Children Bill [H.L.]

HL Deb 19 January 1989 vol 503 cc402-48

House again in Committee.

Clause 33 [Interim orders.]:

The Lord Chancellor moved Amendment No. 170: Page 27, line 44, alter first ("order") insert ("or").

The noble and learned Lord said: With this amendment I wish to speak to Amendments Nos. 171 and 172. Amendments Nos. 170 and 171 would remove the reference to residence orders in Clause 33(1), which would then state that in adjourned care or supervision proceedings the court may make an interim care order or interim supervision order.

These are consequential amendments linked with government Amendment No. 27, which. I moved on 19th December and which amended Clause 7(4) of the Bill to make proceedings under Part IV of the Bill family proceedings, so that the court in such proceedings would have power to make Section 7 orders.

Amendment No. 172 is a further consequential amendment which would remove the requirement that the court be satisfied, before making a residence order when care or supervision proceedings are adjourned, that the circumstances with respect to the child are as mentioned in Clause 26(2). It would also reproduce in similar terms the present subsection (4) as a new subsection (3), except for the reference to a contact order, which, as a result of Amendment No. 27, is now unnecessary. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 171: Page 27, line 45, leave out ("or a residence order").

On Question, amendment agreed to.

Baroness David moved Amendment No. 171A; Page 28, line 2, after ("unless") insert ("(i)").

The noble Baroness said: I wish to speak also to Amendment No. 171B. The purpose of these two amendments is to clarify the circumstances in which interim care orders may be made. The first amendment follows the recommendation made in the Review of Child Care Law and was largely accepted by the Government at paragraph 61 of the White Paper.

Whether or not an interim care order is made may have a profound effect on the child and also the eventual outcome of the case. At present the law relating to grounds and the number of orders that can be obtained is most unsatisfactory. Clause 33 is therefore to be welcomed.

The Review of Child Care Law recommended that: the court should have to apply a purposive test before it may make an interim order: that detention or removal of the child is necessary in order to safeguard the child's welfare during the interim period. In our view the order should he both protective of the child and necessary, given the crucial influence an interim care order may have … Our proposal would particularly require assessment of the local authority's plans for the child when an interim care order is made".

A form of this test has been applied by some inner London juvenile courts. In October 1984 a memo was issued to magistrates proposing the following test. The memo stated: Is this a case on the balance of probabilities where on the evidence we have heard the local authority should have responsibility for this child until the next hearing date. and not the parents'? We understand that that test has focused the court's attention on the necessity or otherwise of removal. It will be argued that Clause 1(4) applies to the making of interim care orders; namely, that in considering whether to make an order the court shall not make the order unless it considers that doing so would be better than making no order at all. That point has been quoted several times.

The clause was originally drafted by the Law Commission in relation to private law disputes between parents and others. It is a very different matter to consider whether to remove a child from its parents into care, albeit on an interim basis.

The wording of Clause 1(4) raises a presumption that an order will not be made. That may not be appropriate in care matters when the state has intervened because of concerns for the child's welfare. The amendment therefore requires the court to look actively at the necessity or otherwise of removal before making an interim care order. I beg to move.

The Lord Chancellor

I do not believe that there is much difference of opinion between us on the result to be achieved. Clause 33(2) already provides that a court may not make an interim care order or an interim supervision order, unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 26(2)". Unless the court is reasonably satisfied that the grounds are made out at that stage it should not make the order. Once the court is so satisfied, the amendment seeks a provision which would require the court to consider both the welfare of the child and the necessity for the order before making an interim care order. Clause 1 of the Bill already achieves that, and it does so comprehensively.

I cannot understand why that general provision is not applicable here. The noble Baroness suggested that different considerations might apply, but the ultimate question is whether the order is necessary and whether it ought to be done. Clause 1(4) is a comprehensive and general test of that point.

I believe that there is some benefit in having a code which usually applies. A court will get used to that code and Clause 1(4) is appropriate to deal with the matter. The other parts of Clause 1 relating to welfare, the checklist, and so on, also apply and I should not like it to be felt that only some of those provisions applied. Therefore I prefer if at all possible to rely on Clause 1 at every stage so that the full protection of that clause is afforded. I hope that the noble Baroness will feel that we have achieved that result in the Bill as it stands.

Baroness David

I am becoming quite used to the answer that Clause 1 covers absolutely everything. That seems to have been the reply to a great many of the amendments which I have proposed.

I shall obviously have to consider yet again what the noble and learned Lord has said and consult as to whether Clause 1 is adequate in the circumstance and whether I shall bring the amendment back at the next stage. At this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 171B not moved.]

The Lord Chancellor moved Amendment No. 172:

Page 28. line 5, leave out subsections (3) and (4) and insert— ("(3) Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 173: Page 28, line 15, after ("An") insert ("interim").

The noble and learned Lord said: In moving Amendment No. 173 I should like to speak also to Amendment No. 174. Both amendments are straightforward.

Amendment No. 173 is intended to make clear that the provisions in Clause 33(5) about duration apply to interim orders made by virture of that section and not to any Section 7 order which may be made. Amendment No. 174 would revise subsection (5)(d) to provide that an interim order made where a court gives a direction under Clause 32(1) shall be brought to an end on the disposal. not the first hearing, of an application for a care order or supervision order by the authority. That applies to cases in family proceedings other than care and supervision proceedings where the court directs that the local authority should investigate the child's circumstances and makes an interim order. I beg to move.

On Question. amendment agreed to.

The Lord Chancellor moved Amendment No. 174: Page 28, line 24, leave out ("first hearing") and insert ("disposal").

On Question, amendment agreed to.

8.15 p.m.

Baroness David moved Amendment No. 174A:

Page 28, line 43, leave out subsection (9) and insert— ("(9) No court shall include a direction under subsection (7) unless it is satisfied, where the child has sufficient understanding to make an informed decision, that he consents to its inclusion.").

The noble Baroness said: The aim of the amendment is to prevent the compulsory medical examination of a child legally competent to consent and who is the subject of an interim care order. The amendment brings directions by the court for medical examination of children into line with the law on consent. That is already acknowledged in the Bill. Under paragrahs 2 to 5 of Schedule 3 the court cannot order medical examinations or treatment as a supervision requirement unless it is satisfied that where the child has sufficient understanding to make an informed decision he consents to it.

It is not clear why under subsections (7) to (9) of Clause 33 that requirement is specifically exempted. Department of Health officials agree that doctors would be bound by the law on consent and would not have to comply with such an order if satisfied that the young person was of sufficient understanding to refuse to be examined. However, the law is not altogether clear on that point. Social workers who arrive at a surgery brandishing a court order for examination may well demand that the doctor carry it out, and the doctor may well feel obliged to do so. A court order under statute appears to be and may possibly be a more powerful right than the common law right under Gillick.

In many circumstances children will not be of sufficient understanding to refuse examination. However, where they are we are faced with alarming scenarios. Will doctors be strapping down screaming 15 year-olds or knocking them out under sedatives? The events of Cleveland have made clear that professional abuse by courts, social workers and doctors can often add to abuse by parents and in some cases be the only abuse the child suffers. Courts should surely take steps to ensure that such events do not occur. Interim care order can last up to eight weeks if they are renewable. That is quite enough time for the court to satisfy itself as to the consent of the child. I beg to move.

The Lord Chancellor

I think that the amendment the noble Baroness has moved raises a question which it would he desirable to clarify. I cannot accept the amendment as it stands because I would want to keep the substance of subsection (9) as at present, but I should like to consider adding to it to deal with the point that the noble Baroness has raised rather than leaving it to a general law. If the noble Baroness is prepared to accept that, I shall do my best to bring forward a proper amendment.

Baroness David

Thank you very much indeed. I am very grateful for that undertaking.

I have another amendment to be dealt with later which also concerns medical examination. I wonder whether the noble and learned Lord could say whether he would take the same line in respect of that amendment.

The Lord Chancellor

The point appears to hold good in relation to both amendments, so far as I can judge.

Baroness David

If the noble and learned Lord is willing to consider the matter I shall be extremely grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33, as amended, agreed to.

Clause 34 [Power of court to make section 7 orders in care and supervision proceedings]:

On Question, Whether Clause 34 shall stand part of the Bill?

The Lord Chancellor

I am taking the unusual step of asking that Clause 34 should not stand part of the Bill. It served two purposes, both of which will be achieved by other means. First, subsections (1) and (2) gave a court in care or supervision proceedings the same power to make Section 7 orders as it has in family proceedings. As I explained a short while ago in relation to Amendments Nos. 170 and 171, Amendment No. 27 which the Committee kindly agreed to on 19th December achieves the same effect as those two subsections and therefore renders them unnecessary. That amendment inserted proceedings under Part IV of the Bill, which includes applications for care and supervision orders, into the definition of family proceedings, thereby attracting the power to make Section 7 orders which is conferred by Clause 9. As a result, Clause 34(1) and (2) adds nothing. This is a neater way of achieving the same result.

One is left with Clause 34(3). That subsection requires a court, in care and supervision proceedings, to make a supervision order in the circumstances listed in paragraphs (a) and (b). The effect of the subsection will be retained by an amendment to he tabled to reintroduce the substance of Clause 34(3) in an appropriate place in the Bill. It would be rather subsidiary. It would not be sensible to have it standing by itself. Essentially, this is an improvement in the drafting of the Bill. I beg to move that Clause 34 do not stand part of the Bill.

Lord Elwyn-Jones

It must be a very rare event that the Minister in charge of a Bill gives notice of his intention to oppose the Question that Clause 34 stand part of the Bill. It may be a harbinger of things to come. Who knows'? We understand the reason for it and accept the Motion.

On Question, Clause 34 negatived.

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

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I should say that if Amendment No. 174E is agreed to, I shall not be able to call Amendment No. 175, which is pre-empted.

The Lord Chancellor moved Amendment No. 174B: Page 29. line 24, leave out ("or supervision order").

The noble and learned Lord said: In moving Amendment No. 174B, I should like to speak also to Amendments Nos. 174C, 174D and 174E. These amendments are intended to simplify the provisions on discharge and variation of care orders and supervision orders which are at present set out in Clause 35(1)(2) and (3), by dealing with care orders and supervision orders separately in two rearranged subsections. There are no substantive changes resulting from this rearrangement except that, as proposed by my noble friend in Amendment No. 175, provision is made for applications by the supervisor to vary a supervision order.

The result of these amendments will be to create one subsection for supervision orders and a similar one for care orders. The only difference between them is that, apart from the child and person with parental responsibility, it is the local authority that may apply for variation or discharge of a care order and a supervisor of a supervision order. I beg to move.

Lord Mottistone

It seems to me that in Amendment No. 174E my noble and learned friend has achieved the result that I was seeking in Amendment No. 175 and I shall not move that amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 174C, 174D and 174E:

Page 29. line 26, leave out ("or").

Page 29, line 27, at end insert (":or (c) the local authority designated by the order.").

Page 29, line 28, leave out from beginning to end of line 31 and insert— ("(2) A supervision order may be varied or discharged by the court on the application of—

1. (a) any person who has parental responsibility for the child:
2. (b) the child himself: or
3. (c) the supervisor.").

On Question, amendments agreed to.

[Amendment No. 175 not moved.]

The Lord Chancellor moved Amendment No. 176: Page 29. line 36, leave out subsection (5).

The noble and learned Lord said: This is a technical amendment which, like the deletion of Clause 34, follows from proceedings under Part IV, being classed as family proceedings in Clause 7. This seems to be a neater drafting method of achieving the same result. I beg to move.

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

Clause 36 [Representation of child and of his interests in certain proceedings]:

Lord Banks moved Amendment No. 177: Page 30, line 9, leave out ("unless satisfied that it is not necessary to do so in order to safeguard his interests.").

The noble Lord said: Amendment No. 177 removes the qualification that a guardian ad litem need not be appointed in every case to be specified by regulations. The chief practical argument for removing the qualification contained in Clause 36(1) is that, while it may at first seem to be the case that the child's interests do not need specific representation, it frequently becomes clear as the case progresses that matters are more complex than they originally appeared to be and a guardian ad litem ought indeed to have been appointed. By that time it may be too late for a guardian ad litem to become effectively involved in the case, and the outcome may well not be in the child's best interests at all. The regulations referred to in Clause 36(6)(g) can provide sufficient control over categories of case in which a guardian ad litem is unnecessary. I beg to move.

The Lord Chancellor

We accept that the courts are unlikely to find many cases in which it would not be appropriate to appoint a guardian to represent the child's interests. However, there may be some—perhaps a straightforward case involving an older child who has already instructed his own solicitor. In any case, the court can call for a welfare report under Clause 6 of the Bill from a probation officer or a local authority: and there may be some circumstances in which the court considers it appropriate. If the courts find it is not necessary to appoint a guardian, we think that the courts should not be obliged to do so. As an indication of the Government's expectation in this area, the Committee will notice that the precise wording of this provision changes the emphasis of the present law. Under that the court is generally required to appoint a guardian only if the court thinks it is necessary to do so to safeguard the child's interest; otherwise a guardian will not be appointed.

We have deliberately changed the emphasis to place a more positive duty on the court. The Bill imposes a presumption in favour of the appointment of a guardian unless there is some good reason for not doing so, so that the essence of the emphasis which the noble Lord, Lord Banks, seeks by this amendment is put, but leaving open the point that in some cases it may turn out not to be necessary. It seems an unnecessary trouble to appoint an unnecessary guardian.

Lord Banks

I am grateful to the noble and learned Lord for that explanation which seems to me to be satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 178:

Page 30, line 14, at end insert ("and (c) he under a duty to instruct a solicitor for the child in the manner prescribed by such rules').

The noble and learned Lord said: The purpose of this amendment is to make sure, so far as it is possible to do so in an Act of Parliament, that children are properly represented in care proceedings. As it stands, the clause has led to the fear that the appointment of a guardian ad litem is to be an alternative to a solicitor. I remember that we had an earlier discussion about that point. It may well be that what the guardian ad litem thinks is good for the child, is quite unacceptable to that child.

The Magistrates' Courts (Children and Young Persons) Rules, 1968 currently provide, in Rule 16(6)(c), that a guardian shall obtain the views of the court as to whether the infant should be legally represented, and, unless the court otherwise directs, instruct a solicitor to represent the infant. While it may well be the Government's intention not to change that rule, it is thought by the Law Society and others that there ought to be some express provision in the Bill. That concludes my remarks on that matter.

It may be convenient to discuss now Amendment No. 180. That is to say, that where circumstances are such that a child needs to be represented by a solicitor, a court should be under a duty to appoint one and not merely be given the power to do so. I beg to move.

The Lord Chancellor

As the noble and learned Lord has said, the rules of court currently prescribe circumstances in which a guardian ad litem shall instruct a solicitor for the child. It was our intention to continue to make provision for this matter in court rules. This would he one of the matters covered by Clause 36(2)(b) which places the guardian: under a duty to safeguard the interests of the child in the manner prescribed by such rules". Under Clause 36(5) a solicitor appointed by virtue of this section shall represent the child in accordance with the rules of court. The words, a solicitor appointed by virtue of this section were included specifically to take account of the fact that rules will provide for a guardian to appoint a solicitor for the child, when one has not been appointed, and instruct him.

Rules under Clause 36(5) will then require the solicitor to represent the child in accordance with the guardian's instructions. It should be borne in mind that there may be some circumstances where it is not appropriate for the guardian to instruct a solicitor on behalf of the child. First, an older child who is capable of doing so may wish to give his own instructions. This is a situation which is already provided for under the existing rules. We do not think that the duty of a guardian to instruct a solicitor should apply in those circumstances.

Secondly, at the point at which no solicitor or guardian ad litem has been appointed we would not wish to prevent a child who is competent to do so from instructing his own solicitor if he wished to do so. We think that he should continue to have the right.

Thirdly, if a solicitor has already been appointed for the child it is not necessary for the guardian to be under a duty to do so. These are examples which suggest that this matter is best dealt with under rules of court. We shall certainly wish to take account of these matters in making such rules.

I hope that the noble Lord will feel that it is right that it should be provided for in that way. The position depends on rules. We believe it right not to put the matter into primary legislation. It is a matter that should be dealt with by rules.

Lord Mishcon

Perhaps I may say immediately and I know that my noble and learned friend agrees—that it is perfectly acceptable that it should be in the rules provided that it is understood that the matter will be covered. If the rules merely said there was the duty to consider instructing a solicitor—to cover the points made by the noble and learned Lord—we should be content with that also.

Lord Elwyn-Jones

In the circumstancs, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Lord Banks moved Amendment No. 179: Page 30, line 16, leave out from ("solicitor") to end of line 17.

The noble Lord said: Amendment No. 179 is grouped with Amendments Nos. 180 and 181 to which, with the leave of the Committee, I should also like to refer. Amendment No. 179 deletes all reference to the conditions set out in subsection (4) since Amendment No. 181 seeks to delete subsection (4).

The purpose of this part of the Bill is to ensure that in any circumstances where the child in care is not represented by a solicitor, a solicitor may be appointed by the court to represent him or her. Subsection (3) reads: Where the child concerned is not represented by a solicitor … the court may appoint a solicitor to represent him". The amendment is intended to be combined with Amendment No. 180 which seeks to make it mandatory for the court to appoint a solicitor to represent the child. Assuming that Amendment No. 180 were passed, the Bill would then read, Where the child concerned is not represented by a solicitor, the court shall appoint a solicitor to represent him".

Amendment No. 181 removes the subsection setting out conditions to be met before the court appoints a solicitor to represent the child. The purpose of Amendments Nos. 179 and 181 is to establish unequivocally the child's right to legal representation whatever the view of the court or the child may be on the matter and whether or not a guardian ad litem has also been appointed.

It is important to reiterate that the respective roles of the solicitor and the guardian ad litem are not the same. As a minor the child is exceedingly vulnerable in court proceedings and the statutory right to legal representation is essential to ensure that the child's wishes are given due account in such proceedings. I beg to move.

Lord Mottistone

I have added my name to Amendments Nos. 179 and 181. The NSPCC recognises that guardians ad litem play a key role in protecting the child's best interests and provide a source of expert and independent opinion to the court. However, the guardian ad litem cannot act as an advocate for the child. I believe that the earlier debate did not pick up that point. If there is a difference of view between the child and the guardian, the guardian will put forward his or her own opinion to the court, not that of the child. Unless the child has a solicitor to represent him, the court will not hear the child's view.

As Clause 36 is drafted, it appears to restrict the child's access to a solicitor and implies that the court may appoint a solicitor only in cases where no guardian ad litem has been appointed. Accepting that guardians will be appointed in the vast majority of cases, does this mean that the child will not be legally represented in most cases? There may be a presumption that the guardian will instruct a solicitor to represent the child. If this is so. the Act will be much strengthened by making this explicit. It is essential that the child continue to be legally represented in addition to the role played by the guardian ad litem.

I should he most grateful if my noble and learned friend could clarify that point. I am not sure that he did so at an earlier stage.

The Lord Chancellor

Perhaps I may deal with Amendments Nos. 179, 180 and 181 together. They would have the effect of placing a duty on the court to appoint a solicitor for the child in circumstances where the child is not represented by a solicitor. This would be an absolute duty as Amendment No. 181 would remove the conditions that the current draft imposes.

I sympathise with the aim of these amendments. It is to emphasise the child's right to a solicitor. However, for the following reasons I hope to persuade the Committee that the Bill already makes sufficient provision for this. In addition, the rules made under the Bill will, I think, operate more appropriately and more fairly than would be the case under the proposed amendment.

To deal with the point of my noble friend Lord Mottistone, I should remind the Committee that the child will be a party to the proceedings and as such will always be entitled to legal representation. That is the present position and it will continue under rules of court made under Clause 70. It is a general principle that a party to legal proceedings is entitled to be represented by a solicitor.

I have a number of particular reservations about the amendments. First, we think that the guardian ad litem should be responsible for appointing a solicitor in the first instance when one has not been appointed by the court. This is the present position. I hope that I have already made clear in connection with Amendment No. 178 that we should continue to make such provision. We should not wish to enforce an absolute duty on the court to appoint a solicitor where the child did not have one. The advantage of Clause 36(4) is that it highlights circumstances in which we would look to the court to make the appointment of a solicitor. It is a positive provision. Secondly, where the child is competent to appoint his own solicitor we think that he should have the right to do so in the absence of, or in advance of, any guardian ad litem appointment by the court.

The amendment would preclude a child of sufficient age from instructing his own solicitor as he would have to leave this matter to the court. It might also prevent a child who is competent to do so from instructing a solicitor in circumstances where the child's instructions and those of the guardian conflict.

In these circumstances the present position is that the child's instructions prevail. We consider that this should continue to be the case. The guardian ad litem picks a solicitor to represent the child. It is then the child's views—if the child has views—that that solicitor has to put forward. The condition in Clause 36(4)(b) gives the court power to appoint a solicitor for a child who wants one and who is of sufficient understanding to instruct the solicitor. It does not prevent the child instructing a solicitor directly without involving the courts.

Finally, there may be rare cases in which a guardian has been appointed but decides that no solicitor is needed. The condition in Clause 36(4)(c) as drafted allows the court in that situation to appoint a solicitor to represent the child. We should not wish to lose any of these conditions.

I hope that what I have said will reassure the Committee that the amendments sought are neither necessary nor desirable as the child's right to legal representation is very well provided for.

Lord Mottistone

I thank my noble and learned friend for explaining the matter so carefully. What worries me is this. He said, "We wish to preserve the present position". The NSPCC is very experienced in these affairs. I have not had advice but I can only imagine that it picked up this point because the present position may not be working. I should like to put that suggestion to my noble and learned friend. There is perhaps need for examination to see whether the present position works. If it does not, something else may be required. I do not wish to press the point but I hope that my noble and learned friend will take up the arguments that have been made. We shall certainly examine the situation with great care.

Lord Banks

I am grateful to the noble and learned Lord for his explanation of the reasons why he thinks that the amendments are not necessary. I should like to read and consider that and see whether we come to the same conclusion as him or whether we want to pursue this further. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 180 and 181 not moved.]

Lord Banks moved Amendment No. 181A:

Page 30, line 37, at end insert— ("( ) in which the court is considering an application to keep a child in secure accommodation:").

The noble and learned Lord said: Clause 36(6) lists the proceedings where a guardian ad litem would be appointed. The list does not mention proceedings where a child or young person may be subject to detention in secure accommodation by means of a secure accommodation order under Clause 21. The representation of children receiving these proceedings by a solicitor alone is often sadly lacking. Solicitors doing the work may have little experience or knowledge of secure accommodation and may be unaware of suitable alternatives which could be used. If the child were also represented by a guardian ad litem, it would he possible to have more probing of the decision to place the child in secure accommodation. The consequence of this would be that the court would no longer merely rubber stamp applications, as often appears to happen at present. I beg to move.

Lord Elwyn-Jones

I should like to support the amendment. I hope that the noble and learned Lord will feel able to accept it.

Lord Campbell of Alloway

I rise briefly to support the amendment. I know that my noble and learned friend the Lord Chancellor has this point in mind in the consideration in depth which he is giving to Amendment No. 52 concerning secure accommodation. Therefore I respectfully ask that this may be taken into account when he is considering the approach of Her Majesty's Government to this matter.

The Lord Chancellor

Certainly we are considering that, but this point we discussed a little in that connection. At that stage my noble friend Lord Campbell of Alloway proposed that the child should be represented by the Official Solicitor, who would be the normal person to be appointed if a guardian ad litem were required. The noble and learned Lord. Lord Elwyn-Jones, and myself were agreed at that stage that it would not be wise to restrict the child to the Official Solicitor, but the child could have a solicitor of his or her own.

That is the point about the amendment. We do not believe, in this kind of situation where a specific question is at issue, that it will always be appropriate to have a guardian ad litem. But the guardian ad litem would be the person to appoint someone to represent the child where much investigation, welfare reports and the like were required and where there was some question about the child's capacity to instruct a solicitor of his own.

We believe that in a secure accommodation case it would be appropriate for the court to accept representations from the child and from a solicitor of the child's own choice appointed by the child. A solicitor may already be involved in the matter, as the noble and learned Lord, Lord Elwyn-Jones, said on the last occasion. It is always possible for the court to secure a report. I do not believe that it is wise in this situation to require the court to appoint a guardian ad litem. I can see that on some occasions it might be appropriate but not in all cases, because the welfare side may be dealt with by a report under Clause 6 where that is necessary and what we really want to know is what the child may have to say about the matter. As was pointed out on an earlier amendment, one of the difficulties arising in the wardship jurisdiction where a secure accommodation matter has been requested is that a guardian ad litem may not wish to represent what the child wants because he has a different view of what is in the child's interest. That is the problem of the amendment.

I want to air separately the main considerations that I am considering in connection with the proposal of my noble friend Lord Campbell of Alloway. In a way they are more wide ranging, but this is a specific point and that is my answer to it.

Lord Banks

I am grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Campbell of Alloway, for their support of the amendment. I should have thought that in a matter of this kind where the welfare of the child is extremely important there would be a case for appointing a guardian ad litem. The noble and learned Lord thinks not. I should like to consider and consult about that and in the meantime I beg leave to withdraw the amendment.

Lord Campbell of Alloway

For the sake of the record I say briefly that I wholly accept the reasoned approach of my noble and learned friend and agree without reservation that these matters are more properly considered in connection with legal representation on a redraft of Clause 52.

Amendment, by leave, withdrawn.

8.45 p.m.

The Lord Chancellor moved Amendment No. 181B: Page 30, line 39, leave out ("or supervision order") and insert (",supervision order or any order under section 29").

The noble and learned Lord said: This amendment would require a guardian ad litem to be appointed in appeal proceedings against the making of or the refusal to make a contact order under Clause 29. This amendment is one to which attention was drawn by my noble friends Lord Mottistone and Lady Faithfull and by the noble Lady, Lady Kinloss. It seems an appropriate provision to make. I beg to move.

Lord Mottistone

The remarks of my noble and learned friend puzzle me greatly. Linked with Amendment No. 181B is Amendment No. 182, which is my amendment. I had fully imagined when I saw Amendment No. 181B linked with Amendment No. 182 that my noble and learned friend intended to accept Amendment No. 161, which installed the contact order in Clause 29.

In that case that would have taken care of Amendment No. 182. Because my noble and learned friend rejected my pleas for Amendment No. 161, it has not now been included in Clause 29. But the way he spoke to his own amendment made me think that he thought it was. I hope that we may have another think about this, and I reserve the right to return to this at the next stage of the Bill.

On Question, amendment agreed to.

[Amendment No. 182 not moved.]

Lord Mishcon moved Amendment No. 182A: Page 31, line 3, leave out ("the establishment or) and insert ("a court welfare service to establish").

The noble Lord said: We are dealing with a very important point here, but that does not mean that we have to deal with it at length. Subsection (7) deals with the very vital matter of the appointment of guardians ad litem and the panels from from which they will come. The clause at present reads: The Secretary of State may by regulations provide for the establishment of [those] panels". A great deal of anxiety was expressed at Second Reading—I ventured to include it in my own speech—that the guardians ad litem should be completely independent, otherwise not only will it not be seen that they have an independent role to play, but, being ordinary human beings, they may not be capable of adopting that independence that we want them to have. Among those concerned in the matter are members of the legal profession. If the guardians ad litem are appointed from panels and are funded by and have close links with the local authority, which may be involved as a party to the proceedings, the independence about which I have been talking is by no means apparent.

In some areas the panel administrators are also employed by the local social services department. It could be that a guardian could feel inhibited from expressing an independent view given the involvement of the local authority in the complaints, grievance and disciplinary procedures for the guardians.

We should like to see the setting up of an independent national administration for the guardians. We cannot deal in this Bill with the dream of a family court, although some of us have attempted to do so by one means or another. If there were a family court with a welfare service annexed I believe that it would be a complete answer to the independence which we are seeking in the amendment. At least the amendment would give the Government the power to set up a court welfare service to run the panels of guardians. That would be a step on the way.

In those circumstances, I beg to move the amendment. I know that the noble and learned Lord will realise that every word he utters in answer will be carefully listened to by those who are seeking the complete independence of the panels from which the guardians ad litem are to be selected.

Lord Campbell of Alloway

I support the amendment wholeheartedly. It is an important point. If the panels were to be established by my noble and learned friend or his department, it would be a different issue; but it is not the case. The case is that they are appointed by the Executive. For the reasons that have been given by the noble Lord, Lord Mishcon, with which I and other members of the profession agree, I support the amendment.

The Lord Chancellor

I doubt whether, as a technical matter, the amendment ensures that guardians ad litem would be provided as a service by the courts instead of by local authorities. It would still be open to the Secretary of State under the regulations to require local authorities to provide the court welfare service.

Guardians ad litem are appointed for particular cases by the court and are responsible to the courts for the decisions that they make. But it is not appropriate to describe the service presently provided for as a court service.

I should like to remind Members of the Committee of my statement in the Second Reading on improving the arrangement in care proceedings. I said then that it is not practicable or desirable to throw over existing machinery wholesale, and that we intended to approach the matter in ordered stages. I announced that the Government have put in hand a programme of work which will extend step by step to examining all aspects of family law and business. As part of that programme, we intend to look at the organisation and function of welfare services. This will not only include the service provided by guardians ad litem in care and related proceedings but also the role of guardians ad litem and reporting officers in adoption cases, the general arrangements for providing welfare reports to the courts by local authorities and the probation service as well as the sole of the Official Solicitor in High Court family proceedings. Any changes to the present arrangements would need to follow a proper review of all those existing and related arrangements, and it would be premature to establish a court-provided service ahead of that review.

As the noble Lord knows, the situation is complicated and extends over the whole country. In the Bill we have provided the Secretary of State with certain powers to establish panels which would not be related to a particular local authority: in other words, for combinations of them. I am anxious to pursue the matter, but it is premature to do so in the way that his amendment provides. We must see what is involved and decide upon the best method of taking the matter forward. Guardians ad litem are only one part of a larger set of present institutions which require to be considered.

Lord Elwyn-Jones

Is the review already under way? I do not wish to press the noble and learned Lord too hard, but this is an important matter.

The Lord Chancellor

I have set up the instructions. There is a question of priorities and at the moment my priority is to see this Bill through Parliament. That involves a good deal of effort of one kind and another.

A number of aspects require to be considered. In relation to other amendments, I mentioned the need to make arrangements for picking out selected courts, training, and so forth. There is a great deal to be done and one cannot do it all at once. I am trying to set up a reasonably ordered programme to enable the matters to be overtaken. I have them very much in mind; and, without making too drastic changes at one time, we are trying to improve the situation.

The cases must be dealt with. One cannot afford to stop all the present arrangements. One must continue to use the house, as it were, while carrying out all the alterations. The cases come in and therefore one must have a system under which they can be catered for while looking to make arrangements to improve the situation.

Lord Mishcon

I should like to take up the noble and learned Lord on his apt metaphor. It is true that one must use the house while alterations are being made or considered. I appreciate that. May I take it from what he has said that the noble and learned Lord realises the need for the alterations while we are erecting the house? We are all anxious to see the Bill on the statute book and to help him to achieve that as expeditiously as possible. Otherwise we should not be sitting here at this hour tonight and possibly much later. From what he has said, can one take it that he realises the importance of the independence of the appointments of guardians ad litem; that it should be a national or court administration of some kind; and that they should be completely independent of those who may at some time wish to criticise.

Without making the noble and learned Lord adhere to a time limit—which I am not doing—I believe that as long as that matter is under active consideration, it is proper for me to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Banks moved Amendment No. 183: Page 31, line 11, leave out paragraph (b).

The noble Lord said: I should like to speak to Amendments Nos. 183, 184, 185, 186, 187 and 188. The amendments to Clause 36(9) seek to establish the independence of guardians ad litem from local authorities. Therefore they follow the same theme that was taken up by the noble Lord, Lord Mishcon, in the last amendment. It may be that the noble and learned Lord will say that he has given at least part of his answer, but I believe that the amendments merit separate discussion.

The intention is not to prevent local authorities from being involved in the operation of panels of guardians, but to provide for a framework which will allow a diversity of schemes to continue and which will permit others to take shape so that it becomes possible to learn from experience over time which are the most effective models. It is important that one administrative system is not favoured by the wording of the clause. If all the suggested amendments are accepted by the Government, the amended clause will state that the regulations may, in particular, make provision as to the constitution, administration and procedure of panels; as to the qualification for membership of a panel; as to the training and professional support to be given to members of panels; for monitoring the work of guardians ad litem and as to the co-ordination between panels and the establishment of national professional standards.

Amendment No. 183 removes the requirement by regulation for a number of specified local authorities to operate a panel of guardians ad litem jointly. It does not prevent them from doing so but we consider it extremely important that a framework be established in this legislation which will allow the development of imaginative and effective collaborative arrangements for the operation of panels between voluntary organisations, other professionals and local authorities.

Amendment No. 184 removes the provision for local authorities to defray the expenses of guardians ad litem, obviously to pursue the central theme.

Amendment No. 185 removes the provision by regulation for local authorities to pay fees and allowances to members of guardian ad litem panels.

Amendment No. 186 seeks to secure the availability of ongoing professional support for guardians ad litem. That is to ensure that the professional standing of the guardian ad litem system is maintained through sustained contact with other professionals and the adoption of common standards of working practice to ensure that guardians ad litem have access to relative professionals in a range of other disciplines, especially within the legal profession, and are made aware of the best practices carried out in guardian ad litem work and to counter the isolation felt by individual guardians ad litem, many of whom currently work on a case by case basis, having very little contact with other professionals.

Amendment No. 187 removes the specific requirements in regulations placed on local authorities; in this case, the requirements for specified local authorities to co-operate in providing panels of guardians ad litem in specific areas.

Amendment No. 188 seeks to ensure that there will be a level of co-ordination between panels however diverse different arrangements may be, so that, for example, there will he greater consistency of provisions of guardians throughout the country and common rates of payment to guardians will be established.

I hope that the general purpose of the particular nature of these amendments will he clear to the Committee. I beg to move.

9 p.m.

Baroness Faithfull

I understand from the noble Lord, Lord Banks, that these amendments are grouped together. Perhaps I may speak to Amendment No. 186. Representations have been made to me by a number of guardians ad litem that they would greatly welcome professional support from one another and that they would also like, instead of being what one might call a "home industry", to be grouped under a senior person with whom they could consult.

That may not be possible in the near future but they ask me to bring their hopes for the far distant future, at any rate, before the noble and learned Lord.

The Lord Chancellor

The intention of these amendments has been explained. I question whether the amendments go quite as far as their intention, for the same sort of reason as I mentioned in relation to Amendment No. 182A. However, I should like to deal with the matter rather more fully because it is important and I should not like there to be any misunderstanding about it.

Local authorities since 1984 have been responsible for setting up and managing panels of guardians ad litem and reporting officers from which the courts can make appointments in particular cases. The system has been established fairly recently and has been working well in many areas to the considerable benefit of the children concerned. There have been some difficulties but we should prefer to deal with these by building on existing arrangements to make improvements. This would surely seem to be the sensible way forward with a service which has only recently been established.

The powers that we have provided will enable us to do this. One of the main difficulties has been that guardians often represent children in cases where the local authority which manages the panel from which the guardian is appointed appears as applicant to the proceedings. This has led in some areas at least to an apparent conflict of interests. This has riot been a problem where a number of authorities have combined to operate a joint panel and have been able to employ a panel manager who does not also have responsibilities for case management within the social services department. We propose to build on this approach and to make regulations which will facilitate the establishment of regional panels which will be distanced from the local authorities which they serve.

For these reasons we do not support the amendments which would remove the power in Clause 36(9)(b) to require two or more specified local authorities to make arrangements for the joint management of panels. In some areas local authorities have already grouped themselves into consortia to operate joint arrangements. We would not wish to disturb any arrangements which are working well. Neither would we wish to see removed the power in Clause 36(9)(g) for the Secretary of State to require specified local authorities to co-operate in specified areas. We regard this as an essential reserve power if the Secretary of State is to be able to ensure that a nationally co-ordinated service—or one which is not necessarily national but which is co-ordinated—is provided.

There is also a need for a power to pay for self-employed panel members. We therefore cannot agree with the amendments which would remove these powers. I hope Members of the Committee will agree with this.

This brings me to the proposals to provide powers to make regulations as to the professional support to be given to panel members. The difficulty here is that it is not clear what is meant by "professional support". My noble friend has given an illustration of that. The power to combine with a panel manager would meet that point to a considerable extent. If the intention is that panel members working in a professional group should be given appropriate assistance and information to enable them to carry out their work, then I think we would agree that these are necessary. These concerns can be addressed under the powers already provided for in relation to the administration of panels and to training of panel members and monitoring the work of guardians. It would be possible to provide for the appointment of a panel manager whose functions could include the provision of appropriate supervision and for arrangements to be made for access to information, independent advice and assistance. I hope the Committee will feel that the amendment proposed is not necessary.

Moving on to the associated point in Amendment No. 188, which refers to the establishment of national professional standards, there is a commitment within the Government to encouraging high standards. The powers to make regulations in relation to monitoring and training and to qualifications required of panel members should go a long way to providing national professional standards. If the intention is to establish a separate professional qualification for guardians ad litem this is not a matter which is appropriate for regulations but for the professional bodies concerned. It is not in any case an approach which we think is necessary as many of the skills for acting as a guardian ad litem are those which qualified social workers or others with similar qualifications or experience already possess. The power to make regulations as to the qualifications of panel members will help to ensure the maintenance of high standards in this area.

I hope the Committee will be reassured that we are seized by the concerns which exist about the management of the guardians ad litem by local authorities. We have every intention of dealing with these concerns by introducing a system of regional panels which can provide continuity with existing arrangements and also stronger regional control. We are satisfied that the powers we have provided will achieve this. In the longer term, as I explained in response to Amendment No. 182A, the arrangement will be reviewed as part of our programme to review all aspects of family business, including court welfare services.

I hope that in the light of those explanations the noble Lord will feel able to withdraw the amendment he has moved and not move his later amendments.

Lord Banks

I am again grateful to the noble and learned Lord for his reply. I am also grateful to the noble Baroness, Lady Faithfull, for her backing about professional support. I am encouraged by the fact that the noble and learned Lord saw at least some aspects of that which he felt were necessary.

I can see that the grouping together of the local authorities rather than each individual local authority running its own panel would decrease, to some degree, the feeling that the local authority was both judge and jury in the cases which it was presenting. The concept of regional panels seems to he progress along the lines that we want, though as the noble and learned Lord explained some of the proposals in the amendments would run counter to its operation. However, I see hope in that and I should like to discuss that possible development with my colleagues, read what the noble and learned Lord said, and consider whether we can in any way pursue this further at a later stage. I beg leave to withdraw Amendment No. 183.

Amendment, by leave, withdrawn.

[Amendments Nos. 184 to 188 not moved.]

Lord Mishcon moved Amendment No. 188A:

Page 31, line 21, at end insert— ("(i) for specifying the different proceedings in which the official solicitor and guardians ad litem from local panels shall be appointed to represent a child.").

The noble Lord said: The Committee will appreciate that we are dealing with regulations that the Secretary of State may make and, in subsection (9), with the matters for which he may make provision. Therefore, it is useful to see whether something of importance is not in subsection (9) which ought to be there.

We believe—and this is the view of many members of the legal profession—that it would be useful to specify the different proceedings in which the Official Solicitor and guardians ad litem from local panels shall be appointed to represent a child. I pause here for one moment with an apology to the Committee. I appear to have originated, quite wrongly, the phrase "guardian ad litems". I do not know when I said it, but my noble and learned friend said that I did and I always take everything that he says for granted. In case anybody copies my error, I emphasise that I now say "guardians ad litem".

There is a need for clarification. For example, it may be that the Official Solicitor will be asked to act as a child's guardian ad litem in all High Court proceedings or only in family or wardship proceedings. If we have that clarification it will also help where proceedings are transferred from one court to another.

What happens at the moment is that when care proceedings are replaced by wardship proceedings and a guardian has already done work in relation to the proceedings in the magistrates' court, that guardian is usually reappointed by the High Court. However, the High Court is required first to consider appointing the Official Solicitor. The Official Solicitor, we find, is not able to cope with this caseload and such an appointment can waste work done by the guardian who has already been appointed.

Furthermore, there is currently no provision for paying the fees of guardians appointed by the High Court. Many guardians are appointed who face the possibility of not being paid for work which they have done. It is necessary to clarify these matters and to specify the proceedings in which guardians and the Official Solicitor are empowered to act. These will be matters of guidance. The regulation should provide for them. I beg to move.

Lord Campbell of Alloway

I seek clarification as to the position of the Official Solicitor. This is relevant to the question of transfer under Clause 29, the subject matter of Amendment No. 225 which stands in my name. My noble and learned friend will be aware of the practice direction in 1988 under which, as regards secure accommodation, the Official Solicitor in wardship cases is always appointed by the High Court. To what degree will his position in this respect be affected by Clause 71 if it is enacted in its present form?

9.15 p.m.

The Lord Chancellor

The amendments are unnecessary. Subsection (8) already provides that the Secretary of State's regulation-making power in subsection (7) is not to prejudice the power of the Lord Chancellor to confer or impose duties on the Official Solicitor under Section 90(3) of the Supreme Court Act 1981. Accordingly, it would allow directions under that Act to give the Official Solicitor duties in any proceedings under the Bill, including those relating to care and supervision orders in the High Court. Regulations about the role of panel guardians ad litem under the Bill would be without prejudice to those duties.

Accordingly, the regulation-making power when exercised in conjunction with the Lord Chancellor's directions would enable us to say in which proceedings the Official Solicitor or a panel guardian should represent the child or, if it were thought desirable, provide for the Official Solicitor to represent the child in the High Court.

Turning to the more substantial issue of how the guardian ad litem's role is to be provided in various tiers of court and in particular in the High Court, I must tell the Committee that the details are still under consideration. The Government are determined, however, that the roles and duties of the guardians ad litem in proceedings under the Bill should be as similar as possible no matter which court the proceedings are heard in. We also intend that the transfer of cases between courts should not delay proceedings unnecessarily by requiring a guardian ad litem who is already involved in a case to be removed and a new one substituted as a matter of course.

As I explained earlier, we are aiming to try to provide a framework under which cases will be allotted by reference to characteristics of the cases. One will try to ensure that the guardian ad litem appointed is an appropriate guardian ad litem having regard to these criteria.

This is another matter to which the Government have come following consultations over last summer and the autumn about introducing a concurrent jurisdiction. Having concluded that concurrency is desirable, we were then faced with the task of integrating the domestic jurisdiction of the magistrates' courts and care proceedings into the structure of the superior courts. That task is well advanced and, in particular, we hope soon to reach a conclusion on how to handle this matter. At the moment we have powers in the Bill to deal with it and no further powers are necessary.

It is a matter of importance to some that guardians ad litem should be properly paid. We are looking into this aspect in relation to the High Court. If necessary, arrangements will be made to secure that the course of justice is not impeded for want of fees for guardians ad litem in appropriate cases.

Lord Mishcon

The rapidity of the noble and learned Lord's reply, both understandable and appreciated at this hour, will make it necessary for me to read calmly in Hansard, possibly not tomorrow but the day after tomorrow, the wise words which he uttered. I know that he will permit me to do that. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 189:

Page 31, line 21, at end insert (; and (j) for ensuring that the role of the Official Solicitor in any High Court proceedings shall not be affected by the appointment of a guardian ad litem in any inferior court.").

The noble Lord said: This amendment is moved for clarification and to seek a measure of assurance. I am reliably informed by learned counsel who regularly appears in children's cases in the High Court on the instruction of the Official Solicitor that there is a measure of apprehension as to whether the existing role of the Official Solicitor is preserved by the clause as it stands, whether it will be preserved under subsection (8) by my noble and learned friend the Lord Chancellor in the exercise of his powers, and whether the exercise of those powers will marry with a commencement date for Clause 36, whenever that may be.

One assumes that the existing role of the Official Solicitor will be safeguarded after Royal Assent pending commencement, but there is no transitional provision in Schedule 10 to such effect. A measure of assurance to abate this apprehension to which I have referred would indeed be welcome. If that assurance can be given is it not appropriate that the role of the Official Solicitor in the High Court proceedings should be acknowledged by express provision in primary legislation? However, at this hour, that would be the last thing I would press on your Lordships' Committee.

The Lord Chancellor

Until now the Official Solicitor has had no role at all in care proceedings because he has not been in the High Court. We are looking at the best structure for the safeguarding of the children's interests and the Official Solicitor might possibly have a role. We are trying to make arrangements under which, for example, there would not have to be transfer from one guardian ad litem to another if the case was transferred.

I think it would be right to say that my powers in relation to the Official Solicitor will have to be considered in relation to the whole scheme. I am not really in a position to give any further assurance this evening except to say that the welfare of the children concerned will be my paramount consideration.

Lord Campbell of Alloway

Perhaps at a later stage of the proceedings some form of assurance might be given by my noble and learned friend as to the apprehensions regarding the Official Solicitor. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36, as amended, agreed to.

Schedule 3 [Supervision orders]:

Lord Elwyn-Jones moved Amendment No. 190: Page 86, line 24, leave out ("from time to time by the supervisor") and insert ("by the court").

The noble and learned Lord said: In the unhappy late absence of my noble friend Lord Prys-Davies I take his place. Schedule 3 relates to the important matter of supervision orders. Amendments Nos. 190, 191, 192, 193 and 194 may conveniently be taken together. They all arise from Schedule 3. All the amendments have the support of the Children's Legal Centre. They raise matters of importance, but at this hour it may be sufficient for the purposes of our proceedings if I formally move the amendments. I beg to move.

The Lord Chancellor

The aim of these amendments is the transfer of the power to give directions to a responsible person and to a child subject to a supervision order made in civil proceedings from the supervisor to the court. Section 12(2) of the Children and Young Person Act 1969 does at present provide that the court may require the child to comply with the directions of the supervisor. Sub-paragraphs (1) and (2) of paragraph 2 of Schedule 3 maintain that position.

It is essential to the nature of a supervision order that directions to the child are capable of being given. However, I do not believe that in relation to a civil supervision order such directions should be given by the court. A supervisor is appointed in respect of a child and is under a duty to advise, assist and befriend the child. It is therefore the supervisor who will have a continuous relationship with the child throughout the duration of the order and who will determine the type of directions which will be appropriate at any time. It is not possible for the court to maintain such a relationship with the child and it would not be practicable, and in many cases it would not be desirable, to require the supervisor to return to the court whenever he considered that a change in the directions given to the child would be appropriate.

The court can, of course, include various requirements in a supervision order. These include powers to impose certain requirements upon the responsible person; for example, to require the supervised child, subject to his consent where appropriate, to submit to medical or psychiatric examination or treatment. These are specific matters which are not likely to need revision during the life of the order. It is surely right in relation to a civil supervision order that the supervisor should have discretion to tailor other requirements to the prevailing circumstances.

Amendment No. 192 would also remove the qualification in paragraph 3 of Schedule 2 that a requirement placed on a responsible person in respect of a supervision order should be subject to the consent of that person. The effectiveness of supervision orders will depend upon a level of cooperation being achieved between supervisor and family. There would be little purpose in imposing a requirement that a person should seek to ensure that a child complies with directions unless that person consented. A supervision order is essentially made in respect of a child, not the responsible person, and what we are seeking to do here is encourage co-operation with a view to helping the child.

In addition, this amendment also seeks to extend the requirements that may be placed on the responsible person to include taking steps to ensure that the child complies with obligations imposed under paragraphs 4 and 5 concerning medical and psychiatric examination and treatment. I can see much value in encouraging the responsible person to take an active role in these matters generally and I shall be happy to consider this particular point. I really feel that I could not accept these amendments but I am prepared to consider that aspect of Amendment No. 192. I hope that the noble and learned Lord may feel that that is a reasonable response to his amendments.

Lord Elwyn-Jones

I am most grateful to the noble and learned Lord for his response to the matters which are set out in the amendments that I have indicated. We shall of course consider carefully what the noble and learned Lord has said, but we are grateful for the knowledge that this aspect of the matter is receiving, and has received, careful consideration. In the circumstances and subject to the possibility of reverting again to these matters at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 191 and 192 not moved.]

The Lord Chancellor moved Amendment No. 192A: Page 87, line 5, leave out ("requirement imposed") and insert ("direction given").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 192B: Page 87, line 7, leave out ("obliging") and insert ("requiring").

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 192C: Page 88, line 44, leave out ("one year") and insert ("three years, or such shorter period as may be specified in the order").

The noble Lord said: This is a probing amendment, because one notices that this question of the one-year period differs from the existing provision in Section 17 of the Children and Young Persons Act 1963 which enables the court to make a supervision order for a period of three years in the first instance. All that I want to try to extract very gently and courteously, I hope, from the noble and learned Lord is whether there is a good reason for doing this, bearing in mind that there may well be a need in certain cases to avoid a review after one year, and make it unnecessary in cases where right from the start it is apparent that a three-year period seems appropriate. Such a period, for example, is often useful where the supervision order relates to a very young child, and I am thinking in terms literally almost of a babe, where a three-year period can see the child into school age. I beg to move.

9.30 p.m.

The Lord Chancellor

The review of child care law did not consider the duration of supervision orders made in care proceedings. It did recommend that consideration be given to supervision orders in other family proceedings having a limited duration of one year with a power for the court to extend the order at a later date. The court would have the power to impose certain requirements on parents and children and the shorter duration of the supervision order, with a power to extend, would enable the court to tailor its order to the needs of the individual child. The shorter duration would make orders more effective, induce a greater sense of purpose and reduce the risk of undermining parents' confidence in relation to their children.

It would also place the onus on the supervisor to justify the continuation of the order. We accept that reasoning and we feel that it applies equally in respect of all supervision orders made under the Bill. While the court is empowered to impose requirements as well as the supervisor to give directions, any supervision order would be subject to the scrutiny of the court if it is desired that it be extended. In any event, paragraph 6(3) provides that a supervision order may not be extended beyond three years, which of course is the maximum that the noble Lord's amendment seeks. That is my response to the courteous and gentle probe.

Lord Mishcon

And, if I may say so, a very courteous, very polite and very prompt answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 193 and 194 not moved.]

Schedule 3, as amended, agreed to.

Clause 37 [Orders for emergency protection of children]:

[Amendment No. 194A not moved.]

Lord Mishcon moved Amendment No. 194B: Page 31, line 37, after ("not") insert ("immediately").

The noble Lord said: I beg formally to move amendment No. 194B.

The Lord Chancellor

We are in this clause talking about emergency protection of children and I accept that the words "immediate removal" could be said to help to convey this flavour. However, I fear that inclusion of the word "immediately" would undermine the philosophy of the clause. First, the order may be made: if, but only if, the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed". That itself connotes the urgency which the amendment seeks.

Secondly, removal may not upon investigation need to be immediate. For example, if on the arrival of the holder of the emergency protection order the suspected abuser immediately undertakes to leave and to stay away while the matter is looked into—I think that is a scenario envisaged by the noble Lord, Lord Mishcon, in a later amendment—the holder of the order may decide that it is not necessary to remove the child there and then. He may reach the same conclusion if he finds that an allegation of injury to the child appears to be unsubstantiated. The order would run its course and removal would still be possible later while the order remained in force if the circumstances changed and the holder of the order considered that necessary. Circumstances of that kind have to be allowed for. Limiting availability of an emergency protection order to cases in which immediate removal was necessary would place a heavy burden of proof on the applicant for the order and discourage use of the order in the more flexible way that I have outlined. The question for the court to decide is whether the emergency is such that enforced removal can he justified, not when it should take place. I believe that leaving that power to the holder of the order is a benefit, and we would like to retain it.

Lord Mishcon

I am sure that reply will be read very carefully in order to see whether it is a complete answer to the amendment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 194C:

Page 31, line 40, at end insert ("; or (c) (i) his parent; (ii) any person who is not a parent but who has parental responsibility for him; or (iii) any person with whom the child is living, has failed to comply with a child assessment order without reasonable cause"), has failed to comply with a child assessment order without reasonable cause").

The noble Lord said: This is an important subject about the child assessment order. Amendment No. 194C is in fact a consequential amendment upon No. 199AB, which is the key amendment for this group. I shall speak also to Amendments Nos. 196BA, 200A, 200B and 202ZA, all of which are consequential upon Amendment No. 199AB. Further, I believe that we are discussing Amendment No. 202AZA tabled in the name of the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady David.

The introduction of an emergency protection order is to be welcomed. The flexibility of the order, forward-looking grounds and rules of court allowing an appeal against the order will be of enormous help in protecting abused children. However, there is cause to question whether the emergency protection order will protect children where there is serious, but not urgent, concern for the child.

The grounds for the imposition of an emergency protection order use the term "significant harm". Indeed, we had much debate about that aspect earlier. That is quite proper. There must be no question of a child being removed from the family home unless there are very good grounds for so doing. An emergency protection order is a dramatic event in the life of a child and should never be used without proper cause.

In the Kimberly Carlile case, the social worker made attempts to get Mrs. Carlile to have Kimberly seen either by a GP, the health visitor or at a health clinic. Those attempts failed and it was not felt appropriate to apply for a place of safety order. The commission of inquiry into the circumstances surrounding the tragic death of Kimberly was quite clear that a medical examination of the child might have saved her life. The report of the inquiry said: We think that the criterion for making a Child Assessment Order can properly he broader and more interventionist in scope…To translate that into practical terms, in relation to the case of Kimberly Carlile, we think that Mr. Ruddock (the social worker involved) would have been in a perfect position to apply for such an Order at any time after 10th March, had such a legal power existed". It is true to say that the emergency protection order makes a provision for medical or psychiatric examination of children and an applicant for the order does not necessarily have to remove the child from the home. However, a child assessment order has several benefits in a serious but not urgent case.

First, parental responsibility is retained by the parents. Secondly, there is no question of the child being removed from his or her home and the child can be seen by their normal family doctor. In the minds of parents those two factors are most important. The vast majority of parents are happy to take their child for an examination and this is accepted as a normal and routine part of bringing up children. Further, the parents also retain responsibility for the child.

The child assessment order will be seen as much less threatening than an emergency protection order and will make it that much easier for a social worker to develop a relationship with parents should this be necessary.

As the emergency protection order stands at present, it will not cover circumstances where there is a nagging concern for the child. If, for example, a neighbour reports that a child is continually heard crying, then a social worker will investigate the case. But the parent may refuse to allow the social worker to see the child and may be hostile and uncooperative. Further, there might be a perfectly innocent explanation for the parent's behaviour. However, what can the social worker do? If there is no possibility of negotiating with the parent the social worker might consider applying for an emergency protection order. It is unlikely that that will be granted, or the emergency protection order will prove to be taking a sledgehammer to crack a nut. The social worker is then left in a quandary. He or she can continue to visit the home in the hope of seeing the child, or take no further action. How much simpler, and more effective, if the social worker could apply for an order directing that the child be medically assessed.

It has been argued, and may be argued further, that a secondary order will be confusing and will result in social workers being unclear as to what order to apply for. This is a problem but one which could be resolved by clear guidelines. It is to be hoped that all social work staff dealing with child abuse will receive training and guidance on what the Children Bill, when it is an Act, will mean. The circumstances in which the different orders will apply could be adequately covered at this stage.

There was much talk earlier about whether the local authorities would be able to read all the Act, and whether they would be included in Schedule 2 as well as in the main body of the Act. My noble and learned friend gave me thought. I certainly think it is essential that local authorities should he trained in order to make sure that they know all the parts of the Act to cover. Likewise, social workers could be trained in how to deal with two orders which are essentially different but equally necessary though not that different in a given situation.

An argument has also been put forward that having two orders available could result in a social worker having to apply to a court on two separate occasions, with the children receiving no protection in the interim period. There are circumstances where this might apply. However, if a parent fails to take the child for an examination, the social worker will immediately apply for an emergency protection order. In other situations where a medical assessment reveals that something is seriously wrong, the social worker will again move to obtain an emergency protection order. It must be better to have the child examined and risk a short interim period than to leave the child at home and be unable to offer him or her any protection at all.

A child assessment order benefits children, parents and social workers alike. It is an additional tool to protect children and covers situations where there is serious but not urgent concern for the child. The order is a potential life-saver and strengthens the powers available to social workers to protect children at risk. It is strongly recommended by the National Society for the Prevention of Cruelty to Children, whose full record I had occasion to give to the Committee earlier this evening. The society has experience, and it has an enormous amount of support from similar bodies.

I know that some people do not perhaps entirely agree with that, but I hope that your Lordships will feel that it is an important addition to this legislation to make sure that a gap which exists is covered. I beg to move.

9.45 p.m.

Baroness Faithfull

I have a deep admiration and respect for the NSPCC, and also for my noble friend Lord Mottistone. Nevertheless, I rise to put a different point of view about the assessment order which he has recommended. I speak as a retired director of social services but I also speak on behalf of the Association of Directors of Social Services in this country. That association does not favour the child assessment order. I do not have the report on Kimberly Carlile, but if I remember aright the social worker did not see the child. Had the social worker done so she would presumably have sought—as this Bill would lay down—an immediate emergency protection order. The visit to the doctor by the child would have had to be put off because if the social worker had seen the child she would have wanted to remove her at once.

Let us look at it from the point of view of the parents. Perhaps it is a good thing—perhaps not—that the country is so conscious at the moment of child sexual abuse that a number of parents are—I shall not say being accused—having a finger pointed at them to suggest that they may be abusing their child. I have evidence that this is happening throughout the country. If a social worker has skills in interviewing and handling people, I contend that it is possible for that social worker to go to the couple, or the man who is alleged to have committed an offence, and ask them whether they would be willing to take the child to a doctor.

I contend that, if this is skilfully done and if the parents have nothing to worry about, they will want to take the child to a doctor. It seems to me that we shall upset an enormous number of good parents who have a finger pointed at them and then receive a court order to take their child to a doctor. Equally, I wonder how doctors feel about this from the point of view of personal relationships with their patients.

As my noble friend Lord Mottistone has pointed out, if a man or a woman will not take his or her child to a doctor either because he or she has committed an offence or because of a feeling of animosity towards the social worker, I contend that it is better at that stage to impose an emergency protection order, which must come from a court, as must a child assessment order. In the eyes of many people, the difference between an assessment order and an emergency protection order is not very great. They see them both as a court order and a great infringement of their liberties.

If, under an emergency protection order one had to remove the child, I might think very differently. However, a social worker can take out an emergency protection order and insist that a medical is carried out. If then the medical proves to be perfectly straightforward and shows that the child has not been abused, only one court order has been involved. I contend that it is going too far to have to place two court orders on a child when one would do.

I also feel that if a number of social workers have skills in interviewing and capacities for good personal relationships and if they see the children concerned—after all, let us admit that in a number of these cases social workers sometimes did not see the children—another court order is not necessary. I hope that the Committee will consider an alternative point of view.

The Lord Chancellor

This is an extremely important matter. I hope that, notwithstanding what I said at the outset of this debate, the Committee will be prepared to allow me to make a fairly detailed explanation. The matter is certainly one that I should not wish to try finally to resolve tonight. As my noble friends have demonstrated between them, there are two rather different points of view available on this matter. Differences exist between those who have great experience in this field. There are differences between the directors of social work on the one hand and the NSPCC on the other. Both those parties are very experienced in this field. It would be difficult for me to select between them, except on the basis of considerable reasons which I am now about to embark upon.

We have been reminded that the making available of such an order as is presently proposed by these amendments was one of the principal recommendations of the report on the death of Kimberly Carlile. It is perhaps worth noting that it is not the report's answer to the problem of the child who has not been seen at all—this would be handled by giving his social worker right of entry and inspection.

On medical examination, the report at pages 153 to 156 proposed a new and separate order to meet all the difficulties experienced with the place of safety order. Its prime virtue according to the report, would be that: it would partake of none of the coercive nature of a removal and detention of a child from the child's parents and home. There should, as a result, be no question of family trauma. There would, in addition, according to the report: be none of the inaptness of the order that has emerged from misuse of the place of safety order in the past. The case for a child assessment order made by the report is based to some extent—I would not put it higher than that—on perceived inadequacies in the place of safety order and its possible misuse. Our proposals for a new emergency protection order are a response to those very problems.

The report questioned the Government's claim in paragraph 47 of the White Paper that the concerns which prompted the proposal for a lesser order would be addressed in the new proposals. However, the full details of the emergency protection order now provided in the Bill were not available to the Kimberly Carlile inquiry panel. I must also say, although not at all critically, that some may consider that what the report called "bureaucratic magnetism,"—an interesting idea: that is, too great a readiness to opt for the lesser order in circumstances where the greater order should be used—could well prove much more of a problem than the report supposed, however clear the guidance on proper use of the two orders. Lord Justice Butler-Sloss was concerned in the Cleveland inquiry about the risk of confusion. As my noble friend has pointed out, that concern is shared by the Association of Directors of Social Services in this country.

I shall try to show why we believe that the emergency protection order provisions can encompass the types of case about which my noble friend Lord Mottistone is concerned. There are, I think, three situations that we need to look at: first, where the child needs to be seen; secondly, where the child needs to be medically assessed; and, thirdly, where the child needs to be removed. The emergency protection order provides for all three. It authorises removal but does not require it. Under Clause 37(3) the applicant who is given parental responsibility for the child as the result of the order is required only to take such action in meeting that responsibility as is reasonably required to safeguard or promote the welfare of the child, having regard to the short duration of the order. If the applicant finds that it is not necessary to remove the child in order to safeguard or promote his welfare, he is in effect required by Clause 37(3) not to do so. The order remains in force, however, so that, if circumstances change and removal becomes necessary during the duration of the order, that is still authorised.

Moreover, Clause 37(7) imposes a new duty on the applicant, if it is safe to do so, to return the child who is under an emergency order to allow his care to be taken over by a person listed in subsection (8). So the order can be used, and appropriate action taken, in two of the situations to which I have just alluded—when it is sufficient for the child to be seen, and where the child needs to he removed.

Where the child needs to be medically examined—the third situation and the one which those who favour a child assessment order usually have most in mind—a solution is provided by Clause 37(4). I referred to that point on 6th December. If the local authority is unable to negotiate access to the child, and considers that as a result there is an emergency, it could apply for an emergency protection order and ask the court to give directions as to medical or psychiatric examination of the child. The court can also direct, under subsection (5), that there should be no such examination. We must remember that we are addressing those cases where there is serious concern about the child's welfare. One of the advantages of pursuing a medical examination under those provisions is that if a direction that the child be medically examined is obstructed the applicant can consider whether to use his power to remove the child immediately without having to apply for a separate order. Refusal to allow the child to be medically examined may in many circumstances be extremely significant.

It will also be possible for the court to decide not to make an emergency protection order at all, or to make one of very short duration, say 24 hours. The court may consider that the applicant has not exhausted opportunities to negotiate voluntary access to the child or that the parents should be given a very early opportunity to respond to the emergency protection order application, and that the child will be safe in the meantime.

Alternatively, where there is no need to apply for an emergency protection order and there is no immediate risk of harm to the child, we have provided a new interim disposal in that an interim supervision order may be made under which direction may be made requiring medical examination. I believe that that addresses most closely some of the situations which have prompted a desire for this type of order.

The Cleveland Report suggested that, while a single order is needed, on occasion the justice might adjourn the application to notify the parents and allow them to have their say. Alas, that too fails to allow for unjustified optimism. The lesson of child abuse inquiries is that the child must be seen at once and that means that the social worker must be left the unenviable decision whether or not to activate the order and remove the child when the child is seen to have been damaged or access is refused.

Let me turn now to the amendments which seek to provide for a child assessment order in the Bill. The principal amendment addresses one of the major difficulties which having two similar orders presents. This is to produce for each order grounds which not only provide appropriately for the situation in which the order is to be used, but also are sufficiently distinct from each other to ensure that social workers and others will always be clear which one to apply for. One has to remember that social workers are operating in conditions of stress and often in conditions that require pretty urgent action. One does not want them to have to face up to the rather fine examination of distinctions which may not be matters that one can readily keep in one's head.

The principal conditions for the two orders envisaged by the amendment would certainly be different. For the emergency protection order there has to be reasonable cause to believe that the child is likely to suffer significant harm if he is not removed. For the child assessment order there has to be reasonable cause to believe that the child concerned may be suffering harm (whether or not harm is significant), and that a request to produce the child for an examination has been refused. The phrase "may be suffering harm" is very wide and could easily cover an unlikely possibility of injury (such as a child going on an adventure holiday), and also very minor harm such as an occasional slap or unkindness; and in those circumstances the refusal of the parents to produce a child for a prompt examination may be understandable. If parents are thinking of taking a child on an adventure holiday, it might be very natural that they would not respond favourably to the suggestion that the child needs to be medically examined.

Do we really want the state to be able to intervene in family life on such wide grounds? The civil liberties implications would certainly have to be considered. The harm of which the child is at risk must surely be significant; but, of course, this immediately brings conflict with the emergency protection order grounds.

A further question is whether the application would be ex-parte or on notice? An ex-parte procedure could only be justified if there was an emergency, and in this case there must be a real possibility that removal of the child will be required at once.

Subsection (1)(b) of the proposed grounds is not, I must suggest, very precise. What is meant by "prompt"; on whose request; is there to be no defence of reasonable excuse? And is it reasonable to require that the assessment, by which is perhaps meant merely production of the child, should take place within 24 hours, given that the unavoidable consequence of failure to comply would be an application for an emergency protection order? Would it then be possible for the applicant to provide for the leap from "harm" to "significant harm" between the two grounds? Should the child assessment order itself be challengeable in court? The scheme at present drafted would limit this to the emergency protection order. The draft clause is not intended to be definitive, I recognise, but these questions illustrate some of the difficulties in putting together an acceptable scheme.

Amendments Nos. 194C, 200A, 200B and 202ZA are essentially consequential amendments to provide for a child assessment order in the clauses on emergency protection orders, local authority investigations and powers to assist in the discovery of children who may be in need of emergency protection. They could be looked at in greater detail if the principal proposal were accepted. I say at this stage only that Amendment No. 194C does not, I think, quite work as at present drafted. I assume that its purpose is to estabish that failure to comply with a child assessment order itself gives reasonable cause to believe that the child is likely to suffer significant harm if he is not removed. Clause 37(1) is not the place for this; it sets out the ground for the emergency protection order by reference to the actions listed at paragraphs (a) and (b).

As regards these other amendments, I accept that if a child assessment order is adopted it would be necessary to consider whether, and if so how, it would need linking with Clauses 40 and 41.

Amendment No. 202AZA is another approach to the child assessment order with broadly similar provisions to the first, except that applications would be made by individual social services workers or health visitors, and the child would have to be produced within three days. If anything, however, this is even wider in its potential scope. There is no requirement as to grounds on which the court has to be satisfied, but only that in bringing the application the applicant believes that a child's health, safety or welfare may be at risk. The amendment traces no link with the emergency protection order.

Amendment No. 196BA seeks to enable the court to give directions as to the developmental assessment of a child when making an emergency protection order in respect of that child. This would of course be capable of standing alone in relation to emergency protection orders.

We must be careful to distinguish between examination and assessment. While an examination may take place on a single occasion for a particular purpose, an assessment, or a developmental assessment, is likely to involve a series of examinations, meetings or interviews over an unspecified or even indefinite period of time, and it may involve various professional persons. However it is defined, it will inevitably be a relatively lengthy consideration of a child's circumstances. As such I do not think that it would be appropriate for a court to be able to give directions concerning such an assessment when making an emergency protection order which at that stage can last for no more than eight days and will often be of shorter duration.

In Clause 37(4)(b) we have in mind one or more examinations which may reveal whether the child has suffered harm. There is a sense of immediacy about this. Such an examination should be sufficient for the purposes of the emergency protection of the child but it may also assist the local authority in deciding whether to seek an interim care order during which a fuller assessment may take place.

Turning back to the proposal that there should be a child assessment order, I said at Second Reading that while I felt that we have dealt with the underlying issue in the Bill it would be right to examine the matter in Committee. I have to say that the debate so far has not yet persuaded me that our original view was wrong and, in particular, that the difficult questions of separate grounds and avoiding the risk of confusion have been satisfactorily addressed. However, it would now be right, given the interest in this matter, for the Government to consider the matter further and this we shall do. I do not promise and I do not think that it would be right to promise, that the Government will be able to reach a final decision on their position by Report. However, I shall certainly be as forthcoming then as is possible. May I, on that basis, invite the noble Lord, Lord Mottistone, to withdraw his amendment.

Lord Mottistone

I thank my noble and learned friend very much for spelling out so carefully the Government's views on my amendments. I am much encouraged that the Government will look with great care at this point. Perhaps in another place at a later stage the matter may reach fruition. It is very important.

It is unfortunate that the Association of Directors of Social Services has taken a firm line in one direction. However, we shall read with care what my noble and learned friend has said. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Banks moved Amendment No. 195: Page 31, line 44, after ("request") insert ("forthwith to disclose the whereabouts of the child and").

The noble Lord said: Amendment No. 195 is self-explanatory. It adds to the requirement to be included in an emergency protection order to produce a child a further requirement "forthwith to disclose the whereabouts of the child" so that police and social workers can retrieve a concealed child whose parents or others are unwilling or unable to produce him. I beg to move.

The Lord Chancellor

There is a very similar provision on disclosure in Clause 41(1) which enables the court—where it appears that adequate information as to the child's whereabouts is not available to another person—to include a provision in the emergency protection order requiring that person to disclose any information that he may have if asked to do so by the applicant.

It could be argued that there would be value in having a requirement of this kind automatically provided for in an emergency protection order so that if the applicant found unexpectedly that he needed this authority to trace the child it would not be necessary to seek the additional provision available under Clause 41(1). I have some sympathy with this argument but two other points have to be considered. First, it is a good principle that powers requiring other people to do something should have to be justified to the court's satisfaction and not be available as a matter of course without evidence of need in a particular case. Secondly under Clause 41(1) the disclosure requirement will have to be specific to a particular person who would then be subject to the provisions on incrimination and admissibility in Clause 41(2). It is very doubtful that these provisions could apply to any person who is in a position to do so", if I may refer to Clause 37(2).

I believe that clause 41(1) will cover these intentions perfectly well. The very existence of this provision will encourage the applicant to consider, when making the application, whether information about the child's whereabouts may be a problem and whether he should ask for the order to be added to. This point will also be in the court's mind.

Accordingly, I do not believe that it is necessary or indeed desirable to put this amendment into the Bill. I hope that the noble Lord will agree that that is so.

Lord Banks

I meant to say in the course of my introduction that it was a recommendation of the Cleveland Report, page 228, that something of this kind should be introduced into legislation. Clause 41(1) may perhaps answer what was suggested there. I shall examine that and also what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 196:

Page 32, line 16, at end insert ("and (c) shall inform the child and his parents or those with parental responsibility, the direction of the court, or rights to variation and discharge of the order.").

The noble Lord said: This amendment is grouped with Amendments Nos. 196A, 196B, 202A and 202B, in the name of the noble Lord, Lord Mishcon. An emergency protection order is a dramatic event in the life of any family and may be particularly confusing for the child or children concerned. Parents and children often complain that they have received no information as to the meaning of the current place of safety order. Good social work practice should dictate that the child and family are given as much information as is reasonable and possible.

However, that does not always happen. Information on the order will now be more important than ever as rules of court will specify such matters as the parent or the child being able to apply for the discharge of the order or variation of the order in respect of medical examination. This is too important a matter to be left to a circular or guidelines and should be a statutory duty. Hence the need for my Amendment No. 196. I beg to move.

Lord Mishcon

The noble Lord, Lord Mottistone, not for the first time is moving in the same direction as I was trying to move in relation to the Bill. The only reason that I preferred the wording I have used here—that where the court makes an emergency protection order notice of the order and the reasons for it shall be given to any person with parental responsibility—is that it roughly reproduces the equivalent provision in Section 28(3) of the Children and Young Persons Act 1969.

Whatever wording is used—if the noble and learned Lord will accept the spirit behind the amendment he will decide much more wisely than I could—the reason for it is that the notice of an emergency protection order is sufficiently important to be stated in the Bill rather than left to a Clause 43 permissive regulation made by the Minister concerned. Even then there is nothing, so far as I know, calling for notice of the reasons for the order to be given. That is an important point.

I hope that it is convenient, to avoid my rising again and the Committee being even more wearied by my voice, for me to speak also to Amendment No. 196B. There again the amendment reproduces fairly equivalent provisions to those in Clause 39(3). I make the point that it is just as appropriate to explain what is happening to the child when what I believe will now be known as an EPO order is made, as when a child is taken into police protection. Indeed, it was one of the reported concerns of the Cleveland inquiry that children as well as adults should be better informed. Having said that, I respectfully suggest that the wording that has been used in my amendment may or may not be suitable, but the noble Lord, Lord Mottistone, and I have the same aim in mind.

The Lord Chancellor

I believe that I can deal with this matter fairly briefly as the answer is the same for all these amendments. The rule-making power in Clause 43 is deliberately very far-reaching. It covers all the matters which have been raised by the amendments. In particular, I refer to Clause 43(2)(b), which covers the persons who are to be informed of the making of listed applications and orders. The rules of court could only cover notification of persons with parental responsibilituy for the child under the amendment that the noble Lord, Lord Mishcon, has proposed, at least if one reads just that amendment.

The Government's intention is more flexible. I should not wish to commit us to particular rules; but rules may be needed to be extended to cover not only persons with parental responsibility but also, in appropriate cases, the person with whom the child was living before the order was made, an unmarried father who does not have parental responsibility and any person who had the benefit of a contact order with respect to the child. All those persons have, subject to the court's directions, a presumption of reasonable contact with the child in their favour. It would seem right for them to be informed of the order being made. Similarly, Amendments Nos. 196, 196A and 196B would impose specific obligations to inform a limited range of people. I believe that rules of court could operate more generously regarding notification in appropriate cases.

I should also draw to noble Lords' attention Clause 43(2)(c) which provides for rules to cover notification and the manner in which, and the person by whom, it is to be given. Amendment No. 196B raises the important issue of informing the child of the nature of the order. That can be covered by rules about the manner in which the intimation is to be given.

I suggest to the Committee that we have already taken ample power to cover the matters raised in these amendments. I hope that rules of court may provide a comprehensive but simple and consistent code regarding notification. I hope that Members of the Committee consider that to be an appropriate way of dealing with the matters.

Lord Mishcon

At this time of night I find myself in a miserable and somewhat fatigued state. That is because, with all the courtesy and authority that goes behind what the noble and learned Lord says, one is constantly left with a feeling of, "What am I as a humble legislator?".

The Bill is going through this House with the blessing of the House. I am sorry if I sound like a gramophone record, but one is constantly told that this is the kind of issue that the rules of court may well deal with. If the Bill leaves this House in its present form, permission is given, although there is nothing mandatory, that rules of court may be made. When they are made they may include provisions which deal with notices of this kind.

I do not wish to make the point in regard to matters which are not of grave importance, but one is dealing with an emergency protection order which has already been described as being a traumatic experience for the household. Indeed it is. It has been described as something which, for the protection of the child, invades everything that we know about personal liberty, the rights of a subject, family unity and everything else.

I know that the noble and learned Lord shows good will; but, when we try to put important issues in relation to emergency protection orders in the statute he says with complete grace that there is no need to do so. He says that they can be dealt with much better by rules of court. We have the responsibility for passing the Bill through this House. We do not have the rules of court. We do not know whether they will be made in conformity with what the Committee will require.

With respect, I ask the noble and learned Lord this question. Can he give the Committee an undertaking that the rules of court will provide for what we regard as essential? Presumably not. It is the notice and the reasons for the emergency protection order being made.

If the noble and learned Lord can now rise and say, "Don't worry, you need not put the amendments down because I undertake that the rules of the court will make this very provision", I shall sit down knowing the source of the undertaking and respecting it. I shall feel that as a humble legislator I have done my job and have obtained an undertaking. Without that specific undertaking, and with a sense of responsibility, how can we leave such issues? They have been pointed at by the Cleveland Report and warned of by others. Articles have been written about the emergency protection order and the rights of the child and the family, but nevertheless the need to protect the child. I ask the noble and learned Lord to do one of two things. Either he must say that these amendments meet with the favour of the Government—and obviously we can leave the wording of them until a later stage—or he must give a firm undertaking that in the spirit of these amendments and with the principle being honoured, the rules of court to be made will so provide. Unless I receive an undertaking or the acceptance of the principle of the amendments, then I believe that the noble and learned Lord will understand how miserably unhappy, even if accompanied by fatigue, I feel at this hour.

10.15 p.m.

The Lord Chancellor

I hate the idea of the noble Lord being miserable. I cannot entirely prevent him from being fatigued but I shall do my best to do so. In my mind there is no question but that the matters covered in these amendments are of considerable importance, as he says. I believe I can undertake that all these matters will be subject to consideration for the rules and I would expect the rules, not necessarily in these terms, to make suitable provision to cover all these matters. That is the situation. Obviously these rules have to be consulted upon and the precise circumstances of them have to be looked at. However, my understanding is that the intention is to cover all those matters in a codified way in the rules.

Lord Mishcon

I know that the noble and learned Lord will not think me in the slightest degree discourteous. I know that he will understand that I speak because of the seriousness of the emergency protection orders, which I know he also regards seriously. I know that he will accept that that is the spirit in which I address the Committee.

I noted the words to which the noble and learned Lord gave vent. He said that undoubtedly there will be consideration and that he would expect that the rules will so provide. I am now going even further. I ask the noble and learned Lord to assure the Committee that before the Bill leaves this Chamber—so that we have an opportunity to do something about it, even at Third Reading—consideration will already have been given and the expectation will already have been realised so that we can definitely know, with our sense of responsibility, that the rules of court will so provide in regard to these emergency orders.

I am not asking for the exact wording but that the principle should be conceded. I ask that the notice and reasons will be given and that those with parental responsibility will be included in that notice, as will the child. If the noble and learned Lord will say that, I shall sit down, However, I should like him to assure the Committee that we shall know where we stand before the Bill leaves this Chamber. Then we shall have an opportunity to put those matters into the Bill if this consideration does not end the way he wants it to and I want it to, and also the noble Lord, Lord Mottistone, wants it to, and the expectation has been realised that those matters are going into the regulations.

If he cannot do that, then at least some of us will feel that we have not realised the responsibility which we undoubtedly carry as legislators on this important Bill. The Bill involves the children of our country and the insertion into the Bill of the provisions of the emergency protection order. I invite him at least—this is as far as I can go—to give an assurance that we shall know where we stand before Third Reading on the consideration of the rules and whether the rules will so provide so that we have a last chance to table amendments for inclusion in the Bill.

The Lord Chancellor

I am prepared to undertake to give a statement of the position when we reach that stage. If it is possible to be absolutely conclusive about the matter then, well and good. I shall certainly undertake to, so to speak, report the matter further to the noble Lord in time for him to put down an amendment before Third Reading if he so wishes.

Lord Mishcon

I am grateful. For my part I am prepared to withdraw my amendments on that basis. It is for the noble Lord, Lord Mottistone, to make his own decision.

Lord Mottistone

I enjoyed that exchange. My sympathies are with the noble Lord, Lord Mishcon, and also with my noble and learned friend for withstanding that great battery and onslaught at this time of night.

The noble Lord, Lord Mishcon, is right in one respect; and I used to feel this even more strongly when I sat on the Benches opposite. It is this awful business when the government of the day replies (the noble and learned Lord, Lord Elwyn-Jones, will remember this because he was in government at the time), "Yes, it will all go into regulations." We were maddened by that reaction. Back-Bench Members are still maddened by that, whichever side of the Chamber they sit on.

What happens when that occurs—I hope that the Chief Whip will read Hansard; I do not suppose he ever does, but he might—is that we put down more amendments at the next stage of the Bill. then everybody gets furious because it takes much longer to get the Bill through. If we could have more definitive assistance, that would make a difference. This rests not with specific Ministers but with the whole system, which does not make proper allowance for the fact that Parliament is here to legislate. It is not here to be put off by excuses.

However, this issue is not one of substantial importance which needs to be fought to a bitter end at this time of night and therefore I ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 196A, 196B and 196BA not moved.]

Lord Mishcon moved Amendment No. 196C:

Page 32, line 31, at end insert— ("( ) A direction under subsection (4)(b) shall not affect any legal right the child has to refuse consent to the medical examination.").

The noble Lord said: The noble and learned Lord will remember that this was the amendment to which my noble friend Lady David referred before she left the Chamber. The noble and learned Lord said that in regard to the refusal of consent by the child this matter would be given consideration. On that basis my noble friend gave notice that she would not be pressing the amendment. I beg to move.

The Lord Chancellor

Although the earlier amendment and this amendment both deal with the medical examination, this amendment deals with it in the context of the emergency protection order, where the child's consent may be less important. One can imagine a situation where an abused child under a parent's influence would refuse. Therefore, the considerations are different but I undertake to consider both amendments without necessarily the same result.

Lord Mishcon

That is understood. I ask leave to withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

[Amendment No. 196D not moved.]

The Lord Chancellor moved Amendment No. 197: Page 33, line 11, leave out ("authority") and insert ("responsibility").

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

On Question, amendment agreed to.

Lord McGregor of Durris moved Amendment No. 198:

Page 33, line 19, at end insert— ("( ) Nothing in this Part of this Act shall be taken to limit the power of the High Court to review any decision taken under this Part.").

The noble Lord said: My noble friend Lord Banks asked me to move this amendment. Its purpose is simply to preserve the possibility of judicial review whether a protection order is obtained or refused. It is recognised that this will be used rarely in practice but, nevertheless, it is an important, limited safeguard which was commented upon and recommended in the report of the Kimberly Carlile case. I beg to move.

The Lord Chancellor

The amendment is not necessary for the purpose indicated because there is nothing in this part to oust the jurisdiction of the court on judicial review. As the noble Lord knows, one needs clear words to oust the jurisdiction of the court on judicial review. The result is achieved by the wording as we have it at the moment.

Lord McGregor of Durris

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McGregor of Durris moved Amendment No. 199:

Page 33, line 19, at end insert— ("( ) For the purposes of this Part of this Act "the court" means the High Court or County Court and application shall be made to a judge.").

The noble Lord said: This amendment is grouped with Amendment No. 199ZA. I shall he brief although this is an important and significant issue of the order of those earlier discussed by the noble Lord, Lord Mishcon.

It is common ground that the removal of a child from home and parents, for whatever reason, is one of the most potentially destructive orders upon both child and parents that can be made. It should be made by a judge and not by lay magistrates. Under the Bill, it will be possible to make an emergency protection order in exactly the same way as it is now possible to make a place of safety order. An applicant may go to a lay magistrate. The intention of the present procedure is that such an application should be made to the home of a lay magistrate when the court is not sitting. The lay magistrate will then make an order. lithe procedure is properly followed (which frequently it is not) the order should be sent forthwith to the clerk of the juvenile court. The present procedure works very badly. The Cleveland Report made a special investigation of this procedure. It commented in paragraph 10.9 on page 173 that of the orders examined in the six month period, 174 were heard by a single magistrate at home, during the hours of court sittings". The amendment will have two vitally important effects. First, it will reflect the gravity of the order in that it should not be made by a lay magistrate but only by a judge. Secondly, it will ensure that a proper judicial procedure is followed before a child is removed even temporarily from his parents. I beg to move.

The Lord Chancellor

I have already explained in some detail the general policy that we have in mind and the possibility of making regulations which would make appropriate to certain cases particular procedures. I should like to mention one point in connection with the amendments. The registrar of the county court often deals adequately with family matters. It might well be the case that he would be an officer to be considered as one to make such orders. The matter is one on which we would desire to have flexibility and also desire to have the possibility of change, without the necessity for primary legislation, to take account of improvements in procedure and experience of procedure. I hope that the noble Lord will feel able to withdraw the amendment.

Lord McGregor of Durris

I do not wish to press the amendment, the noble and learned Lord having indicated—I hope I understood his indication correctly—that he has it in mind to make regulations which might in the future lead to a procedure different from that which is followed at the moment which in its procedural aspects is well known to be defective. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 199ZA not moved.]

Clause 37, as amended, agreed to.

10.30 p.m.

Lord Elwyn-Jones moved Amendment No. 199A:

After Clause 37, insert the following new clause: Attendance at court in connection with emergency protection orders. —(1) Where the court is satisfied that there are grounds for making an emergency protection order and there is reasonable cause to believe that one or more members of the child's household may he prepared to give undertakings to the court for the protection of the child, such as vacating the home or severing contact with the child, the court may adjourn the hearing in order that the following persons shall attend court as soon as is reasonably practicable—

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

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

The noble and learned Lord said: This amendment would empower all courts who might hear an application for an emergency protection order to consider an undertaking as an alternative to making an order. As the noble and learned Lord the Lord Chancellor knows, undertakings are much used in other forms of litigation. To make them available in Section 37 proceedings would represent a further step in making care and related proceedings more civil than criminal in nature.

Provision for undertakings will also emphasise the concerns expressed by Lord Justice Butler-Sloss to the effect that removing the abuser should, wherever possible, be considered as an alternative to removing the abused child from the family. I beg to move.

The Lord Chancellor

This raises an important question, and the situation is one which we are very much still considering. I could talk about it at some length. It may be that the noble and learned Lord will feel able to leave this with us for further consideration. It is an area in which we are certainly thinking of making proposals of our own at as early a time as we can manage.

Lord Elwyn-Jones

In the light of that observation and undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 199AB not moved.]

Clause 38 [Duration of emergency protection orders and other supplemental provisions]:

Lord Mishcon moved Amendment No. 199B: Page 34, line 12, leave out ("Rules of Court may make provision as to the circumstances in which").

The noble Lord said: I can deal with this shortly. The deletion of these words from subsection (8), as suggested by the amendment, has only one intention. It is to remove the risk that the ability to apply for an emergency protection order to be discharged may be seriously curtailed by rules of court.

If the intention is to restrict the circumstances in which such an application could be made this should be done in all frankness. It should appear clearly on the face of the Bill. If, however, the introductory words of this subsection were intended to provide that rules of court prescribe the procedure by which an application for discharge shall be made. then that is what the subsection should say. My noble and learned friend reminds me that I am talking to Amendment No. 199C as well. I beg to move.

The Lord Chancellor

The idea of this provision which is, as it were, under attack is to allow the rules of court to provide the circumstances in which application may be made for discharge. The position is that it may not be wise to give an unfettered right of application. The power to make rules has been sought to permit a degree of flexibility.

The Government have already said that where an original emergency order was made on an ex parte basis (when the parents would not be present) the right to apply for discharge would be introduced. This is certainly one situation which will be covered by rules of court. However, where for example a parent was able to make full representations at the hearing which made the original emergency order, I am not convinced that a right to apply for a discharge after, say, 72 hours, is right, because, as the noble Lord knows, we propose that the emergency order might have a continuing effect, which is a valuable aspect of it.

So it is really to deal with these circumstances that this provision is made, and the variety of circumstances and the need to consult in detail about these particular matters make it appropriate to have rules. The idea is that there should be an ultimate right to apply for discharge, but maybe not every moment of every day.

Lord Mishcon

I hope that there will be no barrage, as the noble Lord, Lord Mottistone, described a previous respectful submission of mine to the Committee. I also hope that, on a matter of this kind too, the noble and learned Lord can give us in time for us to move an amendment if we want to before the end of the proceedings on the Bill, some indication as to what are likely to be the precise rules in regard to applying for discharge of the order. It is a most important matter and I know that he will do his best to do it, and that, if he cannot, he will give us notice so that we can do something about it by amendment. If the noble and learned Lord would care to indicate that that would be his hope, I ask for no more and I beg leave to withdraw the amendment—

The Lord Chancellor

I will do my best to give an indication in time before the end of the proceedings here.

Lord Mishcon

I am most grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 199C to 199F not moved.]

Clause 38 agreed to.

Clause 39 [Removal and accommodation of children by police in cases of emergency]:

[Amendment No. 199G not moved.]

Lord Elwyn-Jones moved Amendment No. 199H:

Page 35, line 7. at end insert— ("( ) ascertain where possible the child's wishes and feelings and give these due consideration having regard to his age and understanding;").

The noble and learned Lord said: This amendment covers the not uncommon circumstances where older children are picked up by the police because the police are concerned for their welfare although there is no evidence of a crime having been committed. Similar existing police place of safety orders are used, for example, if young people are found on the streets late at night or in areas of prostitution or appear to be under the influence of drink, drugs or solvent abuse.

At present, the police are under standing orders but not a legal duty to return young people under 18 to their parents, but this may not always be appropriate. Children may have run away because of sexual or physical abuse or may face abuse on their return. In such cases, the police should refer the matter to the local authority. Subsection (7) provides for such a referral, but we must be sure that the police first investigate the case fully. Consulting the children themselves should be an obvious part of investigation but cannot be taken for granted, and we submit that the duty should be written into the Bill, as it has indeed been for courts and local authorities under Clauses 2 and 18. I beg to move.

The Lord Chancellor

I am happy to consider this amendment further. We must watch, of course, that in what could well be tense situations we do not place on the child burdens of the kind that concerned us when considering similar amendments in respect of other parts of the Bill. We shall also need to be sure that it would not undermine any other obligations the police may have under this clause; in particular, the requirement to safeguard the child's welfare. So it is a delicate situation but we will certainly consider it further.

Lord Elwyn-Jones

In the light of that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 200:

Page 35, line 23, leave out from ("(a)") to ("and") and insert— ("the child's parents; (b) every person who is not a parent of his but who has parental responsibility for him").

The noble and learned Lord said: This is a straightforward amendment to bring Clause 39(4) into line with other provisions in the Bill: for example, Clauses 18(4), 51(2) and 58(5). The intention, by separating parents from other persons with parental responsibility, is to ensure that if there is an unmarried father who has not acquired parental responsibility under Clause 4 he is also notified of the child's having been taken into police protection if this is reasonably practicable. I beg to move.

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clause 40 [Local authority's duty to investigate]:

[Amendments Nos. 200A, 200B and 201 not moved.]

Clause 40 agreed to.

Lord McGregor of Durris moved Amendment No. 202:

After Clause 40, insert the following new clause:

("Care of "runaway" children.

.—(1) An organisation providing premises and services for the care of children or young persons under the age of 17 or who are in the care of the local authority, who are missing from their usual place of residence without permission ("runaways"), shall register those premises and services with the department of Health and Social Services Inspectorate. (2) The organisation and the Inspectorate shall agree and define certain specific circumstances under which the organisation shall operate those premises and services. (3) Registration in accordance with subsections (1) and (2) above shall exempt those premises and services, and the organisation solely in respect of those premises and services, from any offence of knowingly and without reasonable excuse or lawful authority

1. (a) taking the child; or
2. (b) detaining or harbouring the child; or
3. (c) assisting, inducing or inciting the child to run away.

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

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

(7) No application under subsection (6) shall be heard by the court before the expiry of the period of 72 hours beginning with the admission of the young person to the registered premises. (8) If the young person remains in the registered premises for a period exceeding eight days, any of the parties specified in subsection (6) may apply to the court for a determination that the young person he returned to his parents or the responsible local authority.").

The noble Lord said: I shall be mercifully brief. The object of this amendment is to provide a basis in law for those organisations which provide premises and temporary accommodation and services for young people who run away from home or from local authority care. The facilities are available to any one run away for a short period of time only, while the situation is investigated and alternative arrangements made.

The White Paper stated: There are a number of agencies which carry out useful tasks in looking after children who have run away for short periods while alternative arrangements can be made. It is proposed that these organisations should be specified and then exempted from liability from offences in defined circumstances". There is no clear indication under the Bill of the Government's intention to implement this proposal; and the amendment is designed to that end. I imagine I shall be readily forgiven if I refrain from going through the subsections one by one. I wish only to state the general intention. I beg to move.

The Lord Chancellor

I sympathise with the principle behind this amendment and I undertake to table an amendment at a later stage to give effect to the White Paper proposal by conferring power on the Secretary of State by regulations to exempt specified organisations and their officers from liabilitiy as regards the harbouring of children in specified premises in specified circumstances. The powers of exemption would also be extended to liability under Section 2 of the Child Abduction Act 1984 for acts which amount to harbouring. I hope that in the light of that undertaking the noble Lord will feel able to withdraw this rather extensive amendment.

Lord McGregor of Durris

I am very happy to beg leave to withdraw the extensive amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 202AZA;

After Clause 40, insert the following new clause:

("Court applications by social workers and others.

.—(1) A social worker or health visitor who believes that a child's health, safety or welfare may be at risk may apply to a court for an order requiring the child's parent or other person with parental responsibility for the child, to produce the child for medical examination at a specified child health clinic, medical centre or hospital within three days; and such an order may specify the nature of the examination. (2)"social worker" includes a qualified local authority or NSPCC social worker; health visitor" includes a qualified health visitor or general practitioner; medical examination" includes developmental assessment and may be extended to further examinations after the inital one. (3) A parent or person with parental responsibility who is the subject of an order under this section may appeal against the order to the court which made the order and such appeal may concern the generality of the order or any specific requirement contained in it.").

The noble and learned Lord said: I venture to think that the terms in which the amendment is set out speak for themselves and I think it suffices for me, in view of the fact that the amendment is self-explanatory, simply to move it formally. I beg to move.

Lord Mottistone

This amendment was grouped with the amendment which I moved—namely, Amendment No. 194C. I must point out that no noble Lord from the other side of the Committee rose to speak to it, although my noble and learned friend the Lord Chancellor made a few remarks about it and its principal amendment, Amendment No. 199AB.

Lord Elwyn-Jones

Perhaps we on this side of the Committee may be excused for occasionally nodding. But, in any event, we accept what has already been said about the matter. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Clause 41 [Powers to assist in discovery of children who may be in need of emergency protection]:

[Amendment No. 202ZA not moved.]

Clause 41 agreed to.

Clause 42 agreed to.

Clause 43 [Rules and regulations]:

Lord Mishcon moved Amendment No. 202A: Page 39, line 19, leave out ("persons who are to he notified of") and insert ("means by which").

The noble Lord said: I have already spoken about the principle behind this amendment and therefore I do not think that I need weary Members of the Committee by repeating what I said. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 202B not moved.]

The Lord Chancellor moved Amendment No. 203: Page 39, line 23, at end insert ("and").

The noble and learned Lord said: With this amendment, I shall speak also to Amendment No. 204. These amendments merely remove an unnecessary provision from Clause 43. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 204: Page 39, line 25, leave out from ("given") to end of line 28.

The noble and learned Lord said: I beg to move.

Lord Mishcon

I think that it may be appropriate for the noble Lord, Lord Mottistone, who is dealing with Amendment No. 205, to say now what he has to say in relation to that amendment.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I now call Amendment No. 204A.

Lord Mishcon

I apologise for the fact that my observation was meant to apply to Amendments Nos. 204A and 204B. It is in those circumstances that I do not propose to move the amendments tabled in my name, but to leave the noble Lord, Lord Mottistone, to deal with Amendment No. 205.

[Amendments Nos. 204A and 204B not moved.]

Lord Mottistone moved Amendment No. 205:

Page 39, line 44, at end insert— ("(5) Regulations made under subsection (3) shall not apply where the application for an emergency protection order was made by an authorised person within the meaning of section 26(8) of this Act.

The noble Lord said: The clause obviously refers to the transfer of responsibilities between local authorities. However, the NSPCC, or other authorised persons, could find a local authority assuming parental responsibility for a child even where the society was the original applicant for the order. Children may be very vulnerable and distressed about events which have led to an order being made or by removal from the family home. Consistency of approach and a trusting relationship between the child and the social worker is all important to the child at such times. It would be most difficult for the child, or other family members, when they have established a relationship with one social worker to find that they have to start all over again with another social worker. I beg to move.

The Lord Chancellor

As I understand this amendment, it could exempt from transfer regulations those emergency protection orders which had been applied for by a person authorised to bring proceedings for care and supervision. Of course here we are currently talking about the NSPCC. I can see the logic behind the amendment. A person who is authorised to bring proceedings under Clause 26 is in a special position. Not only is he able to act under Clause 26; he is also empowered to apply for an extension to an emergency order. In other words, his powers are as extensive as a local authority's when it comes to making applications.

However, I should not want to preclude regulations from dealing with cases initiated by the NSPCC, which would be the effect of the amendment. It may be, for example, that a local authority takes over a case shortly after the emergency order has been obtained. Should the NSPCC then remain the person with parental responsibility and have all the other duties which come with the emergency order? I think not. The same reasons which led us to put subsections 4(3) and 4(4) into the Bill are applicable there too. So I think it is wise to have this provision. I hope the noble Lord will feel able in that circumstance to withdraw the amendment.

Lord Mottistone

Once again, I am not at all sure whether I agree with that. However, my noble and learned friend is so persuasive and it is so late at night that I cannot possibly pursue it now and I reserve the right to return at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43, as amended, agreed to.

Clauses 44 to 49 agreed to.

Schedule 4 agreed to.

The Earl of Dundee

I beg to move that the House do now resume.

Moved accordingly and, on Question, Motion agreed to.

House resumed.

House adjourned at eight minutes before eleven o'clock.