HL Deb 19 January 1989 vol 503 cc333-89

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 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.

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 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 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 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 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 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 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—

  1. (i)
    1. (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
    2. (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
  2. 339
  3. (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
  4. (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 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 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 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 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 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", 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 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.

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.
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.
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.
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 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 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 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 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 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 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—

  1. (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 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", 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


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". 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. 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 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 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 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.

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' 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

Clause 27 [Period within which application for care or supervision order must he disposed of]:

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 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 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 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 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 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 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—

  1. (a) cause the child to be known by a new surname; or
  2. (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—
  1. (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
  2. (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 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 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 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 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- referencing". I believe the noble and learned Lord knows that the book is being written.

Amendment, by leave, withdrawn.

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 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 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 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—

  1. (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
  2. (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 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 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 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 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 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 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.

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