, when discretionary powers were being considered and when it was suggested that they should be put in as some sort of formalised straitjacket, that very often the path of wisdom is to leave them as general as possible.
One has paragraph (a) but then paragraph (b) provides that the establishment of significant harm or the likelihood of it is not enough. This significant harm or its likelihood must be attributable to:
"the standard of care given to the child, or likely to be given to the child if the order were not made, being below that which it would be reasonable to expect the parent of a similar child to give to him".
One wonders what courts will make of that. Does it mean that if similar children from the same neighbourhood and background can be thought to suffer neglect to some degree, then it would not be reasonable to expect a higher standard from the

349
parent in question so that, although the child suffers significant harm, such significant harm is not attributable to any lower standard of care given by the parent in question because all children in that neighbourhood with that background are being treated in broadly the same way? It would obviously be highly unsatisfactory if any argument of that character based on that provision were to be addressed to a court and it had to adjudicate on that.
Surely it is better to have a simple, easily understood test. Once significant harm or its likelihood is established, should not the simple question be: is the child in need of care or does the child need protection? If the answer is yes, then the court can consider, as a matter of discretion, whether to make a care or supervision order. If the answer is no, that is the end of the matter.
The purpose of this amendment is to raise for consideration whether or not paragraph (b) makes matters needlessly complex. I beg to move.
The Deputy Chairman of Committees (Lord Aylestone): I must point out that, if this amendment is carried, I cannot call Amendments Nos. 149 to 151 inclusive.
Lord Prys-Davies: Perhaps it will help the Committee if I now speak to Amendment No. 149, because that goes along with the emphasis which my noble friend placed on the need for protection. We believe that it is important that the word "protection" should be inserted in the subsection to ensure that the court considers not only the care available to the child but the degree of protection which will be available to him.
Indeed, we are reminded by the British Association of Social Workers that it is important in this context that regard be paid to protection, because whether a child suffers harm depends not only on the standard of care available to the child but also on the ability of the parent or those with parental responsibility to protect him from harm. A parent may offer a reasonable standard of care, yet perhaps because of difficult marital relationships be unable to guarantee the protection of the child.
Nowhere in the clause is there a reference to the need for protection, so the duty to consider protection, if it exists at all, is an implied one. However, given the need for Parliament to give precise indications of its intentions, we submit—and here we have the support of the British Association of Social Workers—that it is safer that the need to consider the standard of protection should be spelt out in the clause.
4.30 p.m.
The Lord Chancellor: I think it is convenient to take these two matters together in the sense that they link more closely than with the previous amendment. I entirely agree with the noble Lord, Lord Irvine of Lairg, that here there is authorised one of the most important interventions in family life by the state. Therefore, one must be careful.
I entirely agree that I have often said that where discretion is given it is wise to make it as flexible as
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possible. However. I do not think that that is an appropriate approach where the discretion will allow one of the most serious possible interventions in family life. Therefore, I think it is necessary to specify the grounds with reasonable particularity. That is what we seek to do in the Bill.
The real crux of Amendment No. 148, and the point between us, is to trace the exposure to harm, either past or anticipated, to something to do with the parents. If the harm is outside it is not a question of substituting for the parent —I shall come to the protection point in a moment—but to trace a connection between the parent and what is going wrong. It is fair to say that in one sense the proposed words,
"in need of care and protection",
do not add anything, in that it will always follow, I suggest, that a child who has suffered significant harm or is likely to suffer such harm will be in need of care or protection.
Secondly, Clause 1(4) is once again relevant, in that the court will have to decide whether it is better for the child for the court to make an order the effect of which will be to provide care and protection. Thirdly, the effect of leaving out paragraph (b) would be to remove the causal condition, which I suggest is most important. That is the same point as I sought to make a moment ago. The state should not be interfering in this way in the lives of families and young children unless it is clearly established that the harm, or likely harm, to the child, is attributable to the child not being provided with a reasonable standard of parental care or his being beyond parental control.
Where that is not the case, there should be no question of the local authority seeking to obtain parental responsibility. The purpose of this care order is to substitute the local authority for the parent in the sense of the local authority having parental responsibility for the child. That should only happen where something concerning the parent has gone wrong. That appears to me to be essential. Therefore. the part of paragraph (b) referred to is of vital importance.
The noble Lord, Lord Irvine of Lairg, questioned the latter part of this provision. We shall he dealing with that again later, on an amendment in connection with background. It is notable that background is not dealt with in this clause. It refers to "parent of a similar child". The purpose of that is to fix on the particular qualities or attributes—or whatever one prefers to call them; I think "attributes" is used in later amendments—of the child.
A good example is a child who has a particular deficiency, perhaps brittle bones. If a child has a deficiency of that nature—proneness to accident because of brittle bones—one would expect the parent to give particular protection. The reasonableness is not related to any neighbourhood, or anything of that kind. There is no suggestion in the clause, and certainly none is intended, that one should look at what the parents are doing in the neighbourhood and if they are all on the same level one takes that as the level. The standard of reasonableness is a general standard. The reference to a similar child is to focus on the fact that the child

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may require different aspects of care according to his personal qualities or difficulties.
I now refer to Amendment No. 149. Care in the ordinary sense means looking after the child, which must include protecting him. The word "care", which is extensively used in the Bill, bears its full everyday meaning. I do not think that it would be thought in the ordinary use of language that a parent was taking proper care of the child if the child was being exposed to unnecessary risk. It is in that sense that the word "care" is used.
We use the word "protection" in Part V of the Bill but in that respect we are dealing with a limited form of care for children in emergencies where protection is required. It is involved in care but it is a special aspect of care. Therefore, I venture to submit that "care" is a word that covers protection. However, it may be necessary in some circumstances, as in Part V, to single out for special treatment that aspect of care which is called protection.
I hope that in the light of those considerations the noble Lord, Lord Irvine of Lairg, will feel able to withdraw his amendment and that the noble Lord, Lord Prys-Davies will agree not to move the amendment he has spoken to.
Lord Irvine of Lairg: The explanation given by the noble and learned Lord the Lord Chancellor in reply to my Amendment No. 148 persuades me and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies had given notice of his intention to move Amendment No. 149:
Page 21, line 37, after ("care") insert ("and protection")
The noble Lord said: I am grateful for the assurance of the noble and learned Lord the Lord Chancellor that the word "care" includes "protection". We were a little uneasy about that and wondered whether we should introduce the word "protection" into the clause. However, in the light of that assurance I do not propose to move the amendment.
[Amendment No. 149 not moved.]
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 150:
Page 21, line 39, leave out ("the parent of a similar child to give to him")
The noble Lord said: There is a great deal of unhappiness about the phrase "parent of a similar child". It is felt that it could invite invidious comparisons. By what test is the court to judge the similarity for the purpose of this subsection?
The Bill is silent as to the meaning of the phrase. The noble and learned Lord the Lord Chancellor, in dealing with Amendment No. 148, has dwelt on what he has in mind. However, the amendments before the Committee differ considerably on the meaning to be attached to the phrase. Amendment No. 147 refers to a child of a similar background. Amendment No. 156ZA, tabled by my noble friend Lady David refers to "a child of similar attributes". That is the phrase to which the noble and learned Lord referred.
One feels that if the court is to be constrained—and I think it must be a matter of constraint—by the concept of "parent of a similar child" then that concept needs to be defined in the Bill, as my noble friend Lady David suggests in Amendment No. 156ZA, or defined in regulations. However, Amendment No. 150 would delete the comparison, leaving the court to concentrate on whether the child is suffering harm, having regard to the circumstances pertaining in that regard. It appeared to me that my noble friend Lord Irvine supported our Amendment No. 150, in that it should be left to the court to address itself to the circumstances of the child whom it is considering. I beg to move.
The Deputy Chairman of Committees: I should point out that if this amendment is carried, I cannot call Amendment No. 150A in the name of the noble Lord, Lord Kilmarnock.
Lord Kilmarnock: Perhaps it may be for the convenience of the Committee if I speak to that amendment which bites on the same line and touches on the same subject matter. The amendment seeks to bring greater clarity—I think I heard the noble and learned Lord refer to the need for greater specificity—to the grounds for taking care proceedings and to reduce the likelihood of an order being made on inadequate grounds. After all, the aim must always be to ensure that the removal of children from their natural parents takes place only as a last resort.
Amendment No. 150, to which the noble Lord, Lord Prys-Davies, has just spoken, has to some extent the effect which I am seeking in that it removes all the words after "reasonable to expect". But I should like to suggest to the Committee and to the noble Lord, Lord Prys-Davies, that this amendment is clearer and more explicit. In its present form the Bill sets out that the court may make a court order if it is satisfied.
"that the child concerned has suffered significant harm, or is likely to suffer such harm; and that the harm, or likelihood of harm, is attributable to—

(i) the standard of care given to the child, or likely to be given to the child if the order were not made, being below that which it would be reasonable to expect the parent of a similar child to give to him".

The phrase "a similar child", as the noble Lord, Lord Prys-Davies, has already pointed out, is open to a range of meanings. It could simply apply to age and sex. It might mean similar IQ. It could include similar ethnic origin, and so on. I suggest that this is an unsatisfactory phrase to have in the Bill.
The proposed change of wording in this amendment to,
"the standard of care given to the child, or likely to be given to the child if the order were not made, being below that which it would be reasonable to expect the parent of a child of similar background to give to him",
would make it much easier for such a comparison to be made. I repeat the phrase "child of similar background". The standard of care that it would be reasonable to expect from the parent cannot be confined to some abstract ideal norm. That may be desirable in theory and intention but in practice it may simply not be possible to achieve, given the

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inequalities which exist and which are always likely to exist to some extent in society.
For example, the vast majority of children who go into care are from single parent families. On average, such families have 40 per cent. less income than the average family. Their children's standard of clothing or even of nutrition may not be as high as in normal families and their education opportunities may be more restricted. This does not mean that a decent attempt to achieve the highest standards consistent with circumstances are not being made, though these are not likely to be as high as those enjoyed by what the Bill loosely describes as a "similar child" from a higher income home.
Equally, one can imagine that a family of gypsies—travellers as they are sometimes called—would not be able to provide the same standard of care to a child as a family in a fixed home. However, the family bonds of gypsies are notoriously strong even if some of their customs are different from ours. It could be extremely damaging unnecessarily to remove a child from such a background. The logic of these arguments is that the standard of care expected should not be measured against an abstract norm but should make some allowance for the social, economic and cultural circumstances of the family.
The proposed amendment would achieve this by reducing the likelihood of the wrong comparison being made by the court. As the Bill is drafted, if the parent in question were a lone parent, dependent on benefits and struggling to make both ends meet, the courts could make a comparison with the standard of care provided by a family not dependent on benefits. This could result in children being removed from their parents on grounds of symptoms of economic distress such as inadequate heating or clothing, whereas the proper response would be a speedy application to the social fund under social security legislation. The amendment is entirely consistent with the importance attached by the Government to the family as a unit. I hope that it will be accepted as a small but not insignificant improvement to the Bill.
Baroness Faithfull: I should be grateful for some clarification from the proposers of the two amendments. The amendment of the noble Lord, Lord Kilmarnock, refers to a "child of similar background". I interpreted the word "similar" to mean that one should look after a mentally handicapped child in a way different from the way in which one would look after a normal child. For instance, one would not allow a mentally handicapped child to run out and play in a playground four floors down, whereas one might allow a similar child who was not mentally handicapped to do so. I would be worried about the word "background". What seems unkind to the child in one case would not be unkind in another. What is right for one child may not be right for another. In the case of two mentally handicapped children, one would keep them in and not let them run about. For two other children one might allow them out to play. I should like clarification from the proposers of the amendments.
Lord Kilmarnock: I am happy to assure the noble Baroness that her comparison is precisely what is contemplated in the amendment.
4.45 p.m.
Lord Simon of Glaisdale: I hope that it will not be considered presumptuous if I say that I like neither the phraseology in the Bill nor any of the amendments. No two children are similar in every respect. My noble and learned friend the Lord Chancellor earlier made it clear what he had in mind but I do not think that that is expressed in the Bill. The amendment of the noble Lord, Lord Kilmarnock, invokes far too wide social considerations which are irrelevant in this respect. My objection to the amendment of the noble Lord, Lord Prys-Davies, is similar in that it mentions "a similar child". My noble and learned friend made it clear that he had in mind the case of a child with a peculiar disability. One should compare that with another child with the same disability. I do not believe that the words of the Bill are apt to do that and do not invoke comparison in that way.
I repeat my earlier plea that my noble and learned friend should look again at the wording and the draftsmanship of the whole clause.
Baroness David: I wonder whether, when he comes to reply to Amendments Nos. 149 and 150, the noble and learned Lord the Lord Chancellor will comment also on Amendment No. 156ZA which tries to improve the Bill in a different way. I need not enlarge on that point but it would be interesting also to have his comments on that amendment.
The Lord Chancellor: I can deal with that matter quickly. If I had to make a choice of all the amendments, I would be for Amendment No. 156ZA, the amendment of the noble Baroness, Lady David. If necessary, it elaborates the meaning that I have in mind. I certainly do not find acceptable the reference to the "child of similar background". I do not think, with respect to the noble Lord, Lord Kilmarnock, that it has the effect that my noble friend Lady Faithfull had in mind.
For example, there might be two children, both of travelling people; and one child may have a mental handicap, and the other may not. The fact that they are both of similar background in the sense that she explained—namely, that they are both children of gypsies—does not mean that the standard of care required, the nature of care required in respect of the two, should be the same.
What is in mind here are the attributes of the child relevant to care, or the qualities of the child, or the description of the child relevant to caring for the child. With the greatest respect to my noble and learned friend Lord Simon of Glaisdale, I believe that that is the meaning to be attached to the word "similar" in this clause. The context in which this appears is the context of care for the child, and it is similarities and dissimilarities relevant to the standard of care that is in question. The broad requirement that,
"it would be reasonable to expect the parent of a similar child to give to him",

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appears to me to show that it is qualities in the child, aspects of the child's physical, mental or emotional state that require to be reflected in the child's care. That is what is in issue.
The first amendment to which the noble Baroness's name is also attached (No. 150) takes that out altogether. I believe that that would be a mistake. It would not point out sufficiently—and we are trying to make this fairly precise—that two children with different problems require different standards of care. It is desirable to point that out, and if it comes out altogether that is what this phrase would fail to do.
I have said what I have to say about the question of background. It is certainly not what I have in mind, and I do not believe that it is the right test at all. It might imply distinctions that were quite invidious in relation to the standard of care. What the local authority has to look at, and the court has to look at, is whether there is harm resulting from a deficit in the appropriate care that is in question.
Regarding Amendment No. 156ZA, my impression is that it is not necessary in the situation that we have here. Ordinary people reading this in the context in which it appears would understand the phrase "a similar child." "Attributes" is a long word which tends to have some philosophical—
Lord Elwyn-Jones: Quality.
The Lord Chancellor:—quality and connotation. That is certainly where I first learnt most clearly about it. I doubt whether it is necessary.
My noble and learned friend says that he does not like any of this phraseology. Of course I well accept that no phraseology is absolutely perfect. All I can say is that this phraseology has been adopted after considerable care. We have faced this as an important issue, because on the one hand we are permitting interference with family life, and it should only be done in carefully defined circumstances. On the other hand, we want intervention to take place where that intervention is demonstrated to be necessary on the basis of harm, or anticipated harm, sufficiently significant to justify intervention, and traced to deficiency in parental care or loss of parental control.
The care that a parent gives to his child must relate to the circumstances attributable to that child in the sense of physical, mental and emotional characteristics. Of course if anyone can suggest a real improvement, I would be happy to consider it. However, I regret to say that so far I have not seen any phrase that commends itself to me as a plain improvement on what, after a good deal of consideration, we have here.
Lord Mishcon: The noble and learned Lord has called for a suggested improvement. Might I, in one sentence, ask him whether he sees any objection to the simple words, "the parent of such a child to give to him". We then avoid all the argument about "similar", and "such a child" means all the qualities, all the attributes, all the handicaps, because they are of that child. The words would read:
"to expect the parent of such a child to give to him".
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The noble and learned Lord may think that the simplicity of those words covers a lot of the matters that we have been debating.
Lord Simon of Glaisdale: I did not address myself to Amendment No. 156ZA because I thought that that would be anticipation. I certainly adhere to the view that "similar child" without anything more is not enough. I have a little hesitation about the word "attributes" in 156ZA, but in my submission to your Lordships the words need some definition. We now have another suggestion by the noble Lord, Lord Mishcon. I think we are all hesitant about instant drafting. I would again make the plea to my noble and learned friend to reconsider the drafting, and in particular to consider the desirability of Amendment No. 156ZA or some slight modification of it.
Lord Irvine of Lairg: I should like to lend my voice in support of the noble and learned Lord, Lord Simon of Glaisdale, and suggest that serious thought should be given to expanding the language in terms of Amendment No. 156ZA. I was persuaded to withdraw Amendment No. 148 by the explanation of the noble and learned Lord the Lord Chancellor that the provision as it stands, properly construed, bore the meaning that he advanced.
In all probability, that is correct; but it must be plain from the discussion that there is an ambiguity because views in this Committee have varied as to whether what was contemplated were attributes, or background, or both. The provision as it stands therefore appears to be capable of being productive of confusion at the low level, in the magistrates' courts, where this matter may often have to be applied.
As to the amendment of the noble Lord, Lord Kilmarnock, I should have thought that it would be wrong to bring in background because that would bring in two standards of care according to means. There should he one standard of care which has regard to the characteristics of the child; the presenting characteristics of the child that actually call for care. The language of Amendment 156ZA is the one that gets closest to making that meaning precise. I agree that we should not draft on our feet in Committee, but one in no way derogates from an acceptance that the draftsman has thought about this very carefully by suggesting that further thought could produce more precision.
5 p.m.
Baroness Macleod of Borve: I wonder whether I may make a short intervention. Most noble Lords are practised in the law. The people who will put this Act, as it will be, into court are not practised in the law. They are practical people. I hope, through the noble and learned Lord, that this Bill will go out in such a way that people can understand it, that it will be in ordinary English, that it will be sufficient to help a court to decide what to do and that, as the noble and learned Lord said, it will not be the case that everything must be very precise, to use his words.
I must ask the Committee to give enough flexibility to people who are not learned in the law, but who are learned in practical life and in dealing with children.

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Each individual child is different and has to be treated differently. I hope that the Bill will not make the position so complicated that an ordinary person like myself cannot possibly understand it.
The Lord Chancellor: The sentiment just expressed by my noble friend Lady Macleod of Borve is precisely the reason why I feel that the words we have are perhaps preferable. I think that the description in Amendment No. I 56ZA, the one about attributes, is certainly along the line that I have in mind as the construction of the phrase "similar child". This is obviously extremely important and certainly I shall consider it with the draftsman. I have that very much in mind.
At the moment I have to say I am inclined to think that we may not be able to improve on these words without the risk of bringing in rather more technical words. The word "attributes" is perhaps a rather more technical word. But certainly the sense that I am aiming at is the sense covered in that amendment and we shall consider the matter further. I hope that in the light of that we may be able to move on.
Lord Mishcon: I hope the noble and learned Lord will consider the simple words, "such a".
The Lord Chancellor: I was not meaning to leave that out. I was simply saying that the phrase "similar attributes" has the right sense from my point of view. We will consider all that has been suggested, including that mentioned by the noble Lord.
Lord Prys-Davies: In the course of the last 25 minutes at least three different meanings have been attached to the phrase. This suggests that clarification is desirable, even for the magistrates. Otherwise there could be here a fruitful source of difficulty. I am content with what the noble and learned Lord the Lord Chancellor has said. This matter will be reconsidered, and I very much hope that either the amendment of my noble friend Lady David or the words suggested by my noble friend Lord Mishcon will be acceptable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilmarnock Lord Kilmarnock had given notice of his intention to move Amendment No. 150A:
Page 21, line 39, leave out ("similar child") and insert ("child of similar background").
The noble Lord said: In view of the noble and learned Lord's undertaking to reconsider this section of the Bill with the draftsman, I shall not move this amendment.
[Amendment No. 150A not moved.]
Baroness David Baroness David moved Amendment No. 151:
Page 21, line 41, at end insert ("or
(iii) the child concerned is of compulsory school age and is not being properly educated").
The noble Baroness said: In moving Amendment No. 151 I should like to take with it Amendments Nos. 164 and 166 to 169 inclusive. These were not so grouped this morning, but I hope that the message got through in time to the noble and learned Lord
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that this was the way I thought it best to deal with them.
The amendment is designed to test the possibility of re-incorporating supervision orders made on school non-attendance grounds into the main stream. It would give a local authority the choice of assigning an education welfare officer or a social service department social worker according to the needs of the case. Truancy is not a simple matter and the child and his family may need a great deal of skilled help, including psychiatric treatment in some cases of school phobia.
It appears to be the intention of the Government to re-orientate the school welfare service towards enforcing school attendance. While there may be a place for such activity there is need for a range of options to be available. I know that the noble Baroness, Lady Faithfull, has been worried that welfare education officers were being pushed by the Department of Education and Science. Indeed, we had a meeting there which we both attended. I hope that she will be sympathetic to the amendment which tries to widen the possibilities for these children.
To limit supervision order responsibilities to the education authority would potentially restrict the opportunities for maximum flexibility in dealing with a child. Such a step would either require education departments to build up an alternative social work force encompassing a wide range of skills and knowledge, or failing that to make the arrangements for delivery of particular kinds of treatment more beset by bureaucratic boundaries.
The simple solution, therefore, would be to make it possible for supervision orders to be made on educational grounds by amending Clause 26 with the words in Amendment No. 151 and by echoing this in the more detailed references to education supervision orders in Clause 31 where on various occasions the word "education" is deleted. It would then read "local authority" instead of "local education authority", enabling the local authority to use either its educational welfare workers or its social workers.
It may be argued that full supervision orders should not be made on purely educational grounds. The proposed amendment accepts that argument by retaining subsection (2)(a) of Clause 26 in relation to supervision for non-attendance. So it would be necessary to demonstrate that the child has suffered significant harm or is likely to suffer such harm. I hope that this will be seen as a reasonable amendment giving a little greater flexibility. I think it would be in the general interests of children and indeed of local authorities. I beg to move.
Baroness Faithfull: I agree with the noble Baroness, Lady David, on the need for flexibility in this area. It seems to me that there are a number of children who absent themselves from school or do not go to school at all. If one looks at those cases there are very often social problems—not problems of the school—which should be dealt with by social services departments. In many authorities the education department will refer such cases to the social services department as being a social problem.

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There are the other cases where children go to school, register, do not like the lesson that is coming up (which I have to say is usually maths), go downstairs to the cloakroom, change into their tee-shirts and go out. That is a school problem. So there are very often problems of school and social problems out of school. One hopes very much that there can be flexibility in this area.
The Lord Chancellor: The first limb of the conditions in Clause 26(2) requires that the child has suffered significant harm or is likely so to suffer. The second limb requires that this harm or likelihood of harm is attributable to the child being given or being likely to be given care which is below a reasonable standard. I shall not go into the full wording. Amendment No. 151 would add to this limb a third condition; namely, that the harm or likelihood of harm to a child of compulsory school age is attributable to his not being properly educated.
I urge your Lordships to resist the amendment for two reasons. First, it would mean that a child could be placed under a care or supervision order purely on educational grounds. As both noble Baronesses have said, that could be a purely school problem. Children may have been put out properly to school. They may have been encouraged to go, have all the necessary equipment but then perhaps find that they do not like the maths lesson. I am sorry to hear that it is usually maths.
It may perhaps have something to do with the teaching of mathematics. Whatever the reason, it has nothing to do with the parents: it has to do with the fact that once the child gets to school it does not want to stay there. The parents may have done everything possible to persuade the child to go to school and made every possible provision for the child. That is the first point. I think it would be wrong to put a child in care for what I have called purely educational grounds of that sort, when it is the school that is really the problem.
Clause 26(8) defines "harm" for the purposes of this clause as,
"ill-treatment or the impairment of health and development".
"Health" includes mental health and "development" includes intellectual, social or behavioural development. It would be possible under the clause as drafted for a court to be satisfied that the child was being harmed for reasons relating to his failure to receive proper education. The court would then proceed to the second condition, which at present requires consideration of the standard of care which he is receiving or is likely to receive from his parent. The court should consider whether this care is or is likely to be below that which it is reasonable to expect the parent of a similar child to give to him, or whether the child is beyond parental control.
That may be one of the problems. In other words, the court will be required to assess whether a child's parents have taken reasonable steps to care for him. Even if the child is intellectually underdeveloped, if that is not a result of the parents' action there would not be a care order; but if it is a result of the parents'
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action or inaction that would give grounds for a care or supervision order. Only if they have not taken reasonable steps and the court satisfies itself that the order is necessary may it proceed to make a care or supervision order. So on educational grounds, where the ultimate responsibility for the failure, if I may use that word and avoid unnecessary repetition, is that of the parent the case can be dealt with properly under this aspect.
The amendment under consideration would not require such an investigation. Rather it would be enough to show that the child is not being properly educated, which in itself is a subjective and imprecise term. This was looked into quite closely in the review of child care law and in the White Paper. I have tried to explain it in my own words and I do not think I need go into that any further. That is the aspect of the care matter.
The purpose of an education supervision order is to give a court powers to place a child under the supervision of a designated local education authority if it is satisfied that the child is not being properly educated. In particular, this would be likely to apply where the parents have not complied with a school attendance order under Section 37 of the 1944 Act requiring parents to register their child at school, or if the parents have failed to secure the child's regular attendance at school. An education supervision order would be appropriate where the evidence indicates that the child's failure to attend school is specifically an educational problem and not due to a lack of parental care, in the sense relevant under the provisions of Clause 26.
There are some cases where failure to attend school is not symptomatic of wider social problems but is specifically an education problem and a matter of ensuring compliance with the Education Act. So we tried to provide, where it is a social problem, for the case to be covered under the Clause 26 type of order, and, where it is not a social problem but an educational one, under the education supervision order. I hope the noble Baroness will feel that there is a distinction between these two powers which is appropriate and that we have covered the whole ground appropriately by both provisions.
Baroness Faithfull: I wonder whether I may just say that from the point of view of this Bill I am satisfied with the explanation given to us by the noble and learned Lord. However, I should like to make a plea about something on which the noble Baroness, Lady David, and I feel strongly; namely, that the whole situation with regard to education welfare officers and the social services should be looked at, though perhaps not in these amendments and not in this Bill.
Baroness David: I would accept that this amendment was perhaps not put in precisely the right place. I do not think I would accept that the problems are very often just school problems: there is usually something else as well which leads to truancy and skipping off. I should like to look at Clause 31 again, and for the next stage, after consultation with the noble Baroness, we may think of a way of doing what

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we wish to do in Clause 31. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 152 and 153 not moved.]
5.15 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 154:
Page 22, line 17, leave out from ("1968") to end of line 19.
The noble Lord said: This amendment suggests that we should leave out subsection 6(c) on page 22. This subsection inhibits the indpendent action by the NSPCC, to the detriment of children. In many cases, once a place of safety order—which in this Bill is to be called an emergency protection order—is taken the child moves to local authority accommodation. Under subsection 6(c), instituting care proceedings would be limited to children living at home, placed with relatives, in hospital or in accommodation provided by other voluntary organisations. Since the authorised person in these circumstances can take care proceedings, this subsection does not follow any general principle.
The society takes about 200 place of safety orders a year, of which approximately 120 result in care proceedings. Consultation takes place with the local authority before proceedings are taken. The basis for the society, rather than the local authority, instituting proceedings is that the best interests of the child are met by such action because, first, it is more efficient since the society has the evidence, having taken the place of safety order. Secondly, it is an essential part of the developing social work relationship between the society, the child and the family. Thirdly, it is an essential part of the continuing relationship with the child and family. Many place of safety orders are taken in respect of children already known to the society and with whom they are working.
In addition, subsection 6(c) would close down a real alternative to social services provision in circumstances where for one reason or another they are unable to provide a service during industrial action, for example, or where they are unable to allocate places, and provides an element of choice to the child and family about the services available to them. I beg to move.
The Lord Chancellor: The point raised here relates to care proceedings under which the NSPCC is authorised. The general principle we are following in this provision is that there will be several situations in which local authorities will provide accommodation for children. Such arrangements may be made with the voluntary co-operation of parents under Part III, for orphans, certain other children who under present legislation will be received into care, and for children who are the subject of emergency protection orders or of police protection under Part V, including emergency protection orders obtained by persons other than the local authority.
There is nothing in this Bill which in any way inhibits such a person from putting the child in question into accommodation provided by the local authority. The removal of the restriction in subsection 6(c) would allow authorised persons to
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initiate care or supervision proceedings for any child provided with accommodation. That would surely cut very definitely across the local authority's responsibilities and would not be an incentive to the co-operative working between authorities and agencies within the framework of clear responsibilities for the local authorities that we wish to see.
There would of course be nothing in the present statutory scheme to prevent the NSPCC expressing its concern or making available information or evidence which it may have in connection with children provided with accommodation by local authorities. Indeed, it would be quite the reverse. We want generally to encourage the closest possible collaboration, but the object of such an order will be to have the local authority deal with the child and it is really just a question of when.
Our view at present is that Section 6(c) is appropriate because once the child is in local authority accommodation it appears right that the local authority should be the person who actually initiates the application for a care order and there is nothing to prevent the local authority using all the information evidence and so on, with proper cooperation, that the NSPCC has. I understand that relations there are very good and I hope that they will remain so.
I hope that in the light of the explanation which I have just given my noble friend will feel able to withdraw the amendment.
Lord Mottistone: I am not quite sure that the main point which I was seeking to make has been answered by my noble and learned friend. Indeed, he said a great deal and I shall have to read what he said. I think that we may have to return to the matter on another occasion and perhaps we should not be so blunt in seeking to get rid of the whole of Section 6(c). Obviously there is some merit in having it in the Bill. However, I think that I may well come back at a later stage of the proceedings with another modification to cover the particular point which I am seeking to make. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 155:
Page 22, line 28, leave out first ("a") and insert ("any officer of the National Society for the Prevention of Cruelty to Children and any").
The noble Lord said: In speaking to Amendment No. 155 I should like to speak also to Amendment No. 201. There are problems in connection with these two amendments about which my noble and learned friend is aware. Indeed, he told me about them. I shall return to those problems at the end of what I have to say, because I wish first to outline, on behalf of the NSPCC, the purpose of these amendments.
The society is seeking to be named in statute. It was founded in 1884 and by its Royal Charter of 1895 it is empowered to bring proceedings to protect children. It is presently uniquely designated by the Secretary of State in regulation as an "authorised

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person" to bring care proceedings under the Children and Young Persons Act 1969.
The society has helped over 9 million children, and last year responded to over 23,000 reports of alleged cruelty involving some 50,000 children. In the last four years the society has reorganised its services. Due for completion at the end of 1988, its proposed network of 60 child protection teams throughout England, Wales and Northern Ireland is now in place and seven more teams are planned.
Every child protection team provides a 24-hour service to ensure that any call at any time of day or night, in any place, will be answered. In response to a call the NSPCC will give advice to the caller on what to do about a child abuse problem and it will arrange for appropriate action to be taken to protect that child.
In some parts of a child protection team area a contractual arrangement may exist with the local authority that the NSPCC will pass on the referral to another agency for investigation, usually the social services and occasionally the police. The society will always take action itself if the interests of the child require it or if the appropriate agency cannot respond in time. The society will also respond directly, when this is necessary, to preserve confidentiality and in response to a specific request by the referrer.
In addition, each child protection team offers a range of services to protect children and prevent abuse. Casework and assessment with children and parents are provided to assess and help abusing families both in their own homes and in NSPCC centres. Family care services provide preventive and therapeutic work with families: they are staffed by professional nursery and child care workers who liaise closely with their child protection team colleagues. Trained people within the NSPCC assist in offering local education and training for professional and voluntary organisations.
Procedural and policy liaison is developed. Uniquely, the society is represented on all area child protection committees. Consultative services are offered to co-professionals on a 24-hour basis. In addition to their child care services, some child protection teams—10 currently—manage the child abuse register on behalf of the local authority.
The society seeks to complement the work of local authorities, at the same time offering a choice of service to the thousands of parents and the general public who make referrals each year, and independence of view and action to professional colleagues who meet to refer children for help, and want for themselves consultation, advice and training.
The unique standing of the society—now the largest child protection agency in Europe, employing 450 child protection officers in its inspectorate and many more family care and counselling staff—is recognised in the Working Together circular and guide of 1988, in which it is named alongside the local authority social work investigation agency as the agency able to provide key workers in child abuse cases. As a reflection of its work in the protection of children the society is seeking to be named in statute.
At present the society is authorised, but under secondary legislation. It was first authorised in the Children and Young Persons Act 1933. Three orders were made under that Act. By those the NSPCC and the Liverpool, Birkenhead and Wallasey Societies were made authorised persons. The latter societies were later incorporated into the NSPCC. It may be relevant to say that the NSPCC is not the only body of its kind which seeks to be named in statute. Indeed, I am told that the RSPCA is so named. Therefore it is not without precedent.
Having said all that, it is a fact that Amendment No. 201, to which Members of the Committee may wish to refer, imposes a duty on the NSPCC. The fact that the society wants that duty is not relevant. But the fact that it imposes a duty upon the society means that, if it were passed, the Bill would become hybrid and one does not wish to incur that distinction, delay and all the trouble which would result.
I am told by the Clerks of the House that they believe the reference to the NSPCC in Amendment No. 155—or the particular point of Amendment No. 155—and the reference to it, for example, in an amendment which I shall be moving later on (Amendment No. 199AB) confers a benefit upon the society. Therefore it is not certain that the effect would be hybridity. Of course if there is any question of that happening, I should not seek to press any of these amendments and I shall certainly not be moving Amendment No. 201 because of the very firm advice I have received.
However, I hope that my noble and learned friend will be able to make some comment on this issue and perhaps he will be able to give us a little latitude in regard to Amendment No. 155, if only before the Bill is enacted, because we may introduce the matter at a later stage if this is not an appropriate moment to do so. I beg to move.
The Lord Chancellor: The Government and, I am sure, the whole Committee greatly appreciate the work of the society. It has a most distinguished record and I speak for the Government as well as personally. I have known its excellent work. This is evidenced by the fact that uniquely now the society is authorised under this type of legislation. The difficulties are of a technical nature and in view of what the noble Lord has said I undertake to consider the matter carefully. I believe that it would be right to leave this over and I know that my noble friend is willing to take that course.
Lord Mottistone: I thank my noble and learned friend for that reply and for saying that he will look into the matter carefully perhaps with a view to meeting the wishes of the NSPCC. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Baroness David Baroness David moved Amendment No. 155A:
Page 22, line 32, after ("impairment-) insert ("or neglect").
The noble Baroness said: This amendment adds to the definition of "harm" which appears in Clause

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26(8). It seeks to add "or neglect" after "impairment" so that the line would read:
" 'harm' means ill-treatment or the impairment or neglect of health or development".
It is a small aid to interpretation and the definition of "harm" corresponds in part to the primary condition in Section 1(2)(a) of the Children and Young Persons Act 1969. We find it hard to believe that it was intended to leave out "neglect". I beg to move.
Lord Banks: I wish to say a word on the amendment, as its purpose is virtually the same as that of the following Amendment No. 156, to which I referred earlier. We were concerned that "neglect" did not appear to be covered by any of these definitions. The only difference between our amendment and that of the noble Baroness is that she has added the word "neglect" to the definition of "harm", whereas we should have added it to the definition of "ill-treatment". I should be happy with either and I support the amendment.
The Lord Chancellor: As the noble Baroness has said, "neglect" appears in the present law in the phrase "avoidable neglect" in Section 1(2)(a) of the Children and Young Persons Act 1969. It permeates Section 3 of the Child Care Act 1980 as the basis on which a local authority may pass a resolution assuming parental rights and duties. The Review of Child Care Law studied these two sections in depth. It commented that by focusing on parental unfitness the present law "may have a stigmatising effect" and "provide unnecessary conflict" and, most importantly, "distract from the requirement to treat the child's welfare as the overriding factor". It recommended therefore that,
"it should be necessary to prove that there is, or is likely to be, harm to the child".
This recommendation underlies Clause 26(2). The amendment would focus on the word "harm", which is defined in Clause 26(8) to mean "illtreatment"—that is the noble Baroness's amendment—"or the impairment of health or development". The first amendment would redefine "harm" in Clause 26(8) as including neglect of health and development. The second would classify "neglect"—that is in the amendment of the noble Lord, Lord Banks—as a form of ill-treatment. The effect of these amendments is to define harm in terms of "neglect". My answer is that it may or it may not be right to say that neglect harms a child. That depends on the situation. Some children might thrive perfectly well although they were neglected in the sense that nothing particular was done for them. It appears to me therefore to be right and crucial to the conditions in Clause 26(2) that this question be judged from the child's point of view.
The noble Baroness and the noble Lord are anxious about "harm"—the child being damaged. It is the result of the process that is in question which is what is at issue. What we have done is to focus on the end result. If harm is produced, however it is produced, that will be sufficient. That deals with that stage. We then go on to trace that to the deficiency in parental care. Where evidence of neglect can be classed as ill-treatment or causes impairment of
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health or development, it will satisfy the criterion of "harm". In other cases—and I accept that this may well be in a minority of cases—neglect may not amount to harm. If we say in Clause 26(8) that harm means neglect, then proof of neglect will mean that the first condition in Clause 26(2) may be satisfied, even when what has been neglected has not done any harm to the child's condition.
Those are the basic reasons why we have not felt able to accept the amendments. However, I stress the first point about stigmatisation as very important. We have tried to get past that because we want to try to take conflict out of the care situation so far as possible. If we can get the right result without unnecessary conflict, so much the better. I think that all Members of the Committee would feel that that was right. Therefore I believe that if one can look at the child and say, "Has this produced in the child something that requires to be dealt with?", that leads to the right answer. Although nobody likes to see children neglected, as I said, it may well be in the minority of cases that the neglected child will thrive. So it has the combined effect of concentrating on the right answer, the right test, as well as avoiding unnecessary stigmatisation of parents as neglecting parents when it is not necessary, for the purposes of really affording a proper remedy, so to do.
Baroness David: I thank the noble and learned Lord for that answer. As regards stigmatising, I should have thought that ill-treatment stigmatised just as much as neglect, if not more so. It is not just neglect on its own, it is the neglect of health or development, the "impairment or neglect of health or development". It is not just neglect which has no result. However, I realise that the matter has been thought about very carefully and I should like to read what the noble and learned Lord has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 156, 156ZA, 156A and 156B not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 156C:
Page 22, line 40, leave out ("the court shall compare his health or development") and insert ("his health or development shall be compared").
The noble and Learned Lord said: With your Lordships' permission, I should like to take Amendment No. 253B with this. In Part IV of the Bill, the question of whether harm is significant in a particular case, which has to be established for a care order or supervision order, is for the court to decide. Clause 26(9) at present provides that where the question of whether harm suffered by a child turns on the child's health or development, the court shall compare his health or development with that which could reasonably be expected of a similar child.
Questions of whether harm is significant will fall to others in addition to the court under certain provisions of Part V of the Bill. Those are the ones to which later amendments of the noble Lord, Lord Mishcon, refer. Under Clause 39 it will be for the constable, who has to decide whether the child should

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be taken into police protection; and under Clause 40 for the local authority, which has to decide whether to investigate the child's circumstances. Accordingly, it is wise to take out the court and leave this as a general way of assessing the question, whoever has to decide it. I beg to move.
Lord Simon of Glaisdale: I have only a mild grammatical hesitation about the amendment. The Bill stands conspicuously drafted in idiomatic language which is understandable by the people to whom it is addressed. It seems to me a pity to turn a perfectly good phrase in the active form into a phrase in the passive form which means precisely the same thing.
The Lord Chancellor: It does not mean precisely the same thing because in the active form it is restricted to the court, whereas in the passive form it applies to anyone who may have to ask the question. I share the desire of the noble and learned Lord to keep the active form if possible; but I concluded that it was necessary to have this provision apply to other cases than where a court has to decide the matter. That is the point of it. The other way of doing it would be to put a similar subsection into every decision-making process where the matter may arise. It was thought best to err on the side of brevity in this case.
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Baroness Faithfull Baroness Faithfull moved amendment No. 157:
After Clause 26, insert the following new clause:
("Assessment prior to application for a care order.
Before an application is made by a local authority or authorised person for a care order or a supervision order the authority or authorised person shall consult with representatives of all professions it considers likely to have an interest in the making of an application and shall assess in consultation with them the desirability of taking such a course of action having regard to the circumstances of the particular case and any advice or guidance relevant to it.").
The noble Baroness said: This is by way of being a probing amendment seeking information. In the Cleveland Report it was found that case conferences were not being held before children were removed from home on a place of safety order. Those of us who have worked or are working in social services departments know that it is good social work practice to hold a case conference before taking any action on any child, unless of course it is an emergency. In that way there is shared responsibility and there is shared knowledge about a child. It means that all those who are working with the child are contributing towards what they think to be best for the child. I have read other reports of where children have been brought before a court without a case conference being held beforehand.
It is true that a social worker is the key worker. Nevertheless, I believe that at such an important step in a child's life there should be joint responsibility on the part of health services, education services, social services and anyone else involved. I am not sure whether that provision should appear in primary legislation. Perhaps it should appear either in regulations or in the form of advice to local
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authorities. In the ordinary way one feels that such advice should not have to be given because this provision is good practice. The fact remains that in some authorities this provision has not been carried out.
I do not propose to press this amendment. But I should like an assurance that somewhere, either in regulations or in circulars, local authorities will be advised that case conferences involving all those concerned with a child should be held before the child is brought before a court. I beg to move.
5.45 p.m.
The Lord Chancellor: The basic duty which is required in order to, as it were, found this practice is contained in Clause 40 of the Bill which sets out a local authority's duty to investigate. Subsection (1) requires that local authorities,
"shall make, or cause to be made, such inquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare".
Further, subsections (8) and (9) require the co-operation of other authorities in these inquiries. These provisions deal with the majority of cases which are likely to lead to an application for a court order. Clause 32 imposes a similar duty on local authorities to investigate when a court in family proceedings so directs. How the case is in fact investigated will differ according to the circumstances.
So there are duties to make inquiries. The amendment of my noble friend, as she explained, sets down at least one aspect of good practice in such inquiries. Having placed statutory duties upon local authorities in the terms that are suggested, the right place for detail on good practice is in guidance. For example, the publication entitled A Guide for Social Workers undertaking a Comprehensive Assessment, which was issued in November 1988, addresses the need for consultation with representatives of all professions who have an involvement with the child or family.
What the noble Baroness suggests is well worth achieving and this is the correct way to achieve it. The particular requirements of good practice may well develop and guidance is the best place in which easily to take account of these developments.
Lord Seebohm: I wish to add that the issue of a court order is a very traumatic experience not only for a child but for the whole family. It is traumatic also for brothers, sisters and parents. To my mind it is so serious that we cannot stress too strongly somewhere in the Bill that full inquiries must be made before action is taken.
Baroness Faithfull: I have one further point to make. If this provision is put into either regulations or circulars, I hope that it will also be circulated to the other professions involved; that is, to the health and education services. The reason why in the first instance we thought it should go into primary legislation was that the other professions would note it if it were in primary legislation. However, having

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listened to the explanations of my noble and learned friend the Lord Chancellor I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 157A:
After Clause 26, insert the following new clause:
("Application to bring child before court.
—(1) No child shall be brought before a court by his parent or guardian on the ground that he is unable to control him; hut where the parent or guardian of a child has, by notice in writing, requested the local authority within whose area the child resides to brine him before a court under section 26 of this Act and the local authority refuse to do so or fail to do so within twenty-eight days from the date on which the notice is given the parent or guardian may apply to the court for an order directing them to do so.
(2) Where an application has been made under this section for an order against a local authority, the local authority shall make available to the court such information as to the home surroundings, school record, health and character of the child as appears to them likely to assist the court and shall for that purpose make such investigations as may be necessary.
(3) On the hearing of an application under this section the child shall not he present.").
The noble Lord said: I draw the attention of the Committee for a moment to another subject, which is the case of a parent or a guardian who has a child whom he just cannot control. He wants something done for the sake of the child and the whole family. The first thing that I think the Committee would agree upon is that there should not be a procedure where parents can bring children before a court immediately on a matter of that kind. But where a parent has given notice to a local authority that he wants it to act at the request of the parent or guardian and the local authority does nothing about it or refuses to apply for an order, the Committee may feel there should be a procedure by which a parent can go to a court—not in the presence of the child—call upon a local authority to produce to the court all the information that it has, whether it be by way of history or specialist reports, and then see whether for the sake of the child and the family the court can make such an order.
I may be hopelessly wrong about this, but if I am wrong I am in good company—that of the Law Society, of which I am so proud to be a member. It is thought that these provisions, which came in Section 3 of the Children and Young Persons Act 1963, have, possibly by mistake, been omitted from this Bill, because Section 3 of the 1963 Act is in the repeal schedule to the Bill. Its provisions do not seem to have been reintroduced into the Bill. If the noble and learned Lord the Lord Chancellor feels that an error has been made in this respect, my amendment would put it right. If, on the other hand, I am in error in the information I have been given, I apologise to the Committee, but I know I shall be forgiven.
The Lord Chancellor: This is not an omission without consideration. In other words, it is not an omission by mistake. It is a deliberate omission, and I shall try to explain why.
The amendment reintroduces into the legislation Section 3 of the Children and Young Persons Act 1963 which we propose should be repealed. Remnants of the old approach, such as denying the right of the child to be present together with reference
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to bringing the child before the court, are retained in the amendment. That is redolent of an earlier approach to the problem.
The repeal of Section 3 is a necessary part of the scheme of the Bill under which it would he inappropriate for the local authority to be compelled to seek a care or supervision order. In all other aspects of the Bill the local authority has discretion to determine when it would be appropriate to initiate proceedings in respect of a child. A child will be capable of becoming subject to a full care order only on the application of the local authority, or an authorised person who has liaised with the local authority. The authority also has powers where appropriate to do what is necessary to promote and safeguard the welfare of children, for example, through the provision of services, without obtaining a care or supervision order. I think that it is right that where the local authority would, under a care order, acquire parental responsibility it should be able to decide whether that would be appropriate.
Where parents, despite their best efforts, find that they are unable to control a child of theirs and fear he is at risk they may seek the assistance or advice of the local authority. For the local authority the seeking of a care order in respect of that child should be a matter of last resort. Indeed, that is the policy of the Bill. Under the Bill the authority will be required to seek to reduce the need to bring proceedings for care or supervision orders. Thus it would be more appropriate for the local authority to consider whether any need arising from the kind of situation to which the noble Lord referred could properly be met by the provision of services which may include accommodation on a voluntary basis. It may be, for example, that the authority would consider it sufficient if the child was taken away from home and placed elsewhere. It would run contrary to those provisions to permit a parent to seek to compel the local authority to apply for a care order.
If the parent is not satisfied with the local authority's actions in the matter the representations procedure provided under Clause 22 would be an appropriate next step. Ultimately, if the parent considered that the local authority had behaved unreasonably then judicial review would be the remedy.
I believe that the local authority's power to provide services under Part III and its duty to seek to prevent the need to initiate proceedings are among the most important features of the Bill. I should not like to see those features diluted by a provision of the kind proposed since the scope of the Bill seeks to deal with such a situation in the way that I have described. I therefore invite the noble Lord, notwithstanding the disguished company in which he found himself, to consider whether he could withdraw the amendment.
Lord Mishcon: By the grace of God I am in such distinguished company at present that perhaps, with the assent of that company, I can invite the noble and learned Lord to consider one submission. It is a submission and not a call for a Division on the amendment. I am glad to learn that the repeal of the section was deliberate and not by omission. It appears that the repeal leaves a gap in respect of the

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situation in which a local authority may be lax or may have exercised bad judgment in what may be an emergency for the family we are considering, the parent with a child who cannot be controlled.
I can well understand the noble and learned Lord saying that the provision that the child should not be present is somewhat antiquated. There may well be a situation before a court when it is not in the child's interest to be present. However, that is largely an irrelevancy in regard to the principle under consideration. Surely, there ought to be some way other than a judicial review which we all know is a matter of great expense, be it to the Legal Aid Fund or anyone else. The judges of the High Court are busily engaged upon matters of great moment with the result that it is very difficult to get an application for leave for judicial review unless there is a grave emergency. The lists are pretty full with such applications. To force that as the only remedy where a local authority does not listen to a parent when it should seems to me to create an unworthy machinery.
There was some wisdom, if not a great deal of wisdom, and some good thinking (and not just antiquated thinking) in the old Section 3. I have no evidence before me—although the noble and learned Lord the Lord Chancellor may have such evidence—of its abuse or that it was not working in the interests of families or children. I ask, as my submission, that the noble and learned Lord should consider whether there should not be some machinery in the Bill, other than through the complaints procedure or the rather cumbersome procedure of applying for a judicial review, whereby, after notice to a local authority, the matter could come before the court to consider whether a care order should be made in certain circumstances. I shall not press the amendment but I merely ask the noble and learned Lord, with his usual courtesy, to consider the situation, which has worried those who are concerned with the legal aspects of the Bill.
The Lord Chancellor: I have heard all that the noble Lord has said on the matter. I consider that the fundamental points I made deal with the matter. However, that does not mean that I shall not consider further what he said.
Lord Mishcon: In those circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Aylestone): We come now to Clause 27, Amendment No. 158.
Lord Simon of Glaisdale: Have we finally dealt with Clause 26?
The Lord Chancellor: Yes. The previous amendments concerned a new clause to be inserted after Clause 26. We have dealt with Clause 26 standing part of the Bill.
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Clause 27 [Period within which application for care or supervision order must he disposed of]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 158:
Page 23, line 14, leave out ("make") and insert ("may").
The noble and learned Lord said: At Second Reading the noble Lord, Lord Meston, was good enough to point out a printing error in Clause 27(3). Amendment No. 158 is intended to correct that error. Once again I should like to express my gratitude to the noble Lord for pointing that out. I beg to move.
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Effect of care order]:
Lord Banks Lord Banks moved Amendment No. 158A:
Page 23, line 24, at end insert —
("( ) The exercise by the local authority of their powers in relation to the accommodation and welfare of a child in the care of the local authority shall be subject to any directions given by the court.").
The noble Lord said: Amendment No. 158A would enable the courts to give directions to the local authority that is taking a child into care, has recently taken a child into care or has at any time taken a child into care. The amendment reinstates the effect of' Section 43(5) of the Matrimonial Causes Act 1973 which is repealed by the Bill.
Section 43(5) of the 1973 Act enables the court in family proceedings to give directions as to how the local authority might exercise its powers in relation to accommodation of a child or in relation to other matters concerning the child's welfare. We believe that that has been found to be a useful provision. It enables the court to direct whether or not a child should go to a long-term foster parent, to direct that a child should be placed with or near siblings or near a particular school, or to direct that a specified social worker should be allocated to the case. The power of the court to make such directions has already been curtailed considerably by a decision of the House of Lords in a case in 1982, a case which was criticised at the time.
The Bill allows the court to intervene to regulate parental contact but does not give the court power to direct a specific placement or a rehabilitation programme. There is a risk that Clause 29 applications will be used as a back-door means of bringing these matters before the court. The protective role of the court should be reinstated, for example to allow surveillance of the decisions of inexperienced social workers. I beg to move.
The Lord Chancellor: A direction-making power exists under the current law in respect of children who have been committed to care in divorce and some other family proceedings, though our understanding is that it is rarely exercised other than in wardship. For most children in care the amendment would constitute a major change, with courts being able to take responsibility for deciding any matter concerning the welfare of the child.
Perhaps I may once again refer the Committee to the Review of Child Care Law in which this matter

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was considered. The review took from the Social Services Select Committee's report on children in care the principle:
"the courts should make long-term decisions impinging directly on the rights and duties of children or their parents, and that the local authority or other welfare agency should make decisions on matters which, although they may be of equal or greater importance, are not susceptible to clear and unambiguous resolution".
The review went on to describe the disadvantages of giving courts greater reviewing powers. In paragraph 2.24 it commented:
"it is not only important that the reviewing body should itself have the power to deliver the care which it considers best for the child: it is also necessary that the body with day to day responsibility for the child should have a positive duty to 'take a grip on' the case and make firm and early decisions without the temptation to pass responsibility to another body".
It is of course not within a court's power,
"to initiate action to provide for a child, nor to deliver services which may best serve the child's needs".
Moreover, it says:
"even a well managed court with resources to hear cases speedily will take time to resolve disputes, because of the need for the parties to prepare their case and for the court to conduct any independent investigations. Such delays can he highly detrimental to all concerned, especially to the younger child, to whom time can be of crucial importance".
This Bill generally retains the current balance of power between courts and local authorities. It gives children, parents and others greater rights and remedies with regard to contact and the discharge of a child from care, as the noble Lord, Lord Banks, has already pointed out. However, it has taken from the Review of Child Care Law the principle of clarifying and emphasising the responsibility of local authorities.
Seeking to strengthen rather than undermine that responsibility, the Bill imposes a new duty on local authorities to establish a procedure for considering representations—and we know that that includes complaints—made to them about the discharge of their functions. I refer to Clause 23. The Review of Child Care Law commented:
"placing responsibility to decide a dispute on those with the responsibility for implementation"
is a better way forward than court review. It pointed out:
"a dispute process which is inaccessible and intimidating to the people concerned will be of little value to them".
If we are to have good decisions taken by local authorities in relation to care, I believe it is vital that they should he seen to have the responsibility, and passing the buck to the court or having the court intervene to some extent, and so on, is inimical to that direct line of authority and responsibility. I believe that there is nothing like responsibility to lead to good decision-making. Therefore in the light of what I have said I hope the Committee will agree that on this very important matter the Bill strikes the right balance, and, if the Committee is so persuaded, that the noble Lord will feel able to withdraw his amendment.
Lord Banks: I am grateful to the noble and learned Lord for that explanation of the present position. I was glad to hear him say that this Bill maintains the balance of power between the courts and the local
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authority. Obviously I should like to consider what he has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 158B:
Page 23, line 37, after ("made") insert ("unless the child requests otherwise").
The noble Lord said: This amendment is intended to enable children of sufficient understanding to determine their own religion when in care. According to information that I have received, this issue was first considered in Parliament almost 100 years ago, in the Custody of Children Act 1891. That Act dealt with the situation in which parents were not considered suitable to have custody of their children. Although that Act has been superseded by considerable subsequent legislation, I understand that it is still in force.
Section 4 of that Act provides that where the court does not consider that the parent should have the custody of the child and the child is being brought up in a different religion from that of its parents' choice, it has the power to order that the child is brought up in the religion of the parents' choice. But the section then goes on to state:
"Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to he made, or diminish the right which any child now possesses to the exercise of its own free choice".
This amendment would bring into this major Bill the underlying principle of Section 4 of the 1891 Act. It is very much in line with the Gillick decision. I believe that it also affects the position as expressed in the major text on children's law—namely, Clarke Hall and Morrison—which states that the parents' right to determine a child's religious observance ceases when it is of an age to adopt its own view. I beg to move.
The Lord Chancellor: When considering this amendment I think it is important to look at what Clause 28(3)(a) provides. It provides that the local authority which, while a care order is in force, has parental responsibility for the child, may not,
"cause the child to be brought up in any religious creed other than that in which he would have been brought up if the order had not been made".
In other words, the local authority must not cause a change in the religious creed under which the child is being brought up. That reflects the present law as set out in Section 10(3) of the Child Care Act 1980 for local authorities.
The noble Lord, Lord Prys-Davies, referred to the court situation. So far as concerns court orders, the general provisions of Clause 1 of this Bill require the court to consider the wishes of the child. We have already considered that point. It reflects very much the point to which the noble Lord referred. The present clause does not prevent a child who is in care under a care order being brought up in a religious creed different from that to which he subscribed before the care order was made. Its purpose is to prevent the local authority which has parental responsibility for the child by virtue of the care order

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causing the child to be brought up in a different religious creed by action of their own. That is the idea.
For example, it should not place a child who had previously been, and wanted to continue to be, brought up in one creed with a local authority foster parent who had no sympathy with that creed and would be unable or unwilling to help the child fulfil his wishes; nor should it force a religious upbringing on an unwilling child. In other words, it should not bring about a change which would not have occurred had the order not been made. The idea is that so far as possible removing the defects in the child's care is what the local authority has to do—not replace it by notions of its own about the child's religious upbringing.
Clause 18, which sets out the local authority's welfare responsibilities with respect to children it is looking after is intended to ensure that matters of this kind are decided properly. Under Clause 18(4) the local authority, so far as is reasonably practicable, must ascertain the wishes and feelings of the child, his parents and any other person who has parental responsibility for the child before making any decision with respect to that child.
Clause 18(5) requires the authority, before making any such decision, to give due consideration to such wishes and feelings as it has been able to ascertain having regard, in the case of the child, to his age and understanding. It also specifically requires the authority to have regard to his religious persuasion. If a child in care who is of sufficient age and understanding decides that he wants to be brought up in a different religious creed or to drop out of religion altogether, and the authority considers, having regard to the wishes and feelings of others who have parental responsibility for him, that to allow this would not he contrary to the duty to promote and safeguard his welfare, it would not be prevented by Clause 28(3) from allowing it.
I believe that we have achieved the result that the noble Lord seeks by this amendment. It may be that the original idea of the amendment was prompted by a feeling that the clause was more all-embracing than is justified on a close reading of it. It is a delicate area. However, we have endeavoured to maintain the existing law. I believe that the safeguards in Clause 18 are extremely important and produce the result that the noble Lord has in mind.
Lord Donaldson of Kingsbridge: I cannot help looking back over my past and wondering whether there is not an age difficulty here. It seems clear that if a boy aged 10 says, "I wish to become a Mohammedan" and his parents are Church of England, it would be unnecessary to give him that right. I remember very well that I read Bertrand Russell's What I Believe at the age of 15 and became a convinced athiest. It was not for very long—a year or two. I am interested to know how that would have applied in this case. There seems to be an age difficulty At a certain age a child should begin to think for himself and should be encouraged to do so. At an earlier age he should not. I do not know how the wretched local authority is supposed to interpret this.
The Lord Chancellor: Clause 18(4) and so on seek to address that point. As the noble Lord, Lord Donaldson of Kingsbridge has said, it is difficult. That is why I believe that Clause 18(4) is the best place for this to be considered. As I read the subsection it provides that the local authority must,
"so far as is reasonably practicable, ascertain the wishes and feelings of the child; his parents; and any person who is not a parent of his but who has parental responsibility for him",
before making any decision. It must therefore find out what everybody wants. That is the first matter.
Clause 18(5) requires the authority before making any such decision, to give due consideration to such wishes and feelings as it has been able to ascertain,
"having regard"
in the case of the child
"to his age and understanding".
Some children of 10 are very forward. I am sure that by the age of 15 the noble Lord, Lord Donaldson of Kingsbridge, was particularly well advanced. Therefore if the local authority had the responsibility at that stage it would no doubt think it right to give effect to those wishes. As the experience of the noble Lord grew—he cut off the story—but obviously some further change took place.
Lord Donaldson of Kingsbridge: Several times.
The Lord Chancellor: The local authority's flexibility in Clause 18(5) to give effect to that is well preserved. I believe that the subsection addresses the problem in a more satisfactory way than attempting to do so in relation to a prohibition directed at the local authority seeking to change the child's creed for reasons of its own.
Lord Donaldson of Kingsbridge: I am grateful. I believe that Clause 18(5) covers the case.
Lord Simon of Glaisdale: The religious upbringing of a child is a problem that frequently comes before family courts. It is one of the most difficult to determine. It is particularly difficult where the parents are at variance on the matter.
My view is that the Bill has the matter absolutely right. I would say only this with reference to what was said by the noble Lord, Lord Donaldson. The less responsibility that is placed on an immature child in these matters where the parents may be at variance, the better.
Lady Saltoun of Abernethy: Changing one's religion is a fairly serious matter. I should not like to see any more power given to children in care or under the age of 16 to change their religion, or to decide on their religion, than is already in the Bill. A child, for every kind of reason, may suddenly take a fancy to some religion. It may be the religion of their best friend, the boyfriend, or the girlfriend. They may even have been "got at". I honestly believe that 16 is quite young enough to be able to take such an important decision and one which has such an effect on one's future.
Lord Prys-Davies: I believe that this amendment has been prompted by the fact that the religious creed of a child or a young person is given a special place in subsection (3)(a). On reading this clause one forms the view that it is all-embracing but the Lord Chancellor has referred us back to Clause 18(4). That will not be immediately apparent to people when they read subsection (3)(a). It will become apparent if one has mastery of the Bill. We shall have to read and study what the noble and learned Lord the Lord Chancellor has said and see whether we are content with the reply. In the circumstances I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
6.15 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 159:
Page 23, line 46, at end insert—
("(4) While a care order is in force with respect to a child, no person may—

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(5) Subsection (4)(b) does not—

(a) prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or

(b) apply to arrangements for such a child to live abroad (which are governed by paragraph 17 of Schedule 2).").

The noble and learned Lord said: I have already explained this amendment in relation to Amendment No. 45. It is moving these provisions from one part of the Bill to another. I beg to move.
On Question, amendment agreed to.
Clause 28, as amended, agreed to.
Clause 29 [Parental contact etc. with children in care]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 159A:
Page 24, leave out lines I to 3 and insert—
("(I) Where a child is being looked after by a local authority the authority shall (subject to the provisions of this section) allow the child reasonable contact with—").
The noble Lord said: Clause 28 empowers the court to make a contact order in respect of a child who has been placed in the care of a local authority. That is fine. However, what will happen when there is a dispute over contact when the child is in voluntary care? He has not been placed in care but is in voluntary care. I am told that such disputes can arise frequently and there is no forum in which they can be resolved except that the family members can use the complaints procedures set up by the local authority in accordance with the code of practice on access.
The alternative—although I do not think that I should use that word—is for a parent to remove the child from voluntary care if the dispute cannot be resolved. But that might be a drastic step to take even assuming that it is a practical alternative. To remove the child might be a totally inappropriate step to take in the child's own interest.
Henceforth, when this Bill is in force, parents or relatives of children placed in care can look to the
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court to resolve a dispute over contact with children. If we have correctly understood the position, the parents or relatives of a child in voluntary care will not have access to the courts. That is our understanding. It is not apparent why there should be this distinction, if it exists. The amendment will ensure that disputes about the amount of contact with children in voluntary care can also be referred to the court for resolution. I beg to move.
The Lord Chancellor: The essential idea of children who are not in care being looked after is, as the noble Lord, Lord Prys-Davies, says, a voluntary arrangement. That means that the child is the full responsibility of the parent who is still there in relation to the child. In that situation it appears to me that the correct procedure is that provided generally in the earlier part of the Bill where the Section 7 contact order is appropriate. That is a general possibility of applying for a contact order in relation to a child.
To bring the compulsory care provisions into the voluntary arrangements would be a contradiction and would be damaging. The structure provides that in Part II the provision of local authority services and support, including accommodation, is essentially voluntary where there is no transfer of parental responsibility to the authority. Part IV provides for compulsory intervention in the upbringing of children including, in care cases, a transfer of parental responsibility to the authority. I am strongly moved not to import non-compulsory provisions into Part IV and so damage the structure of Part IV in that way. I question the appropriateness of the Clause 29 provisions for children accommodated under Clause 17.
As I have said, the relationship between the authority and persons having parental responsibility for the child is different in those cases. The arrangements are voluntary, and the whole thrust of Part III is promoting partnership. The proposition in Clause 29 that it is for the authority to allow contact, that the parents may apply for a court order requiring the authority to allow them access, or the authority for an order authorising them to refuse access, is surely not in keeping with the approach of voluntary co-operation that we wish to foster. In a sense it is not for the local authority to allow it in that situation. The child is only there because of agreement. It is for the parties involved in the agreement to agree.
There is an implication of authority over the child in the idea of allowing access which is not appropriate in a case where the arrangements are voluntary. I have a good deal more that I could say, but I believe that is sufficient to make the point that arises on this case.
Lord Prys-Davies: I hope that I have correctly understood the noble and learned Lord the Lord Chancellor. Do we therefore have the following assurance? Where the child is in voluntary care and there is a dispute about access which cannot be resolved, parents can, nevertheless, apply under Section 7 for a contact order.
The Lord Chancellor: Yes, that generally is the case so far as I can see. That would be the appropriate procedure provided under the Bill for dealing with a situation where the arrangements are voluntary. Apart from the fact that the local authority is providing a service, the parental responsibilities and relationships are the same as they are in a general family situation for which Section 7 is designed to cater.
Baroness David: May I ask a question? What I understand is that the arguments may be not about the parents having contact, but a dispute between the parents and other family members. I am not sure how that would be resolved under Section 7.
The Lord Chancellor: The same provisions would apply. I cannot see why there should be a different kind of procedure for resolving problems between parents and the other people where the parents had arranged with a local authority to keep the child for a while, and where they had not done so. I cannot see that that is a relevant distinction. Section 7 provides comprehensive arrangements for resolving disputes where it is right that people should have the possibility of contact with a child. The mere fact that a child is under some kind of voluntary arrangement in the keeping of the local authority should not be different from arrangements made for, let us say, keeping a child in a private school or some other form of residental accommodation.
Lord Prys-Davies: I believe that the explanation that the noble and learned Lord the Lord Chancellor has given to the Committee is reassuring. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 159B:
Page 24. line 4, after ("parents") insert ("grandparents and siblings").
The noble Baroness said: This is a very simple amendment. It seeks to add a phrase at the beginning of Clause 29:
"Where a child has been placed in the care of a local authority by a care order, the authority shall (subject to the provisions of the section) allow the child reasonable contact with … (a) his parents".
I wish to add to that "grandparents and siblings". I believe that is self-explanatory. I beg to move.
Baroness Elliot of Harwood: I should very much like to support the amendment. I have had great experience concerning difficulties with families, and over and over again it is granny or grandpapa who saves the situation and very often looks after the children or a child as the case may be. It is most important that they should be mentioned in the Bill.
Lady Saltoun of Abernethy: I too should like to support the amendment; but I feel that it should be widened. Not all children have grandparents. Not all children have siblings. For some the member of the family who is closest may be an uncle, an aunt or a first cousin. I should like to see the noble Baroness's amendment agreed to and he extended to include other relatives in default of grandparents and siblings.
Lord Banks: Perhaps it would be for the convenience of the Committee if we discussed Amendment No. 162 with this amendment. Amendment No. 162 wants to insert at the end of line 9:
"and the authority shall further consider whether to allow the child reasonable contact with any relative within the meaning of section 77(1) of this Act".
In Clause 77 a relative is defined,
"in relation to a child, [as meaning] a grandparent, brother, sister. uncle or aunt (whether of the full blood or half blood or by affinity) or step-parent".
The object of the amendment is simply to ensure that the local authority will at least consider the whole wider family.
The Lord Chancellor: I venture to think that most of these views have already been accommodated. There is nothing in Clause 29 that precludes contact with any other person. The duty to promote contact is that in paragraph 13 of Schedule 2 to which the noble and learned Lord, Lord Simon of Glaisdale, referred earlier and on which he asked me a question. Paragraph 13 of Schedule 2 states:
"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 … any person who is not a parent of his but who has parental responsibility for him: and … any other person connected with him".
That is intended to be a wide phrase embracing any form of connection. That was the point that the noble and learned Lord asked me about. This is a phrase already within the existing law, as I understand it, and is intended to be a phrase of wide general import and would include not only the grandparents, for whom the noble Baroness and my noble friend Lady Elliot are concerned, but also the much wider family that the noble Lady, Lady Saltoun, is concerned about. I believe that those worries are adequately met. subject to the explanation about connections that I have just given.
Baroness David: So long as people know what is in the schedule and what is connected with it, that is all right. I suppose that guidance and help will he available, because people reading only part of the Bill will not plough through the long schedules. I hope that general guidance will be issued, although I appreciate that what is in the schedule covers the point. I must leave the matter in the hope that there will be plenty of guidance and I propose to beg leave to withdraw the amendment.
The Earl of Erroll: I should like to ask why there is a different restriction in the other clause. I do not understand how there can be one restriction in one place and a different restriction here. One should refer to the other, but Clause 29(1)(a) states "his parents" and that is a different restriction from the one which has been explained. Why have a different restriction?
6.30 p.m.
The Lord Chancellor: I opened my remarks by saying that there is no restriction in Clause 29. It is a provision which puts responsibility upon the local

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authority to allow reasonable contact with the parents in all circumstances. Paragraph 13 supplements that because there are difficulties. Allowing is one issue, but we wish to promote contact. There is no conflict between the provisions at all. Paragraph 13 of Schedule 2 is a stronger duty. Clause 29 merely allows but paragraph 13 contains a stronger duty requiring the authority:
"so far as is reasonably practicable and consistent with his welfare",
to promote all those other contacts. Clause 29 makes clear the fact that, unless there are some exceptional circumstances, the parents are people with whom contact should he allowed in general.
Baroness Elliot of Harwood: The noble and learned Lord quoted from paragraph 13 to Schedule 2. which provides for "his parents". It is often the parents who are at fault so one wishes to have other people involved. The paragraph then provides for:
"any person who is not a parent of his but who has parental responsibility for him".
Grandparents and other relations are not mentioned. The provision would not cover that because it states:
"any person who is not a parent".
We wish to include the grandparents and intimate relations.
The Lord Chancellor: That is covered because "any … person connected with" the child would include a grandparent. A grandparent is a pre-eminent example of someone who has a definite connection with the child. The clause is int ended to embrace a general obligation to promote contact between the child and those who have any kind of connection with him and to try to maintain an ordinary family provision. The intention is that the child is not taken away and put into a form of isolation but, so far as possible, is kept in contact with all those people with whom he has had connections.
Lady Saltoun of Abernethy: Would it not be better if Clause 29 made reference to Schedule 2, paragraph 13?
The Lord Chancellor: One must assume that people will read the whole of the legislation, however difficult. We debated the subject yesterday. One cannot put everything in every place because one immediately introduces the most complex provisions.
The Bill has been set out in a reasonable structure. The words are reasonably clear and the English and syntax used are fairly idiomatic and not far from the words which we would ordinarily use. However, if one states that it is subject to another clause, and so on, in the manner of a conveyancer, one will soon produce a result which will be a good deal less intelligible than what we have now. However, I have no doubt that the noble Baroness is right and that guidance will have to be issued. I should not be surprised if some well-intentioned person thought of writing a book about it.
Baroness Faithfull: As one who has had to administer such provisions, I should like to say, "For goodness sake, don't let's have any cross-
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referencing". I believe the noble and learned Lord knows that the book is being written.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 160:
Page 24, line 5, leave out from ("any") to ("and") in line 6 and insert ("guardian of his").
The noble and learned Lord said: This is a technical amendment. It would substitute the words "guardian of his" for the phrase "any person who is not a parent of his but who has parental responsibility for him" in Clause 29(1). A guardian is the only person who is contemplated by this phrase in this context and therefore the amendment adds clarity.
On Question, amendment agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 161:
Page 24, line 7, after ("order") insert ("or contact order").
The noble Lord said: Notwithstanding the clarifications in connection with the earlier amendment, I believe that there is room for my amendment to add the words "or contact order" to this part of the Bill.
If immediately prior to care proceedings a court decided that it was important for a child to be in contact with, for exemple, his or her brothers and sisters, grandparents or other relations, it would appear consistent that the contact order should remain in force as is to be the case with residence orders. The local authority can apply to the court to refuse to allow the child contact with a person if it is thought such contact is detrimental to the child. That is covered by subsection (4). It seems wrong that a person who has already had contact with the child might be placed in the situation of having to apply to a court for a second time. I beg to move.
The Lord Chancellor: I am sure that we are all keen to see that, when a child is in the care of a local authority under a care order, contact is maintained between the child and any persons who have a substantial interest in the child where it would be in the child's interest for that contact to be maintained. That is provided for in paragraph 13.
Imposing a duty to allow contact between the child and any person who had previously had the benefit of a residence or contact order would be one way of approaching the matter, but I do not think that it is as simple as that. Under the Bill, at Clause 67(2), the making of a care order with respect to a child will discharge any existing Section 7 order, which of course includes both residence and contact orders. There will therefore be no continuing legal rights flowing from such orders in respect of the child for anybody who has previously benefited from them.
Once a care order has been made, the court should consider afresh whether any further orders should be made. It is surely right, and it is in accordance with the White Paper, that any parent of the child or other person who has had parental responsibility for him should start with a presumption of reasonable contact. Accordingly, where a person had enjoyed the benefit of a residence order, which also gives parental responsibility—and it is most likely that the

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child had actually been living with that person—that person too should be entitled to reasonable contact with the child subject to a care order.
The fact that a contact order has been made suggests some form of conflict between the parents who had previous responsibility for the child and the person seeking the contact.
The previous existence of a contact order is however a matter of a different nature. It does not give parental responsibility. The frequency of the contact that will have been allowed or exercised under the contact order may vary widely from case to case. And, given that, in the making of a care order and in the circumstances which led to it, there will usually have been significant changes in the child's circumstances since the contact order was made, we cannot be assured that it will be in the interests of the child for such contact order to be presumed by virtue of Clause 29(1) to have continuing effect thereafter.
I believe that it is right that if continued contact is desired and the local authority regard it as not within paragraph 13, the matter should be considered afresh. In the ordinary case, if the person is connected with the child paragraph 13 will cover that matter.
Lord Mottistone: That explanation sounds convincing and I look forward to reading with care what my noble and learned friend has said. If necessary I shall come back at a later stage but I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 162 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 162A:
Page 25, line 6, at end insert—
("(bb) notification by a local authority to any person likely to he affected of any arrangements which they propose to make for affording that person contact with a child in respect of whom a care order is sought.").
The noble Lord said: I follow on immediately from the last words of the noble and learned Lord the Lord Chancellor which I remember, though he may have uttered some words thereafter. However, the chief words were that of course on a care order one has to look at the fresh situation created by that care order, which may be very different from the situation which applied when a contact order was made in other proceedings. I believe it follows logically from that that when the care order is made and the important question of contact is considered, it is absolutely right that it should be considered with the greatest care and that there should be a procedure for evidence to be brought and for submissions to be made.
As at present drawn, Clause 29(12) of the Bill states:
"Before making a care order with respect to any child the court shall—

(a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and

(b) invite the parties to the proceedings to comment on those arrangements".

This amendment sees to it that where contact is a crucial issue and a matter upon which the parties may feel very substantially that it is for the welfare of the
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child that this should be carefully considered, one should deal with the matter effectively at the time the care order is made. The relevant parties should be given notice of the local authority's intentions in sufficient time to be able to make an application under Clause 29 which can be dealt with before a care order is made.
For example, the court may wish to consider a phased rehabilitation plan in accordance with which contact increases over a period of time. Arrangements for contact between a child and others, as Members of the Committee will agree, is an essential part of a child's future well-being. The Bill should give no impression that such matters will be dealt with less than fully. Before concluding, I should say that I have also been speaking to Amendment No. 162B. I beg to move.
The Lord Chancellor: The situation on these matters is that, as the noble Lord knows, notification provisions form an important part of the rules of court currently applying to care proceedings in a magistrates' court. We intend to improve the present provisions in relation to procedure but I assure the noble Lord that we intend to meet his concerns in rules of court as best we can. It seems to me that notification matters are matters best dealt with in the rules of court.
The immediate result of Amendment No. 162B would be that the court would have to deal with any application for an order requiring the authority to allow contact made in the light of proposed arrangements notified by the authority before the care order itself was made. It is perhaps a little pedantic to pick on a relatively small point, but I do not believe that that would be the logical order in which to proceed. However, I fully understand the noble Lord's desire that such applications should be dealt with in the course of care proceedings wherever possible, which is the point of Clause 29(12). The rules of court to which I have referred will set out the procedures to be followed.
We are as anxious as the noble Lord, Lord Mishcon, to see that fair arrangements operate in all cases. I hope the noble Lord will feel that suitable procedural arrangements are best dealt with by rules of court. I appreciate that we have not fully dealt with the rules of court system, but that is our intention. I hope the noble Lord will feel, given that assurance, that his concerns will be met.
Lord Mishcon: Any assurance given by the noble and learned Lord is taken very seriously on these Benches and it is taken almost for granted as something which has already been done. That certainly applies to any assurance he gives as to rules of court, on which his influence will be great. I am rather nervous when we have to go on, even in Committee—I know that this is the first stage after Second Reading and that there are other stages to follow— without regulations in draft and without rules of court and relying so much on the assurances of the noble and learned Lord.
I know that because of that position he will regard the assurances he has given in Committee with the seriousness which he always does, possibly plus a

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little more in the circumstances. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. I62B not moved.]
Clause 29, as amended, agreed to.
Clause 30 agreed to.
6.45 p.m.
Clause 31 [Education supervision orders]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 163:
Page 26, hoe I, leave out second ("the") and insert ("a judge of the county").
The noble Lord said: Perhaps I may speak also to Amendment No. 165. When I moved Amendment No. 144 to Clause 26 late on the third Committee day, I explained that the object of that amendment was to provide that care orders should be dealt with exclusively in the High Court; that supervision orders should be dealt with either in the High Court or the county court; and that the magistrates' court should have no involvement in either of those proceedings. I sought the leave of the Committee to withdraw the amendment, and in a moment 1 shall refer to what the noble and learned Lord the Lord Chancellor said on that occasion.
This amendment restricts the power to make supervision orders to the county court, though had Amendment No. 144 been accepted the High Court, which would have had exclusive jurisdiction over care orders, could have made a supervision order if it thought that the appropriate remedy.
Once again, the purpose of these two amendments is to eliminate the magistrates' court from children's cases for the reasons which I gave in moving Amendment No. 144. Because supervision is less drastic than a care order, it is accepted that a lower level of court —the county court—is appropriate to deal with supervision orders. Therefore, the argument on this amendment is essentially the same as that on Amendment No. 144 and heralds the argument, as the noble and learned Lord recognised, which will take place on the amendments to Clause 69.
In reply to Amendment No. 144 (at col. 220 of Hansard of 17th January) the noble and learned Lord intimated that the majority of care cases are likely to continue to be dealt with by the magistrates' court and that,
"we recognise that a proportion of care cases justify a hearing in the county court or in the most difficult cases the High Court".
The noble and learned Lord also said:
"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".
He then recognised that there was a problem which I would describe shortly as hiving up or hiving down. It is the possibility of hiving up which the noble and learned Lord favoured. He said:
"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 the 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
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a case to a superior court, it is intended to make provision for an aggrieved party to challenge the decision".
The noble and learned Lord recognised that the knowledge in relation to the operation of both those sets of proceedings was imperfect. He then added:
"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".
Amendment No. 144 was received by the noble and learned Lord as too inflexible, and no doubt he will say this amendment equally is too inflexible.
I have to say that I approach this amendment, and Amendment No. 144, from an entirely different principle. I start from the standpoint of a family in crisis. The purpose of Amendment No. 144 to Clause 26, and of this amendment to Clause 31, is to assign a level of judiciary inquiry appropriate to the gravity of the subject matter—which is state interference in family life of a grave character.
The care order vests parental rights and duties on a local authority and divests the natural parents of these rights and duties. It usually removes the child from the family home, often on a permanent basis, and may result in no further contact with the family—ever. There could, as the noble and learned Lord recognised, be no greater interference by the state in family life.
I submit that it is unacceptable in principle that decisions of this nature should be made by laymen who are not obliged to give reasons for their decisions. Further, I suggest that it is a jurisdiction that is unwelcome to them; though as in every other part of their jurisdiction they give themselves to it in a highly committed and dedicated way. It is the extreme nature of the remedy that requires a decision should be taken in the High Court. The principle is that judicial resources should be allocated commensurate with the gravity of state interference with family life.
In practice, the majority of those cases in the magistrates' courts start as care proceedings, though the magistrates may make a supervision order instead of a care order. Moreover, when one is concerned with supervision orders there is a serious interference with individual liberty inherent in such an order. The order involves a significant monitoring of the life of the whole family by a local authority through its social workers or the probation service. I contend that in principle such an order should be made only by a professional judicial officer; and in this case that means the county court.
The notion of hiving up from the magistrates' court will just not work. There is no provision for magistrates to read written statements of cases or affidavits in advance. It is wholly outside their experience and it would impose an intolerable burden on them. What will happen in the real world is that magistrates will do their best to deal immediately with a crisis presented to them. They will start to hear the case and once started they will strive to finish. Every practitioner knows of such cases going from 10 o'clock in the morning until 10 o'clock at night in order to finish the case because the magistrates are not available the next day. At the end of the day no

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one feels that justice has been done. It is trial by exhaustion.
The tendency will be for magistrates to see how it goes for a day before aborting the process, if that course is unavoidable. If the case is hived up, the whole process will be started again with huge emotional cost to the parties and with a longer process in the higher courts because of the endless references to what happened below. I submit that the sensible course in relation to the supervision orders is to start in the county court with the registrar having the power to hive up if need be. That could he done cheaply, quickly and effectively.
The truth is that the magistrate's courts were never designed and are not appropriate to deal with this class of case. This amendment is designed to ask why in principle they are thought to be. I beg to move.
The Lord Chancellor: If I have understood this amendment right, it deals with education supervision orders. I am not sure that I can go along with the noble Lord in his dramatic picture of what happens in magistrates' courts. No doubt on occasion, as in some other courts, there is some extra stress and a desire to get things finished on the same day as that in which they started. Some courts are less under pressure than others.
The principle of this Bill is to seek to allocate cases according to what is required. After all, one of the great and central features of the judicial system of England and Wales is that all disputed factual matters in criminal cases affecting the liberty of the subject are taken by lay people no doubt under proper directions. There can be no greater interference with liberty than being sentenced to a lengthy period of imprisonment.
I do not believe that it is in accord with the principles of our system that lay people should be excluded from consideraton of difficult matters. That is one reason why we are attempting to make the care order grounds very clear and explicit, as my noble friend Lady Macleod of Borve requested earlier, and that they should be operated by magistrates.
At present all these care applications are dealt with by magistrates and there is no appeal. I have indicated that we are proposing to change that arrangement. but I have no basis for saying that all care applications are of such complexity that no body of domestically interested magistrates could not properly resolve them. The amendment appears to go too far. Getting good regulations for the allocation of cases will not be easy; but I believe that it is possible. This amendment would cut across and wreck that proposal altogether. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Mishcon: There is one point that the noble and learned Lord did not deal with. He is absolutely right to say that the deprivation of liberty is often a matter on which lay justices give judgment. He is absolutely right that in some cases there is no question of appeal, even when the liberty of the subject is involved.
What the noble and learned Lord did not deal with is a plea that has been made in this Chamber so often
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and which I repeat now. However worthy and able magistrates may be, is it right and proper that matrimonial and children matters should be dealt with in a court, usually a court where criminal matters are dealt with in the normal way, and where the lay citizen feels that he is going along, as he says, to the magistrates' court? In many cases the description used is "I have been called to the police court".
This is a plea that one makes so often in this Chamber. I make it at this Committee stage again and I shall sit down having made it. Everything that my noble friend said, and everything that the noble and learned Lord said, points to the fact that there should be a family court, and that we should not be talking about a division between the county court, the High Court and the magistrate's court. Once more I make that plea at the Committee stage of this Bill.
The Lord Chancellor: Perhaps I may respond to that point. I sought to explain on Second Reading—and if necessary I shall explain again—that it is part of our purpose that these matters should be dealt with by the domestic jurisdiction of the magistrates. We may gradually be able to improve the situation, but 1 believe that that itself' makes an important distinction between criminal cases and this sort of case.
The noble Lord sadly shakes his head; but I believe that it is possible to make progress in that way. I believe that any form of family court will require to have different levels of judge presiding in it. I do not think that it is appropriate to have a single level of judge in any form of court that deals with all types of family matters. We are seeking to create a situation where those who deal with these matters at the magistrates' level—at the level of the domestic panel if that is preferred—should have a special interest in matters of children and child care; that those judges at the county courts who will ultimately deal with these matters should be those who have taken an interest; and in the High Court, the Family Division. We are certainly attempting to deal in a reasonably systematic but progressive way with the problem mentioned by the noble Lord, which is not quite the same problem as that highlighted by the noble Lord, Lord Irvine of Lairg, in his amendment.
7 p.m.
Lord Elwyn-Jones: For the avoidance of jurisdictional conflict, I wonder whether the noble and learned Lord can report to us at this stage on how he is getting on with consideration of the family court.
The Lord Chancellor: Assuming that I get this Bill through, I shall be getting on with it rather well.
Lord Simon of Glaisdale: I hope that what my noble and learned friend said a moment ago does not mean that he has closed his mind to my suggestion that the initial stage of a family court should not be before the magistrates but should be an extended family council on the lines of the paper put forward by the Home Office, to which I drew his attention.
The Lord Chancellor: I certainly have that suggestion in mind, but in this Bill we are seeking to improve the arrangements for the child care jurisdiction. I believe that if these arrangements prove to be successful they may well give a way forward for all forms of family dispute resolution.
Lord Mishcon: Does the noble and learned Lord care to indicate that he regards the Bill as being an evolutionary stage towards a family court?
The Lord Chancellor: The phrase "a family court" is undefined. I have met a number of people who support that campaign. They have different views about the nature of the institution for which they are asking. This Bill is a considerable step forward in the arrangements for dealing with child care business. If, as I hope, the arrangements under the Bill prove successful, they will form a good model for dealing further with other aspects of family business. That is the sense in which I am moving. I believe that it has good prospects for creating general improvement over the whole field.
Lord Irvine of Lairg: I am pleased that the discussion on the amendment led into a discussion on a much more important subject. As to the answer, I am not clear. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David: I wonder whether I may now have the opportunity not to move the next group of amendments, to which I have already spoken. We could then finish Clause 31.
[Amendments Nos. 164 to 169 not moved.]
On Question, Whether Clause 31 shall stand part of the Bill?
Lord Simon of Glaisdale: I have a question in relation to subsection (6). Why might not an education supervision order be made with respect to a child in the care of a local authority? I take back what I said in order to give the noble Earl, Lord Dundee, a chance to anticipate what I might have said.
Clause 31 agreed to.
Clause 32 agreed to.
The Earl of Dundee: The Committee may feel that we have reached a good time to break. We shall not return to the subject before 8.5 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

National Maritime Museum Bill [H.L.]
7.5 p.m.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, I beg to move that this Bill be now read a second time.
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The main purpose of this short Bill is simple. It is to equip the board of trustees of the National Maritime Museum with the same kind of powers to hold land and property that are already enjoyed by the other national museums and galleries. The Bill achieves this by repealing a provision in the National Maritime Museum Act 1934 which vests the main property occupied by the museum at Greenwich in the Secretary of State for the Environment, and vests that property instead in the museum's own board of trustees. The Bill will therefore allow the National Maritime Museum to join the other English national museums and galleries in owning and managing the buildings they occupy. It may he helpful if I put these provisions in context and explain why we want to bring them forward now.
Until recently, building and maintenance work at the national museums and galleries was carried out on their behalf by the Property Services Agency. Although the programmes of work were of course discussed with the institutions concerned, they did not have direct managerial control over what was being done to the buildings in their name. The institutions found this unsatisfactory and pressed for change. The Government agreed that it was anomalous for these independent trustee bodies to have building and maintenance excluded from their responsibilities and in the hands of a separate central government agency.
As your Lordships may know, most of the national museums and galleries were therefore untied from the PSA from 1st April last year. Funds are now channelled direct to them, bypassing the PSA altogether. To complete the process, arrangements are in hand to transfer ownership of the National Museum and Gallery Estate from the Secretary of State for the Environment to the respective governing bodies. The new system is working well and has been greatly welcomed by the museums and galleries concerned. At that time it was not possible, however, to make the same change for the National Maritime Museum. This was because the necessary statutory powers are not available to the museum under its present governing legislation, the National Maritime Museum Act 1934.
Each national museum and gallery is subject to a governing document of some kind. In most cases this is an Act of Parliament. Although these Acts share a common framework, they are not identical in every respect. This is partly a reflection of the different nature of each institution, but as often as not is a reflection of the particular circumstances obtaining when the museum was set up. The National Maritime Museum was created in 1934 following an extraordinary and far-sighted act of generosity by Sir James Caird, who not only contributed substantially to the collection but paid for the conversion of the buildings at Greenwich to museum use. At that time it was natural and appropriate for the land and property concerned to be vested in what was then the Commissioners of Works. So far as concerns the National Maritime Museum, the new board of trustees therefore had no need of separate land holding powers and these were not included in the 1934 Act. The governing legislation for the other national museums andgalleries either included such

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powers from the outset or had them added in subsequent legislation.
That, my Lords, sets the background to the Bill. I would add that the Board of Trustees of the National Maritime Museum and the director, Mr. Richard Ormond, are fully in support of the Bill and have been involved in the discussions on its preparation. I see that the noble and gallant Lord, Lord Lewin, chairman of the trustees, is in his place and may perhaps wish to expand on that later.
Let me just say a brief word about the clauses. There are only three. Clause 1 transfers the property at Greenwich from the Secretary of State for the Environment to the National Maritime Museum Board of Trustees. It does this by replacing most of Section 1 of the 1934 Act by an equivalent set of provisions setting out the functions of the board in respect of that property and the terms and conditions on which it is to hold it. The property in question is specified in detail in Schedule 1 to the 1934 Act.
One provision perhaps requires a little explanation and that is Clause 1(5) which specifies what should happen to the property if, for any reason, the board ever ceased to use it for the purposes of the museum. The National Maritime Museum occupies buildings which were previously occupied by the Greenwich Hospital School. When the museum was set up, it was decided that the properties would be transferred to the Commissioners of Works, subject to an undertaking that, if the museum ever vacated them, they should revert to the Admiralty, as was, to be held for the benefit of Greenwich Hospital. That undertaking was given statutory force in the 1934 Act and is repeated here in equivalent terms. Again I would just add that the authorities of the Greenwich Hospital, which is of course still an active charitable institution, have been consulted on the preparation of the Bill and welcome this provision.
Clause 2 equips the Board of Trustees with certain additional powers, essentially to allow the board to hold and manage land and property. The powers here are standard ones for the national museums and galleries and, for example, are very similar to those in the National Heritage Act 1983 for the Science Museum and the Victoria and Albert Museum. In particular, the power to acquire and dispose of land is not an unqualified one but requires ministerial consent in each case. This clause also gives the museum power to allow premises owned, occupied or managed by them to be used by others for non-museum purposes, provided—and this is the crucial point—that that does not conflict unduly with the board's statutory functions. Clause 3 simply deals in the standard way with the Short Title, the repeals of the relevant sections of the 1934 Act and arrangements for commencement.
As I said at the outset, this is a very short and straightforward Bill. It brings the National Maritime Museum's legislation up to date and more in line with the legislation for the other national museums and galleries. It does not itself introduce any points of principle that are not familiar from other museums legislation. It is nonetheless of considerable practical
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importance to the museum and I hope that your Lordships will give it your support.
Moved, That the Bill be now read a second time—(Baroness Trumpington.)
7.14 p.m.
Lord Graham of Edmonton: My Lords, perhaps I may begin by passing to the House the very real regrets of my noble friend Lady Birk, who in the normal course of events would have been standing at this Box. She was looking forward to doing so but she is not well. She is unable to be here this evening, and I am sorry that that is the position. She sends her apologies and regrets.
The Minister, both at the beginning and at the end of what she had to say, said fairly that this was an uncontroversial Bill. We from these Benches warmly commend all that the Minister has said concerning both the contents of the Bill and its raison d'être. We are privileged to have with us this evening the chairman of the trustees, the noble and gallant Lord, Lord Lewin. I am certain that when he speaks he will he able to anticipate what the Minister and her aides in the Box may be trying to do by giving some of the answers to the questions that I shall be asking.
So far as we on this side of the House are concerned we appreciate that the correction of the anomaly that has existed for some time was triggered not least by the redistribution of the functions and powers—in fact the life—of the Property Services Association. In that sense this is a consequence of the partial privatisation of that service. I think we need to have that on record.
In looking at things that might be relevant to the debate I had cause to look at one or two previous events —for instance, debates on the arts in another place last year. My honourable friend Mr. Mark Fisher not only spoke in a debate on the arts in May of last year but has written and has raised one or two interesting points. I note from the document, The National Museums, which is a document of the Museums and Galleries Commission, that the commission gives a simple and easily understood explanation of the situation at the National Maritime Museum.
We see for instance that the grant in aid for the current year is running in excess of £8 million. That certainly is no small sum. I wonder whether we might hear from the noble and gallant Lord whether the trustees consider that this is sufficient. When one looks at the breakdown one sees that the running costs are £5.5 million, the buildings cost £2.5 million, but the purchase grant is only £205,000. The sum of £205,000 out of a total of £8.25 million to purchase what are considered by the trustees to be worthy additions and ornaments to their current stock seems somewhat small. I wonder whether the Minister can tell us something about that.
The whole issue of charges for admission needs to be raised in this short debate. As the Minister knows, some museums impose charges and some do not. I see that the attendances at the Maritime Museum suffered a substantial drop in the early period when charges were made. The drop was almost 40 per cent. Although they have been modestly increasing, would

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the Minister care to say something about whether or not it is right, lithe books are not balanced, that costs should be brought down even at the expense of the number of people who visit the museum?
On this side of the House we are very concerned about this important part of our heritage. Certainly the curatorial staff who have looked after the museum must be pleased and impressed, but at the end of the day we are trying to encourage more and more people to enter our museums. I wonder whether the Minister, or the chairman of the trustees, has anything to say about how that might be achieved.
Can we also look at this in the context of the great renaissance that has taken place not least at Greenwich but in Docklands? It is certain that the interest in this part of the world must be a great source of initiative and pleasure for all those concerned. I am not talking about thwarted plans, but may we hear of any plans or ambitions of the trustees? The Minister fairly says that all that is happening is that the power to deal with the property and the land, which was previously wholly in the gift of the Minister, is now transferred so as to be wholly within the province, subject to safeguards, of the trustees. I wonder whether the trustees have some plans which they can now carry out which previously they may not have been able to carry out. Have they some plans for expanding, adding or extending the buildings? Have they some projects? I am not remotely raising the question of what is right and what is proper, but it may be that this is a good opportunity to tell the world that there are some things that can be done in the future which could not be done in the past.
I am mindful of what the Minister has said— that anything respecting the non-continuing use of buildings has a reversion clause. In other words, nothing can be done without the approval of other bodies not least the Minister. However, at the end of the day this Minister will acknowledge, as will the trustees, that the Minister for the Arts is the supreme person who not only controls the purse strings but also acts in many other ways. So I wonder whether the Minister or the chairman can tell us not necessarily something helpful, but something of interest, in respect of what they see as their raison d'être.
My final point is about the trustees themselves. The document I used for research states on page 17:
"The spectrum from which trustees are appointed should be kept broad. And it is important that they should be appointed as individuals. for the personal contribution they can make, and not as mandated representatives of particulr interests."
I say amen to that. But the list of trustees is headed by HRH the Duke of Edinburgh and then there is the Admiral of the Fleet, the noble and gallant Lord, Lord Lewin, and at the bottom, I see, Sir Nigel Broackes. I am bound to say that of the names listed between those of the noble and gallant Lord and Sir Nigel Broackes—although the noble and gallant Lord must know them all—I do not know any.
I wonder whether the Minister or the chairman can tell us how strong a trawl is made to ensure that those who serve as trustees of the National Maritime Museum reflect as broad a spectrum as possible. I see from the document that they are all appointed by the
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Prime Minister. Perhaps that has some relevance to the point I have just raised. I am very pleased indeed to say from these Benches that we shall give the Bill all possible speed and that we wish it well.
7.22 p.m.
Lord Donaldson of Kingsbridge: My Lords, I am happy to follow the noble Lord, Lord Graham, in welcoming the Bill. I should like to say that I regret the sad absence of the noble Baroness, Lady Birk, whom we miss in this sort of debate.
The National Maritime Museum is housed in what is certainly the finest group of 17th century buildings in the British Isles and perhaps in Europe, including Inigo Jones's Queen's House and Christopher Wren's old Royal Observatory. Its treasures include everything to do with man's use of the sea and ships and the history of man's efforts to regulate time and to map the world through the stars. Its collection is unique and unrivalled.
Usually, when one speaks from this side of the House about museums it is to complain that the central funding is so low, that the collections are suffering and that the staff are so preoccupied trying to raise money that they have no time to do their proper job which is to look after and effectively display their treasures to the public. This is not at all the case with the National Maritime Museum. I was greatly pleased to discover on my brief visit there last week that it is earning lots of money. I leave the noble and gallant Lord who is to follow me to tell your Lordships how that is being done.
Now that the museum is able, blessed release, to withhold its earnings from the rapacious claws of the Treasury, it is in clover and those responsible are confident that they can earn all they need to make the most of their marvellous collections. But of course this cannot cover the enormous cost of upkeep and renewal for their wonderful 17th century buildings, already severely in arrears. This is, and must be, a national liability and the Government have agreed to be responsible for funding through the arts and libraries department as soon as the PSA finishes the handover.
The noble and gallant Lord, Lord Lewin, told me—and this is typical of his whole training, it seems to me—that they made jolly sure to agree with the PSA the outstanding backlog of liabilities before they agreed to anything. I think we will see that they were quite right to do so. This includes the necessary money to complete the fifth year of the five-year plan to restore the Queen's House and to begin to carry through a similar programme for wholesale restoration and maintenance of the old Royal Observatory. The future upkeep of all the historic buildings under its care will be the responsibility of the museum itself and the necessary money will be supplied through the Office of Arts and Libraries.
All this sounds very good. I have a nagging feeling that it may be too good to be true. I must confess that I do not trust the Treasury one inch in such cases. If the latest exhibition earns £1 million worldwide but happens to coincide with, say, a serious subsidence of the observatory which will cost £2 million to put right, I visualise the Treasury saying, "Well, we

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cannot give you any more this year, but you have got money in hand so go ahead and do the work and we will see what we can do later". Later, things are even worse and the museum ends by providing the money itself.
I want to be jolly sure that this will not happen. I want the noble Baroness who is to reply to give us two cast-iron assurances: first, that the Government pledge unconditional responsibility for the cost of upkeep of the buildings; and, secondly, that the Government pledge that the spending of every penny that the museum succeeds in earning is at the disposal of the museum for the benefit of its collection, and cannot be appropriated for building upkeep however large the figures may be. I am sure that the noble and gallant Lord will demand the same assurances.
I have to conclude by saying that not all museums are anything like as happy, which is why I am so suspicious of the position with which we are presented. I spoke to the British Museum this morning. It is in a state of the greatest worry over upkeep. The director's hair is visibly greying. The museum has had to keep unfilled over 150 staff places because it cannot afford to pay for the chaps. The V & A with which I have also had contact is very worried about the whole question of upkeep. This is not the moment to go through all the museums, but the story is very much the same.
The dangerous gap—and I want to warn the noble and gallant Lord to look after this—is between what the occupiers think is the right figure for upkeep as opposed to what the Treasury thinks is the right figure for upkeep. You simply cannot be too careful about that. Having said that, if we can secure the assurances I have sought I think the Bill is a very good one indeed. I have the very greatest pleasure in supporting it.
7.29 p.m.
Lord Lewin: My Lords, I am indeed fortunate to be chairman of the trustees of the National Maritime Museum and part of my good fortune is to enjoy the support of trustees who represent a very broad spectrum indeed, ranging as they do from an Admiral of the Fleet who is 25 years senior to me in the Navy List. through a distinguished astronomer and scientist, a distinguished retired Permanent Under-Secretary from Whitehall and a distinguished solo circumnavigator, to our last trustee, whose name has already been mentioned, Sir Nigel Broackes, who is chairman of the company which owns Cunard. So I enjoy support from a broad spectrum. My colleagues and I, and indeed the director and the staff at the museum, welcome the Bill. We are very ready to accept our responsibility for the buildings; but we have some matters of concern which have been outlined by the noble Lord, Lord Donaldson.
I am sure your Lordships will he familiar with the architectural magnificence and the beautiful setting of our museum. It includes, as the noble Lord has already said, the Queen's House, Inigo Jones's first palladian building in this country, and the old Royal Observatory built by Christopher Wren for Charles II. But I regret that under the previous regime these
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buildings were not maintained in the best condition, and certainly not one which satisfies the trustees.
We inherit a backlog of important maintenance: the reroofing of practically all the buildings, the rewiring, the installation of modern climate-control systems, and so on. All that requires a five-year programme which has been costed at £19·5 million at 1988 prices. That figure was arrived at by a comprehensive independent survey and it has been agreed as correct with the Property Services Agency. Included in that is the last year of the five-year restoration project of the Queen's House. Then we had to tackle the old Royal Observatory, and I am sure that your Lordships are very familiar with the problems of restoring buildings of that age and with the horrors encountered as soon as you start. We are very worried about the old Royal Observatory. Wren, like many of his successors, was pressed for money when it was built. He built it from secondhand materials on the foundations of Duke Humphreys' 15th century castle; so your Lordships can imagine what is likely to happen when we start getting to grips with the maintenance of that. Faced with that programme, we seek to be reassured that the trustees will be allocated adequate resources to enable them to meet their responsibilities.
We have also another matter of concern, which is our income. Your Lordships will be well aware that national museums and galleries have been encouraged to generate their own income to pay for improvements in the development of their displays and exhibitions. The annual grant from Her Majesty's Government is barely adequate to cover the day-to-day running expenses. I am glad to say that the National Maritime Museum is being particularly successful in its commercial enterprises. We were the first to introduce admission charges. Perhaps here I may tell the noble Lord, Lord Graham. that far from discouraging visitors, numbers have risen steadily every year since we introduced charges. I am afraid that he has been misled by the figures in the report from the Museums and Galleries Commission, of which I used to be a commissioner, because they date back historically to the days before admission was charged, when the counting of visitors was notoriously inaccurate. However, I can assure him that since we introduced charges, our admissions have risen by roughly between 10 per cent. to 12 per cent. a year until last year, when, thanks to the Armada exhibition, our attendance figures went up by 70 per cent. That is, from 400,000-plus to 700,000-plus.
We intend to go on from this new high level of attendance by increasing the attractions of the museum in its permanent displays and by staging a major exhibition every year on the lines of Armada. This year Armada will be succeeded by Mutiny on the Bounty which will be even more dramatic than the exhibition which I hope everyone enjoyed seeing last year. In addition, we plan a series of major international touring exhibitions. The first of these, a magnificent exhibition on Captain Cook, has already attracted three-quarters of a million visitors during six months at Expo '88 in Brisbane. There were more visitors to the Captain Cook exhibition in Brisbane

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than to the National Maritime Museum during the whole of last year.
The Captain Cook exhibition is about to set off on a tour of seven major cities in Australia and New Zealand. In fact, I am going out to Perth in about a fortnight's time to open its first solo venue. This is a joint enterprise with Australian business partners, with whom we shall share the profit. That profit will come to the museum as engendered income. Our aim with all these and other marketing enterprises is to build up an endowment fund from which we shall be able to finance a continual improvement and development programme for the museum at Greenwich.
It would he quite wrong if our success in engendering income were to he penalised by a reduction in our funding for building maintenance so that we had to use our income to maintain the fabric of our buildings; and it is on that point that I seek reassurance. We have of course discussed these points with the Minister for the Arts. I am glad to say that we enjoy his strong support, and we are much encouraged by the great interest he takes in our affairs. In supporting this Bill, I thought it right to record those matters of concern.
7.35 p.m.
Baroness Trumpington: My Lords, this has been a useful debate and perhaps I may quickly try to answer some of the questions that have been raised. Nearly all of them concerned finance. I can say that although the Bill will allow the method of funding to he altered, it is neutral on the question of the level of that funding. The funds which the Government provide will he channelled direct to the museum rather than to the PSA. I would add that the National Maritime Museum has been allocated its share of the substantial increases in building programme funds which we have been able to make available to the national museums and galleries. Provision for the current year 1988–89 stands at £2.37 million. This will rise next year to £3.45 million. In addition to these public funds, as I think your Lordhships are aware, the National Maritime Museum raises its own funds from its trading activities and from private sector donations. As the noble Lord, Lord Donaldson, said, the development appeal has been a notable success.
I do not think the noble Lord, Lord Donaldson, seriously expects me to answer his categoric question. Indeed. I think he would believe me to be very naive if I committed any government of any colour to an open-ended commitment of the kind he had in mind. However, he also asked me about the successful fundraising being offset against grant-in-aid. My right honourable friend in another place has given a commitment that successful fund-raising by the national museums and galleries will not affect the level of grant-in-aid. The funds they raise can be used in addition. The museum can retain these, without any offset, to improve the museum's facilities.
The noble Lord, Lord Graham, asked about admission charges. The decision to introduce charges and the level of such charges is one for the trustees to take. They are best placed to decide what is in the best interests of the museum. The noble Lord, Lord Graham, also mentioned the drop in attendances
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after charging had been introduced; but the noble and gallant Lord, Lord Lewin, will confirm that attendances have in fact increased after that initial drop.
Lord Graham of Edmonton: My Lords, if I may interrupt the noble Baroness, I must apologise, but the dilemma is that the noble and gallant Lord said that in fact there never was an initial drop. I was misled by the statistics, because they showed me that something like a drop of 36 or 39 per cent. occurred in the first year, 1985. Subsequently they appeared to have been rising at the level of about 16 per cent. All I wished to say was that if that was as a result of the charges—I am referring to the initial drop—the trustees appeared to be more concerned with getting more people in than perhaps saving money.
Baroness Trumpington: My Lords, that is a very interesting explanation.
As regards the alterations, the Bill is subject to normal planning consents and, where appropriate, to the more stringent arrangements for listed buildings and ancient monuments in Clause 1(4). Further, the Bill retains the provision contained in the 1934 Act which rules out absolutely the demolition of Queen's House and the colonnades, and that is a totally implausible thought anyway. However, the statutory protection is there.
I think that the noble and gallant Lord, Lord Lewin, has more than replied to the rather curious question raised by the noble Lord, Lord Graham of Edmonton, concerning trustees. I do not think that I need say any more on that score. In the interests of those who are here, and those who are waiting. I hope that I have at least clarified some of the points raised by your Lordships. However, if any noble Lord would like me to write to him, I shall be delighted to do so. In conclusion, I should like to thank your Lordships for the broad support which has been given to the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Agriculture Improvement (Variation) (No. 3) Scheme 1988
7.41 p.m.
Baroness Trumpington Baroness Trumpington rose to move, That the scheme laid before the House on 28th November 1988 be approved [2nd Report from the Joint Committee].
The noble Baroness said: My Lords, the House may recall my right honourable friend the Minister's announcement on 28th November about changes in farm capital grants. He explained that following a review of the current arrangements we hoped to introduce a new grant scheme in February. To prepare for the new scheme, the Agriculture Improvement Scheme (or AIS) was closed from the day following the announcement. The statutory instrument before us today enforces that closure for the nationally-funded part of the scheme. The closure of the partly EC-funded part is covered by the

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Agriculture Improvement (Amendment) (No. 3) Regulations, which were laid before Parliament at the same time as this instrument but which are subject to the negative resolution procedure.
The new Farm and Conservation Grant Scheme (which will be the subject of a separate debate very soon, I hope) has of course to be cleared by the European Commission before it can be implemented. Discussions on it are still continuing in Brussels but should be concluded shortly. However, for reasons which I shall mention later we did not feel it right to delay an announcement about our intentions until every detail was settled. Although this meant our accepting no new applications for improvement plans under the AIS, all those which were already approved or which had been submitted and were awaiting approval are unaffected by the closure. Similarly, investments outside an improvement plan on which farmers can demonstrate they had already committed themselves by midnight on 28th November will qualify for grant.
There are also a few exceptions to the moratorium. The 45 per cent. grants for the replacement of heated glasshouses will remain in place until the end of November this year, as had been announced before the closure. In addition, the special grants for improvement of the quality and marketing of flower production in the Isles of Scilly which were introduced from 17th November and which your Lordships debated just before Christmas will continue until the new scheme is introduced. They will then be continued unchanged in that scheme.
In addition, under the terms of the instrument, farmers who have claims outstanding for eligible work under the nationally-funded part of the AIS will have to submit their claims no later than 31st May. Those with a current improvement plan who are debarred by the rules from submitting such claims during the life of their plan will have one month after the formal termination of their plan to submit those claims.
I am aware that the closure of the AIS may have caused problems for some people and I sympathise with those difficulties. However, if we had announced the outline of our proposed new scheme without closing the existing one there would have been an incentive for farmers to put in speculative applications for improvement plans to try to secure those grants we had decided to discontinue, or on which the rate may be different under the new scheme. That would have undercut the purpose of the changes. It would also, I am bound to say, have led to a rush of expenditure for which we have no provision. We remain, however, determined to keep the break in our grant schemes as short as we possibly can. We are working hard on finalising the details of the new scheme which we look forward to bringing before the House at a very early date. I commend this instrument to your Lordships.
Moved, That the scheme laid before the House on 28th November 1988 be approved [2nd Report from the Joint Committee].—(Baroness Trumpington.)
7.45 p.m.
Lord Gallacher: My Lords, I thank the noble Baroness for the remarks she made in speaking to the proposal that the Motion be approved. When we looked at the No. 2 order quite recently—affecting as it did the Isles of Scilly—I said that there might possibly be a few more detailed comments in respect of this one. I hope that in the time available to us she will accept that the points I wish to raise are considered by us to be of some consequence.
The speech tonight follows on from the Written Answer which appeared in the Official Report on 29th November last year (at col. 294) in which the new scheme entitled the Farm Conservation Grants Scheme was announced as being introduced in February 1989—subject, as the noble Baroness said this evening, to the provisions of that scheme being agreed with the EC Commission. This evening the noble Baroness said that negotiations are going on, that there is hope for finality soon and that she hopes the changes indicated in the Written Answer will be implemented as they appeared there.
We are anxious to have a debate on the new scheme because we regard it as being of considerable importance, and I wonder whether it is possible to say at this stage if such a debate is likely to be sooner rather than later. More important, perhaps, I should like to know whether any further changes will be possible in the scheme in the light of any debate which we may have on it.
We are all conservationists now, but farmers at this time are also being urged to continue diversification in anticipation of even tougher CAP price regimes. In that connection I can mention the speech of the Minister's right honourable friend to the Oxford Farm Conference, and the joint Ministry of Agriculture and Department of the Environment brochure which came my way this morning concerning planning permission and the environment.
Further, there are the farm business clinics sponsored by ADAS, together with the Rural Development Commission and certain local authorities. Do not all those endeavours suggest a likely demand for access to new farm enterprises? If that is so, perhaps I may ask the noble Baroness why, under the new scheme, grants for roads are being discontinued. Those who have more experience of refused planning applications than I have are well aware that poor access is very frequently given by local authorities as a reason for refusing planning consent. Therefore we find it strange that in the scheme now before us grants for roads have been discontinued.
As good conservationists, we welcome proposals for controls in respect of the storage, treatment and disposal of slurry and silage effluent, including, I am happy to say yet again, a series of country-wide meetings arranged by ADAS in conjunction with certain trade interests.
We are also happy to note the proposal to continue enhanced rates for replacing old wooden glasshouses with modern aluminium houses. That will be a considerable help to horticulture in enabling that industry to meet the growing Spanish and Portuguese

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competition flowing from their entry into the European Community.
In the statement this evening no mention was made of the continuance of orchard replanting grants. But in the original statement those were also included, along with the grants for horticulture. We are perhaps less enthusiastic about the principle of continuing tree-planting grants, but we are in favour of some examination of the orchard replanting grant system at present. I notice that the Apple and Pear Development Council's future is now subject to the usual quinquennial review, and 1 think it is important in the context of that review to take account of the grant position for replanting.
The French dominance of the apple market is of considerable concern to us. It is a continuing and ongoing feature and we feel that perhaps an organisation such as Food From Britain might be asked to look at the whole question and in particular the way in which retailers apparently give such precedence to French apples in their shops. For example, the Apple and Pear Development Council report for 1988 gives the UK production of apples in 1987 at 260,500 tonnes. Imports were 443,340 tonnes, of which no less than 248,562 tonnes came from France. Thus the apple market is supplied as to 37 per cent. from the United Kingdom and 63 per cent. imported.
Even allowing for the fact that 1987 was the year of the hurricane in late October, these are disappointing figures. They continue a trend which has been apparent for some years. I think it is important, having regard to this trend, to consider the question in greater detail before we continue for a further period, as specified on 29th November, with grants for replanting. I am not saying that they should not be continued, I am saying that we should have a clearer idea of what the future is for the home industry before we use further sums of money for that enterprise.
These are the few comments we have on the proposal. I do not expect the noble Baroness to reply to any or all of them this evening. On the whole we welcome the order and we look forward to an early debate on the proposals themselves once they have received the blessing of the European Commission.
Baroness Trumpington: My Lords, it is jolly bad luck on the noble Lord, Lord Gallacher, because I shall reply to one or two of his points since I have just sufficient time, I think. Perhaps I may thank him very much indeed for what he said. I hope that the debate, which is a matter for the usual channels, will be sooner rather than later. The sooner the better from our point of view, but the noble Lord will realise that this is a matter of when the proposals are cleared through the EC. No amendments can be made to the new scheme as a result of this debate on it. It will be monitored, as are other schemes, but any changes will be made in the light of experience. The noble Lord will understand that as the negotiations are going on in the EC, we do not want to delay them any more.
With regard to roads, it is clear that certain grants which have helped to stimulate the productive
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capacity of the industry in the past are less appropriate in the present circumstances. The grants for roads are counted among them. The new scheme concentrates particularly on environmentally beneficial items.
The apples and pears are a little outside this evening's debate, but I should like to say how very glad I was that the tree planting scheme is to be continued. I also wish to say how glad I am that the House of Lords catering department is now selling British apples. On that happy note, perhaps I may conclude that your Lordships will approve this instrument. I look forward to an early debate on the new scheme.
On Question, Motion agreed to.
The Earl of Arran: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 to 8.5 p.m.]

Children Bill [H.L.]
House again in Committee.
Clause 33 [Interim orders.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 170:
Page 27, line 44, alter first ("order") insert ("or").
The noble and learned Lord said: With this amendment I wish to speak to Amendments Nos. 171 and 172. Amendments Nos. 170 and 171 would remove the reference to residence orders in Clause 33(1), which would then state that in adjourned care or supervision proceedings the court may make an interim care order or interim supervision order.
These are consequential amendments linked with government Amendment No. 27, which. I moved on 19th December and which amended Clause 7(4) of the Bill to make proceedings under Part IV of the Bill family proceedings, so that the court in such proceedings would have power to make Section 7 orders.
Amendment No. 172 is a further consequential amendment which would remove the requirement that the court be satisfied, before making a residence order when care or supervision proceedings are adjourned, that the circumstances with respect to the child are as mentioned in Clause 26(2). It would also reproduce in similar terms the present subsection (4) as a new subsection (3), except for the reference to a contact order, which, as a result of Amendment No. 27, is now unnecessary. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 171:
Page 27, line 45, leave out ("or a residence order").
On Question, amendment agreed to.
Baroness David Baroness David moved Amendment No. 171A;
Page 28, line 2, after ("unless") insert ("(i)").
The noble Baroness said: I wish to speak also to Amendment No. 171B. The purpose of these two amendments is to clarify the circumstances in which interim care orders may be made. The first amendment follows the recommendation made in the Review of Child Care Law and was largely accepted by the Government at paragraph 61 of the White Paper.
Whether or not an interim care order is made may have a profound effect on the child and also the eventual outcome of the case. At present the law relating to grounds and the number of orders that can be obtained is most unsatisfactory. Clause 33 is therefore to be welcomed.
The Review of Child Care Law recommended that:
"the court should have to apply a purposive test before it may make an interim order: that detention or removal of the child is necessary in order to safeguard the child's welfare during the interim period. In our view the order should he both protective of the child and necessary, given the crucial influence an interim care order may have … Our proposal would particularly require assessment of the local authority's plans for the child when an interim care order is made".
A form of this test has been applied by some inner London juvenile courts. In October 1984 a memo was issued to magistrates proposing the following test. The memo stated:
"Is this a case on the balance of probabilities where on the evidence we have heard the local authority should have responsibility for this child until the next hearing date. and not the parents'?"
We understand that that test has focused the court's attention on the necessity or otherwise of removal. It will be argued that Clause 1(4) applies to the making of interim care orders; namely, that in considering whether to make an order the court shall not make the order unless it considers that doing so would be better than making no order at all. That point has been quoted several times.
The clause was originally drafted by the Law Commission in relation to private law disputes between parents and others. It is a very different matter to consider whether to remove a child from its parents into care, albeit on an interim basis.
The wording of Clause 1(4) raises a presumption that an order will not be made. That may not be appropriate in care matters when the state has intervened because of concerns for the child's welfare. The amendment therefore requires the court to look actively at the necessity or otherwise of removal before making an interim care order. I beg to move.
The Lord Chancellor: I do not believe that there is much difference of opinion between us on the result to be achieved. Clause 33(2) already provides that a court may not make an interim care order or an interim supervision order,
"unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 26(2)".
Unless the court is reasonably satisfied that the grounds are made out at that stage it should not make the order. Once the court is so satisfied, the amendment seeks a provision which would require the court to consider both the welfare of the child and
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the necessity for the order before making an interim care order. Clause 1 of the Bill already achieves that, and it does so comprehensively.
I cannot understand why that general provision is not applicable here. The noble Baroness suggested that different considerations might apply, but the ultimate question is whether the order is necessary and whether it ought to be done. Clause 1(4) is a comprehensive and general test of that point.
I believe that there is some benefit in having a code which usually applies. A court will get used to that code and Clause 1(4) is appropriate to deal with the matter. The other parts of Clause 1 relating to welfare, the checklist, and so on, also apply and I should not like it to be felt that only some of those provisions applied. Therefore I prefer if at all possible to rely on Clause 1 at every stage so that the full protection of that clause is afforded. I hope that the noble Baroness will feel that we have achieved that result in the Bill as it stands.
Baroness David: I am becoming quite used to the answer that Clause 1 covers absolutely everything. That seems to have been the reply to a great many of the amendments which I have proposed.
I shall obviously have to consider yet again what the noble and learned Lord has said and consult as to whether Clause 1 is adequate in the circumstance and whether I shall bring the amendment back at the next stage. At this point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 171B not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 172:
Page 28. line 5, leave out subsections (3) and (4) and insert—
("(3) Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 173:
Page 28, line 15, after ("An") insert ("interim").
The noble and learned Lord said: In moving Amendment No. 173 I should like to speak also to Amendment No. 174. Both amendments are straightforward.
Amendment No. 173 is intended to make clear that the provisions in Clause 33(5) about duration apply to interim orders made by virture of that section and not to any Section 7 order which may be made. Amendment No. 174 would revise subsection (5)(d) to provide that an interim order made where a court gives a direction under Clause 32(1) shall be brought to an end on the disposal. not the first hearing, of an application for a care order or supervision order by the authority. That applies to cases in family proceedings other than care and supervision proceedings where the court directs that the local authority should investigate the child's circumstances and makes an interim order. I beg to move.
On Question. amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 174:
Page 28, line 24, leave out ("first hearing") and insert ("disposal").
On Question, amendment agreed to.
8.15 p.m.
Baroness David Baroness David moved Amendment No. 174A:
Page 28, line 43, leave out subsection (9) and insert—
("(9) No court shall include a direction under subsection (7) unless it is satisfied, where the child has sufficient understanding to make an informed decision, that he consents to its inclusion.").
The noble Baroness said: The aim of the amendment is to prevent the compulsory medical examination of a child legally competent to consent and who is the subject of an interim care order. The amendment brings directions by the court for medical examination of children into line with the law on consent. That is already acknowledged in the Bill. Under paragrahs 2 to 5 of Schedule 3 the court cannot order medical examinations or treatment as a supervision requirement unless it is satisfied that where the child has sufficient understanding to make an informed decision he consents to it.
It is not clear why under subsections (7) to (9) of Clause 33 that requirement is specifically exempted. Department of Health officials agree that doctors would be bound by the law on consent and would not have to comply with such an order if satisfied that the young person was of sufficient understanding to refuse to be examined. However, the law is not altogether clear on that point. Social workers who arrive at a surgery brandishing a court order for examination may well demand that the doctor carry it out, and the doctor may well feel obliged to do so. A court order under statute appears to be and may possibly be a more powerful right than the common law right under Gillick.
In many circumstances children will not be of sufficient understanding to refuse examination. However, where they are we are faced with alarming scenarios. Will doctors be strapping down screaming 15 year-olds or knocking them out under sedatives? The events of Cleveland have made clear that professional abuse by courts, social workers and doctors can often add to abuse by parents and in some cases be the only abuse the child suffers. Courts should surely take steps to ensure that such events do not occur. Interim care order can last up to eight weeks if they are renewable. That is quite enough time for the court to satisfy itself as to the consent of the child. I beg to move.
The Lord Chancellor: I think that the amendment the noble Baroness has moved raises a question which it would he desirable to clarify. I cannot accept the amendment as it stands because I would want to keep the substance of subsection (9) as at present, but I should like to consider adding to it to deal with the point that the noble Baroness has raised rather than leaving it to a general law. If the noble Baroness is prepared to accept that, I shall do my best to bring forward a proper amendment.
Baroness David: Thank you very much indeed. I am very grateful for that undertaking.
I have another amendment to be dealt with later which also concerns medical examination. I wonder
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whether the noble and learned Lord could say whether he would take the same line in respect of that amendment.
The Lord Chancellor: The point appears to hold good in relation to both amendments, so far as I can judge.
Baroness David: If the noble and learned Lord is willing to consider the matter I shall be extremely grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33, as amended, agreed to.
Clause 34 [Power of court to make section 7 orders in care and supervision proceedings]:
On Question, Whether Clause 34 shall stand part of the Bill?
The Lord Chancellor: I am taking the unusual step of asking that Clause 34 should not stand part of the Bill. It served two purposes, both of which will be achieved by other means. First, subsections (1) and (2) gave a court in care or supervision proceedings the same power to make Section 7 orders as it has in family proceedings. As I explained a short while ago in relation to Amendments Nos. 170 and 171, Amendment No. 27 which the Committee kindly agreed to on 19th December achieves the same effect as those two subsections and therefore renders them unnecessary. That amendment inserted proceedings under Part IV of the Bill, which includes applications for care and supervision orders, into the definition of family proceedings, thereby attracting the power to make Section 7 orders which is conferred by Clause 9. As a result, Clause 34(1) and (2) adds nothing. This is a neater way of achieving the same result.
One is left with Clause 34(3). That subsection requires a court, in care and supervision proceedings, to make a supervision order in the circumstances listed in paragraphs (a) and (b). The effect of the subsection will be retained by an amendment to he tabled to reintroduce the substance of Clause 34(3) in an appropriate place in the Bill. It would be rather subsidiary. It would not be sensible to have it standing by itself. Essentially, this is an improvement in the drafting of the Bill. I beg to move that Clause 34 do not stand part of the Bill.
Lord Elwyn-Jones: It must be a very rare event that the Minister in charge of a Bill gives notice of his intention to oppose the Question that Clause 34 stand part of the Bill. It may be a harbinger of things to come. Who knows'? We understand the reason for it and accept the Motion.
On Question, Clause 34 negatived.
Clause 35 [Discharge and variation etc. of care orders and supervision orders]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should say that if Amendment No. 174E is agreed to, I shall not be able to call Amendment No. 175, which is pre-empted.
The Lord Chancellor The Lord Chancellor moved Amendment No. 174B:
Page 29. line 24, leave out ("or supervision order").
The noble and learned Lord said: In moving Amendment No. 174B, I should like to speak also to Amendments Nos. 174C, 174D and 174E. These amendments are intended to simplify the provisions on discharge and variation of care orders and supervision orders which are at present set out in Clause 35(1)(2) and (3), by dealing with care orders and supervision orders separately in two rearranged subsections. There are no substantive changes resulting from this rearrangement except that, as proposed by my noble friend in Amendment No. 175, provision is made for applications by the supervisor to vary a supervision order.
The result of these amendments will be to create one subsection for supervision orders and a similar one for care orders. The only difference between them is that, apart from the child and person with parental responsibility, it is the local authority that may apply for variation or discharge of a care order and a supervisor of a supervision order. I beg to move.
Lord Mottistone: It seems to me that in Amendment No. 174E my noble and learned friend has achieved the result that I was seeking in Amendment No. 175 and I shall not move that amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 174C, 174D and 174E:
Page 29. line 26, leave out ("or").
Page 29, line 27, at end insert (":or
(c) the local authority designated by the order.").
Page 29, line 28, leave out from beginning to end of line 31 and insert—
("(2) A supervision order may be varied or discharged by the court on the application of—

(a) any person who has parental responsibility for the child:

(b) the child himself: or

(c) the supervisor.").

On Question, amendments agreed to.
[Amendment No. 175 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 176:
Page 29. line 36, leave out subsection (5).
The noble and learned Lord said: This is a technical amendment which, like the deletion of Clause 34, follows from proceedings under Part IV, being classed as family proceedings in Clause 7. This seems to be a neater drafting method of achieving the same result. I beg to move.
On Question, amendment agreed to.
Clause 35, as amended, agreed to.
Clause 36 [Representation of child and of his interests in certain proceedings]:
Lord Banks Lord Banks moved Amendment No. 177:
Page 30, line 9, leave out ("unless satisfied that it is not necessary to do so in order to safeguard his interests.").
The noble Lord said: Amendment No. 177 removes the qualification that a guardian ad litem
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need not be appointed in every case to be specified by regulations. The chief practical argument for removing the qualification contained in Clause 36(1) is that, while it may at first seem to be the case that the child's interests do not need specific representation, it frequently becomes clear as the case progresses that matters are more complex than they originally appeared to be and a guardian ad litem ought indeed to have been appointed. By that time it may be too late for a guardian ad litem to become effectively involved in the case, and the outcome may well not be in the child's best interests at all. The regulations referred to in Clause 36(6)(g) can provide sufficient control over categories of case in which a guardian ad litem is unnecessary. I beg to move.
The Lord Chancellor: We accept that the courts are unlikely to find many cases in which it would not be appropriate to appoint a guardian to represent the child's interests. However, there may be some—perhaps a straightforward case involving an older child who has already instructed his own solicitor. In any case, the court can call for a welfare report under Clause 6 of the Bill from a probation officer or a local authority: and there may be some circumstances in which the court considers it appropriate. If the courts find it is not necessary to appoint a guardian, we think that the courts should not be obliged to do so. As an indication of the Government's expectation in this area, the Committee will notice that the precise wording of this provision changes the emphasis of the present law. Under that the court is generally required to appoint a guardian only if the court thinks it is necessary to do so to safeguard the child's interest; otherwise a guardian will not be appointed.
We have deliberately changed the emphasis to place a more positive duty on the court. The Bill imposes a presumption in favour of the appointment of a guardian unless there is some good reason for not doing so, so that the essence of the emphasis which the noble Lord, Lord Banks, seeks by this amendment is put, but leaving open the point that in some cases it may turn out not to be necessary. It seems an unnecessary trouble to appoint an unnecessary guardian.
Lord Banks: I am grateful to the noble and learned Lord for that explanation which seems to me to be satisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 178:
Page 30, line 14, at end insert ("and
(c) he under a duty to instruct a solicitor for the child in the manner prescribed by such rules').
The noble and learned Lord said: The purpose of this amendment is to make sure, so far as it is possible to do so in an Act of Parliament, that children are properly represented in care proceedings. As it stands, the clause has led to the fear that the appointment of a guardian ad litem is to be an alternative to a solicitor. I remember that we had an earlier discussion about that point. It may well be that what the guardian ad litem thinks is good for the child, is quite unacceptable to that child.
The Magistrates' Courts (Children and Young Persons) Rules, 1968 currently provide, in Rule 16(6)(c), that a guardian shall obtain the views of the court as to whether the infant should be legally represented, and, unless the court otherwise directs, instruct a solicitor to represent the infant. While it may well be the Government's intention not to change that rule, it is thought by the Law Society and others that there ought to be some express provision in the Bill. That concludes my remarks on that matter.
It may be convenient to discuss now Amendment No. 180. That is to say, that where circumstances are such that a child needs to be represented by a solicitor, a court should be under a duty to appoint one and not merely be given the power to do so. I beg to move.
The Lord Chancellor: As the noble and learned Lord has said, the rules of court currently prescribe circumstances in which a guardian ad litem shall instruct a solicitor for the child. It was our intention to continue to make provision for this matter in court rules. This would he one of the matters covered by Clause 36(2)(b) which places the guardian:
"under a duty to safeguard the interests of the child in the manner prescribed by such rules".
Under Clause 36(5) a solicitor appointed by virtue of this section shall represent the child in accordance with the rules of court. The words,
"a solicitor appointed by virtue of this section"
were included specifically to take account of the fact that rules will provide for a guardian to appoint a solicitor for the child, when one has not been appointed, and instruct him.
Rules under Clause 36(5) will then require the solicitor to represent the child in accordance with the guardian's instructions. It should be borne in mind that there may be some circumstances where it is not appropriate for the guardian to instruct a solicitor on behalf of the child. First, an older child who is capable of doing so may wish to give his own instructions. This is a situation which is already provided for under the existing rules. We do not think that the duty of a guardian to instruct a solicitor should apply in those circumstances.
Secondly, at the point at which no solicitor or guardian ad litem has been appointed we would not wish to prevent a child who is competent to do so from instructing his own solicitor if he wished to do so. We think that he should continue to have the right.
Thirdly, if a solicitor has already been appointed for the child it is not necessary for the guardian to be under a duty to do so. These are examples which suggest that this matter is best dealt with under rules of court. We shall certainly wish to take account of these matters in making such rules.
I hope that the noble Lord will feel that it is right that it should be provided for in that way. The position depends on rules. We believe it right not to put the matter into primary legislation. It is a matter that should be dealt with by rules.
Lord Mishcon: Perhaps I may say immediately and I know that my noble and learned friend
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agrees—that it is perfectly acceptable that it should be in the rules provided that it is understood that the matter will be covered. If the rules merely said there was the duty to consider instructing a solicitor—to cover the points made by the noble and learned Lord—we should be content with that also.
Lord Elwyn-Jones: In the circumstancs, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Banks Lord Banks moved Amendment No. 179:
Page 30, line 16, leave out from ("solicitor") to end of line 17.
The noble Lord said: Amendment No. 179 is grouped with Amendments Nos. 180 and 181 to which, with the leave of the Committee, I should also like to refer. Amendment No. 179 deletes all reference to the conditions set out in subsection (4) since Amendment No. 181 seeks to delete subsection (4).
The purpose of this part of the Bill is to ensure that in any circumstances where the child in care is not represented by a solicitor, a solicitor may be appointed by the court to represent him or her. Subsection (3) reads:
"Where the child concerned is not represented by a solicitor … the court may appoint a solicitor to represent him".
The amendment is intended to be combined with Amendment No. 180 which seeks to make it mandatory for the court to appoint a solicitor to represent the child. Assuming that Amendment No. 180 were passed, the Bill would then read,
"Where the child concerned is not represented by a solicitor, the court shall appoint a solicitor to represent him".
Amendment No. 181 removes the subsection setting out conditions to be met before the court appoints a solicitor to represent the child. The purpose of Amendments Nos. 179 and 181 is to establish unequivocally the child's right to legal representation whatever the view of the court or the child may be on the matter and whether or not a guardian ad litem has also been appointed.
It is important to reiterate that the respective roles of the solicitor and the guardian ad litem are not the same. As a minor the child is exceedingly vulnerable in court proceedings and the statutory right to legal representation is essential to ensure that the child's wishes are given due account in such proceedings. I beg to move.
Lord Mottistone: I have added my name to Amendments Nos. 179 and 181. The NSPCC recognises that guardians ad litem play a key role in protecting the child's best interests and provide a source of expert and independent opinion to the court. However, the guardian ad litem cannot act as an advocate for the child. I believe that the earlier debate did not pick up that point. If there is a difference of view between the child and the guardian, the guardian will put forward his or her own opinion to the court, not that of the child. Unless the child has a solicitor to represent him, the court will not hear the child's view.
As Clause 36 is drafted, it appears to restrict the child's access to a solicitor and implies that the court may appoint a solicitor only in cases where no

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guardian ad litem has been appointed. Accepting that guardians will be appointed in the vast majority of cases, does this mean that the child will not be legally represented in most cases? There may be a presumption that the guardian will instruct a solicitor to represent the child. If this is so. the Act will be much strengthened by making this explicit. It is essential that the child continue to be legally represented in addition to the role played by the guardian ad litem.
I should he most grateful if my noble and learned friend could clarify that point. I am not sure that he did so at an earlier stage.
The Lord Chancellor: Perhaps I may deal with Amendments Nos. 179, 180 and 181 together. They would have the effect of placing a duty on the court to appoint a solicitor for the child in circumstances where the child is not represented by a solicitor. This would be an absolute duty as Amendment No. 181 would remove the conditions that the current draft imposes.
I sympathise with the aim of these amendments. It is to emphasise the child's right to a solicitor. However, for the following reasons I hope to persuade the Committee that the Bill already makes sufficient provision for this. In addition, the rules made under the Bill will, I think, operate more appropriately and more fairly than would be the case under the proposed amendment.
To deal with the point of my noble friend Lord Mottistone, I should remind the Committee that the child will be a party to the proceedings and as such will always be entitled to legal representation. That is the present position and it will continue under rules of court made under Clause 70. It is a general principle that a party to legal proceedings is entitled to be represented by a solicitor.
I have a number of particular reservations about the amendments. First, we think that the guardian ad litem should be responsible for appointing a solicitor in the first instance when one has not been appointed by the court. This is the present position. I hope that I have already made clear in connection with Amendment No. 178 that we should continue to make such provision. We should not wish to enforce an absolute duty on the court to appoint a solicitor where the child did not have one. The advantage of Clause 36(4) is that it highlights circumstances in which we would look to the court to make the appointment of a solicitor. It is a positive provision. Secondly, where the child is competent to appoint his own solicitor we think that he should have the right to do so in the absence of, or in advance of, any guardian ad litem appointment by the court.
The amendment would preclude a child of sufficient age from instructing his own solicitor as he would have to leave this matter to the court. It might also prevent a child who is competent to do so from instructing a solicitor in circumstances where the child's instructions and those of the guardian conflict.
In these circumstances the present position is that the child's instructions prevail. We consider that this should continue to be the case. The guardian ad litem
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picks a solicitor to represent the child. It is then the child's views—if the child has views—that that solicitor has to put forward. The condition in Clause 36(4)(b) gives the court power to appoint a solicitor for a child who wants one and who is of sufficient understanding to instruct the solicitor. It does not prevent the child instructing a solicitor directly without involving the courts.
Finally, there may be rare cases in which a guardian has been appointed but decides that no solicitor is needed. The condition in Clause 36(4)(c) as drafted allows the court in that situation to appoint a solicitor to represent the child. We should not wish to lose any of these conditions.
I hope that what I have said will reassure the Committee that the amendments sought are neither necessary nor desirable as the child's right to legal representation is very well provided for.
Lord Mottistone: I thank my noble and learned friend for explaining the matter so carefully. What worries me is this. He said, "We wish to preserve the present position". The NSPCC is very experienced in these affairs. I have not had advice but I can only imagine that it picked up this point because the present position may not be working. I should like to put that suggestion to my noble and learned friend. There is perhaps need for examination to see whether the present position works. If it does not, something else may be required. I do not wish to press the point but I hope that my noble and learned friend will take up the arguments that have been made. We shall certainly examine the situation with great care.
Lord Banks: I am grateful to the noble and learned Lord for his explanation of the reasons why he thinks that the amendments are not necessary. I should like to read and consider that and see whether we come to the same conclusion as him or whether we want to pursue this further. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 180 and 181 not moved.]
Lord Banks Lord Banks moved Amendment No. 181A:
Page 30, line 37, at end insert—
("( ) in which the court is considering an application to keep a child in secure accommodation:").
The noble and learned Lord said: Clause 36(6) lists the proceedings where a guardian ad litem would be appointed. The list does not mention proceedings where a child or young person may be subject to detention in secure accommodation by means of a secure accommodation order under Clause 21. The representation of children receiving these proceedings by a solicitor alone is often sadly lacking. Solicitors doing the work may have little experience or knowledge of secure accommodation and may be unaware of suitable alternatives which could be used. If the child were also represented by a guardian ad litem, it would he possible to have more probing of the decision to place the child in secure accommodation. The consequence of this would be that the court would no longer merely rubber stamp applications, as often appears to happen at present. I beg to move.
Lord Elwyn-Jones: I should like to support the amendment. I hope that the noble and learned Lord will feel able to accept it.
Lord Campbell of Alloway: I rise briefly to support the amendment. I know that my noble and learned friend the Lord Chancellor has this point in mind in the consideration in depth which he is giving to Amendment No. 52 concerning secure accommodation. Therefore I respectfully ask that this may be taken into account when he is considering the approach of Her Majesty's Government to this matter.
The Lord Chancellor: Certainly we are considering that, but this point we discussed a little in that connection. At that stage my noble friend Lord Campbell of Alloway proposed that the child should be represented by the Official Solicitor, who would be the normal person to be appointed if a guardian ad litem were required. The noble and learned Lord. Lord Elwyn-Jones, and myself were agreed at that stage that it would not be wise to restrict the child to the Official Solicitor, but the child could have a solicitor of his or her own.
That is the point about the amendment. We do not believe, in this kind of situation where a specific question is at issue, that it will always be appropriate to have a guardian ad litem. But the guardian ad litem would be the person to appoint someone to represent the child where much investigation, welfare reports and the like were required and where there was some question about the child's capacity to instruct a solicitor of his own.
We believe that in a secure accommodation case it would be appropriate for the court to accept representations from the child and from a solicitor of the child's own choice appointed by the child. A solicitor may already be involved in the matter, as the noble and learned Lord, Lord Elwyn-Jones, said on the last occasion. It is always possible for the court to secure a report. I do not believe that it is wise in this situation to require the court to appoint a guardian ad litem. I can see that on some occasions it might be appropriate but not in all cases, because the welfare side may be dealt with by a report under Clause 6 where that is necessary and what we really want to know is what the child may have to say about the matter. As was pointed out on an earlier amendment, one of the difficulties arising in the wardship jurisdiction where a secure accommodation matter has been requested is that a guardian ad litem may not wish to represent what the child wants because he has a different view of what is in the child's interest. That is the problem of the amendment.
I want to air separately the main considerations that I am considering in connection with the proposal of my noble friend Lord Campbell of Alloway. In a way they are more wide ranging, but this is a specific point and that is my answer to it.
Lord Banks: I am grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Campbell of Alloway, for their support of the amendment. I should have thought that in a matter of this kind where the welfare of the child is extremely important there would be a case for appointing a
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guardian ad litem. The noble and learned Lord thinks not. I should like to consider and consult about that and in the meantime I beg leave to withdraw the amendment.
Lord Campbell of Alloway: For the sake of the record I say briefly that I wholly accept the reasoned approach of my noble and learned friend and agree without reservation that these matters are more properly considered in connection with legal representation on a redraft of Clause 52.
Amendment, by leave, withdrawn.
8.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 181B:
Page 30, line 39, leave out ("or supervision order") and insert (",supervision order or any order under section 29").
The noble and learned Lord said: This amendment would require a guardian ad litem to be appointed in appeal proceedings against the making of or the refusal to make a contact order under Clause 29. This amendment is one to which attention was drawn by my noble friends Lord Mottistone and Lady Faithfull and by the noble Lady, Lady Kinloss. It seems an appropriate provision to make. I beg to move.
Lord Mottistone: The remarks of my noble and learned friend puzzle me greatly. Linked with Amendment No. 181B is Amendment No. 182, which is my amendment. I had fully imagined when I saw Amendment No. 181B linked with Amendment No. 182 that my noble and learned friend intended to accept Amendment No. 161, which installed the contact order in Clause 29.
In that case that would have taken care of Amendment No. 182. Because my noble and learned friend rejected my pleas for Amendment No. 161, it has not now been included in Clause 29. But the way he spoke to his own amendment made me think that he thought it was. I hope that we may have another think about this, and I reserve the right to return to this at the next stage of the Bill.
On Question, amendment agreed to.
[Amendment No. 182 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 182A:
Page 31, line 3, leave out ("the establishment or) and insert ("a court welfare service to establish").
The noble Lord said: We are dealing with a very important point here, but that does not mean that we have to deal with it at length. Subsection (7) deals with the very vital matter of the appointment of guardians ad litem and the panels from from which they will come. The clause at present reads:
"The Secretary of State may by regulations provide for the establishment of [those] panels".
A great deal of anxiety was expressed at Second Reading—I ventured to include it in my own speech—that the guardians ad litem should be completely independent, otherwise not only will it not be seen that they have an independent role to play, but, being ordinary human beings, they may not be capable of adopting that independence that we want them to

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have. Among those concerned in the matter are members of the legal profession. If the guardians ad litem are appointed from panels and are funded by and have close links with the local authority, which may be involved as a party to the proceedings, the independence about which I have been talking is by no means apparent.
In some areas the panel administrators are also employed by the local social services department. It could be that a guardian could feel inhibited from expressing an independent view given the involvement of the local authority in the complaints, grievance and disciplinary procedures for the guardians.
We should like to see the setting up of an independent national administration for the guardians. We cannot deal in this Bill with the dream of a family court, although some of us have attempted to do so by one means or another. If there were a family court with a welfare service annexed I believe that it would be a complete answer to the independence which we are seeking in the amendment. At least the amendment would give the Government the power to set up a court welfare service to run the panels of guardians. That would be a step on the way.
In those circumstances, I beg to move the amendment. I know that the noble and learned Lord will realise that every word he utters in answer will be carefully listened to by those who are seeking the complete independence of the panels from which the guardians ad litem are to be selected.
Lord Campbell of Alloway: I support the amendment wholeheartedly. It is an important point. If the panels were to be established by my noble and learned friend or his department, it would be a different issue; but it is not the case. The case is that they are appointed by the Executive. For the reasons that have been given by the noble Lord, Lord Mishcon, with which I and other members of the profession agree, I support the amendment.
The Lord Chancellor: I doubt whether, as a technical matter, the amendment ensures that guardians ad litem would be provided as a service by the courts instead of by local authorities. It would still be open to the Secretary of State under the regulations to require local authorities to provide the court welfare service.
Guardians ad litem are appointed for particular cases by the court and are responsible to the courts for the decisions that they make. But it is not appropriate to describe the service presently provided for as a court service.
I should like to remind Members of the Committee of my statement in the Second Reading on improving the arrangement in care proceedings. I said then that it is not practicable or desirable to throw over existing machinery wholesale, and that we intended to approach the matter in ordered stages. I announced that the Government have put in hand a programme of work which will extend step by step to examining all aspects of family law and business. As part of that programme, we intend to look at the organisation and function of welfare services. This will not only
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include the service provided by guardians ad litem in care and related proceedings but also the role of guardians ad litem and reporting officers in adoption cases, the general arrangements for providing welfare reports to the courts by local authorities and the probation service as well as the sole of the Official Solicitor in High Court family proceedings. Any changes to the present arrangements would need to follow a proper review of all those existing and related arrangements, and it would be premature to establish a court-provided service ahead of that review.
As the noble Lord knows, the situation is complicated and extends over the whole country. In the Bill we have provided the Secretary of State with certain powers to establish panels which would not be related to a particular local authority: in other words, for combinations of them. I am anxious to pursue the matter, but it is premature to do so in the way that his amendment provides. We must see what is involved and decide upon the best method of taking the matter forward. Guardians ad litem are only one part of a larger set of present institutions which require to be considered.
Lord Elwyn-Jones: Is the review already under way? I do not wish to press the noble and learned Lord too hard, but this is an important matter.
The Lord Chancellor: I have set up the instructions. There is a question of priorities and at the moment my priority is to see this Bill through Parliament. That involves a good deal of effort of one kind and another.
A number of aspects require to be considered. In relation to other amendments, I mentioned the need to make arrangements for picking out selected courts, training, and so forth. There is a great deal to be done and one cannot do it all at once. I am trying to set up a reasonably ordered programme to enable the matters to be overtaken. I have them very much in mind; and, without making too drastic changes at one time, we are trying to improve the situation.
The cases must be dealt with. One cannot afford to stop all the present arrangements. One must continue to use the house, as it were, while carrying out all the alterations. The cases come in and therefore one must have a system under which they can be catered for while looking to make arrangements to improve the situation.
Lord Mishcon: I should like to take up the noble and learned Lord on his apt metaphor. It is true that one must use the house while alterations are being made or considered. I appreciate that. May I take it from what he has said that the noble and learned Lord realises the need for the alterations while we are erecting the house? We are all anxious to see the Bill on the statute book and to help him to achieve that as expeditiously as possible. Otherwise we should not be sitting here at this hour tonight and possibly much later. From what he has said, can one take it that he realises the importance of the independence of the appointments of guardians ad litem; that it should be a national or court administration of some kind; and that they should be completely independent of those who may at some time wish to criticise.

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Without making the noble and learned Lord adhere to a time limit—which I am not doing—I believe that as long as that matter is under active consideration, it is proper for me to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Banks Lord Banks moved Amendment No. 183:
Page 31, line 11, leave out paragraph (b).
The noble Lord said: I should like to speak to Amendments Nos. 183, 184, 185, 186, 187 and 188. The amendments to Clause 36(9) seek to establish the independence of guardians ad litem from local authorities. Therefore they follow the same theme that was taken up by the noble Lord, Lord Mishcon, in the last amendment. It may be that the noble and learned Lord will say that he has given at least part of his answer, but I believe that the amendments merit separate discussion.
The intention is not to prevent local authorities from being involved in the operation of panels of guardians, but to provide for a framework which will allow a diversity of schemes to continue and which will permit others to take shape so that it becomes possible to learn from experience over time which are the most effective models. It is important that one administrative system is not favoured by the wording of the clause. If all the suggested amendments are accepted by the Government, the amended clause will state that the regulations may, in particular, make provision as to the constitution, administration and procedure of panels; as to the qualification for membership of a panel; as to the training and professional support to be given to members of panels; for monitoring the work of guardians ad litem and as to the co-ordination between panels and the establishment of national professional standards.
Amendment No. 183 removes the requirement by regulation for a number of specified local authorities to operate a panel of guardians ad litem jointly. It does not prevent them from doing so but we consider it extremely important that a framework be established in this legislation which will allow the development of imaginative and effective collaborative arrangements for the operation of panels between voluntary organisations, other professionals and local authorities.
Amendment No. 184 removes the provision for local authorities to defray the expenses of guardians ad litem, obviously to pursue the central theme.
Amendment No. 185 removes the provision by regulation for local authorities to pay fees and allowances to members of guardian ad litem panels.
Amendment No. 186 seeks to secure the availability of ongoing professional support for guardians ad litem. That is to ensure that the professional standing of the guardian ad litem system is maintained through sustained contact with other professionals and the adoption of common standards of working practice to ensure that guardians ad litem have access to relative professionals in a range of other disciplines, especially within the legal profession, and are made aware of the best practices carried out in guardian ad litem work and to counter the isolation felt by individual guardians ad litem, many of whom currently work on a case by
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case basis, having very little contact with other professionals.
Amendment No. 187 removes the specific requirements in regulations placed on local authorities; in this case, the requirements for specified local authorities to co-operate in providing panels of guardians ad litem in specific areas.
Amendment No. 188 seeks to ensure that there will be a level of co-ordination between panels however diverse different arrangements may be, so that, for example, there will he greater consistency of provisions of guardians throughout the country and common rates of payment to guardians will be established.
I hope that the general purpose of the particular nature of these amendments will he clear to the Committee. I beg to move.
9 p.m.
Baroness Faithfull: I understand from the noble Lord, Lord Banks, that these amendments are grouped together. Perhaps I may speak to Amendment No. 186. Representations have been made to me by a number of guardians ad litem that they would greatly welcome professional support from one another and that they would also like, instead of being what one might call a "home industry", to be grouped under a senior person with whom they could consult.
That may not be possible in the near future but they ask me to bring their hopes for the far distant future, at any rate, before the noble and learned Lord.
The Lord Chancellor: The intention of these amendments has been explained. I question whether the amendments go quite as far as their intention, for the same sort of reason as I mentioned in relation to Amendment No. 182A. However, I should like to deal with the matter rather more fully because it is important and I should not like there to be any misunderstanding about it.
Local authorities since 1984 have been responsible for setting up and managing panels of guardians ad litem and reporting officers from which the courts can make appointments in particular cases. The system has been established fairly recently and has been working well in many areas to the considerable benefit of the children concerned. There have been some difficulties but we should prefer to deal with these by building on existing arrangements to make improvements. This would surely seem to be the sensible way forward with a service which has only recently been established.
The powers that we have provided will enable us to do this. One of the main difficulties has been that guardians often represent children in cases where the local authority which manages the panel from which the guardian is appointed appears as applicant to the proceedings. This has led in some areas at least to an apparent conflict of interests. This has riot been a problem where a number of authorities have combined to operate a joint panel and have been able to employ a panel manager who does not also have responsibilities for case management within the social services department. We propose to build on

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this approach and to make regulations which will facilitate the establishment of regional panels which will be distanced from the local authorities which they serve.
For these reasons we do not support the amendments which would remove the power in Clause 36(9)(b) to require two or more specified local authorities to make arrangements for the joint management of panels. In some areas local authorities have already grouped themselves into consortia to operate joint arrangements. We would not wish to disturb any arrangements which are working well. Neither would we wish to see removed the power in Clause 36(9)(g) for the Secretary of State to require specified local authorities to co-operate in specified areas. We regard this as an essential reserve power if the Secretary of State is to be able to ensure that a nationally co-ordinated service—or one which is not necessarily national but which is co-ordinated—is provided.
There is also a need for a power to pay for self-employed panel members. We therefore cannot agree with the amendments which would remove these powers. I hope Members of the Committee will agree with this.
This brings me to the proposals to provide powers to make regulations as to the professional support to be given to panel members. The difficulty here is that it is not clear what is meant by "professional support". My noble friend has given an illustration of that. The power to combine with a panel manager would meet that point to a considerable extent. If the intention is that panel members working in a professional group should be given appropriate assistance and information to enable them to carry out their work, then I think we would agree that these are necessary. These concerns can be addressed under the powers already provided for in relation to the administration of panels and to training of panel members and monitoring the work of guardians. It would be possible to provide for the appointment of a panel manager whose functions could include the provision of appropriate supervision and for arrangements to be made for access to information, independent advice and assistance. I hope the Committee will feel that the amendment proposed is not necessary.
Moving on to the associated point in Amendment No. 188, which refers to the establishment of national professional standards, there is a commitment within the Government to encouraging high standards. The powers to make regulations in relation to monitoring and training and to qualifications required of panel members should go a long way to providing national professional standards. If the intention is to establish a separate professional qualification for guardians ad litem this is not a matter which is appropriate for regulations but for the professional bodies concerned. It is not in any case an approach which we think is necessary as many of the skills for acting as a guardian ad litem are those which qualified social workers or others with similar qualifications or experience already possess. The power to make regulations as to the qualifications of panel members will help to ensure the maintenance of high standards in this area.
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I hope the Committee will be reassured that we are seized by the concerns which exist about the management of the guardians ad litem by local authorities. We have every intention of dealing with these concerns by introducing a system of regional panels which can provide continuity with existing arrangements and also stronger regional control. We are satisfied that the powers we have provided will achieve this. In the longer term, as I explained in response to Amendment No. 182A, the arrangement will be reviewed as part of our programme to review all aspects of family business, including court welfare services.
I hope that in the light of those explanations the noble Lord will feel able to withdraw the amendment he has moved and not move his later amendments.
Lord Banks: I am again grateful to the noble and learned Lord for his reply. I am also grateful to the noble Baroness, Lady Faithfull, for her backing about professional support. I am encouraged by the fact that the noble and learned Lord saw at least some aspects of that which he felt were necessary.
I can see that the grouping together of the local authorities rather than each individual local authority running its own panel would decrease, to some degree, the feeling that the local authority was both judge and jury in the cases which it was presenting. The concept of regional panels seems to he progress along the lines that we want, though as the noble and learned Lord explained some of the proposals in the amendments would run counter to its operation. However, I see hope in that and I should like to discuss that possible development with my colleagues, read what the noble and learned Lord said, and consider whether we can in any way pursue this further at a later stage. I beg leave to withdraw Amendment No. 183.
Amendment, by leave, withdrawn.
[Amendments Nos. 184 to 188 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 188A:
Page 31, line 21, at end insert—
("(i) for specifying the different proceedings in which the official solicitor and guardians ad litem from local panels shall be appointed to represent a child.").
The noble Lord said: The Committee will appreciate that we are dealing with regulations that the Secretary of State may make and, in subsection (9), with the matters for which he may make provision. Therefore, it is useful to see whether something of importance is not in subsection (9) which ought to be there.
We believe—and this is the view of many members of the legal profession—that it would be useful to specify the different proceedings in which the Official Solicitor and guardians ad litem from local panels shall be appointed to represent a child. I pause here for one moment with an apology to the Committee. I appear to have originated, quite wrongly, the phrase "guardian ad litems". I do not know when I said it, but my noble and learned friend said that I did and I always take everything that he says for granted. In case anybody copies my error, I emphasise that I now say "guardians ad litem".
There is a need for clarification. For example, it may be that the Official Solicitor will be asked to act

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as a child's guardian ad litem in all High Court proceedings or only in family or wardship proceedings. If we have that clarification it will also help where proceedings are transferred from one court to another.
What happens at the moment is that when care proceedings are replaced by wardship proceedings and a guardian has already done work in relation to the proceedings in the magistrates' court, that guardian is usually reappointed by the High Court. However, the High Court is required first to consider appointing the Official Solicitor. The Official Solicitor, we find, is not able to cope with this caseload and such an appointment can waste work done by the guardian who has already been appointed.
Furthermore, there is currently no provision for paying the fees of guardians appointed by the High Court. Many guardians are appointed who face the possibility of not being paid for work which they have done. It is necessary to clarify these matters and to specify the proceedings in which guardians and the Official Solicitor are empowered to act. These will be matters of guidance. The regulation should provide for them. I beg to move.
Lord Campbell of Alloway: I seek clarification as to the position of the Official Solicitor. This is relevant to the question of transfer under Clause 29, the subject matter of Amendment No. 225 which stands in my name. My noble and learned friend will be aware of the practice direction in 1988 under which, as regards secure accommodation, the Official Solicitor in wardship cases is always appointed by the High Court. To what degree will his position in this respect be affected by Clause 71 if it is enacted in its present form?
9.15 p.m.
The Lord Chancellor: The amendments are unnecessary. Subsection (8) already provides that the Secretary of State's regulation-making power in subsection (7) is not to prejudice the power of the Lord Chancellor to confer or impose duties on the Official Solicitor under Section 90(3) of the Supreme Court Act 1981. Accordingly, it would allow directions under that Act to give the Official Solicitor duties in any proceedings under the Bill, including those relating to care and supervision orders in the High Court. Regulations about the role of panel guardians ad litem under the Bill would be without prejudice to those duties.
Accordingly, the regulation-making power when exercised in conjunction with the Lord Chancellor's directions would enable us to say in which proceedings the Official Solicitor or a panel guardian should represent the child or, if it were thought desirable, provide for the Official Solicitor to represent the child in the High Court.
Turning to the more substantial issue of how the guardian ad litem's role is to be provided in various tiers of court and in particular in the High Court, I must tell the Committee that the details are still under consideration. The Government are determined, however, that the roles and duties of the guardians ad litem in proceedings under the Bill should be as similar as possible no matter which court the
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proceedings are heard in. We also intend that the transfer of cases between courts should not delay proceedings unnecessarily by requiring a guardian ad litem who is already involved in a case to be removed and a new one substituted as a matter of course.
As I explained earlier, we are aiming to try to provide a framework under which cases will be allotted by reference to characteristics of the cases. One will try to ensure that the guardian ad litem appointed is an appropriate guardian ad litem having regard to these criteria.
This is another matter to which the Government have come following consultations over last summer and the autumn about introducing a concurrent jurisdiction. Having concluded that concurrency is desirable, we were then faced with the task of integrating the domestic jurisdiction of the magistrates' courts and care proceedings into the structure of the superior courts. That task is well advanced and, in particular, we hope soon to reach a conclusion on how to handle this matter. At the moment we have powers in the Bill to deal with it and no further powers are necessary.
It is a matter of importance to some that guardians ad litem should be properly paid. We are looking into this aspect in relation to the High Court. If necessary, arrangements will be made to secure that the course of justice is not impeded for want of fees for guardians ad litem in appropriate cases.
Lord Mishcon: The rapidity of the noble and learned Lord's reply, both understandable and appreciated at this hour, will make it necessary for me to read calmly in Hansard, possibly not tomorrow but the day after tomorrow, the wise words which he uttered. I know that he will permit me to do that. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 189:
Page 31, line 21, at end insert (; and
(j) for ensuring that the role of the Official Solicitor in any High Court proceedings shall not be affected by the appointment of a guardian ad litem in any inferior court.").
The noble Lord said: This amendment is moved for clarification and to seek a measure of assurance. I am reliably informed by learned counsel who regularly appears in children's cases in the High Court on the instruction of the Official Solicitor that there is a measure of apprehension as to whether the existing role of the Official Solicitor is preserved by the clause as it stands, whether it will be preserved under subsection (8) by my noble and learned friend the Lord Chancellor in the exercise of his powers, and whether the exercise of those powers will marry with a commencement date for Clause 36, whenever that may be.
One assumes that the existing role of the Official Solicitor will be safeguarded after Royal Assent pending commencement, but there is no transitional provision in Schedule 10 to such effect. A measure of assurance to abate this apprehension to which I have referred would indeed be welcome. If that assurance can be given is it not appropriate that the role of the

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Official Solicitor in the High Court proceedings should be acknowledged by express provision in primary legislation? However, at this hour, that would be the last thing I would press on your Lordships' Committee.
The Lord Chancellor: Until now the Official Solicitor has had no role at all in care proceedings because he has not been in the High Court. We are looking at the best structure for the safeguarding of the children's interests and the Official Solicitor might possibly have a role. We are trying to make arrangements under which, for example, there would not have to be transfer from one guardian ad litem to another if the case was transferred.
I think it would be right to say that my powers in relation to the Official Solicitor will have to be considered in relation to the whole scheme. I am not really in a position to give any further assurance this evening except to say that the welfare of the children concerned will be my paramount consideration.
Lord Campbell of Alloway: Perhaps at a later stage of the proceedings some form of assurance might be given by my noble and learned friend as to the apprehensions regarding the Official Solicitor. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36, as amended, agreed to.
Schedule 3 [Supervision orders]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 190:
Page 86, line 24, leave out ("from time to time by the supervisor") and insert ("by the court").
The noble and learned Lord said: In the unhappy late absence of my noble friend Lord Prys-Davies I take his place. Schedule 3 relates to the important matter of supervision orders. Amendments Nos. 190, 191, 192, 193 and 194 may conveniently be taken together. They all arise from Schedule 3. All the amendments have the support of the Children's Legal Centre. They raise matters of importance, but at this hour it may be sufficient for the purposes of our proceedings if I formally move the amendments. I beg to move.
The Lord Chancellor: The aim of these amendments is the transfer of the power to give directions to a responsible person and to a child subject to a supervision order made in civil proceedings from the supervisor to the court. Section 12(2) of the Children and Young Person Act 1969 does at present provide that the court may require the child to comply with the directions of the supervisor. Sub-paragraphs (1) and (2) of paragraph 2 of Schedule 3 maintain that position.
It is essential to the nature of a supervision order that directions to the child are capable of being given. However, I do not believe that in relation to a civil supervision order such directions should be given by
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the court. A supervisor is appointed in respect of a child and is under a duty to advise, assist and befriend the child. It is therefore the supervisor who will have a continuous relationship with the child throughout the duration of the order and who will determine the type of directions which will be appropriate at any time. It is not possible for the court to maintain such a relationship with the child and it would not be practicable, and in many cases it would not be desirable, to require the supervisor to return to the court whenever he considered that a change in the directions given to the child would be appropriate.
The court can, of course, include various requirements in a supervision order. These include powers to impose certain requirements upon the responsible person; for example, to require the supervised child, subject to his consent where appropriate, to submit to medical or psychiatric examination or treatment. These are specific matters which are not likely to need revision during the life of the order. It is surely right in relation to a civil supervision order that the supervisor should have discretion to tailor other requirements to the prevailing circumstances.
Amendment No. 192 would also remove the qualification in paragraph 3 of Schedule 2 that a requirement placed on a responsible person in respect of a supervision order should be subject to the consent of that person. The effectiveness of supervision orders will depend upon a level of cooperation being achieved between supervisor and family. There would be little purpose in imposing a requirement that a person should seek to ensure that a child complies with directions unless that person consented. A supervision order is essentially made in respect of a child, not the responsible person, and what we are seeking to do here is encourage co-operation with a view to helping the child.
In addition, this amendment also seeks to extend the requirements that may be placed on the responsible person to include taking steps to ensure that the child complies with obligations imposed under paragraphs 4 and 5 concerning medical and psychiatric examination and treatment.
I can see much value in encouraging the responsible person to take an active role in these matters generally and I shall be happy to consider this particular point. I really feel that I could not accept these amendments but I am prepared to consider that aspect of Amendment No. 192. I hope that the noble and learned Lord may feel that that is a reasonable response to his amendments.
Lord Elwyn-Jones: I am most grateful to the noble and learned Lord for his response to the matters which are set out in the amendments that I have indicated. We shall of course consider carefully what the noble and learned Lord has said, but we are grateful for the knowledge that this aspect of the matter is receiving, and has received, careful consideration. In the circumstances and subject to the possibility of reverting again to these matters at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 191 and 192 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 192A:
Page 87, line 5, leave out ("requirement imposed") and insert ("direction given").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 192B:
Page 87, line 7, leave out ("obliging") and insert ("requiring").
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 192C:
Page 88, line 44, leave out ("one year") and insert ("three years, or such shorter period as may be specified in the order").
The noble Lord said: This is a probing amendment, because one notices that this question of the one-year period differs from the existing provision in Section 17 of the Children and Young Persons Act 1963 which enables the court to make a supervision order for a period of three years in the first instance. All that I want to try to extract very gently and courteously, I hope, from the noble and learned Lord is whether there is a good reason for doing this, bearing in mind that there may well be a need in certain cases to avoid a review after one year, and make it unnecessary in cases where right from the start it is apparent that a three-year period seems appropriate. Such a period, for example, is often useful where the supervision order relates to a very young child, and I am thinking in terms literally almost of a babe, where a three-year period can see the child into school age. I beg to move.
9.30 p.m.
The Lord Chancellor: The review of child care law did not consider the duration of supervision orders made in care proceedings. It did recommend that consideration be given to supervision orders in other family proceedings having a limited duration of one year with a power for the court to extend the order at a later date. The court would have the power to impose certain requirements on parents and children and the shorter duration of the supervision order, with a power to extend, would enable the court to tailor its order to the needs of the individual child. The shorter duration would make orders more effective, induce a greater sense of purpose and reduce the risk of undermining parents' confidence in relation to their children.
It would also place the onus on the supervisor to justify the continuation of the order. We accept that reasoning and we feel that it applies equally in respect of all supervision orders made under the Bill. While the court is empowered to impose requirements as well as the supervisor to give directions, any supervision order would be subject to the scrutiny of the court if it is desired that it be extended. In any event, paragraph 6(3) provides that a supervision order may not be extended beyond three years, which of course is the maximum that the noble Lord's amendment seeks. That is my response to the courteous and gentle probe.
Lord Mishcon: And, if I may say so, a very courteous, very polite and very prompt answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193 and 194 not moved.]
Schedule 3, as amended, agreed to.
Clause 37 [Orders for emergency protection of children]:
[Amendment No. 194A not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 194B:
Page 31, line 37, after ("not") insert ("immediately").
The noble Lord said: I beg formally to move amendment No. 194B.
The Lord Chancellor: We are in this clause talking about emergency protection of children and I accept that the words "immediate removal" could be said to help to convey this flavour. However, I fear that inclusion of the word "immediately" would undermine the philosophy of the clause. First, the order may be made:
"if, but only if, the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed".
That itself connotes the urgency which the amendment seeks.
Secondly, removal may not upon investigation need to be immediate. For example, if on the arrival of the holder of the emergency protection order the suspected abuser immediately undertakes to leave and to stay away while the matter is looked into—I think that is a scenario envisaged by the noble Lord, Lord Mishcon, in a later amendment—the holder of the order may decide that it is not necessary to remove the child there and then. He may reach the same conclusion if he finds that an allegation of injury to the child appears to be unsubstantiated. The order would run its course and removal would still be possible later while the order remained in force if the circumstances changed and the holder of the order considered that necessary. Circumstances of that kind have to be allowed for. Limiting availability of an emergency protection order to cases in which immediate removal was necessary would place a heavy burden of proof on the applicant for the order and discourage use of the order in the more flexible way that I have outlined. The question for the court to decide is whether the emergency is such that enforced removal can he justified, not when it should take place. I believe that leaving that power to the holder of the order is a benefit, and we would like to retain it.
Lord Mishcon: I am sure that reply will be read very carefully in order to see whether it is a complete answer to the amendment. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 194C:
Page 31, line 40, at end insert ("; or
(c) (i) his parent;
(ii) any person who is not a parent but who has parental responsibility for him; or
(iii) any person with whom the child is living, has failed to comply with a child assessment order without reasonable cause"),
has failed to comply with a child assessment order without reasonable cause").
The noble Lord said: This is an important subject about the child assessment order. Amendment No. 194C is in fact a consequential amendment upon No. 199AB, which is the key amendment for this group. I shall speak also to Amendments Nos. 196BA, 200A, 200B and 202ZA, all of which are consequential upon Amendment No. 199AB. Further, I believe that we are discussing Amendment No. 202AZA tabled in the name of the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady David.
The introduction of an emergency protection order is to be welcomed. The flexibility of the order, forward-looking grounds and rules of court allowing an appeal against the order will be of enormous help in protecting abused children. However, there is cause to question whether the emergency protection order will protect children where there is serious, but not urgent, concern for the child.
The grounds for the imposition of an emergency protection order use the term "significant harm". Indeed, we had much debate about that aspect earlier. That is quite proper. There must be no question of a child being removed from the family home unless there are very good grounds for so doing. An emergency protection order is a dramatic event in the life of a child and should never be used without proper cause.
In the Kimberly Carlile case, the social worker made attempts to get Mrs. Carlile to have Kimberly seen either by a GP, the health visitor or at a health clinic. Those attempts failed and it was not felt appropriate to apply for a place of safety order. The commission of inquiry into the circumstances surrounding the tragic death of Kimberly was quite clear that a medical examination of the child might have saved her life. The report of the inquiry said:
"We think that the criterion for making a Child Assessment Order can properly he broader and more interventionist in scope…To translate that into practical terms, in relation to the case of Kimberly Carlile, we think that Mr. Ruddock (the social worker involved) would have been in a perfect position to apply for such an Order at any time after 10th March, had such a legal power existed".
It is true to say that the emergency protection order makes a provision for medical or psychiatric examination of children and an applicant for the order does not necessarily have to remove the child from the home. However, a child assessment order has several benefits in a serious but not urgent case.
First, parental responsibility is retained by the parents. Secondly, there is no question of the child being removed from his or her home and the child can be seen by their normal family doctor. In the minds of parents those two factors are most important. The vast majority of parents are happy to take their child for an examination and this is accepted as a normal and routine part of bringing up children. Further, the parents also retain responsibility for the child.
The child assessment order will be seen as much less threatening than an emergency protection order and will make it that much easier for a social worker to develop a relationship with parents should this be necessary.
As the emergency protection order stands at present, it will not cover circumstances where there is a nagging concern for the child. If, for example, a
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neighbour reports that a child is continually heard crying, then a social worker will investigate the case. But the parent may refuse to allow the social worker to see the child and may be hostile and uncooperative. Further, there might be a perfectly innocent explanation for the parent's behaviour. However, what can the social worker do? If there is no possibility of negotiating with the parent the social worker might consider applying for an emergency protection order. It is unlikely that that will be granted, or the emergency protection order will prove to be taking a sledgehammer to crack a nut. The social worker is then left in a quandary. He or she can continue to visit the home in the hope of seeing the child, or take no further action. How much simpler, and more effective, if the social worker could apply for an order directing that the child be medically assessed.
It has been argued, and may be argued further, that a secondary order will be confusing and will result in social workers being unclear as to what order to apply for. This is a problem but one which could be resolved by clear guidelines. It is to be hoped that all social work staff dealing with child abuse will receive training and guidance on what the Children Bill, when it is an Act, will mean. The circumstances in which the different orders will apply could be adequately covered at this stage.
There was much talk earlier about whether the local authorities would be able to read all the Act, and whether they would be included in Schedule 2 as well as in the main body of the Act. My noble and learned friend gave me thought. I certainly think it is essential that local authorities should he trained in order to make sure that they know all the parts of the Act to cover. Likewise, social workers could be trained in how to deal with two orders which are essentially different but equally necessary though not that different in a given situation.
An argument has also been put forward that having two orders available could result in a social worker having to apply to a court on two separate occasions, with the children receiving no protection in the interim period. There are circumstances where this might apply. However, if a parent fails to take the child for an examination, the social worker will immediately apply for an emergency protection order. In other situations where a medical assessment reveals that something is seriously wrong, the social worker will again move to obtain an emergency protection order. It must be better to have the child examined and risk a short interim period than to leave the child at home and be unable to offer him or her any protection at all.
A child assessment order benefits children, parents and social workers alike. It is an additional tool to protect children and covers situations where there is serious but not urgent concern for the child. The order is a potential life-saver and strengthens the powers available to social workers to protect children at risk. It is strongly recommended by the National Society for the Prevention of Cruelty to Children, whose full record I had occasion to give to the Committee earlier this evening. The society has experience, and it has an enormous amount of support from similar bodies.
I know that some people do not perhaps entirely agree with that, but I hope that your Lordships will feel that it is an important addition to this legislation to make sure that a gap which exists is covered. I beg to move.
9.45 p.m.
Baroness Faithfull: I have a deep admiration and respect for the NSPCC, and also for my noble friend Lord Mottistone. Nevertheless, I rise to put a different point of view about the assessment order which he has recommended. I speak as a retired director of social services but I also speak on behalf of the Association of Directors of Social Services in this country. That association does not favour the child assessment order. I do not have the report on Kimberly Carlile, but if I remember aright the social worker did not see the child. Had the social worker done so she would presumably have sought—as this Bill would lay down—an immediate emergency protection order. The visit to the doctor by the child would have had to be put off because if the social worker had seen the child she would have wanted to remove her at once.
Let us look at it from the point of view of the parents. Perhaps it is a good thing—perhaps not—that the country is so conscious at the moment of child sexual abuse that a number of parents are—I shall not say being accused—having a finger pointed at them to suggest that they may be abusing their child. I have evidence that this is happening throughout the country. If a social worker has skills in interviewing and handling people, I contend that it is possible for that social worker to go to the couple, or the man who is alleged to have committed an offence, and ask them whether they would be willing to take the child to a doctor.
I contend that, if this is skilfully done and if the parents have nothing to worry about, they will want to take the child to a doctor. It seems to me that we shall upset an enormous number of good parents who have a finger pointed at them and then receive a court order to take their child to a doctor. Equally, I wonder how doctors feel about this from the point of view of personal relationships with their patients.
As my noble friend Lord Mottistone has pointed out, if a man or a woman will not take his or her child to a doctor either because he or she has committed an offence or because of a feeling of animosity towards the social worker, I contend that it is better at that stage to impose an emergency protection order, which must come from a court, as must a child assessment order. In the eyes of many people, the difference between an assessment order and an emergency protection order is not very great. They see them both as a court order and a great infringement of their liberties.
If, under an emergency protection order one had to remove the child, I might think very differently. However, a social worker can take out an emergency protection order and insist that a medical is carried out. If then the medical proves to be perfectly straightforward and shows that the child has not been abused, only one court order has been involved. I contend that it is going too far to have to place two court orders on a child when one would do.
430
I also feel that if a number of social workers have skills in interviewing and capacities for good personal relationships and if they see the children concerned—after all, let us admit that in a number of these cases social workers sometimes did not see the children—another court order is not necessary. I hope that the Committee will consider an alternative point of view.
The Lord Chancellor: This is an extremely important matter. I hope that, notwithstanding what I said at the outset of this debate, the Committee will be prepared to allow me to make a fairly detailed explanation. The matter is certainly one that I should not wish to try finally to resolve tonight. As my noble friends have demonstrated between them, there are two rather different points of view available on this matter. Differences exist between those who have great experience in this field. There are differences between the directors of social work on the one hand and the NSPCC on the other. Both those parties are very experienced in this field. It would be difficult for me to select between them, except on the basis of considerable reasons which I am now about to embark upon.
We have been reminded that the making available of such an order as is presently proposed by these amendments was one of the principal recommendations of the report on the death of Kimberly Carlile. It is perhaps worth noting that it is not the report's answer to the problem of the child who has not been seen at all—this would be handled by giving his social worker right of entry and inspection.
On medical examination, the report at pages 153 to 156 proposed a new and separate order to meet all the difficulties experienced with the place of safety order. Its prime virtue according to the report, would be that:
"it would partake of none of the coercive nature of a removal and detention of a child from the child's parents and home."
There should, as a result, be no question of family trauma. There would, in addition, according to the report:
"be none of the inaptness of the order that has emerged from misuse of the place of safety order in the past."
The case for a child assessment order made by the report is based to some extent—I would not put it higher than that—on perceived inadequacies in the place of safety order and its possible misuse. Our proposals for a new emergency protection order are a response to those very problems.
The report questioned the Government's claim in paragraph 47 of the White Paper that the concerns which prompted the proposal for a lesser order would be addressed in the new proposals. However, the full details of the emergency protection order now provided in the Bill were not available to the Kimberly Carlile inquiry panel. I must also say, although not at all critically, that some may consider that what the report called "bureaucratic magnetism,"—an interesting idea: that is, too great a readiness to opt for the lesser order in circumstances where the greater order should be used—could well prove much more of a problem than the report supposed, however clear the guidance on proper use

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of the two orders. Lord Justice Butler-Sloss was concerned in the Cleveland inquiry about the risk of confusion. As my noble friend has pointed out, that concern is shared by the Association of Directors of Social Services in this country.
I shall try to show why we believe that the emergency protection order provisions can encompass the types of case about which my noble friend Lord Mottistone is concerned. There are, I think, three situations that we need to look at: first, where the child needs to be seen; secondly, where the child needs to be medically assessed; and, thirdly, where the child needs to be removed. The emergency protection order provides for all three. It authorises removal but does not require it. Under Clause 37(3) the applicant who is given parental responsibility for the child as the result of the order is required only to take such action in meeting that responsibility as is reasonably required to safeguard or promote the welfare of the child, having regard to the short duration of the order. If the applicant finds that it is not necessary to remove the child in order to safeguard or promote his welfare, he is in effect required by Clause 37(3) not to do so. The order remains in force, however, so that, if circumstances change and removal becomes necessary during the duration of the order, that is still authorised.
Moreover, Clause 37(7) imposes a new duty on the applicant, if it is safe to do so, to return the child who is under an emergency order to allow his care to be taken over by a person listed in subsection (8). So the order can be used, and appropriate action taken, in two of the situations to which I have just alluded—when it is sufficient for the child to be seen, and where the child needs to he removed.
Where the child needs to be medically examined—the third situation and the one which those who favour a child assessment order usually have most in mind—a solution is provided by Clause 37(4). I referred to that point on 6th December. If the local authority is unable to negotiate access to the child, and considers that as a result there is an emergency, it could apply for an emergency protection order and ask the court to give directions as to medical or psychiatric examination of the child. The court can also direct, under subsection (5), that there should be no such examination. We must remember that we are addressing those cases where there is serious concern about the child's welfare. One of the advantages of pursuing a medical examination under those provisions is that if a direction that the child be medically examined is obstructed the applicant can consider whether to use his power to remove the child immediately without having to apply for a separate order. Refusal to allow the child to be medically examined may in many circumstances be extremely significant.
It will also be possible for the court to decide not to make an emergency protection order at all, or to make one of very short duration, say 24 hours. The court may consider that the applicant has not exhausted opportunities to negotiate voluntary access to the child or that the parents should be given a very early opportunity to respond to the emergency
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protection order application, and that the child will be safe in the meantime.
Alternatively, where there is no need to apply for an emergency protection order and there is no immediate risk of harm to the child, we have provided a new interim disposal in that an interim supervision order may be made under which direction may be made requiring medical examination. I believe that that addresses most closely some of the situations which have prompted a desire for this type of order.
The Cleveland Report suggested that, while a single order is needed, on occasion the justice might adjourn the application to notify the parents and allow them to have their say. Alas, that too fails to allow for unjustified optimism. The lesson of child abuse inquiries is that the child must be seen at once and that means that the social worker must be left the unenviable decision whether or not to activate the order and remove the child when the child is seen to have been damaged or access is refused.
Let me turn now to the amendments which seek to provide for a child assessment order in the Bill. The principal amendment addresses one of the major difficulties which having two similar orders presents. This is to produce for each order grounds which not only provide appropriately for the situation in which the order is to be used, but also are sufficiently distinct from each other to ensure that social workers and others will always be clear which one to apply for. One has to remember that social workers are operating in conditions of stress and often in conditions that require pretty urgent action. One does not want them to have to face up to the rather fine examination of distinctions which may not be matters that one can readily keep in one's head.
The principal conditions for the two orders envisaged by the amendment would certainly be different. For the emergency protection order there has to be reasonable cause to believe that the child is likely to suffer significant harm if he is not removed. For the child assessment order there has to be reasonable cause to believe that the child concerned may be suffering harm (whether or not harm is significant), and that a request to produce the child for an examination has been refused. The phrase "may be suffering harm" is very wide and could easily cover an unlikely possibility of injury (such as a child going on an adventure holiday), and also very minor harm such as an occasional slap or unkindness; and in those circumstances the refusal of the parents to produce a child for a prompt examination may be understandable. If parents are thinking of taking a child on an adventure holiday, it might be very natural that they would not respond favourably to the suggestion that the child needs to be medically examined.
Do we really want the state to be able to intervene in family life on such wide grounds? The civil liberties implications would certainly have to be considered. The harm of which the child is at risk must surely be significant; but, of course, this immediately brings conflict with the emergency protection order grounds.
A further question is whether the application would be ex-parte or on notice? An ex-parte

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procedure could only be justified if there was an emergency, and in this case there must be a real possibility that removal of the child will be required at once.
Subsection (1)(b) of the proposed grounds is not, I must suggest, very precise. What is meant by "prompt"; on whose request; is there to be no defence of reasonable excuse? And is it reasonable to require that the assessment, by which is perhaps meant merely production of the child, should take place within 24 hours, given that the unavoidable consequence of failure to comply would be an application for an emergency protection order? Would it then be possible for the applicant to provide for the leap from "harm" to "significant harm" between the two grounds? Should the child assessment order itself be challengeable in court? The scheme at present drafted would limit this to the emergency protection order. The draft clause is not intended to be definitive, I recognise, but these questions illustrate some of the difficulties in putting together an acceptable scheme.
Amendments Nos. 194C, 200A, 200B and 202ZA are essentially consequential amendments to provide for a child assessment order in the clauses on emergency protection orders, local authority investigations and powers to assist in the discovery of children who may be in need of emergency protection. They could be looked at in greater detail if the principal proposal were accepted. I say at this stage only that Amendment No. 194C does not, I think, quite work as at present drafted. I assume that its purpose is to estabish that failure to comply with a child assessment order itself gives reasonable cause to believe that the child is likely to suffer significant harm if he is not removed. Clause 37(1) is not the place for this; it sets out the ground for the emergency protection order by reference to the actions listed at paragraphs (a) and (b).
As regards these other amendments, I accept that if a child assessment order is adopted it would be necessary to consider whether, and if so how, it would need linking with Clauses 40 and 41.
Amendment No. 202AZA is another approach to the child assessment order with broadly similar provisions to the first, except that applications would be made by individual social services workers or health visitors, and the child would have to be produced within three days. If anything, however, this is even wider in its potential scope. There is no requirement as to grounds on which the court has to be satisfied, but only that in bringing the application the applicant believes that a child's health, safety or welfare may be at risk. The amendment traces no link with the emergency protection order.
Amendment No. 196BA seeks to enable the court to give directions as to the developmental assessment of a child when making an emergency protection order in respect of that child. This would of course be capable of standing alone in relation to emergency protection orders.
We must be careful to distinguish between examination and assessment. While an examination may take place on a single occasion for a particular purpose, an assessment, or a developmental
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assessment, is likely to involve a series of examinations, meetings or interviews over an unspecified or even indefinite period of time, and it may involve various professional persons. However it is defined, it will inevitably be a relatively lengthy consideration of a child's circumstances. As such I do not think that it would be appropriate for a court to be able to give directions concerning such an assessment when making an emergency protection order which at that stage can last for no more than eight days and will often be of shorter duration.
In Clause 37(4)(b) we have in mind one or more examinations which may reveal whether the child has suffered harm. There is a sense of immediacy about this. Such an examination should be sufficient for the purposes of the emergency protection of the child but it may also assist the local authority in deciding whether to seek an interim care order during which a fuller assessment may take place.
Turning back to the proposal that there should be a child assessment order, I said at Second Reading that while I felt that we have dealt with the underlying issue in the Bill it would be right to examine the matter in Committee. I have to say that the debate so far has not yet persuaded me that our original view was wrong and, in particular, that the difficult questions of separate grounds and avoiding the risk of confusion have been satisfactorily addressed. However, it would now be right, given the interest in this matter, for the Government to consider the matter further and this we shall do. I do not promise and I do not think that it would be right to promise, that the Government will be able to reach a final decision on their position by Report. However, I shall certainly be as forthcoming then as is possible. May I, on that basis, invite the noble Lord, Lord Mottistone, to withdraw his amendment.
Lord Mottistone: I thank my noble and learned friend very much for spelling out so carefully the Government's views on my amendments. I am much encouraged that the Government will look with great care at this point. Perhaps in another place at a later stage the matter may reach fruition. It is very important.
It is unfortunate that the Association of Directors of Social Services has taken a firm line in one direction. However, we shall read with care what my noble and learned friend has said. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Lord Banks Lord Banks moved Amendment No. 195:
Page 31, line 44, after ("request") insert ("forthwith to disclose the whereabouts of the child and").
The noble Lord said: Amendment No. 195 is self-explanatory. It adds to the requirement to be included in an emergency protection order to produce a child a further requirement "forthwith to disclose the whereabouts of the child" so that police and social workers can retrieve a concealed child whose parents or others are unwilling or unable to produce him. I beg to move.
The Lord Chancellor: There is a very similar provision on disclosure in Clause 41(1) which enables the court—where it appears that adequate information as to the child's whereabouts is not available to another person—to include a provision in the emergency protection order requiring that person to disclose any information that he may have if asked to do so by the applicant.
It could be argued that there would be value in having a requirement of this kind automatically provided for in an emergency protection order so that if the applicant found unexpectedly that he needed this authority to trace the child it would not be necessary to seek the additional provision available under Clause 41(1). I have some sympathy with this argument but two other points have to be considered. First, it is a good principle that powers requiring other people to do something should have to be justified to the court's satisfaction and not be available as a matter of course without evidence of need in a particular case. Secondly under Clause 41(1) the disclosure requirement will have to be specific to a particular person who would then be subject to the provisions on incrimination and admissibility in Clause 41(2). It is very doubtful that these provisions could apply to
"any person who is in a position to do so",
if I may refer to Clause 37(2).
I believe that clause 41(1) will cover these intentions perfectly well. The very existence of this provision will encourage the applicant to consider, when making the application, whether information about the child's whereabouts may be a problem and whether he should ask for the order to be added to. This point will also be in the court's mind.
Accordingly, I do not believe that it is necessary or indeed desirable to put this amendment into the Bill. I hope that the noble Lord will agree that that is so.
Lord Banks: I meant to say in the course of my introduction that it was a recommendation of the Cleveland Report, page 228, that something of this kind should be introduced into legislation. Clause 41(1) may perhaps answer what was suggested there. I shall examine that and also what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 196:
Page 32, line 16, at end insert ("and
(c) shall inform the child and his parents or those with parental responsibility, the direction of the court, or rights to variation and discharge of the order.").
The noble Lord said: This amendment is grouped with Amendments Nos. 196A, 196B, 202A and 202B, in the name of the noble Lord, Lord Mishcon. An emergency protection order is a dramatic event in the life of any family and may be particularly confusing for the child or children concerned. Parents and children often complain that they have received no information as to the meaning of the current place of safety order. Good social work practice should dictate that the child and family are given as much information as is reasonable and possible.
However, that does not always happen. Information on the order will now be more important than ever as rules of court will specify such matters as the parent or the child being able to apply for the discharge of the order or variation of the order in respect of medical examination. This is too important a matter to be left to a circular or guidelines and should be a statutory duty. Hence the need for my Amendment No. 196. I beg to move.
Lord Mishcon: The noble Lord, Lord Mottistone, not for the first time is moving in the same direction as I was trying to move in relation to the Bill. The only reason that I preferred the wording I have used here—that where the court makes an emergency protection order notice of the order and the reasons for it shall be given to any person with parental responsibility—is that it roughly reproduces the equivalent provision in Section 28(3) of the Children and Young Persons Act 1969.
Whatever wording is used—if the noble and learned Lord will accept the spirit behind the amendment he will decide much more wisely than I could—the reason for it is that the notice of an emergency protection order is sufficiently important to be stated in the Bill rather than left to a Clause 43 permissive regulation made by the Minister concerned. Even then there is nothing, so far as I know, calling for notice of the reasons for the order to be given. That is an important point.
I hope that it is convenient, to avoid my rising again and the Committee being even more wearied by my voice, for me to speak also to Amendment No. 196B. There again the amendment reproduces fairly equivalent provisions to those in Clause 39(3). I make the point that it is just as appropriate to explain what is happening to the child when what I believe will now be known as an EPO order is made, as when a child is taken into police protection. Indeed, it was one of the reported concerns of the Cleveland inquiry that children as well as adults should be better informed. Having said that, I respectfully suggest that the wording that has been used in my amendment may or may not be suitable, but the noble Lord, Lord Mottistone, and I have the same aim in mind.
The Lord Chancellor: I believe that I can deal with this matter fairly briefly as the answer is the same for all these amendments. The rule-making power in Clause 43 is deliberately very far-reaching. It covers all the matters which have been raised by the amendments. In particular, I refer to Clause 43(2)(b), which covers the persons who are to be informed of the making of listed applications and orders. The rules of court could only cover notification of persons with parental responsibilituy for the child under the amendment that the noble Lord, Lord Mishcon, has proposed, at least if one reads just that amendment.
The Government's intention is more flexible. I should not wish to commit us to particular rules; but rules may be needed to be extended to cover not only persons with parental responsibility but also, in appropriate cases, the person with whom the child was living before the order was made, an unmarried father who does not have parental responsibility and any person who had the benefit of a contact order

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with respect to the child. All those persons have, subject to the court's directions, a presumption of reasonable contact with the child in their favour. It would seem right for them to be informed of the order being made. Similarly, Amendments Nos. 196, 196A and 196B would impose specific obligations to inform a limited range of people. I believe that rules of court could operate more generously regarding notification in appropriate cases.
I should also draw to noble Lords' attention Clause 43(2)(c) which provides for rules to cover notification and the manner in which, and the person by whom, it is to be given. Amendment No. 196B raises the important issue of informing the child of the nature of the order. That can be covered by rules about the manner in which the intimation is to be given.
I suggest to the Committee that we have already taken ample power to cover the matters raised in these amendments. I hope that rules of court may provide a comprehensive but simple and consistent code regarding notification. I hope that Members of the Committee consider that to be an appropriate way of dealing with the matters.
Lord Mishcon: At this time of night I find myself in a miserable and somewhat fatigued state. That is because, with all the courtesy and authority that goes behind what the noble and learned Lord says, one is constantly left with a feeling of, "What am I as a humble legislator?".
The Bill is going through this House with the blessing of the House. I am sorry if I sound like a gramophone record, but one is constantly told that this is the kind of issue that the rules of court may well deal with. If the Bill leaves this House in its present form, permission is given, although there is nothing mandatory, that rules of court may be made. When they are made they may include provisions which deal with notices of this kind.
I do not wish to make the point in regard to matters which are not of grave importance, but one is dealing with an emergency protection order which has already been described as being a traumatic experience for the household. Indeed it is. It has been described as something which, for the protection of the child, invades everything that we know about personal liberty, the rights of a subject, family unity and everything else.
I know that the noble and learned Lord shows good will; but, when we try to put important issues in relation to emergency protection orders in the statute he says with complete grace that there is no need to do so. He says that they can be dealt with much better by rules of court. We have the responsibility for passing the Bill through this House. We do not have the rules of court. We do not know whether they will be made in conformity with what the Committee will require.
With respect, I ask the noble and learned Lord this question. Can he give the Committee an undertaking that the rules of court will provide for what we regard as essential? Presumably not. It is the notice and the reasons for the emergency protection order being made.
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If the noble and learned Lord can now rise and say, "Don't worry, you need not put the amendments down because I undertake that the rules of the court will make this very provision", I shall sit down knowing the source of the undertaking and respecting it. I shall feel that as a humble legislator I have done my job and have obtained an undertaking. Without that specific undertaking, and with a sense of responsibility, how can we leave such issues? They have been pointed at by the Cleveland Report and warned of by others. Articles have been written about the emergency protection order and the rights of the child and the family, but nevertheless the need to protect the child. I ask the noble and learned Lord to do one of two things. Either he must say that these amendments meet with the favour of the Government—and obviously we can leave the wording of them until a later stage—or he must give a firm undertaking that in the spirit of these amendments and with the principle being honoured, the rules of court to be made will so provide. Unless I receive an undertaking or the acceptance of the principle of the amendments, then I believe that the noble and learned Lord will understand how miserably unhappy, even if accompanied by fatigue, I feel at this hour.
10.15 p.m.
The Lord Chancellor: I hate the idea of the noble Lord being miserable. I cannot entirely prevent him from being fatigued but I shall do my best to do so. In my mind there is no question but that the matters covered in these amendments are of considerable importance, as he says. I believe I can undertake that all these matters will be subject to consideration for the rules and I would expect the rules, not necessarily in these terms, to make suitable provision to cover all these matters. That is the situation. Obviously these rules have to be consulted upon and the precise circumstances of them have to be looked at. However, my understanding is that the intention is to cover all those matters in a codified way in the rules.
Lord Mishcon: I know that the noble and learned Lord will not think me in the slightest degree discourteous. I know that he will understand that I speak because of the seriousness of the emergency protection orders, which I know he also regards seriously. I know that he will accept that that is the spirit in which I address the Committee.
I noted the words to which the noble and learned Lord gave vent. He said that undoubtedly there will be consideration and that he would expect that the rules will so provide. I am now going even further. I ask the noble and learned Lord to assure the Committee that before the Bill leaves this Chamber—so that we have an opportunity to do something about it, even at Third Reading—consideration will already have been given and the expectation will already have been realised so that we can definitely know, with our sense of responsibility, that the rules of court will so provide in regard to these emergency orders.
I am not asking for the exact wording but that the principle should be conceded. I ask that the notice and reasons will be given and that those with parental responsibility will be included in that notice, as will the child. If the noble and learned Lord will say that,

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I shall sit down, However, I should like him to assure the Committee that we shall know where we stand before the Bill leaves this Chamber. Then we shall have an opportunity to put those matters into the Bill if this consideration does not end the way he wants it to and I want it to, and also the noble Lord, Lord Mottistone, wants it to, and the expectation has been realised that those matters are going into the regulations.
If he cannot do that, then at least some of us will feel that we have not realised the responsibility which we undoubtedly carry as legislators on this important Bill. The Bill involves the children of our country and the insertion into the Bill of the provisions of the emergency protection order. I invite him at least—this is as far as I can go—to give an assurance that we shall know where we stand before Third Reading on the consideration of the rules and whether the rules will so provide so that we have a last chance to table amendments for inclusion in the Bill.
The Lord Chancellor: I am prepared to undertake to give a statement of the position when we reach that stage. If it is possible to be absolutely conclusive about the matter then, well and good. I shall certainly undertake to, so to speak, report the matter further to the noble Lord in time for him to put down an amendment before Third Reading if he so wishes.
Lord Mishcon: I am grateful. For my part I am prepared to withdraw my amendments on that basis. It is for the noble Lord, Lord Mottistone, to make his own decision.
Lord Mottistone: I enjoyed that exchange. My sympathies are with the noble Lord, Lord Mishcon, and also with my noble and learned friend for withstanding that great battery and onslaught at this time of night.
The noble Lord, Lord Mishcon, is right in one respect; and I used to feel this even more strongly when I sat on the Benches opposite. It is this awful business when the government of the day replies (the noble and learned Lord, Lord Elwyn-Jones, will remember this because he was in government at the time), "Yes, it will all go into regulations." We were maddened by that reaction. Back-Bench Members are still maddened by that, whichever side of the Chamber they sit on.
What happens when that occurs—I hope that the Chief Whip will read Hansard; I do not suppose he ever does, but he might—is that we put down more amendments at the next stage of the Bill. then everybody gets furious because it takes much longer to get the Bill through. If we could have more definitive assistance, that would make a difference. This rests not with specific Ministers but with the whole system, which does not make proper allowance for the fact that Parliament is here to legislate. It is not here to be put off by excuses.
However, this issue is not one of substantial importance which needs to be fought to a bitter end at this time of night and therefore I ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 196A, 196B and 196BA not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 196C:
Page 32, line 31, at end insert—
("( ) A direction under subsection (4)(b) shall not affect any legal right the child has to refuse consent to the medical examination.").
The noble Lord said: The noble and learned Lord will remember that this was the amendment to which my noble friend Lady David referred before she left the Chamber. The noble and learned Lord said that in regard to the refusal of consent by the child this matter would be given consideration. On that basis my noble friend gave notice that she would not be pressing the amendment. I beg to move.
The Lord Chancellor: Although the earlier amendment and this amendment both deal with the medical examination, this amendment deals with it in the context of the emergency protection order, where the child's consent may be less important. One can imagine a situation where an abused child under a parent's influence would refuse. Therefore, the considerations are different but I undertake to consider both amendments without necessarily the same result.
Lord Mishcon: That is understood. I ask leave to withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
[Amendment No. 196D not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 197:
Page 33, line 11, leave out ("authority") and insert ("responsibility").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 198:
Page 33, line 19, at end insert—
("( ) Nothing in this Part of this Act shall be taken to limit the power of the High Court to review any decision taken under this Part.").
The noble Lord said: My noble friend Lord Banks asked me to move this amendment. Its purpose is simply to preserve the possibility of judicial review whether a protection order is obtained or refused. It is recognised that this will be used rarely in practice but, nevertheless, it is an important, limited safeguard which was commented upon and recommended in the report of the Kimberly Carlile case. I beg to move.
The Lord Chancellor: The amendment is not necessary for the purpose indicated because there is nothing in this part to oust the jurisdiction of the court on judicial review. As the noble Lord knows, one needs clear words to oust the jurisdiction of the court on judicial review. The result is achieved by the wording as we have it at the moment.
Lord McGregor of Durris: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 199:
Page 33, line 19, at end insert—
("( ) For the purposes of this Part of this Act "the court" means the High Court or County Court and application shall be made to a judge.").
The noble Lord said: This amendment is grouped with Amendment No. 199ZA. I shall he brief although this is an important and significant issue of the order of those earlier discussed by the noble Lord, Lord Mishcon.
It is common ground that the removal of a child from home and parents, for whatever reason, is one of the most potentially destructive orders upon both child and parents that can be made. It should be made by a judge and not by lay magistrates. Under the Bill, it will be possible to make an emergency protection order in exactly the same way as it is now possible to make a place of safety order. An applicant may go to a lay magistrate. The intention of the present procedure is that such an application should be made to the home of a lay magistrate when the court is not sitting. The lay magistrate will then make an order. lithe procedure is properly followed (which frequently it is not) the order should be sent forthwith to the clerk of the juvenile court. The present procedure works very badly. The Cleveland Report made a special investigation of this procedure. It commented in paragraph 10.9 on page 173 that of the orders examined in the six month period,
"174 were heard by a single magistrate at home, during the hours of court sittings".
The amendment will have two vitally important effects. First, it will reflect the gravity of the order in that it should not be made by a lay magistrate but only by a judge. Secondly, it will ensure that a proper judicial procedure is followed before a child is removed even temporarily from his parents. I beg to move.
The Lord Chancellor: I have already explained in some detail the general policy that we have in mind and the possibility of making regulations which would make appropriate to certain cases particular procedures. I should like to mention one point in connection with the amendments. The registrar of the county court often deals adequately with family matters. It might well be the case that he would be an officer to be considered as one to make such orders. The matter is one on which we would desire to have flexibility and also desire to have the possibility of change, without the necessity for primary legislation, to take account of improvements in procedure and experience of procedure. I hope that the noble Lord will feel able to withdraw the amendment.
Lord McGregor of Durris: I do not wish to press the amendment, the noble and learned Lord having indicated—I hope I understood his indication correctly—that he has it in mind to make regulations which might in the future lead to a procedure different from that which is followed at the moment which in its procedural aspects is well known to be defective. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 199ZA not moved.]
Clause 37, as amended, agreed to.
10.30 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 199A:
After Clause 37, insert the following new clause:
"Attendance at court in connection with emergency protection orders.
—(1) Where the court is satisfied that there are grounds for making an emergency protection order and there is reasonable
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cause to believe that one or more members of the child's household may he prepared to give undertakings to the court for the protection of the child, such as vacating the home or severing contact with the child, the court may adjourn the hearing in order that the following persons shall attend court as soon as is reasonably practicable—

(a) the child

(b) a parent of his

(c) any person who is not a parent but who has parental responsibility for him

(d) any person with whom he was living immediately before the application.

(2) In such circumstances the court shall not make an emergency protection order if, on receipt of such undertakings, it is satisfied that a child would be safe.").
The noble and learned Lord said: This amendment would empower all courts who might hear an application for an emergency protection order to consider an undertaking as an alternative to making an order. As the noble and learned Lord the Lord Chancellor knows, undertakings are much used in other forms of litigation. To make them available in Section 37 proceedings would represent a further step in making care and related proceedings more civil than criminal in nature.
Provision for undertakings will also emphasise the concerns expressed by Lord Justice Butler-Sloss to the effect that removing the abuser should, wherever possible, be considered as an alternative to removing the abused child from the family. I beg to move.
The Lord Chancellor: This raises an important question, and the situation is one which we are very much still considering. I could talk about it at some length. It may be that the noble and learned Lord will feel able to leave this with us for further consideration. It is an area in which we are certainly thinking of making proposals of our own at as early a time as we can manage.
Lord Elwyn-Jones: In the light of that observation and undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 199AB not moved.]
Clause 38 [Duration of emergency protection orders and other supplemental provisions]:
Lord Mishcon Lord Mishcon moved Amendment No. 199B:
Page 34, line 12, leave out ("Rules of Court may make provision as to the circumstances in which").
The noble Lord said: I can deal with this shortly. The deletion of these words from subsection (8), as suggested by the amendment, has only one intention. It is to remove the risk that the ability to apply for an emergency protection order to be discharged may be seriously curtailed by rules of court.
If the intention is to restrict the circumstances in which such an application could be made this should be done in all frankness. It should appear clearly on the face of the Bill. If, however, the introductory words of this subsection were intended to provide that rules of court prescribe the procedure by which an application for discharge shall be made. then that is what the subsection should say. My noble and learned friend reminds me that I am talking to Amendment No. 199C as well. I beg to move.
The Lord Chancellor: The idea of this provision which is, as it were, under attack is to allow the rules

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of court to provide the circumstances in which application may be made for discharge. The position is that it may not be wise to give an unfettered right of application. The power to make rules has been sought to permit a degree of flexibility.
The Government have already said that where an original emergency order was made on an ex parte basis (when the parents would not be present) the right to apply for discharge would be introduced. This is certainly one situation which will be covered by rules of court. However, where for example a parent was able to make full representations at the hearing which made the original emergency order, I am not convinced that a right to apply for a discharge after, say, 72 hours, is right, because, as the noble Lord knows, we propose that the emergency order might have a continuing effect, which is a valuable aspect of it.
So it is really to deal with these circumstances that this provision is made, and the variety of circumstances and the need to consult in detail about these particular matters make it appropriate to have rules. The idea is that there should be an ultimate right to apply for discharge, but maybe not every moment of every day.
Lord Mishcon: I hope that there will be no barrage, as the noble Lord, Lord Mottistone, described a previous respectful submission of mine to the Committee. I also hope that, on a matter of this kind too, the noble and learned Lord can give us in time for us to move an amendment if we want to before the end of the proceedings on the Bill, some indication as to what are likely to be the precise rules in regard to applying for discharge of the order. It is a most important matter and I know that he will do his best to do it, and that, if he cannot, he will give us notice so that we can do something about it by amendment. If the noble and learned Lord would care to indicate that that would be his hope, I ask for no more and I beg leave to withdraw the amendment—
The Lord Chancellor: I will do my best to give an indication in time before the end of the proceedings here.
Lord Mishcon: I am most grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 199C to 199F not moved.]
Clause 38 agreed to.
Clause 39 [Removal and accommodation of children by police in cases of emergency]:
[Amendment No. 199G not moved.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 199H:
Page 35, line 7. at end insert—
("( ) ascertain where possible the child's wishes and feelings and give these due consideration having regard to his age and understanding;").
The noble and learned Lord said: This amendment covers the not uncommon circumstances where older children are picked up by the police because the police are concerned for their welfare although there is no evidence of a crime having been committed. Similar existing police place of safety orders are used, for example, if young people are found on the streets
444
late at night or in areas of prostitution or appear to be under the influence of drink, drugs or solvent abuse.
At present, the police are under standing orders but not a legal duty to return young people under 18 to their parents, but this may not always be appropriate. Children may have run away because of sexual or physical abuse or may face abuse on their return. In such cases, the police should refer the matter to the local authority. Subsection (7) provides for such a referral, but we must be sure that the police first investigate the case fully. Consulting the children themselves should be an obvious part of investigation but cannot be taken for granted, and we submit that the duty should be written into the Bill, as it has indeed been for courts and local authorities under Clauses 2 and 18. I beg to move.
The Lord Chancellor: I am happy to consider this amendment further. We must watch, of course, that in what could well be tense situations we do not place on the child burdens of the kind that concerned us when considering similar amendments in respect of other parts of the Bill. We shall also need to be sure that it would not undermine any other obligations the police may have under this clause; in particular, the requirement to safeguard the child's welfare. So it is a delicate situation but we will certainly consider it further.
Lord Elwyn-Jones: In the light of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 200:
Page 35, line 23, leave out from ("(a)") to ("and") and insert—
("the child's parents;
(b) every person who is not a parent of his but who has parental responsibility for him").
The noble and learned Lord said: This is a straightforward amendment to bring Clause 39(4) into line with other provisions in the Bill: for example, Clauses 18(4), 51(2) and 58(5). The intention, by separating parents from other persons with parental responsibility, is to ensure that if there is an unmarried father who has not acquired parental responsibility under Clause 4 he is also notified of the child's having been taken into police protection if this is reasonably practicable. I beg to move.
On Question, amendment agreed to.
Clause 39, as amended, agreed to.
Clause 40 [Local authority's duty to investigate]:
[Amendments Nos. 200A, 200B and 201 not moved.]
Clause 40 agreed to.
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 202:
After Clause 40, insert the following new clause:
("Care of "runaway" children.
.—(1) An organisation providing premises and services for the care of children or young persons under the age of 17 or who are in the care of the local authority, who are missing from their usual place of residence without permission ("runaways"), shall register those premises and services with the department of Health and Social Services Inspectorate.
(2) The organisation and the Inspectorate shall agree and define certain specific circumstances under which the organisation shall operate those premises and services.

445
(3) Registration in accordance with subsections (1) and (2) above shall exempt those premises and services, and the organisation solely in respect of those premises and services, from any offence of knowingly and without reasonable excuse or lawful authority

(a) taking the child; or

(b) detaining or harbouring the child; or

(c) assisting, inducing or inciting the child to run away.

(4) Registration in accordance with subsections (1) and (2) above shall allow the organisation to withhold the address of the premises where the runaway is accommodated from his parents and the responsible local authority until investigations are completed into why the young person has run away.
(5) when a young person is admitted to the registered premises staff will, as soon as is reasonably practicable, inform the police that the young person has been admitted and provide such information as will enable the police to notify the parents or responsible local authority that the young person has been found and is being accommodated.
(6) Rules of court may make provision as to the circumstances in which any of the following may apply to the court for such an amendment to be terminated—

(a) the child;

(b) a parent of his;

(c) any person who is not a parent of his but who has parental responsibility for him;

(d) any person with whom he was living immediately before his admission to the registered premises.

(7) No application under subsection (6) shall be heard by the court before the expiry of the period of 72 hours beginning with the admission of the young person to the registered premises.
(8) If the young person remains in the registered premises for a period exceeding eight days, any of the parties specified in subsection (6) may apply to the court for a determination that the young person he returned to his parents or the responsible local authority.").
The noble Lord said: I shall be mercifully brief. The object of this amendment is to provide a basis in law for those organisations which provide premises and temporary accommodation and services for young people who run away from home or from local authority care. The facilities are available to any one run away for a short period of time only, while the situation is investigated and alternative arrangements made.
The White Paper stated:
"There are a number of agencies which carry out useful tasks in looking after children who have run away for short periods while alternative arrangements can be made. It is proposed that these organisations should be specified and then exempted from liability from offences in defined circumstances".
There is no clear indication under the Bill of the Government's intention to implement this proposal; and the amendment is designed to that end. I imagine I shall be readily forgiven if I refrain from going through the subsections one by one. I wish only to state the general intention. I beg to move.
The Lord Chancellor: I sympathise with the principle behind this amendment and I undertake to table an amendment at a later stage to give effect to the White Paper proposal by conferring power on the Secretary of State by regulations to exempt specified organisations and their officers from liabilitiy as regards the harbouring of children in specified premises in specified circumstances. The powers of exemption would also be extended to liability under Section 2 of the Child Abduction Act 1984 for acts which amount to harbouring. I hope that in the light of that undertaking the noble Lord will feel able to withdraw this rather extensive amendment.
Lord McGregor of Durris: I am very happy to beg leave to withdraw the extensive amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 202AZA;
After Clause 40, insert the following new clause:
("Court applications by social workers and others.
.—(1) A social worker or health visitor who believes that a child's health, safety or welfare may be at risk may apply to a court for an order requiring the child's parent or other person with parental responsibility for the child, to produce the child for medical examination at a specified child health clinic, medical centre or hospital within three days; and such an order may specify the nature of the examination.
(2)"social worker" includes a qualified local authority or NSPCC social worker;
"health visitor" includes a qualified health visitor or general practitioner;
"medical examination" includes developmental assessment and may be extended to further examinations after the inital one.
(3) A parent or person with parental responsibility who is the subject of an order under this section may appeal against the order to the court which made the order and such appeal may concern the generality of the order or any specific requirement contained in it.").
The noble and learned Lord said: I venture to think that the terms in which the amendment is set out speak for themselves and I think it suffices for me, in view of the fact that the amendment is self-explanatory, simply to move it formally. I beg to move.
Lord Mottistone: This amendment was grouped with the amendment which I moved—namely, Amendment No. 194C. I must point out that no noble Lord from the other side of the Committee rose to speak to it, although my noble and learned friend the Lord Chancellor made a few remarks about it and its principal amendment, Amendment No. 199AB.
Lord Elwyn-Jones: Perhaps we on this side of the Committee may be excused for occasionally nodding. But, in any event, we accept what has already been said about the matter. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 p.m.
Clause 41 [Powers to assist in discovery of children who may be in need of emergency protection]:
[Amendment No. 202ZA not moved.]
Clause 41 agreed to.
Clause 42 agreed to.
Clause 43 [Rules and regulations]:
Lord Mishcon Lord Mishcon moved Amendment No. 202A:
Page 39, line 19, leave out ("persons who are to he notified of") and insert ("means by which").
The noble Lord said: I have already spoken about the principle behind this amendment and therefore I do not think that I need weary Members of the Committee by repeating what I said. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 202B not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 203:
Page 39, line 23, at end insert ("and").
The noble and learned Lord said: With this amendment, I shall speak also to Amendment No. 204. These amendments merely remove an unnecessary provision from Clause 43. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 204:
Page 39, line 25, leave out from ("given") to end of line 28.
The noble and learned Lord said: I beg to move.
Lord Mishcon: I think that it may be appropriate for the noble Lord, Lord Mottistone, who is dealing with Amendment No. 205, to say now what he has to say in relation to that amendment.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I now call Amendment No. 204A.
Lord Mishcon: I apologise for the fact that my observation was meant to apply to Amendments Nos. 204A and 204B. It is in those circumstances that I do not propose to move the amendments tabled in my name, but to leave the noble Lord, Lord Mottistone, to deal with Amendment No. 205.
[Amendments Nos. 204A and 204B not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 205:
Page 39, line 44, at end insert—
("(5) Regulations made under subsection (3) shall not apply where the application for an emergency protection order was made by an authorised person within the meaning of section 26(8) of this Act.
The noble Lord said: The clause obviously refers to the transfer of responsibilities between local authorities. However, the NSPCC, or other authorised persons, could find a local authority assuming parental responsibility for a child even where the society was the original applicant for the order. Children may be very vulnerable and distressed about events which have led to an order being made or by removal from the family home. Consistency of approach and a trusting relationship between the child and the social worker is all important to the child at such times. It would be most difficult for the child, or other family members, when they have established a relationship with one social worker to find that they have to start all over again with another social worker. I beg to move.
The Lord Chancellor: As I understand this amendment, it could exempt from transfer regulations those emergency protection orders which had been applied for by a person authorised to bring proceedings for care and supervision. Of course here we are currently talking about the NSPCC. I can see the logic behind the amendment. A person who is authorised to bring proceedings under Clause 26 is in a special position. Not only is he able to act under Clause 26; he is also empowered to apply for an extension to an emergency order. In other words, his powers are as extensive as a local authority's when it comes to making applications.
However, I should not want to preclude regulations from dealing with cases initiated by the NSPCC, which would be the effect of the amendment. It may be, for example, that a local authority takes over a case shortly after the emergency order has been obtained. Should the NSPCC then remain the person with parental responsibility and have all the other duties which come with the emergency order? I think not. The same reasons which led us to put subsections 4(3) and 4(4) into the Bill are applicable there too. So I think it is wise to have this provision. I hope the noble Lord will feel able in that circumstance to withdraw the amendment.
Lord Mottistone: Once again, I am not at all sure whether I agree with that. However, my noble and learned friend is so persuasive and it is so late at night that I cannot possibly pursue it now and I reserve the right to return at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43, as amended, agreed to.
Clauses 44 to 49 agreed to.
Schedule 4 agreed to.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.
House adjourned at eight minutes before eleven o'clock.