Children Bill [H.L.]

HL Deb 23 January 1989 vol 503 cc496-584

5.34 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (BARONESS SEROTA) in the Chair.]

Clause 50 [Registration and regulation of voluntary homes]:

The Lord Chancellor moved Amendment No. 205A: On Page 45, line 40, at end insert ("; or

(e) any home which is exempted by regulations made for the purposes of this section by the Secretary of State.").

The noble and learned Lord said: This amendment will enable the Secretary of State to exempt certain homes from having to register as voluntary homes under this clause. This is necessary as there are a number of establishments which would otherwise be required inappropriately to register as voluntary homes. These include some establishments which are essentially day nurseries and homes which would need to register simply for the purpose of their use for holiday play schemes.

An equivalent power has already been provided for in Clause 54(4)(b) in respect of registered children's homes and this amendment would align the powers in respect of each type of home. I beg to move.

Lord Elwyn-Jones

Here we have an early example of government by regulation. We shall be discussing the significance of that at a later stage in consideration of the Bill.

Lord Renton

I do not dissent from the amendment moved by my noble and learned friend. However, it is a little difficult to fit it into subsection (3). It defines voluntary homes and then states that the expression does not include—and it lists a number of exclusions. The first one is described as a nursing home, mental nursing home or residential care home". That exclusion is so wide that it makes one wonder whether there will be much in my noble and learned friend's regulation. I had it mind to raise this matter on the Question, that the clause stand part. However, this is a more convenient moment to do so.

For example, in a home where mentally handicapped people of various ages are cared for for life—they are residents, they are called residents generally—presumably they are in a residential care home. It could be said that some of them require mental nursing. Therefore it is a mental nursing home also. It would be very helpful at this stage if my noble and learned friend explains why we have such a wide exclusion in subsection (3)(a), and how that will affect the content of his regulations.

The Lord Chancellor

On my noble friend's question, "voluntary home" means, any home or other institution providing care and accommodation for children which is supported wholly or partly", and so on. It therefore cannot include a mental home for people who are to be in for life in the manner that he has suggested.

Nursing home, mental nursing home or residential care home, and so on, are defined in Clause 77. However, the concept is that homes which have a primary medical content in them would not be regarded as coming within "voluntary home" for this purpose. The need for the regulations that I have mentioned is to deal with some rather special situations that can arise. These are best dealt with by regulation because one cannot envisage every possible type of voluntary home. Matters change. After all, this Bill is designed to last for a considerable time. Social conditions and social customs will vary. One has to have some degree of flexibility in the regulatory structure which is used to control them.

Lord Renton

I am very much obliged to my noble and learned friend, especially for drawing my attention to the definitions in Clause 77. He is attempting to dovetail his new definition which affects children, as he says, with what is already in the Registered Homes Act 1984. That makes the position perfectly clear. I am most grateful.

On Question, amendment agreed to.

Clause 50, as amended, agreed to.

Clause 51 [Duties of voluntary organisations]: [Amendment No. 206 not moved.]

Baroness David moved Amendment No. 206A: Page 46, line 25, at end insert— ("(4) Where a child is—

1. (a) accommodated by or on behalf of a voluntary organisation, and
2. (b) is not being looked after by the local authority by virtue of section 18(1),

the voluntary organisation shall be under a duty to review the case of the child.

(5) In carrying out its duty under subsection (4) of this section the voluntary organisation shall comply with any regulations made by the Secretary of State for the purposes of this subsection.").

The noble Baroness said: In moving this amendment, I shall be speaking also to Amendment No. 206F. The aim of the amendment is to place voluntary organisations under a duty to review the case of any child not in care. I hope that this will be an uncontentious amendment, since few voluntary organisations now look after children who are not in care to local authorities. Most voluntary organisations ensure that all children in their homes have their cases reviewed regularly.

However, there are still a few voluntary organisations which look after children directly referred to them by their parents. Obviously these children should be protected by a regular case review secured by a statutory duty. My Amendment No. 206F is similar, but deals with private children's homes. That amendment seeks to place private children's homes under a duty to review the cases of children who are not in care. The reasons are the same as those for Amemdment No. 206A. I hope that that is sufficient explanation. I beg to move.

The Lord Chancellor

The point that the noble Baroness makes in relation to this amendment is a point well taken. We shall certainly consider how best this shall be done. The precise form of review may be a little different from the one provided for the local authority which we have discussed already, but we shall consider this matter further. I hope that in the light of that assurance the noble Baroness will feel able to withdraw her amendment.

Baroness David

Yes, I shall. May I ask whether the noble and learned Lord was speaking also to Amendment No. 206F?

The Lord Chancellor

It is particularly this amendment that we have in mind.

Baroness David

With that, and knowing that the matter will be considered, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clause 52 [Duties of local authorities]:

The Lord Chancellor moved Amendment No. 206B: Page 47, line 32, leave out ("that power") and insert ("any power conferred by subsection (5) or (7)"). The noble and learned Lord said: This amendment serves to clarify the offence which is provided for in Clause 52(8). As currently drafted, it could be interpreted that it will be an offence under subsection (8) to intentionally obstruct others only in the exercise of their power to inspect records as referred to in subsection (7) of that clause. What is actually sought is that the offence should apply in respect of the intentional obstruction of a person exercising any of the powers under subsection (5). I beg to move.

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 agreed to.

5.45 p.m.

Schedule 5 [Voluntary Homes and Voluntary Organisations]:

Baroness David moved Amendment No. 260C: Page 100, line 4, at end insert ("and in particular prohibiting the use of secure accommodation"). The noble Baroness said: In moving this amendment, I should like to speak also to Amendments Nos. 206D and 207A. The aim of these amendments is to prevent voluntary organisations from maintaining secure accommodation. At present voluntary homes—homes not run for profit by voluntary organisations such as Barnardo's or the Church of England Children's Society—do not maintain secure accommodation. The regulations governing these homes, the Administration of Children's Homes Regulations 1951, do not mention restricting children's liberty and theoretically at least voluntary homes could lock up children in care. The Government intend to revise these regulations as soon as the Bill receives Royal Assent and have told the Children's Legal Centre unequivocally on a number of occasions that the new regulations will specifically prohibit the locking up of children in such homes.

As long ago as 1983, the relevant Assistant Secretary of the Department of Health and Social Security wrote to the centre: We share your view that the liberty of children in care should be restricted only within accommodation specifically approved as secure accommodation by the Secretary of State, and that such accommodation should be approved only where it is provided in a Community Home". Paragraph 7(2)(f) of Schedule 5, which provides for the approval of secure accommodation in voluntary homes, has therefore come as a shock. The centre has been assured that the Government have no present intention of approving secure accommodation in voluntary homes, but this provision has been inserted in the Bill in case the Government at some future date change their mind on this matter.

Both the law and social work practice are agreed that children's liberty should be taken away only as a last resort when children are a danger to themselves or to others and cannot be accommodated in open provision. Research shows that locking up children is not a very effective way of helping them. It also shows that where lock-ups are available, they are used.

Department of Health officials have quoted statistics showing that local authorities which maintain secure units lock up proportionately more children in care than those that do not. Where there are beds, they will be filled. At present there is a regional shortage of secure unit places. There is also great pressure on the two voluntary organisations to take over the youth treatment centres and the London borough of Lambeth would like a voluntary organisation to take over Cumberlow Lodge, which is a secure unit for girls.

Locking up young people is an inappropriate and improper role for the voluntary sector. It is inappropriate because the voluntary sector should be trail-blazing in progressive constructive provision for difficult young people. For example, it should be creating alternatives to locking them up, such as residential care with well-trained intensive staffing or specialist foster-care. It should not be making up the deficiencies of the statutory sector. It is improper because secure units are, when all is said and done, a form of imprisonment which should be the responsibility of the state alone. This part of the Bill looks like the privatisation of prisons by the back door.

Given the current absence of lock-ups in voluntary homes, despite their theoretical right to provide them, it is clear that voluntary organisations do not want to run them. If the Government have no intention of approving secure units in voluntary homes, they could pin their colours to that mast and specifically prohibit it in the Bill.

Amendment No. 207A seeks to prevent private chidren's homes from maintaining secure accommodation. Schedule 6 relates to the regulation of private children's homes; that is, homes run for profit. No one knows how many such homes there are or whether any lock up children, since at the moment they are entirely unregulated. This amendment seeks to delete the possibility of such homes maintaining approved secure units and specifically to prohibit them from locking up children. In speaking to the previous amendment I explained how the Government had changed their position on this point by inserting paragraph (f) in Schedule 3.

As I have said, Schedule 5 sets out the Government's apparent volte face on this issue. It is obviously even more important that profit should not be made out of locking up children in private homes. Given the ease with which secure beds are filled with troublesome teenagers, the number of private lock-ups could proliferate. Even if the Government will not agree to a specific ban on voluntary homes running secure units, I hope they will accept that it would be quite improper for private children's homes to do so. I beg to move.

Lord Campbell of Alloway

I shall be brief in my support of Amendments Nos. 206C and 207A. These amendments are related to Amendment No. 208, which seeks to leave out paragraph 10(2)(i) of Schedule 6. Amendment No. 208, which is related to these amendments though not grouped with them, was referred to in the course of the debate but has not already been debated, as stated in the list of groupings. Amendment No. 208 proposes the deletion of paragraph 10(2)(i) of Schedule 6. "Such homes" include any registered homes. They include voluntary homes, dealt with in Schedule 5 (hence the nexus) and children's homes.

It is an important problem. When speaking to Amendment No. 208 during the debate on Amendment No. 52, I maintained that the novel provision as to the use of secure locked accommodation for children was neither justifiable nor acceptable. At col. 1278 of the Official Report, my noble friend Lady Faithfull expressed a serious concern and a hope that voluntary homes would not be used for secure accommodation. She also sought elucidation.

My noble and learned friend the Lord Chancellor dealt fully with the arguments on the merits of Amendment No. 52 for which I sincerely thank him. He expressed sympathy. Therefore, with the constraints of time, it is hardly surprising that he did not provide the elucidation sought in connection with Amendment No. 208. No doubt that has been deferred until either later today or now when my noble and learned friend may be pleased to deal with it.

Irrespective of a redraft of Amendment No. 52 being produced by the Government or the amendment proving acceptable to them—and the matter is under active and serious consideration—or whether Clause 21 shall stand part on the assurance given to look into the question of secure accommodation, the amendments tabled by the noble Baroness, coupled with Amendment No. 208 dealing with the same point, raise a related question to Amendment No. 52 on secure accommodation. However, it is a wholly distinct question upon which the advice and assistance of my noble and learned friend is most respectfully sought.

Clarification is sought at this stage hut, because I have spoken to Amendment No. 208 by leave I shall say that it is a probing amendment tabled in order to seek elucidation. My support for the amendments tabled by the noble Baroness, although wholehearted, is given at this stage—and I emphasise the words "at this stage"—in order that the position may be elucidated and a measure of assurance given.

Lord Simon of Glaisdale

I should like to raise two points in connection with this and the related amendments. First, it is extremely inconvenient to discuss at the same time a number of amendments which are not directly dependent on each other.

Earlier in Committee there was an example of the noble Lord, Lord Mottistone, moving an amendment and being satisfied that my noble and learned friend the Lord Chancellor had effectively answered it. I ventured to agree. However, the noble Baroness and my noble friends Lord Henderson of Brompton and Lord Seebohm had concentrated on another amendment which was not directly related. Three-quarters of the debate was given to dealing with that matter.

When the Question was put it was understandable that the noble Lord, Lord Mottistone, should seek to withdraw his amendment, being satisfied that it had been effectively answered. However, the noble Baroness, Lady David, was not satisfied that her point had been met and therefore objected to withdrawal of the amendment.

The result was that the amendment put to the House was that tabled by the noble Lord, Lord Mottistone. There was then the somewhat bizarre position where the noble Lord, obviously satisfied that the noble Baroness had been effectively answered, voted against his amendment. The amendment was defeated by only four votes.

I venture to deprecate what the Committee has again done today. I doubt whether a vote will be taken on this occasion. In other words, we are discussing a number of amendments which are not directly and effectively related one to the other.

The second point that I should like to make relates to Amendment No. 206C, tabled by the noble Baroness, Lady David. It is the amendment that has been directly moved and the one we are now discussing. The structure of this part of the schedule raises a matter which I have already pointed out to Members during Committee. Paragraph 7 provides that the Secretary of State may make regulations and gives him a general regulating power. It then states: The regulations may, in particular". They are particular examples of the general regulating power. Both are permissive. Paragraph 7(2) adds nothing to what has gone before. Although the noble Baroness made her point most effectively, if the amendment was carried it would have no effect because it is merely a permissive particularity of a generality, also permissive, which has gone before.

At a later stage I shall seek to raise the point by way of formal amendment. However, I now venture to suggest that, even if it were accepted, the amendment tabled by the noble Baroness would have no practical effect owing to the structure of the paragraph.

Lord Mottistone

I should like to intervene in order to clarify one matter because the noble and learned Lord, Lord Simon of Glaisdale, mentioned my earlier amendment. I do not believe that he has the position correct. On that occasion I tabled Amendment No. 102 and the noble Baroness, Lady David, tabled Amendment No. 101. She moved her amendment because it was the first in the grouping. At col. 137 of the Official Report I explained that I preferred her Amendment No. 101 and that we should forget about Amendment No. 102. However, at a later stage my noble and learned friend the Lord Chancellor to my mind made such a very good argument that I thought he had answered all the points which we had discussed. I said that at col. 145, and I was then referring to my Amendment No. 102 which I should not have moved if I had not already killed it—if Members of the Committee see what I mean. I said that it was not as good as Amendment No. 101, but I was trying to dissuade Members of the Committee opposite from pushing the matter to a Division because I thought that my noble and learned friend had answered the situation very well and that if they felt it right, it would be proper to come back to the matter at a later stage of the Bill.

In the event, when the noble and learned Lord, Lord Simon of Glaisdale, asked her, the noble Baroness rightly said that the Division would take place on Amendment No. 101 which was nothing to do with me. I wanted to clarify that because I do not believe that the noble and learned Lord quite understood the point. I do not believe that it was wrong and I believe that everybody did the right thing.

Lord Simon of Glaisdale

I never for a moment suggested that the noble Lord, Lord Mottistone, did the wrong thing. In fact, I believe that I said the opposite. In any event, even if I thought he had done the wrong thing, I should not say so to Members of the Committee.

6 p.m.

The Lord Chancellor

I believe that the question of which amendments one takes together is largely a matter of discretion. Sometimes one takes a larger group than one otherwise might have done in the hope of making particular progress because there are many important issues to be discussed. I believe that in this Committee we have sought to discuss issues and I have not troubled with the precise result in terms of drafting. I believe that the same is true of nearly all Members of the Committee who have taken part in the debates.

Therefore, while I entirely appreciate that there can be difficulty in taking groups which are not absolutely dependent on each other but raise the same principle, I believe that in this Committee it has been possible to do that without too much difficulty.

As regards the second point raised by the noble and learned Lord, Lord Simon of Glaisdale, I agree with the view that the headings which we assign to regulation-making powers may not be strictly necessary. However, knowing the particular desire of the Members of the Committee to have an idea of what the Secretary of State has in mind for regulations and in order to keep the headings in question, we have put them in. I believe that they are useful in indicating the matters which are likely to be an issue in the view of the Committee at present. I agree that, strictly speaking, Amendment No. 206C of the noble Baroness would not be particularly effective, but if I were to accept it then I would do so in principle—and I hasten to add that I am not proposing to do that—with the view that it could be given effect to in some way, because we should not be in the business of accepting amendments which have no effect, although that could be forced on us by voting. However, I should not agree to that as a matter of deliberation.

I propose to deal with the question of principle raised by Amendments Nos. 206C, 206D, 207A and 208. Paragraph 7 of Schedule 5 and Paragraph 10 of Schedule 6 deal with the power of the Secretary of State to make regulations governing the conduct of voluntary homes and registered children's homes. Sub-paragraphs (2)(f) and (2)(i) provide him with a particular power to make regulations requiring his approval for the provision and use of accommodation for the purpose of restricting the liberty of children in such homes, and enables him to impose other requirements regarding such placements. It follows that once the regulations are made, unless and until the Secretary of State gave his approval for such provision and use to be made, it would be unlawful to restrict the liberty of any child in a voluntary home or registered children's home.

As the noble Baroness said, the Secretary of State has no present intention of granting his approval to the use of secure accommodation in voluntary homes or registered children's homes and thus the restriction of liberty of children in such homes will not be permitted on the basis of the Secretary of State's present intention. However, it was thought prudent in the Bill, for the reasons which I mentioned earlier; namely, that the Bill is intended to last a long time, to regulate the provision and use of such accommodation should circumstances change at some stage in the future.

The effect of these amendments now before the Committee would be to remove this particular regulatory power and to replace it with a regulatory power to prohibit the use of secure accommodation completely. In other words, the Secretary of State would not have the flexibility to respond to changing circumstances if circumstances dictated that this was necessary and appropriate.

The underlying suggestion is that it would be inappropriate for the voluntary sector or even the private homes sector to provide secure accommodation. I believe that we should recognise—and I am sure Members of the Committee will agree—that a number of the national voluntary organisations have a long and proven track record of dealing with difficult and disturbed young people. I very clearly wish to dissociate myself from the idea that secure accommodation for children is in any sense a prison or has any connotation of that sort. The whole emphasis of the secure accommodation provision is to protect the child against injury.

I entirely agree that the Secretary of State has no present intention of granting the power to add secure accommodation to any of these groups; namely, voluntary homes or registered children's homes. However, in principle I cannot see why, subject to the proper safeguards, in this manner a voluntary organisation should not be able to protect a child against himself. I cannot see why the mere fact that the organisation is voluntary makes it impossible for the organisation satisfactorily to provide that help to the child if it should be necessary. As I say, we have no present intention of doing so, but as a matter of principle I cannot see why it can be said that in no circumstances whatever that anyone can foresee would it ever be right to allow a national voluntary organisation, however long and distinguished its record, which saw the need for it, to make that provision.

Lord Elwyn-Jones

Can the noble and learned Lord give an indication as to what sort of change of circumstances he contemplates will justify a departure from the basic view that these voluntary homes should not be used to deprive children of their liberty and otherwise submit them to a form, at any rate, of imprisonment?

The Lord Chancellor

I cannot see any reason why a voluntary organisation with great standing would not be at least as good as other organisations in looking after disturbed children who needed that form of protection against themselves. I cannot see why the mere fact that the organisation is non-voluntary should make it better in that respect.

These amendments hinge on what I recognise is an important point of principle; namely, whether or not voluntary homes or registered children's homes should have the ability to restrict the liberty of residents under any circumstances. To the extent that the Secretary of State has no present intention to exercise his power of approval under sub-paragraphs (2)(f) and (2)(i), I do not think there is anything between us. The Government do, however, take the view that it would be sensible not to close the door completely on this possibility.

Members of the Committee know the characteristics which are required to be taken into account and satisfied in imposing that particular form of help for a young person. I cannot see any reason to be certain that in no circumstances whatever would that reason arise in respect of the child who happens to be looked after by a voluntary organisation. This would impose in all circumstances a duty to move the child out of that place altogether for what might be only a short time, perhaps until its condition is resolved, into another place simply for the purpose of restricting its liberty for its own protection.

Paragraphs (2)(f) and 2(i) therefore give the Secretary of State the ability to exercise his power, if he thought it appropriate and necessary, at some stage in the future to give approval for use of such accommodation, applying—this is important—the same strict standards that he currently sets for the provision and use of secure accommodation provided by local authorities. Amendment No. 52 of my noble friend Lord Campbell of Alloway is, as I understand it, designed to provide a regime that would apply to any form of secure accommodation, wherever it was. That is the purpose behind the amendment.

With that explanation, I hope that the noble Baroness will feel able to withdraw the amendment.

Lord Campbell of Alloway

Before my noble and learned friend sits down, perhaps I may thank him for that clarification and for accepting the rectitude of speaking to Amendment No. 208 in this context.

However, I ask whether it does not come to this. The Government are seeking reserve powers in order not to close the doors on a possible situation, there being no present intention to implement those powers. For my part, I do not see the justification for conferring wide powers of this nature in relation to secure accommodation. If the Secretary of State wishes to use powers on some future occasion, in circumstances which no one has been able to explain or envisage, is it not right—I speak on a question of principle—that the Secretary of State should then return to Parliament to explain the circumstances, justify his use of the powers, and then no doubt have the consent of Parliament? Surely it is wrong that it should be pre-empted by the grant of reserve powers which there is no present intention to use.

Baroness Faithfull

We are in some difficulty here. My noble and learned friend said that it is the intention that voluntary homes should not be used for secure accommodation. However, there is justification when a child perhaps becomes seriously epileptic or is in similar great difficulty and one does not want to move the child away from the home but it is necessary to put him in secure accommodation. That may be necessary for only a short time; perhaps a week, three weeks or a month.

It is a question of time. If one can never use secure accommodation in a voluntary home one might damage a child by moving him. Therefore, it is also a question of whether the secure accommodation is registered or whether it is possible, on certain occasions in difficult circumstances, to use a room for the purpose. I give an example. I know of a voluntary home where a child had gone home for the weekend and returned having murdered his mother. It was felt that the child should be in secure accommodation. That home allocated a single room as secure accommodation for the child for the difficult time that the child was going through. The child slept in that room accompanied by a member of the staff.

The whole matter comes down to the definition of secure accommodation and whether in certain circumstances it would be possible to use a voluntary children's home as secure accommodation in the interests of the child.

6.15 p.m.

Lord Simon of Glaisdale

Before the noble Baroness deals with the substance of the matter, perhaps I may deal with the argument put forward by my noble and learned friend the Lord Chancellor. On the point I made he said that he agreed in principle that sub-paragraph (2), being connected with sub-paragraph (1) and both being in permissive terms, is strictly speaking unnecessary. However, my noble and learned friend said that he thinks it may be advantageous for Parliament to know what the Secretary of State intended to do in the regulations.

Two points must be made on that. First, the argument would be valid only if the Secretary of State's regulating power were to be made mandatory. Members of the Committee might then want to know what sort of regulations he intended to make. But the argument simply will not wash when the powers are permissive. Secondly, this formula—a permissive, general regulatory-making power followed by particulars of what he might do—occurs at least three times in the Bill. The equivalent of sub-paragraph (2), which takes up over half a page of the statute book, occurs at equal length in the other instances.

My noble and learned friend Lord. Hailsham referred at an earlier sitting to the inflation of the statute book and I ventured to second that exposition at a later sitting. The fact is that in the 10 years after the Renton Committee reported the statute book ran to six volumes—double what it was in the year after the Renton Committee reported, though there were fewer general and public Acts. We had simply become, adapting Disraeli's words, inebriated with the exuberance of our own verbosity. If we can—we can easily do it—strike out one and a half pages without making a pennyworth of difference to what is enacted, surely that is what we should do.

The Lord Chancellor

Strictly speaking, that proposal is not the subject of any of these amendments. I know that the noble and learned Lord is well aware of that because he spoke of tabling an amendment at a later stage. I do not go along with the view that this makes no difference at all. It is important in its context. However, perhaps the noble and learned Lord will allow me to leave that matter until he puts it forward by way of an amendment.

My noble friend Lord Campbell of Alloway suggested that this is a reserve power and that parliamentary time could be taken up, if the circumstances arise, to ask for it to be granted. My noble friend Lady Faithfull, with her great experience in these matters, gave an example of the type which I was seeking to describe in general terms where a child who is in the care of a voluntary home requires secure accommodation for his own protection.

I can see that in some situations to move the child away from the home and put him in a local authority home would be an additional and unnecessary trauma. One hopes that the time for which he would require it would not be very long and that matters might return to normal. As long as the regulations are adequate and the controls sufficiently precise, I cannot see that the mere fact that the home is a voluntary one or a registered children's home, makes it inappropriate for granting secure accommodation. I do not understand that as a matter of principle. Therefore I believe it is right that the Secretary of State should have this power. As my noble friend said, it may he that at the moment that is possible and that the Secretary of State would require power to regulate it in order to prevent such a situation. That is what he proposes to do, as the noble Baroness knows from what the officials of the Secretary of State have told those who were giving her information.

On the basic principle of the matter I do not see that it is right to make this fundamental distinction. For that reason I hope that the noble Baroness will feel able to withdraw her amendment. I am very grateful to my noble friend Lady Faithful] for giving a particular example that I am sure all of us will reflect upon in considering the matter.

Baroness David

This amendment has certainly provoked considerable discussion. I believe that it is an important matter. The Government have had a change of heart about it. They were not intending to allow these homes, and I know that they are not actually saying that they intend to do so now. They are keeping that possibility. However, they did say fairly firmly that they were going to prohibit the locking up of children in voluntary homes. That seems to be a situation that has changed. We have not had a good reason for the change of heart.

The noble and learned Lord was speaking about protecting children from themselves and that it was for their own sakes that they needed to be in secure accommodation. Many of the people who have to deal with children in such homes believe that if there is secure accommodation there it is likely to be used. As regards the example given by the noble Baroness, Lady Faithfull, quite clearly a voluntary home did manage to look after the child in a secure way though the home did not have approved secure accommodation. It may be that that can be done.

I cannot say that I have been satisfied with the answers I have received. The noble and learned Lord, Lord Simon of Glaisdale, has raised the point about this matter being permissive anyway. I must take back this amendment and look at it again. I certainly believe that I shall have to return. I had the support of the noble Lord, Lord Campbell of Alloway, for which I am very grateful. I believe it is a matter upon which many of us feel quite strongly. I shall probably come back with perhaps a slightly different amendment, possibly at a different stage of the Bill, or to amend the main part, namely, that "the Secretary of State may". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 206D not moved.]

Schedule 5 agreed to.

Clause 54 [Children not to he cared for and accommodated in unregistered children's homes]:

The Lord Chancellor moved Amendment No. 206E: Page 48, line 19, leave out ("provided under section 44"). The noble and learned Lord said: In moving this amendment I also speak to Amendment No. 253A. These amendments are designed to improve the drafting of the Bill. Clause 54(6)(a) currently refers to a community home provided under Section 44 because the interpretation clause does not contain a definition of a "community home". We are seeking to insert a definition at Clause 77(1) and to delete the words "provided under Section 44" in Clause 54(6). To do so is consistent with the general approach taken throughout the Bill. I beg to move.

On Question, amendment agreed to.

Clause 54, as amended, agreed to.

Clause 55 [Welfare of children in children's homes]:

[Amendment No. 206F not moved.]

Clause 55 agreed to.

Clause 56 [Persons disqualified from carrying on, or being employed in, registered homes]:

The Lord Chancellor moved Amendment No. 206G: Page 50, line 12, at end insert— ("(2A) Where an authority refuse to give their consent under this section, they shall inform the applicant by a written notice which states—

1. (a) the reason for the refusal;
2. (b) the applicant's right to appeal against the refusal to a Registered Homes Tribunal under paragraph 8 of Schedule 6; and
3. (c) the time within which he may do so.").

The noble and learned Lord said: This amendment is put forward in pursuance of an attempt to replace with various amendments the currently unimplemented Children's Homes Act 1982. At the same time we are seeking to align various aspects of this Bill. In Clause 56 we are aligning new provisions on the disqualification of persons from carrying on a registered children's home with disqualifications in respect of private fostering. These are relatively severe restrictions and it is appropriate therefore that, whenever a person is refused consent by the local authority, he should be able to appeal against that decision just as a prospective private foster parent is able to appeal against such refusal under paragraph 8 of Schedule 7. In the case of a registered children's home the appeal will lie to a registered homes tribunal, which has a general power to hear appeals from local authority decisions regarding registration and imposition of conditions on the running of children's homes.

This amendment completes the picture by requiring that where a local authority refuses to give its consent it must notify the applicant of the refusal and of his rights in respect of an appeal to the tribunal. Again this corresponds with the local authority's responsibility in respect of persons disqualified from private fostering in Clause 59(4).

The drafting follows Clause 59(4) almost exactly. We merely wish to ensure that the applicant is made aware of those decisions and rights of appeal that affect him. I beg to move.

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Schedule 6 [Registered Children's Homes]:

The Lord Chancellor moved Amendment No. 207: Page 104, line 32, leave out ("placement") and insert ("placing"). The noble and learned Lord said: This amendment brings the drafting of the regulation-making powers in respect of registered children's homes into line with those for community homes and voluntary homes by substituting the word "placing" for "placement". I beg to move.

On Question, amendment agreed to.

[Amendment No. 207A not moved.]

Lord Campbell of Alloway had given notice of his intention to move Amendment No. 208: Page 105, leave out lines 3 to 8.

The noble Lord said: My noble and learned friend has been good enough to acknowledge the relationship between this amendment and Amendment No. 52 which is under active consideration by my noble and learned friend with his advisers. In those circumstances I do not move the amendment.

[Amendment No. 208 not moved.]

Schedule 6 agreed to.

Clause 57 [Privately, fostered children]:

The Lord Chancellor moved Amendment No. 208A: Page 50, line 29, at end insert ("and"). The noble and learned Lord said: Amendments Nos. 208A and 208B and the amendment proposed by the noble Lord, Lord Kilbracken, Amendment No. 254, have the same objective; that is, to avoid the duplication of definitions within the Bill. This is a feature of the Bill that we have attempted to maintain. The noble Lord, Lord Kilbracken, clearly approves of our efforts in this regard. The only difference between these amendments is that the first couple would leave the definition of "relative" in the interpretation clause, that is Clause 77, whereas Amendment No. 254 would have the definition located in Clause 57. I prefer to see the definition in the interpretation clause. I therefore invite the Committee to approve Amendments No. 208A and 208B.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Cullen of Ashbourne)

I should point out that if Amendment No. 208B is agreed to I cannot call Amendment No. 209.

The Lord Chancellor moved Amendment No. 208B: Page 50, line 32, leave out from ("section") to end of line 35.

The noble and learned Lord said: I have already explained the amendment. I beg to move.

On Question, amendment agreed to.

6.30 p.m.

Lord Prys-Davies moved Amendment No. 209AZA: Page 50, leave out lines 38 and 39 and insert ("does not intend to do so for more than 28 days from the start of the child being placed.").

The noble Lord said: I should like to speak in a little detail about the background to this amendment and also to the amendments grouped with it. The amendments are supported by the Save the Children Fund and are based on the experience and advice tendered by the African Family Advisory Service which is closely linked to the Save the Children Fund and is concerned with issues affecting West African families and their children in the United Kingdom. The Committee may wonder why I rely so much on the African Family Advisory Service. It advises that 80 per cent. to 90 per cent. of the children who are placed in private foster care in England and Wales are of West African parents. I was truly amazed when given this figure but I have double-checked that my information is correct.

It is estimated that there are about 2,300 West African children in foster homes in England and Wales. The figure is almost certainly a significant under-estimate as it is based on notification to the local authorities. The notification is very imperfect indeed. It is interesting that a magazine which contains a regular "homes wanted" column advertised for homes for 497 West African children in 1985–86. The number had increased to 614 in 1986–87 and reached 819 in 1987–88. The number is increasing at a substantial rate. The figures provide a significant guide to the trend.

Last October and November the African Family Advisory Service conducted a survey into the practice of known private fostering in three local authorities in England. They have not been named; we cannot identify the children involved. However, the information is in the knowledge of the Department of Social Security. Six main findings emerge from the survey.

First, the number of arrangements of which the local authorities were notified under-estimate the true position. This means that the figures I gave earlier are an under-estimate. Secondly, agents were operating in the areas of the three local authorities to recruit local families as foster parents and to privately foster West African children for a fee. I understand that the payment to the foster parents is about £10 to £20 a week.

Thirdly, these placements, rapidly made, are terminated with equal rapidity, with little regard to the children's needs either before placement or at the termination of placement. Fourthly, foster parents have scant details of either the children's or the parents' background, medical histories or where the parents live. It is often the case that the parents have returned to West Africa.

Fifthly, foster parents do not give adequate notice of their intention to receive children into care. The authorities have little or no control over the flow of private foster children into their areas and are faced—these are the words used by the African Family Advisory Service—with "an uphill struggle" to maintain tabs on the children. I shall return to the words "an uphill struggle" later. Finally, all three authorities have received West African children into care as a direct result of inappropriate private fostering arrangements. What emerges is worrying. It is certainly a very grey area.

Against that background and drawing on their experience the African Family Advisory Service and the Save the Children Fund consider that Part IX of the Bill should be amended along the lines proposed in the amendments. We do not say that the wording of the amendments is perfect but we believe that the Bill should be amended along the lines set out. Advantage should be taken of the Bill to tighten up the legal requirements.

The purpose of Amendment No. 209AZA is clearly to distinguish between potentially long-term private fostering placements and those arranged for short-term periods by parents who have to make emergency placements for their children. However, as Clause 57(2) stands, the duties imposed by the Bill, including the important duty set out in Clause 58, do not come into play until a child has been maintained and cared for by a foster parent for a period of 28 days. Why should there be a gap of 28 days before the duties come into play?

One appreciates that paragraph 6 of Schedule 7 confers certain rights on the local authorities in relation to a proposal. The snag is that the local authority may not be aware of the proposal. Where the parties intend and have agreed that the fostering is to be long term, the duty under Clause 58 should apply on the first day of the fostering and not as and from the 28th day. This means that a notification of intention to foster should precede the first day of fostering. It would give the social services department an opportunity to undertake inquiries which could reveal that the placement might be inappropriate.

Amendment No. 209BZA recognises the crucial importance of prior notification of the proposal to the local authority by both the parents and the person proposing to foster the child. It is submitted that notification should be seen as a crucial stage in the private fostering procedure. Under the Bill, notification may be specified in the regulations which may be made under paragraph 7 of Schedule 7. The noble and learned Lord, Lord Simon of Glaisdale, has already complained about this formula relied upon in the Bill.

Notification is so vital that the Bill should be specific and clear about it. The Bill is less satisfactory than Section 7 of the Foster Children Act 1980 on the issue of notification. I mentioned earlier that the authorities have said that they face an uphill struggle when keeping tabs on foster children coming into their care. They need assistance. We believe, and so do the two organisations which is more important, that they can probably best be helped by placing in the Bill an effective notification machinery. We hope that the Government will reconsider that position.

Amendment No. 209BZA places two new duties on local authorities. First, there is a duty on a local authority to make inquiries of the local authority of the child's home area. Secondly, there is a duty to obtain a medical report from the child's doctor. The first duty should help authorities to seek greater control over the movement of prospective foster children into their own area so that they can prohibit the placement where they are satisfied that it is inappropriate. I accept that the need for a medical report is touched upon, by implication, in paragraph 6(1)(c) of Schedule 7. However, bearing in mind that a small number of West African children in private foster care are known to have died in 1988 due to their medical records not being transferred, local authorities should have the right, and be under a duty, to call for medical reports from the child's doctor.

Amendment No. 211AZA specifies the information which should be contained in the notice to the local authority. The list is obviously not exhaustive. It is the minimum information required by authorities if they are effectively to discharge their duty to the children. The regulations should be specific on the need for that data.

The reason for Amendment No. 209CZA is that it enables a local authority to have a statutory obligation towards children placed in long-term foster care. It will facilitate the duty of every local authority, as outlined in Clause 58(2)(a).

I appreciate that I have taken a substantial part of the Committee's time in introducing the amendments, but in the light of the information that we have received we believe that this is a grey area. It reveals a problem and the Bill as drawn does not address itself to that problem. I beg to move.

Baroness Faithfull

The amendment so well described by the noble Lord, Lord Prys-Davies, illustrates a tremendous problem. Perhaps I may ask him two questions. First, if relatives take a child for money, does he presume that those relatives are foster parents? Secondly, what happens in an emergency? For example, a woman may be rushed into hospital and the father may place the child with someone until the next morning. Does he believe that his amendment covers those two point?

Lord Prys-Davies

Will the noble Baroness please repeat the first point?

Baroness Faithfull

If the parents, or a parent, place a child with relatives and pay them, does the noble Lord presume that they are foster parents?

Lord Prys-Davies

I was under the impression that as regards the first question, the relatives would be exempt by virtue of the provisions of the Bill. As regards the second question, I meant to make it clear that emergency fostering, such as the noble Baroness had in mind, would be excluded from the provisions of the amendment.

6.45 p.m.

The Lord Chancellor

The noble Lord has explained a complicated amendment in an amazingly short time. I shall do my best to emulate his good example. Perhaps I may take Amendment No 209AZA first. I believe that it is the first in the series. There may be some misunderstanding here because I believe that the noble Lord's amendment will reduce the protection instead of increase it, because the definition in Clause 57(2) provides: A child is not a privately fostered child if the person caring for and accommodating him—

1. (a) has done so for a period of less than 28 days; and
2. (b) does not intend to do so for any longer period".

It is an exclusion. A child is a privately fostered child unless those two conditions are satisfied. I shall give an example of where it might be different. Let us suppose that the child is kept for 30 days, but the intention was to keep it for 20 days. Under the noble Lord's amendment it would not be privately fostered, but it would under our provision. If the intention is not borne out; in other words, if the child is kept longer than the 28-day period, the child becomes privately fostered under our definition but not under the noble Lord's. The noble Lord might like to look at this matter again. There is not much between us on principle, but the drafting of his amendment does not result in protection if the child is there for longer than 28 days. We have said that if that happens it does not matter what the intention was, the child is taken to be privately fostered. I shall not take more time on that point.

Amendments Nos. 209BZA, 209CZA and 211 relate to a complicated subject. The circumstances must be taken into account. As the noble Lord has explained, he relies on his illustration of West African children. I agree that the situation he described must he catered for. The target is to some extent a moving one, and so we believe that the most appropriate and effective way to regulate the matter is by regulations made under the powers contained in Clause 58 and paragraph 7 of Schedule 7. As regards notification, those powers go beyond the requirements which the amendments would insert on to the face of the Bill. For example, notification should be required not only from parents and prospective foster parents but from any third parties who may be involved in arranging a private placement.

As to the form of the notice, I have no doubt that all the items of information set out in the amendment will be required by the local authority. When we come to draft regulations, we may find other matters which should also be considered. What is required in the notification may, as a result of changing practices, need to he developed. Similarly, I believe that the regulations under Clause 58, taken together with the provisions of Clause 60, offer a more appropriate and flexible vehicle for the most comprehensive and effective safeguards for children that we are seeking to achieve. The requirements and safeguards which have been set out in the amendment are among those we shall consider when makng the regulations under Clause 58 and Schedule 7, as we intend to do as part of the overall implementation of the Bill.

I am not sure whether the noble Lord intended to cover Amendment No. 211BZA. I think perhaps he did. It is consequential upon Amendment 209BZA. It may be unnecessary given that there is provision in Clause 60 for a local authority to prohibit a person from fostering and there is a right of appeal in paragraph 8 of Schedule 7 against such a prohibition. So I think that the noble Lord may take it that we have very much the same objectives in view, and that the regulation-making powers will have the effect of allowing regulations to be made which would cover the concerns which he has so clearly expressed.

Lord Prys-Davies

I am grateful for the response of the noble and learned Lord the Lord Chancellor and for its tenor. Basically we seek a common objective and I think it is now for those who have consulted us to consider very carefully the points made by the noble and learned Lord. We shall then decide whether we should come back on this amendment or a variation of it. I am particularly grateful that the Lord Chancellor has in mind that the regulations to be made under the Bill will cover most of the matters which we have mentioned on these Amendments. As I said, on the face of it this could be a common area so we shall consult and possibly come back to your Lordships at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57, as amended, agreed to.

[Amendment No. 209BZA not moved.]

[Amendment No. 209CZA not moved.]

Clause 58 [Welfare of privately fostered children]:

Lord Mottistone moved Amendment No. 209ZA: Page 51, leave out line 12.

The noble Lord said: This is a small amendment which seeks to reduce the amount of verbiage in the Bill. It seeks to leave out sub-paragraph (a)(i) of subsection (2), because it is believed that subsection (2)(a)(ii) and (2)(b) make sufficient provision to ensure that visits by a local authority officer are made on specified occasions and that the Secretary of State can regulate the functions in this area. In those circumstances, there appears to be no need to include provision for prescribed services as set out in subsection (2)(a)(i). The need to maintain privacy and to ensure that the family is not inconvenienced also seems to be amply covered. After all that, the clause as it stands appears to be too restrictive. I hope my noble and learned friend will feel that in this case he can agree to this rather small amendment. I beg to move.

The Lord Chancellor

The idea of this amendment is to provide for the regulations to deal with, for example, something happening which would require a visit within the prescribed time limits and the normal provisions would operate to require regular visiting. But something might happen. For example, a complaint might be made from some independent source or there might be an accident to the child which would make it desirable that a visit should take place. So the idea is to give power in regulations to require a visit determined not by time but by circumstances of which those are illustrations. There might be better illustrations, but those occur to me. So we are anxious to keep this provision. It is an important matter. It is important that we should have the opportunity to visit as a result of something happening, such as an accident.

Lord Mottistone

I thank my noble and learned friend for that explanation. I think that I am convinced, but in the event that we are not collectively convinced on my side we might come back at a later stage. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 209A: Page 51, line 18, leave out from ("that") to ("and") in line 21 and insert— ("—

1. (a) any privately fostered child is being accommodated in premises within the authority's area; or
2. (b) it is proposed to accommodate any such child in any such premises,

he may at any reasonable time inspect those premises").

The noble and learned Lord said: I should like to move Amendment No. 209A and speak to Amendment No. 209B. The first of these amendments redrafts the power of a person authorised by the local authority under Clause 58 to inspect premises in which a private foster child is, or is proposed to be, accommodated. The power is drafted in the amendment to reflect more appropriately the requirement under paragraph 7 of Schedule 7 that persons keeping, or proposing to keep, a private foster child should inform the local authority. The references in Clause 58 to premises where a child "is likely to be" kept are therefore replaced with premises where "it is proposed to accommodate" such a child. Further references to the inspection of any part of the premises are removed by this amendment, as they are thought misleading and are not incorporated into other inspection powers in the Bill.

The second amendment redefines the offence in Clause 61(1) which relates to obstruction of a person exercising power under Clause 58(3) in line with the other offences of obstruction of powers of entry laid down in the Bill. I beg to move.

On Question, amendment agreed to.

Clause 58, as amended, agreed to.

Clauses 59 and 60 agreed to.

Clause 61 [Offences]:

The Lord Chancellor moved Amendment No. 209B: Page 53, line 35, leave out from ("authority") to end of line 36 and insert— ("— (bb) he intentionally obstructs another in the exercise of the power conferrerd by section 58(3);".

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

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Schedule 7 [Privately Fostered Children]:

The Lord Chancellor moved Amendment No. 210: Page 105, line 33, leave out ("or paragraph 4").

The noble and learned Lord said: This is merely a drafting amendment which I am prepared to explain more fully if necessary. In the meantime, I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 211: Page 106, line 5, leave out from ("child") to end of line 6.

The noble and learned Lord said: This amendment removes from paragraph 5 of Schedule 7 the definition of "protected child". It is unnecessary to define this as the interpretation provision in Clause 77 already provides a meaning for the word. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 211AZA and 211BZA not moved.]

Schedule 7, as amended, agreed to.

The Deputy Chairman of Committees (Lord Cullen of Ashbourne)

The next amendment is Amendment No. 211ZA.

The Lord Chancellor

I think that this amendment will probably take some time, because it is an important one. So it may be that this is an appropriate time to see whether we can gain some refreshment before we embark on it.

The Earl of Dundee

In view of that very encouraging advice by my noble and learned friend, I beg to move that the Committee stage be adjourned and we shall begin again at 8 o'clock.

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

[The Sitting was suspended from 6.58 to 8 p.m.]

Lord Campbell of Alloway moved Amendment No. 211ZA: Before Clause 62, insert the following new clause: ("Review and annual report. .—(1) The Secretary of State shall, in consultation with the local authority associations, the Central Council for Education and Training in Social Work and such other bodies or persons as may appear to him to he appropriate, maintain under review the sufficiency of the number of social workers appropriate for the due discharge of their statutory duties affecting the welfare of children and families and all aspects of recruitment and training of social workers concerned with such duties. (2) The Secretary of State shall lay before Parliament an annual report as to the state of the review referred to in subsection (1) above.").

The noble Lord said: Since this amendment was tabled it has gathered support from the noble Baroness, Lady David, and the noble Lords, Lord Seebohm and Lord Henderson of Brompton, whose names appear on the Marshalled List. It also has the support of my noble friend Lady Faithfull. If it were acceptable to the Committee, it would stand in the stead of Amendment No. 213, which it is understood may not be acceptable to my noble and learned friend the Lord Chancellor in its present form.

On Second Reading it was common ground that adequate training of social workers in their duties affecting the welfare of children and families—aspects of this Bill—could not work satisfactorily according to the intendment of the Bill without adequate provision for training. The amendment is self-explanatory. As time is short, perhaps I may take it as read.

The hope must be that the common concern as reflected, in the amendment is acceptable to the Committee and also that it will be acceptable to my noble and learned friend. I think my noble and learned friend would agree with me that in this area the question is not whether something should be done but whether the means proposed are available; in other words, what should be done; and whether, as proposed by this amendment, the Secretary of State should be enjoined to discharge a mandatory duty of constant review and to make an annual report to Parliament.

This amendment differs in material respects from Amendment No. 213. First, it is not in conflict with any provision of the Bill but is in implementation of it. Secondly, its incidence is limited to the discharge of statutory duties by social workers to implement the Bill, though some such duties may derive from other statutes. Thirdly, it does not impinge upon any financial privilege of another place as requiring any general or specific allocation of funds. This is left to the subsequent dispensation of Parliament in the light of recommendations made in the annual report.

Furthermore, it leaves the conduct of the review within the statutory requirements proposed to the unfettered discretion of the Secretary of State. In addition, it excludes the many duties of social workers which do not affect the welfare of children and families. Those are excluded because, first, the discharge of such duties is beyond the scope of the Bill; and, secondly, their discharge has given no occasion for public concern. It is only the discharge of the duties affecting children and families which has given rise to public concern. Lastly, it provides a system of control; and I stress the need for a regime which has within it the element of control apart from the question of public concern.

The legal framework of the Bill cannot work satisfactorily unless there is a sufficiency of numbers and recruitment and training of social workers in their duties affecting the welfare of children and families are kept under constant review and an annual report is made to Parliament.

If those steps as proposed are not acceptable, what other steps should be taken to control, to ensure that our own regime operates satisfactorily? The continuing review proposed enjoins consultation on a very broad base. It is suggested that this is absolutely essential as many of the problems interact. To give but one example, sufficiency of numbers is related to pay, careers structures and terms of employment as affecting recruitment. Length of training is related to content and quality of instruction and the aptitude, intelligence and experience of the trainee. That is why consultation, constant review and a measure of control are requisite.

Representations may be made to the Secretary of State, and recommendations by the Secretary of State—which may well have financial implications if acted upon—may be made by him in his annual report to Parliament.

In conclusion, it is accepted in Part X of the Bill—Clauses 62 to 65—that the Secretary of State has certain supervisory functions and responsibilities which he may discharge as a matter of discretion should the occasion arise to exercise those functions. But there is no reference whatever to the subject matter of this crucial amendment. The occasion to exercise such functions arose a long time ago, is extant today, and will continue to arise: hence the justification for a mandatory provision as distinct from a discretionary provision so as to ensure that a matter of public concern, of fundamental consequence to the practical implementation of aspects of this Bill, is brought into control in the public domain, no more and no less, by publication of an annual report and by parliamentary scrutiny.

I move this amendment as a matter of principle. I await noble Lords' contributions with considerable interest. I beg to move.

Lord Seebohm

I shall not speak for long—I never do—but I think I have the authority to speak on this matter. In 1961, nearly 28 years ago, I was a founder member of the National Institute for Social Work, concerned with training. This was formed as a result of the Younghusband Report. There was a massive report on social work training showing the inadequacies of the work at the time.

For the first two or three years we spent our entire facilities on retraining experience for completely unqualified social workers. It sounds as if the major task was completed in three years. We did not quite complete it, but the numbers in those days were very small. In 1968 a report bearing my name was produced which also had quite a long chapter on training, deploring the state of training that still existed at that period after 1961. In those days there were under 10,000 social workers in the field. I think the number was something like 8,700, if hospital workers were included. Today there are approximately 30,000 to 32,000 social workers in the field. The situation is very difficult to quantify for the simple reason that one cannot define what a social worker is nowadays; there are all sorts of grades with different duties. But the number is something like three to four times what it was in 1968. More training is necessary. I doubt whether it has progressed very far since 1968.

One of the recommendations of the Seebohm Report was that there should be a central council, which in due course became the Central Council for Education and Training in Social Work, to oversee and promote the training of social workers. To my mind it has been deplorably ineffective, until recently, when a new director, Mr. Tony Hall, was appointed. He produced a vigorous report recommending a third year over the small basic two-year training which exists at the present time. This recommendation was turned down by the Government and we have yet to see an adequate answer to his report.

I do not believe that three consecutive years was the answer. I personally have talked to a number of social workers and to directors of social services on this point in recent months. The general conclusion that I make is that there should probably be up to a year of in-service, on the job training under careful supervision so that one becomes quite acquainted with the normal work of the social worker; but training after that is badly needed in a number of specialities. The most important one is that of children. I have no doubt about that in my mind at all. Quite apart from child abuse and sexual abuse which we hear so much about now and the Butler-Sloss Report, there are battered children—not only babies—and all sorts of problems with children who are mentally ill and mentally handicapped.

These are all specialisms which must be taught in a quite sophisticated and proper manner. I do not know whether any plans for this could be made yet but I think it is absolutely essential if we are to meet the requirements of this Bill. That is my point. We are loading social workers with yet other responsibilities under the Bill, which is a very important Bill. There are already over 90 statutes about which social workers have to know in order to perform their duties now, and then there is the Bill. So we cannot leave the situation vague and say that we must have more training. Something specific must be done. I think that if this is not the right amendment then it shows the right way to see that this takes place. That is all I wish to say; it is an urgent and very important matter.

8.15 p.m.

Baroness Faithfull

Unlike the noble Lord, Lord Seebohm, I do not propose to be brief. I hope that your Lordships will forgive me if I speak at some great length. If I may, I shall speak to my Amendment No. 213 which concerns the training of personnel in the social services and probation departments. The amendment moved by my noble friend Lord Campbell of Alloway is wider than Amendment No. 213 but the spirit and intentions behind both our amendments are the same.

Lord Justice Butler-Sloss said: The weight given to the training of social workers is of central importance to this Bill. Indeed, when this Bill becomes law it will only be as good as the people who carry it out.". That is a solemn thought. I submit that the training of those working in the social services, as the noble Lord, Lord Seebohm, has said, has been inadequate to the task. I refer to those who work in a residential and day care setting as well as in the field social work setting. Further, I should say that there are not enough personnel in the social services to meet the statutory duties which Parliament has laid upon them. Winston Churchill once said, "Learn from history". Perhaps I may briefly give some facts concerning the background. Before 1970—and the noble Lord, Lord Seebohm, will know about this—those seeking to carry out field social work usually obtained a two-year training in basic social work. This was followed either immediately or after some practical experience by a post-qualifying course. The training programme for child care was organised from the Home Office, as was the training for probation officers. The training for the welfare needs of the elderly, handicapped and the mentally ill was organised from the Ministry of Health and various universities ran psychiatric social worker courses, as did the Tavistock Clinic. Later this separate post-qualifying training came under the aegis of the newly appointed Council for Education and Training in Social Work. For some reason which I never quite understood—but I have an uncomfortable feeling that it was financial—the basic separate post-qualifying courses were telescoped into one year, whereas before there had been a basic training of two years and then a post-qualifying course.

Some years ago in your Lordships' House I moved an amendment to the effect that training for social work should be mandatory. This had overwhelming support in your Lordships' House but, alas! our decision was reversed in the other place. In the light of Cleveland and of the tragic cases of Jasmine Beckford, Kimberly Carlile, Tyra Henry and now the Southwark case, we were conscious of the fact—and it was stated in all these reports—that the training of social workers was inadequate. Have not we at Westminster been penny-wise and pound-foolish in more ways than one?

Judges have told me of the lack of knowledge of court procedure shown by some social workers. This is not surprising, as I think the noble Lord, Lord Seebohm, said that there were 90 relevant Acts of Parliament. I counted up—obviously my count cannot be very good—and I made it 88 Acts of Parliament relating to social work and court work. Fifty-nine of these Acts directly involve the responsibility of the social services and those 59 Acts of Parliament have been passed since 1972.

Members of the Magistrates' Association have paid tribute to the work of social workers but consider that to carry out their duties they have a right to a better training which will suit them to the work they have to do.

If, as is recommended in the Cleveland report, there is to be closer collaboration between those working in the area of child protection, then the social workers must be skilled in their own spheres in order to work with colleagues from the other relevant professions, particularly as the social worker is often the key worker in child protection cases and the one who is usually responsible for taking a case to court.

The Council for Education and Training of Social Workers, as has been stated by the noble Lord, Lord Seebohm, recommended a three-year course which would have had the advantage of the social workers starting one year older than after two years. It must be remembered that 24 per cent. of newly-qualified staff are at the moment dealing with child protection cases. Furthermore, that provision would be less costly to local government, but it did not receive the approval of Her Majesty's Government.

However, Her Majesty's Government, the Social Work Inspectorate and the administration in the Department of Health, are to be congratulated. First, they recommended a basic two-year course for all social workers. Secondly, they have set up a working party to look into and make recommendations on post-qualifying training. Thirdly, there has been recognition of the need for training officers in social work departments to organise the practical training of social workers within the departments. Such workers would keep in close touch with the academic world—that is, the universities and the polytechnics.

Already £8 million has been given for this purpose, but I suggest that between all the authorities in England and Wales that is not enough. We congratulate the Department of Health for these three positive contributions towards better training, but there is a worrying "but": I am given to understand that the post-qualifying course will not be available to all those social workers opting for child care. It is further a matter for concern that the course is likely to he only a short one. One hopes that the working party will look at the Goldsmith's College course which combined academic training on the emotional and psychological health and educational needs of children with sound practical training.

I have questioned whether £8 million is enough to set up training units for practical work. In the probation service there are 19 training units in 16 areas. If training units cannot be set up, well-trained senior social workers should be placed in social services departments. In the past this has been left to local authorities. Those authorities have not provided the resources for practical training. They maintained that they had been rate-capped and did not have the available resources. I think that my noble friend and the noble Baroness, Lady David, will have something to say about that. It is a very serious and worrying factor.

The release of social workers who have received basic training is costly to local government. It is costly to local authorities because the student on secondment must be paid and the replacement must he paid. I understand that local authorities consider they do not have adequate resources for that. Finally, courses for older men and women have been closed down. In my experience such courses were invaluable to the married woman of 35 to 40 whose children had grown up and to older men, some of whom were coming out of the forces.

I know that it is not for this Chamber to make recommendations concerning finance, but I have tried to outline some of the very real difficulties with training courses that local authorities will meet. This country gives a less adequate training to social workers than any of its EC neighbours.

I end as I began by stating that this Bill will not be the positive reform that we all hope and wish it to be, unless it is properly administered. It cannot be properly administered without qualified social workers.

Lord Henderson of Brompton

I want to take up a phrase which has just fallen from the noble Baroness and challenge her statement that it is not for this Chamber to propose anything to do with finance. It is indeed a part of the duty of this Chamber, if it so wishes, to make such proposals. We may propose but it is for the Commons to dispose. I do not think that we should limit ourselves in that regard. I feel sure that, having said that, the noble Baroness will agree that we are not in any way trespassing on the preserves of the House of Commons by suggesting that training in social services, or anything else which may be the cause of financial expenditure, should be freely aired in this Chamber.

I am very glad that that matter has been aired by the noble Baroness, Lady Faithfull, and by the noble Lord, Lord Campbell of Alloway, to whom we are indebted for this amendment. I believe it is an improvement on the amendment standing in the name of the noble Baroness, Lady Faithfull, if only because it is wider. I do not know whether it is in the right place in the Bill, but that is a matter of very little importance. However, I feel that something of this nature must be incorporated in the Bill.

The noble Lord, Lord Campbell of Alloway, when introducing the amendment spoke eloquently about the element of control it contained. I feel sure that he is right to draw attention to that. It is a matter of very great importance, and of such importance that Parliament should pay annual attention to it. The noble Lord was then followed by two extremely authoritative speeches, one slightly shorter than the other. They were delivered by the noble Lord, Lord Seebohm, and the noble Baroness, Lady Faithfull, who both have unequalled expertise in social services. They made a great and unanswerable case for the development of education and the general deployment of social services in the public interest.

This is a matter with which Parliament should concern itself, partly because it is a matter of such emotional concern in the public domain. There is no question that the public is emotionally concerned with the treatment of children who have in one way or another been brought into the courts, into care or indeed custody, but care particularly, because of their own misfortunes which are not of their own making. We have a special duty in Parliament to ensure that the public interest is informed.

We cannot possibly ensure that the public interest is properly informed unless a requirement is made for the Secretary of State to lay before Parliament annually a report which Parliament can then take into consideration if it so wishes. I have observed over 40 years or so the effect of parliamentary reports by government departments on matters of public concern. It is one of the essentially civilising roles of Parliament that it can get the Executive to report to it and then feed into the Executive the concern of the public in the particular area which has been covered by the report.

In this particular area of the care of children a large number of departments is involved. There is the Department of Health which has been divorced from the Department of Social Security. The Department of the Environment is involved because of local government. It goes without saying, because the noble and learned Lord the Lord Chancellor is the Government spokesman, that the Lord Chancellor's department is involved. The Department of Education is also involved because of the implications of the extra training, which has been so forcibly advocated this evening, for those who work in social services. Therefore, half a dozen departments will be concerned when the Secretary of State produces the report for Parliament. That in itself is a compelling reason for this amendment or something like it to be agreed by the Government.

The public are aroused, and quite rightly aroused, about the problems of children, and not merely because of the current concern shown over the abuse of children. That is only part of an ongoing concern that children should be properly looked after and that the Government are responsible for those services, for which they may give the local authorities and voluntary services detailed responsibility. The Government are ultimately responsible to Parliament.

For those reasons I should have thought that the amendment should secure the unanimous support of all sides of the House. I hope that the Government will respond to the anxiety and pressure that has already been very effectively demonstrated this evening.

8.30 p.m.

Baroness David

I feel rather humble, speaking after so many expert speakers. However, I have put my name to the amendment and therefore I think that I must say a few words. Indeed, there are two aspects of the amendment on which I should like to comment. We have heard from two experts in the social services field—the noble Lord, Lord Seebohm, who produced his report nearly 20 years ago, and the noble Baroness, Lady Faithfull, who is a former director of social services and chairman of a very successful and effective all-party children's group. Then we heard from the noble Lord, Lord Henderson, with his experience of Parliament and what this House can and cannot do.

In relation to that last point, when the noble Baroness, Lady Faithfull, said to me that she thought that we could not press for more resources I told her that I thought it was perfectly right for us to say that we must have more resources if the Bill is to be effective because so much depends upon it. I was therefore very glad to hear the noble Lord, Lord Henderson, say that it is up to us to propose that those resources should be available if the Bill is to be any use at all. I believe that my noble friend Lord Irvine of Lairg said at Second Reading that there must be the resources if the Bill is to be at all effective.

Turning to the amendment of the noble Lord, Lord Campbell, I should like to speak about the sufficiency of the number of social workers. It is quite clear from responses to an earlier amendment of the noble Baroness, Lady Faithfull, concerning the desirability of having a named social worker for every child in care that more social workers are needed. The response from several directors of social services has been that it is hopeless; they do not have enough social workers to do so. I think that we must increase the number of social workers. That will be essential if the Bill is to work.

If the number of social workers is to be increased, resources are required to do so. In order for that to happen local authorities have to be given a little more money. When local authorities are rate-capped and their resources are restricted they do not have the money to employ the number of social workers that they should. If there is not to be a third year of training, local authorities will not have the money to send social workers for post-qualification training on secondment. That seems to me to be a very important point and I hope that the noble and learned Lord will address himself to it because if the Bill is to be successful we need more and better trained social workers. Whether the training is undertaken in a third year or post-qualification courses is a matter for consideration. I think that I am slightly more in favour of post-qualification training so long as there are the resources to provide it.

I have now moved on to the training sphere, which is the other point which I wish to raise. I think that people who enter social work very young, perhaps at the age of 20, 21 or 22, are often faced with very difficult cases of child abuse and so on. It is very hard for them to cope when they have had such a short training. There ought to be older, more qualified social workers to help them.

There are, therefore, three aspects to be considered—sufficiency, training and resources—and which I should like to press upon the Committee. I am very sorry that this very important amendment is being considered at this time of night when attendance is sparse. However, I think that it will be a useful discussion and I hope that a great many people will read it. I should like to give my strong support to the amendment.

Baroness Elliot of Harwood

I should like briefly to join in the debate because I feel very strongly about the subject. I agree entirely with every word that has been said on both sides of the Committee. I have had long experience of the problem going back to the days when I was at the London School of Economics in the 1920s. We have been fighting for years and years for proper training for social workers. I cannot think why the general opinion of so many of our governors and local authorities is that social workers do not play an important part. They play a vital part.

Today, when every day one sees in the press reports of child abuse or sexual abuse, the blame is placed on the social worker. How can the social workers cope with such problems if they do not have proper training? No-one would expect a nurse to make an efficient and important contribution to the work of a hospital without training. People underestimate the difficulties and the importance of the work. This is a matter which has been, so to speak, on the tapis for years.

I think that it is a great pity that no government has tackled the issue properly. They talk about it being expensive to train social workers. It is far more expensive for children to be had up, brought before the courts, go to prison or be placed in protective custody than to prevent that happening by having the right people to advise and to train. I should call that an investment and certainly not expenditure. I hope that the noble Lord, who understands these things very well, will take this opportunity to do something that will help the whole community.

Lady Kinloss

I should like to support in particular Amendment No. 213 in the name of the noble Baroness, Lady Faithfull. The social work profession is, I understand, still smarting from the Government's decision last year not to introduce a three-year training. The Cleveland Report and other reports emphasise the need for better training of social workers relating to children and also their need to know more about the child care role.

At Second Reading on 6th December I said: the Bill's provision can be successfully implemented only if good quality systematic training is provided to all those who will be responsible for carrying it out".—[Official Report, 6/12/88; col. 520.] The Association of County Councils is very concerned about the need for adequate training.

Lord Meston

We on these Benches would wish to support the amendment. The arguments have already been thoroughly canvassed. The need for adequate training is self-evident. The inadequacies of the present position are, as has just been said, set out in one of the shortest and most compelling chapters of the Cleveland Report. We therefore support the amendment.

The Lord Chancellor

I should like, first, to say a word or two about the question of resources. As I understand the position, estimates for the public service are to be laid before the House of Commons. If there is a suggestion that for a particular function inadequate provision has been made I would suggest that that is a matter for the other place. That does not mean that matters which affect resources may not be raised in this Chamber, but I suggest that the question of whether the resources provided are adequate or inadequate is a matter for the other place.

It is of course highly desirable that there should be reviews with sufficient frequency to permit judgments to he made about whether there are adequate numbers of social workers to carry out the very important work of promoting the welfare of children and families. Plainly recruitment and training issues bear very heavily on the matter of the adequacy of staffing numbers. But Amendment No. 211ZA moved by my noble friend Lord Campbell of Alloway raises two important considerations: whether such a review in these terms is possible and where the responsibility should lie for carrying out the review activities.

The organisation of social work staff by local authorities is not generally such as to enable account to be made of those workers concerned mainly or wholly with assisting children and families. In many authorities social workers carry responsibilies for a full range of cases, including children and families. The Department of Health collects through an annual staffing return the numbers of social workers and their team leaders but, for the reasons I have given, this cannot be disaggregated to identify what might be called child care social workers.

As the body responsible for reviewing the number of social workers in post and considering recruitment and training issues, the local authority employers have already demonstrated that they see this as appropriately their task. The local authority Conditions of Service Advisory Board published in 1987 a report Recruitment and Retention, which examined generally labour market problems affecting the recruitment and retention of local government staff in London and elsewhere. It recommended selective action as the most appropriate way to deal with labour market difficulties, particularly in a limited number of occupations in local government, of which social work is one, where there are significant recruitment problems.

That board sees its role as providing information to all authorities on the experience of some in using selective measures. More recently, in early 1988, the London branch of the Association of Directors of Social Services, assisted by the Department of Health and Social Services' inspectorate carried out a study on recruitment and retention problems across all London boroughs. In its report, which makes recommendations on how to ameliorate those problems, it stresses its willingness to re-run this exercise annually. It also draws attention to important work being undertaken by the local government training board to create a national data base on the social services' workforce.

The local government training board's workforce analysis exercise, which has been proceeding through 1988, is concerned to establish the possibility of introducing a permanent workforce data gathering process for local authority social services departments. A feasibility study has been carried out dealing with how social services occupations and tasks could be classified and on the best process for gathering data. This work is steered through a group on which are represented the local authority associations, the board, the local authority trade unions and the central council for education and training in social work. The work is continuing and the system proposed requires only a small capital outlay by local authorities to acquire computer hardware and software. Such a system will take a little while longer to put into place.

Meanwhile the board has decided to mount on a national basis a specific study of recruitment and retention issues facing social services departments. To that end a questionnaire has been distributed to all local authorities with comments on its content having been made by officials of the Department of Health.

As to numbers of social workers requiring professional training, this is a responsibility of the central council. It provides regular estimates of the number of training places required on courses leading to the certificate of qualification in social work and the certificate in social work. The council estimates that about 5,000 qualified social workers is the desirable annual output from these courses. For the future the product of the board's workforce study will be available to the board, and of course available to the central council. The local authorities themselves will be able to take from that the necessary firmer information for a range of review purposes.

In the light of the activity that local government has undertaken so far and the prospect of the creation of a national workforce database to aid local government and the training body, those responsibilities can and should rest where they are. It is my suggestion to the Committee that these arrangements that the local authorities have made are good arrangements toward the aim which the committee has been discussing.

I turn in a little more detail to the amendment in the name of my noble friend Lady Faithfull, which has been supported this evening in particular by the noble Lady, Lady Kinloss, I know that the noble Lord, Lord Henderson of Brompton, thought that the new amendment was better, but for some Members of the Committee the old one is perhaps best.

In connection with that amendment, the Government agree that child care training should be kept under review but, as I have just said, this is primarily a matter for the employers of social workers, mainly the local authorities. The Government, of course, have a role to play in encouraging and assisting local authorities, and we have already taken two significant initiatives in this area.

The training support programme for child care, administered by the Department of Health, will provide each local authority with grant under a £10 million programme from April 1989. Initially this is for training in child protection work but in future years the focus could change. Whether or not it should change can be considered by the Secretary of State following the receipt of plans which local authorities receiving grant are required to submit. These plans will give such details as the numbers of staff to be trained, how training relates to service developments and the expected benefits in the quality and quantity of services arising from the increase in numbers of trained staff. In considering their training plans it is entirely appropriate for the local authorities to have regard to the length and content of the training they arrange in the social services departments or obtain for their staff from colleges and other training bodies. The development of the training support programme has and will continue to be the subject of discussions between officials of the department and representatives of the local authority associations and the central council.

Another recent development, reflecting the Government's commitment to a balanced programme of training developments for staff in the personal social services, was the decision, announced by the Minister for Health last October, to begin an examination of opportunities for post-qualifying study for social services staff. I rather think that the noble Lord, Lord Seebohm, with all his experience, was moving somewhat towards that solution rather than a third year of, as it were, pre-qualifying study. A working group is being formed, again with the local authority associations and other interests represented, and its first meeting will be held on 31st January. A survey is planned on the use made by local authorities of current post-qualifying level training.

Within the work on gaps and priorities in post-qualifying training, it is likely that attention will be given to further training requirements in child care, to which the training support programme that I have mentioned gives further impetus. The council is also reviewing the competencies required of social workers completing two years of professional training. This is likely to lead to new guidance to courses of academic content and practice placements. Taking these various measures together there is in prospect the assembly of better and more relevant training for social workers at qualifying level and beyond.

In the light of those considerations, I believe that so far as numbers of social workers and so on are concerned the responsibility is properly with the local authorities. They have shown in recent times a number of very useful initiatives for dealing with the situation. However, in my noble friend's proposal in Amendment No. 213 I see merit in the suggestion that the Secretary of State should keep under review the need for child care training, for which he will have specific grant-making powers in Clause 64(3). Such a view would complement the requirement laid on social services departments to develop strategic plans for the training of staff concerned with child protection under the provisions of the child care training support programme.

Accordingly, I am very willing to consider bringing forward a government amendment for the Secretary of State to conduct a review on that matter. In relation to the point made by the noble Lord, Lord Henderson of Brompton, about information to Parliament, the Committee will of course keep in mind that in Clause 65 of the Bill there is already a quite comprehensive provision for returns of information with respect to the performance by the local authority of all or any of their functions under the enactments listed there, including of course this Act, and under Clause 65(3) the Secretary of State is put under an obligation in each year to lay before Parliament a consolidated and classified abstract of the information transmitted to him under these subsections. So the basic information that is referrred to in that clause will be laid before Parliament.

I am sure that Members of the Committee would prefer money that is available to be used in services for helping children rather than in an unnecessary duplication of reporting to Parliament. That is a time-consuming and resource-consuming operation. The more departments it covers, the more resources are required. As the noble Lord, Lord Henderson of Brompton, pointed out, there are quite a number of departments involved. I believe that the basic, really useful information, is covered under Clause 65.

In the light of the response that I have been able to give, in particular with regard to Amendment No. 213, I hope that my noble friend Lord Campbell of Alloway will feel able to withdraw his amendment.

Lord Campbell of Alloway

I wish to thank all noble Lords for their support for my amendment and the constructive contributions they have made to this debate. Assuredly, I am not prepared to withdraw my amendment on the basis of the arguments advanced by my noble and learned friend because, with the greatest possible respect to him, I do not find them convincing.

There is a very important point of principle—the element of control—which arises on this amendment and on which the opinion of the Committee ought to be taken, but not at this hour, or on this occasion, when most noble Lords who would vote would not have heard the arguments. I am very disappointed that my noble and learned friend cannot look with favour on the amendment, which commands wide support. I hope that reconsideration may be given before the Report stage.

The objection that the child care element in training cannot be isolated is not understood. It is a departmental objection. Sufficiency in numbers is surely not solely a question for the local authority. My noble and learned friend suggested that he would introduce a government amendment on review. For those who have spoken, it would be wholly devoid of control.

In these circumstances, at this hour, I beg leave to withdraw this amendment on the basis that I shall return to it on Report when I have had an opportunity to study the arguments of my noble and learned friend. At the moment I find them wholly unconvincing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 [Inspection of children's homes etc. by persons authorised by Secretary of State]:

The Lord Chancellor moved Amendment No. 211A: Page 54, line 37, leave out subsection (2).

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

On Question, amendment agreed to.

Clause 62, as amended, agreed to.

Clause 63 [Inquiries]:

Lord Mottistone moved Amendment No. 212: Page 56, line 12, at end insert— ("(a) the care of an individual child;").

The noble Lord said: It is fair to say that the whole Bill is about the care of an individual child. It seems to me that where appropriate that subject deserves an inquiry to relate to that basic function just a much as the inquiries into various means of effecting it are currently specified in Clause 63(1).

A child may feel that the treatment she or he has received has been detrimental to her or his interests. If that child has sought to have a problem resolved—for example, he may have sought redress under Clause 22—or has sought redress through all other channels and has found that no remedy is available, with my amendment the Secretary of State can order an inquiry to be held into the care of the individual child as such. This would provide an additional safety net for the child or for another person who is concerned to protect the child.

It is consistent with the role that the Secretary of State already has in child abuse inquiries and I believe that it may be thought to be a useful addition to this Bill. I beg to move.

Lady Kinloss

We have debated previously the right of the child and other family members to appeal against the making of an order or the variation of orders. Thererfore it would seem consistent, where the child or another person has exhausted all other avenues of complaint, to ensure that the Secretary of State can cause inquiries to be made into the welfare of an individual child. This would fit with the present role of the Secretary of State in initiating child abuse inquiries.

As the noble Lord, Lord Mottistone, has already said, this amendment provides an ultimate safety net for the child, or, in circumstances where things have gone very wrong, at least ensures that lessons are learnt to avoid mistakes being made in the future.

The Lord Chancellor

It is clearly important that the Secretary of State should be able to cause an inquiry to be held into matters connected with an individual child. Local authotities have powers and responsibilities not only towards children generally but also towards individual children in the circumstances covered by the Bill.

However, I believe that this amendment is not necessary, because Clause 63 refers to the power of the Secretary of State to cause an inquiry to be held into any matter connected with the functions of the social services commmittee of a local authority so far as these functions relate to children. It also refers to the functions of an adoption agency, and the functions of a voluntary organisation so far as those functions relate to children. Clause 63 then goes on to refer to various types of homes and premises where children may be accommodated for which the Secretary of State has responsibility under the Bill. The wording of Clause 63 provides for the Secretary of State accordingly to inquire into any matter concerning an individual child.

I hope the noble Lord may feel that the point he desires to cover is covered by that reference. The Interpretation Act means that where the word "children" is used it includes a child in appropriate circumstances.

Lord Mottistone

I thank my noble and learned friend for his reply. I shall examine carefully what he has said. I believe there may still be a loophole which is not fully covered by discussing the technical details of what is currently in Clause 63. Therefore I may return at a later stage with another attempt, with a better argument. At this stage, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 63 agreed to.

9 p.m.

Lord Prys-Davies moved Amendment No. 212A: After Clause 63, insert the following new clause:

("Unreasonable exercise of power by local authority.

.—(1) Subject to subsection (2) below, if the Secretary of State is satisfied, either on complaint by any person or otherwise, that the local authority have acted or propose to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act in relation to an individual child, he may give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient.

(2) The Secretary of State may only give a direction under subsection (1) of this section if satisfied that if he does not the welfare of the child is likely to be seriously prejudiced.").

The noble Lord said: We have already indicated in Committee, when discussing the representations procedure, that in our view there are reasons to suppose that the procedure will not work as well as is hoped for by the Government. It may not be taking sufficient account of a tendency on the part of an authority to resist complaints that are made against it. Experience may show that the independent element will not be truly or sufficiently independent and that the authority will become, or seem to become, a judge in its own cause. There is also the risk, pointed out in Committee, that the conclusions of those conducting the investigation may fall far short of what is necessary from the point of view of the complainants, or that their recommendations may not be acted upon by the authority.

In those circumstances, we believe that if there is to be full confidence that complaints which arise against the authority will be properly handled, the Bill should provide that there is in the last resort a truly independent body with power to investigate a complaint and to give directions. We believe that those powers should be given to the Secretary of State.

We may be told that we should rely on the wide powers given to the Secretary of State under Part X. However, the weakness with that argument is the fundamental one that the individual is not entitled under the Bill as of right to go to the Secretary of State with his complaint to seek adequate redress. It could also be argued in support of the amendment that although the Part X powers—we accept that they are very wide powers—are available to the Secretary of State, experience may yet show that they are not wide enough and that they may not cover an unusual situation which may emerge. The amendment would therefore be of assistance to the Secretary of State because it would constitute an additional power. It would ensure that where a complaint emerges from the client, from the parent or from the child, his powers to investigate that complaint are not fettered.

I accept that there must be some filtering mechanism to prevent the Secretary of State being swamped by trivial complaints. We believe that subsection (2) of the amendment achieves that. For those very good reasons and relying on the filtering mechanism in subsection (2), I very much hope that the amendment will find favour with the noble and learned Lord the Lord Chancellor. I beg to move.

The Lord Chancellor

Without going into the matter in too much detail, perhaps I could say that in considering the situation that the amendment has raised we may well need to consider some further powers for the Secretary of State to give directions, possibly in relation to classes of children. It may be wise to think of it in that light. But, certainly, I am prepared to consider further what we can do in this direction. Obviously we should like to proceed in conjunction with the local authority associations. That may take a little time to come to fruition. But if the noble Lord is prepared to leave it on that basis, I certainly undertake that we shall give this very careful consideration. In the light of the general provisions that we are making, there may be a point here which requires to be covered.

Lord Prys-Davies

I am very conscious that I have not obtained the smallest concession from the noble and learned Lord on the complaints procedure up to now, so I am particularly grateful for that assurance In the circumstances it gives me great pleasure to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 [Financial support by Secretary of State]:

The Lord Chancellor moved Amendment No. 212B: Page 56, line 40, after ("1984") insert— ("(iiia) the Mental Health Act 1983, in relation to children looked after by local authorities;").

The noble and learned Lord said: In speaking to Amendment No. 212B, perhaps I can also mention Amendments Nos. 212C, 212D, 212F, 213B, 214A and 214B. The purpose of these several amendments is to make minor adjustments to Clauses 64 and 65. They are largely matters of drafting. I am ready to provide a more detailed account of them if any noble Lord should so desire that, but in the hope that the Committee will not, I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 212C and 212D: Page 56, line 41, after ("1984") insert (",in relation to children for whom local authorities have responsibility,"). Page 57, line 3, leave out paragraph (a) and insert— ("(a) mentioned in subsection (1)(a);")

On Question, amendments agreed to.

Baroness David moved Amendment No. 212E: Page 57, line 18, at end insert— ("( ) The Secretary of State may make grants to local authorities in respect of expenditure incurred by them in providing accommodation or services for children whose liberty would be deprived under the provisions of section 21 of this Act if such accommodation or services were not available.").

The noble Baroness said: This amendment is in connection with secure accommodation once more, but it seeks to allow for grants to authorities to provide alternatives to secure accommodation. Under the existing Section 81 of the Child Care Act 1980, continued under Clause 64(4) of the Bill, the Secretary of State may make grants towards local authorities' expenditure on secure accommodation in community homes. The section also provides for the money to be repaid if it is not used or if the accommodation ceases to be secure. By 1987 the Government had paid out over £10 million and had clawed back about a quarter of a million pounds. Although there is much pressure on secure unit places at present, the Department of Health does not consider that more secure units should be built, although a large number should be refurbished. A departmental working party on future strategies for secure accommodation is understood to be considering the possibility of reducing numbers in secure units by better gatekeeping on the admissions.

It is clear not only from the experience of the Children's Legal Centre but also from the as yet unpublished research sponsored by the Department of Health at Leicester University into the use of secure accommodation that young people are being locked up unnecessarily. On the bright side, some authorities are successfully keeping down by a variety of strategies the numbers in secure units without a consequent rise in numbers in young offender institutions. For example, Essex County Council now maintains an open residential home called Bowles Court which has well-trained staff and as high a staff/resident ratio as a secure unit. The home takes only young people who meet the legal criteria for locking them in a secure unit; that is, that they are absconders at risk or are a danger to themselves or others. By this method the authority appears to have succeeded in nearly halving the number of young people who are locked up. Another example is Kent County Council which trains—and pays at four times the usual rate—specialist foster parents to look after troublesome adolescents.

The Government are committed to limiting the numbers of young people locked up within the care system, just as they are committed to limiting those locked up for criminal offences. Although millions of pounds have been paid out towards intermediate treatment for young offenders, little has been done to establish alternatives to secure accommodation for those in care. The power to give grants to build and maintain secure units should be balanced by a power to give grants towards alternatives to secure accommodation. That is what the amendment seeks to achieve. I beg to move.

The Lord Chancellor

Clause 64(4) and (5) re-enact the Secretary of State's existing power, first introduced in 1975 and now in Section 81 of the 1980 Child Care Act, to make grants to local authorities for the provision of secure accommodation for children in community homes, and to require such grants to be repaid if the secure accommodation ceases to be used as such. As the noble Baroness has explained, the purpose of her proposed amendment is to give the Secretary of State an additional power to make grants to local authorities to defray the costs incurred by them of providing accommodation and services for children who might otherwise have been placed in secure accommodation. In other words, to place equal emphasis on the need to encourage local authorities to provide and develop a range of specific accommodation and services which would reduce or obviate the need for placement in security. The noble Baroness has given illustrations of how that may be done.

The Government totally share the view of the noble Baroness that secure accommodation should be seen as very much a last resort, to be used only when all else has been tried and failed. We also take the firm view that a child's placement in secure accommodation should be only for so long as it is necessary and unavoidable. It follows from what I have said that we would also share the view of the noble Baroness that local authorities should make available a range of facilities and services to meet these twin objectives.

The question, therefore, hinges on whether it is both necessary and appropriate to give the Secretary of State an additional grant-making power to encourage the further development of alternatives to secure accommodation.

It may be helpful if we reflect for a moment on why specific provision was made in 1975 to enable the Secretary of State to make grant aid available to local authorities to defray the capital cost of providing secure accommodation. I would remind noble Lords that the grant does not cover, and never has covered, the revenue costs associated with operating a secure unit. That is because accommodation is an expensive resource, and relatively few children need to be placed in such accommodation. Therefore it is generally not practicable or viable for each local authority to provide its own secure unit. The way forward was, therefore, for local authorities to act co-operatively, with one authority undertaking to provide a secure facility on behalf of surrounding authorities or within a particular region.

It was because the Government sensed that local authorities were reluctant to commit themselves to making that kind of expensive capital provision, unless they had some kind of security, that they were anxious that the matter should be dealt with. They therefore provided a grant-making power to the Secretary of State for that purpose. Since 1975 the stock of secure accommodation available nationally has gradually increased. The result is that the existing stock is about right in order to cope with potential demand.

In our view, it is neither necessary or appropriate in the circumstances to go along the line proposed in the amendment. It is undoubtedly the case that there are many children in care who could be said to meet, in principle, the statutory criteria for restriction of liberty, but who are already well catered for within the existing range of non-secure facilities and services. What separates the children who need to be placed in secure accommodation from the generality of such children is the degree of disturbance or concern about the consequence of their behaviour. For the generality, there are numerous existing examples of local authority good practice in making provision for this particular group of young people. What is important, and here I share the view of the noble Baroness, is that such facilities should be more widespread.

As the noble Basroness has said, there is within the Department of Health a working group which has been addressing these very issues. The group hopes to complete its work shortly, and this will undoubtedly lead to further advice and guidance being given to local authorities on this issue. In our view, this is the preferred approach.

The need for an additional grant-making power does not exist in this situation because the conditions which require it, the provision of secure accommodation, do not exist in relation to these other facilities. The situations which the noble Baroness has envisaged would be covered by revenue production. So far as I am aware, there has never been any grant provision to cover the revenue aspects of secure accommodation. The capital aspect was covered for the reason that I have explained.

In the light of that explanation I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness David

The Government's attitude is all right: I am pleased with their sympathetic approach because it is what we should all wish to achieve. I believe that we are back to the question of resources. The kind of provision which Essex County Council makes in Bowles Court, where there is almost a one-for-one relationship with staff and young people, and the expensive foster care provisions made by Kent County Council, cost money. Of course they cost revenue money. If the Government really want to improve the situation, I believe that they will have to provide more resources for local government to secure that. Of course I shall not press this matter at this time of night but I shall look at it again. I believe that this is an issue of money and I may come back to it at another stage. However, I am glad that the principle at least seems to be accepted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 212F: Page 58, line 2, leave out ("enactments") and insert ("functions").

On Question, amendment agreed to.

Clause 64, as amended, agreed to.

Baroness Faithfull

had given notice of her intention to move Amendment No. 213: After Clause 64, insert the following new clause:

("Training in child care.

.—(1) The Secretary of State shall keep under review the need for child care training as defined in section 64(8) of this Act, the number of persons who should receive such training and its duration.

(2) In carrying out the review specified in subsection (1) above the Secretary of State shall—

1. (a) consult the local authority Associations whose members have responsibility for child care, the Central Council for Education and Training in Social Work and such other bodies and persons as appear to him to be concerned; and
2. (b) have regard to—
1. (i) the effect which child care training requirements may have on the overall content and length of training in social work; and
2. (ii) the need to ensure that social work training is reasonably comparable in content and length with the training received by other professions responsible for child care.").

The noble Baroness said: I spoke to this amendment at some length under Amendment No. 211ZA. In his reply my noble and learned friend responded both to my noble friend Lord Campbell of Alloway and myself. I thank my noble and learned friend for the statements which he made. I was particularly glad to hear that the Secretary of State will be conducting a review. I should like to read what my noble and learned friend said because I should like to see whether that review will be made available to those working in the social services and whether the review will touch on both the number and training of social workers. However, I am grateful to my noble and learned friend for his response.

[Amendment No. 213 not moved.)

9.15 p.m.

Lord Kilmarnock moved Amendment No. 213ZA: After Clause 64, insert the following new clause:

("Use of Social Fund to help families stay together

1. (1) The Secretary of State for Social Securities shall, under sections 32 (2) (b), 33 (10) and 34 (8)(a) and (b) of the Social Security Act 1986, issue directions and provide guidance for social fund payments to be directed at helping families remain together and averting the need for the reception of children in local authority care.
2. (2) These directions shall provide that a non-repayable social fund payment be made to meet the prescribed needs of the family provided that—
1. (a) the need cannot otherwise be met from the existing parts of the Social Fund, and
2. (b) the family is in receipt of Income Support or Family Credit, and,
3. (c) the total capital resources of the applicant and his partner, including any sum to which either or both are beneficially entitled, do not exceed £500.").

The noble Lord said: The purpose of this proposed new clause is to enhance the role of the social security system in preventing the need for the reception of children into care and to clarify the boundaries between the role of local authorities and that of central government in the task of prevention. Therefore, I hope that it will not be argued that that is improperly placed in this Bill. In my submission, it is of very real relevance to the Bill.

In response to a suggested amendment to Clause 15 which sought to broaden the powers of local authorities in the giving of cash assistance in the exercise of their preventive duties to families in need, the noble and learned Lord the Lord Chancellor said: A broader power could push local authorities into an income maintenance role which is the function of the social security system".—[Official Report, 20/12/88; col. 1297.] We agree entirely that the main function of local authorities should be the provision of services to families, and that helping with cash in the first instance should be provided through the social security system.

It is widely recognised that the task of preventing the unnecessary reception of children into the care system involves not only the social services but also the social security systems. In its 1984 report on children in care the Social Services Committee of another place, at paragraphs 36 and 37, wrote: There is a well established link between deprivation and children coming into care…poor families are more at risk. Social work intervention alone cannot be expected to combat the cycle of poverty, bad housing and indebtedness. The social security system plays a central role in the lives of children coming into care".

At present it is often unclear who has primary responsibility for providing cash assistance for families where there is a risk that the child may otherwise have to be placed into the care of the local authority. In theory, the social fund should fulfil that function and the Social Fund Manual which provides guidance to social fund officers (SFOs) at paragraphs 6452 and 6453 states: When dealing with families under stress, close links with the LA social services are very important and SFOs should know how their LA carries out its responsibility under Section 1 of the Child Care Act 1980 … The financial contribution of LAs varies considerably and SFOs should not expect families under stress who apply for CCGs to look to the LAs in the first instance, unless there is a local agreement on the type of circumstances in which the LA provides help".

However, in the guidance applicable to the category "Families in Distress" it is emphasised in the manual: All families, especially those on low income, face stress at various times so that it cannot in itself be a reason to give a CCG (Community Care Grant). SFOs may award community care grants to ease exceptional pressures on a family arising from one or more of the following:

1. (a) the breakdown of established family relationships, or
2. (b) a deterioration in the applicant's home which makes it unfit or unsuitable for the applicant and his family to live there, or,
3. (c) the beginning or continuing existence of persistent disability or chronic sickness."

That comes from paragraph 6451 of the manual.

The assumption that families would only ever be in need of help in one of the above three circumstances places an unreasonable restriction, I submit, on the use of the social fund to prevent the need for children to be taken into care as a result of extreme financial pressure. The preventive scope of the fund is further restricted by the express exclusion of help for certain items. These include fuel bills, housing costs (including deposits to secure accommodation), mortgage payments, rates, water rates, service charges, rent and analogous charges for accommodation, work related expenses, legal expenses and school meals, among other things.

Therefore, the social fund could not be used, for example, to pay a deposit to enable a family to secure accommodation or to help a family pay a large fuel debt in order to avoid disconnection. However, the impending privatisation of electricity may well create additional problems for families in such circumstances as private boards are likely to show less restraint in regard to disconnection of supply when a family is in difficulty with the bill.

Some local authorities may decide to use their powers under Section 1 of the Child Care Act or, in future, under Clause 15 of this Bill when it is enacted to provide this form of cash assistance; but, as acknowledged in the social fund manual itself, local authority practice varies from one authority to the next, so such help is not guaranteed. If help is not forthcoming from either source the family could be made homeless or the souce of light and heat cut off. Both situations may lead ultimately to the reception of the child or children into care.

I am sure that the whole Committee will agree that the removal of children from their natural parents under such circumstances is both unnecessary and undesirable. In my submission the social fund should be adapted to include within its scope the function of helping families to remain together, through grant assistance, thereby complementing the parallel service provision function of local authorities without, I should make clear, overstepping the fund's cash limits. That is not the purpose of this amendment.

The Government have expressed concern about under-utilisation of the social fund, in particular of the community grant element. At the end of September last year the take-up of community care grants was just 52 per cent. of projected expenditure. This was revealed in a Written Answer, at col. 223 of the House of Commons Hansard for 9th November last year. In that Answer, Mr. Peter Lloyd referred specifically to, among other things, the role of the fund in reducing the risk of people in vulnerable groups going into institutional or residential care. Logically, this must include the children of such families.

It is also one of the primary purposes of the Child Care Act 1980 to, promote the welfare of children by diminishing the need to receive children into or keep them in care". Those words are taken from Section 1(1) of that Act. The additional function we propose in the amendment would ensure that the community care grant element of the social fund is put to the best possible use in this regard. We want to ensure that it is used in a more pro-active and creative way in relation to child care than appears to be the case at present, but always, I repeat, within the constraints of the available resources. It would also—as I suggested at the outset, and I want to repeat this strongly—help to clarify the local authorities' sphere of responsibility under Clause 15 of this Bill and avoid the very real danger of a game of ping-pong developing in certain cases between the social services and social security. I beg to move.

The Lord Chancellor

While I appreciate the noble Lord's concern about this issue, I do not consider it appropriate in this Bill to be introducing legislation which affects the principles and application of policy under social security legislation which is the responsibility of my right honourable friend the Secretary of State for Social Security in another place.

As the noble Lord has demonstrated, my right honourable friend the Secretary of State for Social Security has, under Section 32(2)(b), issued directions and guidance to social fund officers to ease exceptional pressures on families with the specific aim of helping to keep members of the family together. It is a question of relating that to the situation and the circumstances of the area. I feel that that direction has taken account of the noble Lord's concerns in an appropriate way. My right honourable friend has also given assurances in another place that the social security reforms introduced last April will be monitored. That is now taking place so we shall be able to see a little more clearly how the process is working. The particular concern that the noble Lord has expressed, as he himself pointed out, has been addressed in general. In those circumstances I hope that the noble Lord will feel able not to press the amendment.

Lord Kilmarnock

I am grateful to the noble and learned Lord for what he has said about the monitoring of the social fund. I wish to put it on record that the community grant element in that fund is restricted in the first place to people moving out of institutions or residential care. Secondly, it is restricted to vulnerable groups such as the disabled, the elderly, the mentally ill, the handicapped and the chronically sick. Thirdly, it is restricted to families under stress—the category, I believe, that will probably most apply in the case of children being taken into care.

I have demonstrated my feeling that the circumstances in which families under stress can benefit from the grant element are unduly restricted. Before I withdraw the amendment I hope very much that the noble and learned Lord will undertake to see that the proposals I have put forward are brought to the attention of his right honourable friend. I do not believe that they are quite so disconnected with this Bill as the noble and learned Lord has suggested. He will remember the debate upon Clause 15.

The circumstances under which a local authority can make a grant arise only in very exceptional cases. Local authorities are obviously constrained by cash problems. I hope very much that the noble and learned Lord at least agrees in principle that it would be a good thing to make the social fund rather more active in this respect with a view to taking some of the burden of demands off local authorities as regards cash payments under this Bill. If the noble and learned Lord can give me a few words of comfort in that direction I shall be happy to withdraw the amendment.

The Lord Chancellor

I hope that Members of the Committee will take it for granted that I shall draw the attention of my right honourable friend the Secretary of State for Social Security to the noble Lord's remarks.

Lord Kilmarnock

In view of those remarks I am most grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Clause 65 [Returns of information to Parliament]:

The Lord Chancellor moved Amendment No. 213A: Page 58, line 19, leave out ("below"). On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 213B: Page 58, line 20, leave out ("the adoption of children or with"). On Question, amendment agreed to.

9.30 p.m.

Baroness Faithfull moved Amendment No. 214: Page 58, line 31, at end insert— ("( ) The Secretary of State shall in each year prepare and lay before Parliament a report indicating the manner and extent to which the provisions contained in Parts III and IV of this Act have been carried out in the year under review, the resources which are expended on the performance of those provisions and the resources which he proposes to make available in the ensuing year for the performance of those provisions.").

The noble Baroness said: This is a probing amendment. In trying to implement the provisions of the Bill, to prevent the break up of families and to help positively children in trouble, resources will be needed. Over the past few years the resources of local authorities have been severely cut. A number of children's homes and family centres have been closed. Family centres run by voluntary organisations have looked to the Government for grants and have failed to get them.

We are worried that the resources needed to meet the recommendations of the Bill will not be available. I therefore wish to bring this matter to the notice of the Secretary of State. As was stated in regard to earlier amendments, instead of bringing the case before Parliament, perhaps there should be a report once a year as with the training so that we can see whether or not we have adequate resources. I beg to move.

Lord Prys-Davies

I should like to support the amendment. We have a good Bill but the conflict over the use of scarce resources will continue. Priorities will have to be established between conflicting claims. We may find that there will be relative neglect of some facilities. It is therefore right that a duty should be placed on the Secretary of State to produce a report. I am not so concerned that it should be an annual report. We want to see a periodic and frequent report. Such a report by the centre would be inductive and the lack of such attention to what is happening at ground level would be worrying. It gives me great pleasure to support the amendment.

Lord Henderson of Brompton

I should like to support the amendment on two grounds; first, on the ground of accountability of the Executive to Parliament; and secondly, to reinforce what I said earlier to the noble Lord, Lord Campbell of Alloway, that we should not be frightened by the pretext, if I may put it in that way, of the Government that we should not concern ourselves with money matters. In this case we can do so, because the matter is only incidental to the purposes of the Bill.

The purposes of the Bill are set out in the Long Title. A Bill of this kind costs money. The Government state that quite frankly, as they are required by Parliament to do, in the Financial Memorandum to the Bill. It states that the full annual cost of the Bill will be between £4 million and £11 million and that there may also be one-off training costs for local authority staff training. We are concerning ourselves with finance in this amendment. That is another incidental financial provision of the Bill but it is not the main purpose of the Bill. When the Bill goes to another place we move the privilege amendment which makes it technically correct in relation to the financial privilege of another place. This is an example of parliamentary accountability which I think we should press on the noble and learned Lord. I hope that he will respond sympathetically to the amendment.

The Lord Chancellor

In a sense I have already anticipated what I should like to say about this amendment in what I said earlier. There is a certain amount of common material between the two. It is important that Parliament is kept informed about the operation of children's services and reports to Parliament are one of the ways in which that can be done.

As I have already pointed out, the Bill provides in Clause 65(3) for an annual report to Parliament in the form of a consolidated and classified abstract of information obtained from local authorities about the performance of their functions and from courts about proceedings in relation to children. This replaces a provision in current legislation. I know that this annual abstract is thought to be a valuable source of data. In that sense it is perhaps distinguished from some provisions about reports which are in current legislation. I have, however, a number of reservations about this amendment which would require the Secretary of State to report annually to Parliament about the operation of the provisions of Part III and Part IV of the Act and resources expended on those activities; that is local authority provision of services for children and care and supervision proceedings. It would be a major task to obtain and summarise such returns of information every year, not only for the Secretary of State but for local authorities and courts.

It would be necessary to isolate these provisions and not deal with associated provisions in other parts. An abstract is more general in the sense that it does not require that kind of particularisation. For example, the functions of local authorities in providing services in Part III would have to be separated from duties in respect of the emergency protection of children and privately fostered children. It would also be difficult to differentiate expenditure on particular social services and court business from others provided for in the Bill. That is not the practice in the Government's expenditure plans for personal social services where the established approach is that local authorities must be responsible for allocating available resources according to their view of local priorities.

There are at present requirements in the Child Care Act 1980 and the Children Act 1975 for triennial and quinquennial reports to Parliament on certain aspects of local authority responsibilities. Those are time-consuming for all concerned in their preparation, and we have never felt that they have been found to be particularly useful. I do not know whether anyone can indicate a time when they were found to be useful.

After careful consideration we decided that those provisions were unnecessary and should not be replaced. The annual abstract of information obtained from local authorities and courts which seems to be found useful appears to us to be the best way to keep Parliament informed with the minimum of special work.

It will of course be open to the Secretary of State under Clause 65(1) and (2) to decide what information he requires and therefore what information appears in the annual abstract to be provided under Clause 65(3).

I hope that I have said enough to convince my noble friend that the basic information she seeks will be provided under Clause 65 and that it would not be wise to pursue the amendment.

Baroness Faithfull

I thank my noble and learned friend for his reply. I put forward the amendment so as to put up a marker that the matter must be kept under review; that there will be difficulties and that there are difficulties now. I am sure that my noble and learned friend knows that full well. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 214A and 214B: Page 58, line 39, leave out from ("1983") to end of line 41 and insert ("(so far as it relates to chidren looked after by the authority"). Page 58, line 42, leave out from "(1984") to end of line 44 and insert ("(so far as it relates to children for whom the authority have responsibility)").

On Question, amendments agreed to.

Clause 65, as amended, agreed to.

Baroness Elliot of Harwood moved Amendment No. 214C: Before Clause 66, insert the following new clause:

("Cruelty to persons under 16.

Children under 16

.Section 1(7) of the Children and Young Persons Act 1933 (which provides that that section shall not affect the right of parents and others to administer punishment) is hereby repealed.").

The noble Baroness said: In moving Amendment No. 214C I shall speak also to Amendment No. 259. We refer to the Children and Young Persons Act which was passed in 1933. That was 59 years ago. Since when, I am sure the Committee will agree, the world in which we live has changed enormously. The responsibility of local authorities, through children's committees, probation committees and social services committees, has developed and plays an enormous part in the lives of all children and their families. It is in the light of modern experience, techniques and research that I move the amendment.

Corporal punishment in schools in this country has been abolished. That is done. The amendments do not interfere with parents but they discourage the use of that kind of punishment which in many cases can harm children who are growing up, especially if they are handicapped or mentally abnormal. Moderate and reasonable punishment is not affected, so the common law remains as it is.

In many European countries, corporal punishment for children is not allowed. It is strange that in Britain legislation preventing cruelty to animals was passed 63 years before the first Act of Parliament forbidding cruelty to children was passed. It is a remarkable fact that I discovered today. I was talking to a man who recently made inquiries of a prison governor dealing with young people. He learnt in his experience that every young man or woman in that prison had earlier been the subject of corporal punishment and subsequently committed further offences, finally being sent to prison. That demonstrates what I have always said—that violence breeds violence. This account is a good example.

There are so many other ways of dealing with offences. This may mean the heads of schools studying alternatives with psychiatric experts or people working with difficult children, gaining confidence and trust from the children they are handling. So many of the children's organisations we all know are deeply concerned to change people's attitudes towards corporal punishment and to learn and use alternative methods. This very important Bill, which I support wholeheartedly, is an opportunity to start again in the right direction on this subject which I strongly believe we should take. I beg to move.

Lord Seebohm

This amendment has caused the most extraordinary interest—rather surprisingly so—in the media. I thought that perhaps we would have the television cameras on, but they seem to have been switched off just in time. I have had private correspondence, as has the noble Baroness, Lady Elliot, and no doubt other Members of this Committee, and I describe some of the letters as coming from enthusiastic "whackers". There is clearly a misunderstanding of the interpretation, but they show what a strong belief still exists in the beneficial results of corporal punishment.

Therefore it is important to say straight away, as has already been pointed out, that this amendment means no change whatever in the common law right of parents to use reasonable force in bringing up their children. Nor would the repeal of the relevant subsection criminalise physical punishment, apart from laws that already exist. The amendment can almost be said to be cosmetic.

The Children and Young Persons Act 1933, which we are now discussing, was enacted 56 years ago—I think that my mathematics are slightly better than the noble Baroness's—and both public opinion and the laws have changed considerably since then. The wording of the subsection is: "Nothing in this section shall be construed as affecting the right of any parent"— that is OK— teacher"— that of course is wrong, because the 1987 Act has abolished corporal punishment already for schools— or any other person having the lawful control or charge of a child or young person to administer punishment to him". Already there have been regulations, and I believe more are coming out to stop the corporal punishment of children in local authority care; so that also is probably quite out of date. Clearly this subsection is no longer correct anyway.

The real point that those of us who support this amendment wish to make is that giving a legal blessing to physical punishment is no longer acceptable. The increasing discovery of child battering and abuse shows the necessity of doing everything one can to make parents and others think twice before relying heavily on corporal punishment as a normal element of child training.

The most disturbing evidence has been produced by Nottingham University child development research unit, which concludes that regular corporal punishment in the home, including the use of implements, is extraordinarly prevalent. It states that by the age of seven, 8 per cent. of children are being hit once a day; 33 per cent. not less than once a week; and 32 per cent. of seven year-olds receive punishment with an implement. One cannot be complacent about that. The amendment will not legally change anything. I hope that it may make people think, and will gradually change public opinion. I strongly support it.

9.45 p.m.

Lord Campbell of Alloway

As I understand it, the noble Lord, Lord Seebohm, accepts as do I that parents have the right to administer immediate corrective punishment. I seek help from my noble and learned friend the Lord Chancellor as to whether that right would be truly assured in common law if the amendment in its present form were to be carried into legislation.

I also seek guidance as to the marginal gloss to this amendment: cruelty to persons under 16. I would never in any sense support cruelty; nor would I support punishment of the order of cruelty. I am only concerned that the amendment would not derogate from the right which I understand that the noble Lord and I—and I am grateful to the noble Lord—think it is right to preserve; namely, the right of parents to administer reasonable immediate corrective punishment if so advised.

Lord Meston

I, too, should like to express sympathy with the amendment. I share the astonishment of the noble Lord, Lord Seebohm, particularly at the Nottingham University figures which reveal among other things an extraordinary amount of violence inflicted on babies of under one year of age. However, like the noble Lord, Lord Campbell of Alloway, I question what, if anything, an amendment in this particular form would achieve.

Section 1 of the 1933 Act created an offence of cruelty to children. It specified various forms of cruelty which had to be found to have taken place in a manner likely to cause unnecessary suffering to the child. As I understand it, Section 1(7) of the 1933 Act was put in to avoid doubt. It preserved the right of parents and others with parental control to administer normal chastisement. It was not limited solely to physical chastisement; in other words, it would allow me to send my children to bed early or to stop them watching television without being charged with having been cruel to them, however much my children might protest in the circumstances.

If the amendment removes Section 1(7) but does not alter the common law rights of normal chastisement, it seems that the amendment adds nothing except possibly an element of doubt where none existed. In fact, it may take away a quite valuable provision in Section 1 of the 1933 Act which was inserted for the avoidance of doubt.

The noble Lord, Lord Seebohm, frankly admitted that in a sense this was a cosmetic amendment designed to send out a signal. To that effect it would be valuable, but one wonders whether the signal which would be transmitted would be blurred if the amendment or something like it were agreed to. Perhaps a great deal more thought is needed and something more precise should be formulated before we attempt further to legislate on the matter.

Lord Henderson of Brompton

As my name is also down to this amendment, I should like to add that I am in some doubt as to its effect. I should like to ask the noble and learned Lord the Lord Chancellor whether the effect of this would extend to foster parents. I believe that the amendment would allow the common law right of parents to use reasonable force on their children to remain.

The noble Lord, Lord Meston, has just said that this amendment concerned the removal of doubt. I wonder whether it would remove from foster parents the right to hit their children reasonably, if that can be done, which I doubt, but it would retain a right for parents. I must declare my own belief that it would only be right and proper for that right to be abolished completely, both in common law and in statute law, for parents and everyone else. I find it difficult to draw a line, I must say, between what I regard as the harmless and occasional cuff, the corrective cuff so to speak, by parents and the clearly brutal extremes to which other parents go. There is undoubted sadism; the Nottingham studies show that, and they have been referred to in sufficient detail by the noble Lord, Lord Seebohm. The mere detail as to the implement which is used by parents on their children shows that there is an unpleasant fetishism about it which ought to he controlled or abolished. I think the balance goes in favour of abolition. Meanwhile this amendment goes halfway and I commend it to the consideration of the Committee.

I agree with the noble Baroness, Lady Elliot, who eloquently and shortly introduced the amendment, that violence breeds violence. I do not believe it is the right way to bring up children. If we look at nature, animals do not hit their young, they educate their young. One does not see them carrying out the equivalent of corporal punishment on their children; that is not the way of nature. They educate them. They have got it in their genes to be like their parents, their parents nurture them, as do the effects of nature, to become grown up animals. We have our genes, we have our nurture. We should be as wise as the animals. I think it is an insult to the animals that if a parent has behaved abominably, we say that he has behaved like an animal. He has not, he has behaved like a human being, and the unfortunate tendency of human beings towards sadism needs to be restrained.

The amendment would not do much more than act as a pointer in the right direction, especially in this Bill which deals with children in care and in foster homes. For reasons which are by no means clear but are certainly felt fervently, I support the amendment. I ask the noble Baroness not to press it necessarily to a Division tonight but, in the light of the reply of the noble and learned Lord the Lord Chancellor perhaps she could come back on Report. I think that enough has been said this evening to show that there is some doubt as to how far the amendment goes. Perhaps in the light of the explanation of the noble and learned Lord the Lord Chancellor we ought to consider the matter further and, after consideration, come hack at a later stage. Meanwhile, I am extremely grateful to the noble Baroness for having introduced the amendment, which I think is of great importance to the Bill. It bears also on an earlier amendment which we discussed. I am sure that we eagerly await the reply of the noble and learned Lord the Lord Chancellor.

Baroness David

As my name is also down to the amendment, I must say one or two words. I think the aim is to discourage the physical punishment of children and to reduce child abuse. In answer to the noble Lord, Lord Henderson, I believe that the amendment certainly does not stop the common law right of parents to administer reasonable and moderate punishment, however one defines "reasonable and moderate". The meaning has probably changed a good deal over the years and will go on changing.

The aim of the amendment is to introduce a little more education to try to change the attitudes of people. Quite a lot of us should perhaps have wished to go rather further than the noble Lord, Lord Henderson, but thought it would be unwise and jumping too far ahead of the public. As I said when we talked about the other corporal punishment amendment, that is a matter for the legislators of this country. I am thinking particularly of Members of this Chamber who do not have to worry about what their constituents feel. We should try to be a jump ahead of public opinion and see the way things are going. As I have said, when there is so much violence in our society and so much evidence, which I shall not go into now, to show that corporal punishment does much more harm than good, I think this Chamber should try to take a lead. I hope that the noble and learned Lord will feel able to give some support to this very moderate amendment.

The Lord Chancellor

We discussed this general question in relation to an earlier amendment. I set out fairly fully the position as regards regulations regulating the use of corporal punishment in an institutional setting. I explained what I believed to be the situation for foster parents and suggested that the matter should he agreed with them arid a local authority at the time the foster parent arrangements were made.

On this amendment the situation is that Section 1 of the Children and Young Persons Act 1933 makes it an offence for any person who has attained the age of 16 and has the custody, care or charge of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, in a manner likely to cause him unnecessary suffering or injury". This is a serious offence which regrettably is not uncommon. The maximum penalty was increased from two years to 10 years' imprisonment in the Criminal Justice Act 1988. Therefore, it is highly desirable that this offence should be made clear and that people should understand exactly what is meant by it.

Members of the Committee will see that the provision contains reference to assault, to ill-treatment, to neglect and to other offences. Other words are used but those are perhaps the key words. It would occur to anyone reading that against the background of common law to question the position if a parent assaults his child as a way of administering reasonable correction. That is the nature of corporal punishment; it is intended to cause some degree of feeling on the part of the child as a consequence of the action of the parent to show that what the child did was not approved of. Anyone would have to say that in law that may amount to an assault.

Section 1(7) was included to make it clear that in this statutory offence the exercise of reasonable chastisement was not to be construed as creating an offence. That was the purpose of subsection (7). It provided that nothing in Section 1 was to be construed as affecting the right of any parent, teacher or other person in loco parentis to administer punishment on a child. If, otherwise, the right of a parent to administer punishment is removed, it does not affect that because subsection (7) is only modifying the effect of Section 1 of the 1933 Act. Therefore there is nothing wrong or out of date in Section 1(7) in its present form.

But if Section 1(7) is abolished, as far as I can see, there is no question of the common law right remaining as regards cruelty to children. It might be that if one was prosecuted for assault at common law, if there is such an offence in England, that right would apply. But it would not work in the case of an offence of cruelty.

If one is facing a charge that carries a penalty of up to 10 years, it is highly desirable in the interests of precision to have the matter clear. I fear that the only effect of this particular signal would be to create serious ambiguity where none exists at the moment. I do not believe that to be a step forward. There may be other steps forward, but I cannot advise the Committee that what is proposed would be a step forward. It would be a step in altogether the wrong direction as regards the clarity of the law.

I have already explained the Government's view about corporal punishment in relation to care and care establishments. However, the effect of the amendment as constructed would be to create complete obscurity. The provision was put into the Bill for the sake of clarity and its removal would have the opposite effect. I fully appreciate the strength of the noble Baroness's views on such matters and the strength of views that other speakers have expressed, but I hope that she will accept that that would not be a wise move.

Baroness Elliot of Harwood

I thank the noble and learned Lord very much for his reply. My advice came from the Children's Legal Centre, where they have a number of lawyers, but lawyers do not always agree with each other, as we know.

I was impressed by what the noble and learned Lord the Lord Chancellor said and I have no intention of pressing the amendment at this moment. However, I should like to find some way of ensuring that people are prevented from applying corporal punishment in the public sphere. Abuse in the private sphere would probably be found out by the probation officer, the children's officer or the police, in which case the person concerned would be prosecuted. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 66 to 68 agreed to.

10 p.m.

Baroness David

I should like to make clear to the Committee that the noble Lord, Lord Irvine of Lairg, cannot be present tonight and that therefore most of the amendments in his name will not be moved. That may give a certain amount of pleasure to some Members of the Committee. Amendment No. 215 will not be moved, but I shall have something to say about Amendment No. 216.

Clause 69 [Courts having jurisdiction under this Act]:

[Amendment No. 215 not moved.]

The Deputy Chairman of Committees (Lord Ampthill)

Before calling Amendment No. 216 I should remind the Committee that, if the amendment is agreed to, I cannot call Amendments Nos. 217 to 222.

Baroness David moved Amendment No. 216: Page 60, line 33, leave out subsection (2) and insert— ("(2) Party to any family proceedings (save those brought under the inherent jurisdiction of the High Court in relation to children) may initiate such proceedings in the High Court, a County Court or a Magistrates' Court").

The noble Baroness said: I wish to move Amendment No. 216, standing in the name of my noble friend. The argument for the amendment has been anticipated in the arguments that my noble friend advanced in favour of Amendments Nos. 144, 163 and 165. The noble and learned Lord, in reply to Amendment No. 144, said that he looked forward to Amendment No. 216, when he would give a full account of the structure of the procedure that he envisaged. I move Amendment No. 216 just to give him the opportunity to speak to it as he promised to do at that earlier stage. I beg to move.

The Lord Chancellor

The situation is that Clause 69 has been put into the Bill as a clause which requires refinement but which enables us to set out in principle what we have in mind. The Committee will remember that late in the summer, after Lord Justice Butler-Sloss's report came out, the Lord Chancellor's Department issued a consultation paper. We had to make the time for consultation quite short because I did not wish to do anything which would lose the place of the Bill in the parliamentary process. I believe that it is very important that the Bill should go forward.

The details of the jurisdictional process are necessarily rather short, therefore. We shall try to refine them as fully as we can, but I cannot promise that because the structure into which those details are to be inserted is rather complicated. I cannot promise that we shall succeed in doing that in time for the later stages of the Bill in this House, although, as I said in answer to a question put to me earlier, we shall do our best.

We have in mind that jurisdiction in the proceedings with which this Bill deals should generally be at three levels: first, the magistrates' court—I indicated that we are proposing that that would be in the domestic panel and I hope that we shall be able to improve the arrangements in that respect; secondly, in the county court; and thirdly in the High Court; and that these courts should be available for proceedings. I also indicated that the purpose of the powers that we take would be to give criteria under which particular care cases would go to the appropriate level of court. We should also expect the courts to have power to transfer cases from one court to another at a certain level. I believe that it would be wise and desirable that some degree of expertise should be available in particular courts. Allowing transfer along the level would assist in that matter. At the top level one has in the High Court the special expertise of the Family Division, which would be the part of the High Court in which one would expect to operate.

That is the general scheme that we have in mind. I believe that it will be wise to keep the procedures and powers for making arrangements fairly flexible to take account of the experience that we gain in this situation. The truth is that there is very little information available about the details of the caseload that exists at present in the child care jurisdiction. As some Members of the Committee will know better than others, at the moment there are some cases which appear in the wardship jurisdiction that might much more properly be dealt with as what they are; namely, care jurisdiction cases. They arrive in the wardship jurisdiction as a way of securing the jurisdiction and expertise of the High Court. I hope that we shall be able to achieve that end without the rather awkward system of trying to use wardship.

Those are the general indications that we have in mind. As I said, the context into which this matter has to be placed is quite a complicated one. However, I hope that I have given a reasonably clear picture of what the Government wish to achieve in this situation.

Lord Meston

Speaking for myself, I am a little disappointed that even at this stage the noble and learned Lord is not able to speak with a little more precision, appreciating that we are about to travel into fairly uncharted waters. Clause 69 contains the potential for much good. It means that care proceedings are no longer confined to the magistrates' court and the general object, as expressed by the Government, is to ensure that the right case starts—or at least finishes—in the right court.

Frankly, the difficulty is that it is not possible to be confident about how Clause 69 will work, because it is simply an enabling provision. Although the noble and learned Lord has given some indication of what is to come, the outline of the rules is unknown. I certainly had hoped that he would lift the veil a little higher to enable us to see further ahead. There are a considerable number of questions that I wanted to ask if he did not answer them in the course of his remarks this evening. He has not answered them but frankly at this stage the time is too late to ask those questions.

However, the noble and learned Lord indicated that the criteria will be forthcoming. At some stage—I hope before the Bill leaves this House the first time round—we should like to know what they are to be, in particular to ensure that they will be based on questions of complexity and not simply questions of convenience. Therefore, with all due respect to the noble and learned Lord and those who assist him, I hope that special efforts will be made to give us some reassurance that these grey areas will he illuminated as soon as possible.

Lord Prys-Davies

I read with interest what the noble and learned Lord the Lord Chancellor said in the discussion on Amendment No. 144 put forward by my noble friend Lord Irvine. However, I found myself in difficulty with reconciling two sentences. They are recorded at col. 223 in Hansard of 17th January. The noble and learned Lord the Lord Chancellor stated in the third paragraph: The purposes of the starting rules will be to ensure that cases start in the court where they are most likely to he heard". However, in the next paragraph the Lord Chancellor states that, apart from cases where there are family proceedings already pending, we intend to provide by order that, at first at least, applications for care or supervision orders shall be made to magistrates". It seems that in the second sentence we are saying that cases will enter into the system at the magistrates' court whereas in the first sentence the Lord Chancellor is saying that the case will start in the court that is most appropriate for it. Will the noble and learned Lord reconcile the two statements, or is there no apparent inconsistency?

The Lord Chancellor

No doubt the difficulty is partly the result of the language that I used. I was not reading anything. I was trying to explain directly to Members of the Committee what I had in mind. The information that we have suggests to me that most care cases would appropriately be dealt with in the magistrates' court. The process has to start somewhere. Somebody has to decide where the case is to allocated. If the truth is that most cases ought to be tried in the magistrates' court then that is the appropriate place to start the case, because it means that one will minimise the amount of movement. It is very difficult to provide criteria that would not be operated by someone within the system. We have in mind that the cases would start there. If they satisfy criteria for being moved up, they will then immediately be moved up to the court to which they ought to go. They will then proceed from there.

The reason that we choose the magistrates' court as the court from which to start is because the magistrates' court is the court where the majority of the hearings are likely to occur. That is the reason I put it in that way.

I entirely agree with the noble Lord. As he read it to me, the matter required elaboration. However, that is what I have in mind. I hope that I have made the position clear now. It does not mean that in relation to a particular case I can make such detailed arrangements as that, because somebody has to operate these criteria. They will not be self evident. If we were able to identify the cases—for example, if it were every third case—that would be easy. But it has to be done by reference to complexity. We shall try to give as much guidance detail as we can, but it will have to be applied by some authority. Most cases would appear to be suitable to be heard in the magistrates' court. Then, by reference to criteria, the cases which are suitable for a hearing in a higher court will be sent up. I hope that that is sufficient an explanation.

Lord Prys-Davies

Is the position that every case will automatically enter the system at magistrates' court level? Then a decision will be taken by an authority—perhaps the clerk to the magistrates, or the magistrates' court itself—whether or not that case is to be transferred upwards?

10.15 p.m.

The Lord Chancellor

That is so. It is by reference to criteria that we shall lay down as fully and in as much detail as seems practicable. We may have to modify these criteria in the light of experience. This is a new departure but it is one which I believe is welcome. Not all care cases are to be heard before the magistrates although some are at present. That is one of the difficulties about the present system. This is an advance on the present system which we hope we shall be able to improve as time goes on. We are making a start, the very best we can, but it may still require to be improved. The noble Lord has described accurately what I have in mind.

Baroness David

I thank the noble and learned Lord for his further explanation which I am quite sure that my noble friend will be pleased to read. I agree with the noble Lord, Lord Meston, that it is a pity that we do not have the government amendments to this clause. Indeed I read in the Notes on Clauses to Clauses 70 and 71 that there are to be further amendments. We may not even have those at Report stage or Third Reading here. I do not know whether the noble and learned Lord can tell us whether we shall have those amendments by the next stage. We very much hope that we shall do so.

The Lord Chancellor

All I can say is that I shall do my best, but as a practical matter the alternative is to lose the Bill altogether, until we gather everything together that came from that consultation. Much of that work has followed. We had to find out what Lord Justice Butler-Sloss had to say before we could issue that consultation paper. This is our opportunity. We could have left out the jurisdictional questions altogether, which is what I originally said when I was asked about this a long while ago. I suggested that we should try to get the substantive law right and then make the jurisdictional improvements. I now see an opportunity to do both. I hope that the Committee will have sympathy with that aim. We cannot create it immediately because it is a difficult structure, but the noble Baroness may take it that I shall do my best to get as much forward to the Committee as I can, but I cannot promise, because of the detailed work involved, to get it right. We must consult many people about it, but I hope that we shall be able to have it all ready in time for the final stages in this Chamber.

Baroness David

I thank the noble and learned Lord for his further reply.

Lord Prys-Davies

Will the Lord Chancellor confirm what he had in mind when he said in col. 223 that it is the intention to provide by order that at least at first applications for care should be made to the magistrates? Does that mean that when the new procedure comes into existence, that is the way in which it will be seen at first, but that in the light of experience it may be subject to modification?

The Lord Chancellor

That is precisely right. I believe from information that I have that most cases will be appropriately dealt with in the magistrates' court at that level—the domestic panel level. But we do not have an analysis, in as much detail as I should like, which would enable us to say that with absolute confidence. Once the system is in operation it will be seen perhaps that 60 per cent. of the cases will be taken in the county court. If that is right that is the place where they should start and then make allocations out. We need to minimise the number of transfers and to do that we need to start them at the place where most of them are heard. That is the principle we are working on.

Baroness David: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 217 not moved.]

Lord Campbell of Alloway moved Amendment No. 218: Page 60, line 33, after ("by") insert ("regulation make"). The noble Lord said: By leave, I speak also to Amendments Nos. 219 and 225. The connection between Clauses 69 and 71 is frankly acknowledged at Page x of the Explanatory and Financial Memorandum under the heading "Financial Effects of the Bill" and it is avowedly financial, pure and simple: Increased court and legal aid costs will … be partly offset by … limiting access to wardship (clause 71)". That is what it is all about. Rules of court under Clause 69 will allocate cases with financial considerations in mind. Let us remember that that is the name of this game.

There is considerable concern within the profession that the rules under Clause 69 will unduly restrict access to the High Court. There is also concern that the rules under Clause 69 will allocate cases to the magistrates' court. I heard the exchange between my noble and learned friend the Lord Chancellor and the noble Lord, Lord Prys-Davies. The concern is that such cases ought more properly be heard in the county court or the High Court.

Defining the criteria by which a case should be moved up is a far more difficult task than leaving it to the discretion of an experienced registrar. In the magistrates' court, where the process will start—perhaps subject to criteria which are difficult to define—there are no affidavits, no statements of witnesses and no means of knowing what are the issues and the evidence that will be called.

To meet those matters of concern to which I have referred, there are three proposals. First, there is the proposal in Amendments Nos. 218 and 219 to ensure that the rules of court shall be made by resolution so that in accordance with Clause 76(2) they shall be subject to a negative resolution of Parliament. Separate from that is the desire or intention to which I referred on Second Reading. It is to remove the provision under Clause 69(4) that the rules may be made only with the agreement of the Secretary of State. At that stage my noble and learned friend expressed sympathy for a concession.

Thirdly, there is the proposal under Amendment No. 225 to substitute in place of Clause 69(4) a provision which would enable an application for transfer to be made which would be subject to the limited appeal applicable to any mere exercise of judicial discretion.

As regards the removal or excision of Clause 69(4) as it stands, my noble and learned friend has already expressed sympathy with a view to clarification. On Amendment No. 225. I canvass his understanding and sympathy in view of the fact that, as a rule, the applications are intended to start in the magistrates' court (which is a matter of concern) and that it is experimental. It would therefore considerably allay the concern if proper machinery were devised to enable applications for transfer to be made to the specified court.

The subject of the rules is a technical issue and I do not wish to detain Members of the Committee further at this hour. In general, the problem is that, as regards financial grants, the profession is concerned that resort will be had to the magistrates' court where more properly in the interests of the due administration of justice resort should be had to the county court or the High Court. I ask my noble and learned friend to meet that problem. I beg to move.

Lord Mottistone

As a non-lawyer, and a total ignoramus in this sphere, I find in this clause and in many others reference to the rules of court which will establish facts which one would normally expect to find established by regulation. Is there any machinery by which Parliament has a hand in the rules of court being agreed to or not agreed to, or does it just happen? I believe that my noble friend is trying to turn this matter into a regulation. This is not the only part in this Bill in which my noble and learned friend. whom I trust implicitly—but I would not necessarily trust his successors nearly so well—will produce rules which would not necessarily be agreed to by Parliament at any stage. It seems to me that we are rather throwing matters away if we agree to this. I should be grateful if my noble and learned friend could clarify that issue for me.

Lord Meston

I share the concern of the noble Lord, Lord Campbell of Alloway, in this respect, and join in hoping that the noble and learned Lord the Lord Chancellor can do something to allay his fears, even at this hour. If the magistrates' court is to be the point of entry—and that in itself is a matter of concern—will there be provision for the advance disclosure of documentation to enable those who have to make the decision about the appropriate forum for the case to make it properly and to crystallise and identify the issues? That does not happen at present in those cases. Will there be a mechanism for an appeal from the person in the magistrates' court who has to make the decision as to the appropriate forum for the ultimate disposal of the case? Those are matters of considerable concern.

The Lord Chancellor

Perhaps I can deal with all of those matters generally without referring to particular amendments. First, as regards Clause 69(4) I have explained the reason for that being in the Bill and I am happy to agree that it should be taken out by an appropriate amendment. I believe that an amendment in the name of the noble Lord, Lord Irvine of Lairg, achieves that, and I should be content with that. That disposes of that matter.

As regards the point about rules of court and regulations, I believe that that is a question of how matters are carried out. Statutory instruments are under the control of Parliament. I consider that at least in part, the provision in Clause 69 should be dealt with by regulations and, therefore, I go along with my noble friend Lord Campbell of Alloway to some extent. Purely procedural matters are best dealt with by rules of court and, for example, the concerns which the noble Lord, Lord Meston, has about procedures in the magistrates' court would be encompassed by rule. For example, the Bill already provides that a statement of what are the proposals for the child and so on must accompany the application. We intend to build on that.

The noble Lord, Lord Campbell of Alloway, spoke of experiment. I believe that we need to try to build on to the existing structures something which will work and which will give a good system for dealing with this sort of case. I explained to Members of the Committee earlier that I believe that we have the capacity within the framework of this Bill to develop those procedures and, if they work well, to extend them in due course.

The other matter that I believe has been mentioned concerns notification and appeal. The point that I must make is that the transfer arrangements would certainly provide scope for those interested in the case to make their views known, and we intend to provide an appeal provision against the decision on the level of court at which the case is to be heard. Therefore, all these matters about which concern has been expressed will be addressed.

To summarise, as regards regulation at least some of what is dealt with by rules of court under Clause 69 as it stands might more appropriately be dealt with by regulation and I propose to address that point. As regards Clause 69(4), I am happy that it should disappear from the scene. As regards developing procedures to enable the views of the parties to be obtained and appeal rights to be provided, that work is in hand. I think I have answered the main matters that have been raised.

10.30 p.m.

Lord Campbell of Alloway

I am extremely grateful to my noble and learned friend, first, for taking the point on Clause 69(4) that I raised at Second Reading and the excision of that clause by an amendment which was tabled subsequently by the noble Lord, Lord Irvine of Lairg. Secondly, as regards the regulations, I am wholly content that my noble and learned friend, having taken the substance of the point, should deal with it as he thinks fit on the basis of such advice as he receives.

On the question of transfer, again I am more than content that, having taken the substance of the point, my noble and learned friend, on advice, should deal with that. After all, it is experimental and provisions must be fairly elastic.

I can only again thank my noble and learned friend the Lord Chancellor for taking all three points. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 219 to 223 not moved.]

Baroness David moved Amendment No. 224: Page 60, line 44, leave out subsection (4).

The noble Baroness said: I understand that the noble and learned Lord is willing to accept this amendment. I beg to move.

The Lord Chancellor

I explained why subsection (4) was included in Clause 69. I have been able to consider the matter with others who are interested and am happy to omit the subsection. Therefore, I accept the amendment.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I cannot call Amendments Nos. 225 and 226.

[Amendments Nos. 225 and 226 not moved.]

Clause 69, as amended, agreed to.

Clause 70 [Procedure]:

[Amendment No. 227 not moved.]

Lord Elwyn-Jones moved Amendment No. 227A: Page 61, line 1. leave out subsection (1) and insert— ("(1) Anyone whose legal position could be affected by the proceedings and anyone who is permitted to seek and is seeking legal responsibility for the child in the proceedings shall be able to be a party to the proceedings. (1A) In relation to a child under 16 years of age the court shall be able to seek the advice of a welfare officer or guardian ad litem as to whether it would be in the child's interests to be made a party to the proceedings. (1B) Rules of Court may make provision as to the persons to be given the opportunity to make representations to the court hearing the proceedings.").

The noble and learned Lord said: Clause 70(1) relating to procedure provides that: Rules of court may make provision as to the persons entitled to participate in proceedings under this Act, whether as parties to the proceedings or by being given the opportunity to make representations to the court hearing the proceedings. The intention of Amendment No. 227A is to ensure that party status is specified in the Bill rather than be left to be dealt with by rules of court as Clause 70 currently provides. In our submission party status is too important a matter to be dealt with in secondary legislation so the amendment goes rather wider and to a more significant level than the earlier discussion.

The amendment follows the recommendation of the Government's White Paper on the law on child care and family services, which I need not quote. It is the case that it is equally applicable to the whole of family proceedings as to care proceedings. That is the purpose of subsection (1) in my amendment. Subsection (1A) seeks to give the court some assistance when deciding if a child should be made a party to proceedings. A welfare officer or a guardian ad litem would be able to assist a child's capacity to understand the proceedings and the extent to which the child's interests, wishes and feelings require separate representation.

In those circumstances we provide in the amendment that as regards a child under the age of 16, the court shall be able to seek the advice of a welfare officer or guardian ad litem as to whether it would be in the child's interests to be made a party to the proceedings.

Subsection (1B) of the amendment states: Rules of Court may make provision as to the persons to be given the opportunity to make representations to the court hearing the proceedings.") The most important part of the amendment is clearly subsection (1).

Lord Meston

I support the underlying intention of this amendment and speak to it in connection with our Amendments Nos. 228 and 229 which, I believe, have effectively the same purpose. We feel some concern at the fact that yet again Clause 70 is a rule-making provision and one in which it is difficult to have confidence when what is to come is unknown.

We seek to ensure not only that the child should be properly represented in all proceedings, but also that the status of other parties and in particular that so hard-won through the Children and Young Persons (Amendment) Act 1986 should not be lost by the manner in which the rules are to be brought forward. I hope that the noble and learned Lord can give us the reassurance that we require.

The Lord Chancellor

I believe that the detail of this matter should be left to the rules of court. The first branch of the amendment is in a sense expressing a general principle which one would give effect to in the rules. The phrase, whose legal position could be affected by the proceedings is not, as I am sure the noble and learned Lord recognises, a very precise phrase. Even if it were there would need to be some power in rules of court to specify how it was to work. As regards the proposed subsection (1A) I believe that power to be already covered by Clause 6 of the Bill which gives a general power to use welfare reports and to ask for them. As regards subsection (1B), Clause 70 as it stands appears to provide for the matter.

Again, in the amendments put forward by the noble Lord, Lord Meston—Amendments Nos. 228 and 229—the general provisions are of importance. There is considerable scope for substance in subparagraph (e). In the ultimate result I am not sure that much is added. I hope I have already made it plain that in care proceedings we would provide that the child would be a party in every case. Persons having parental responsibility for the child would normally be parties in the proceedings. In care proceedings we have required that, generally speaking, the application would be one by the local authority, though my noble friend's correspondent would hate to say "his client". But at least those whose interests he has advocated in this Chamber are authorised in that connection.

Subparagraph (e) says: the applicant in the proceedings, where he is not the child nor a person having parental responsibility for the child nor the local authority". It would seem queer to have proceedings that did not have the applicant as a party. I should have thought that it was hardly necessary to say that. These are matters for consideration in detail. We would certainly expect to give effect to the general spirit of the amendments in the rules to provide for party status. In the light of those considerations, I hope that the noble and learned Lord will feel able not to press the amendment.

Lord Elwyn-Jones

The language used in the amendment— Anyone whose legal position could be affected by the proceedings"— is taken from the Government's White Paper Law and Child Care and Family Services. Paragraph 55 provides: The Government recognise the advantages of involving in the proceedings anyone who has a proper interest in the child's future and his welfare. Some movement will be made in that direction by the Children and Young Persons (Amendment) Act 1986 under which a parent or grandparent can in certain circumstances he made a party to the proceedings in addition to the child and the applicant. That change in the law removed the more obvious shortcomings of the present arrangements. For the future, the position will be further improved. Anyone whose legal position could be affected by the proceedings will be entitled to party status". It was to that statement in the White Paper that my amendment was partly directed. This matter clearly needs to be looked at again. It is one of some importance because the right to party status is crucial in these proceedings. However, in the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 228 to 230 not moved.]

Clause 70 agreed to.

10.45 p.m.

Clause 71 [Transfers between England and Wales and Northern Ireland, the Channel Islands or the Isle of Man]:

The Deputy Chairman of Committees (Baroness Cox)

I should point out that if Amendment No. 231 is agreed to I cannot call Amendment No. 235.

Lord Meston moved Amendment No. 231: Page 61, line 9, leave out subsection (1).

The noble Lord said: The name of the noble Lord, Lord Irvine of Lairg, appears at the head of the amendment. I was somewhat relieved to think that he might move it and the other amendments which concern Clause 71. That relief gave way to dismay when I realised that he would not be here this evening. My dismay increased when I realised that this series of amendments relating to Clause 71 which has caused considerable concern to family law practitioners would be debated so late at night.

The clause has caused great concern to all who have tried to think through its implications. Clause 71 proceeds on the hypothesis that local authorities need not resort to wardship jurisdiction as the new statutory code for care proceedings to be introduced is precise and comprehensive. No doubt the draftsman has tried to be both, but it is wishful thinking—I was going to use a less polite phrase—to believe that the statutory code will ensure either situation, even if Clause 26 were faultless, and I suggest that Clause 26 (the statutory code for care proceedings to be introduced) is not faultless. The Bill repeals grounds for care proceedings which were introduced in the 1969 Act, and they in their time were no doubt considered to be impeccably drafted by those responsible. The ensuing 20 years have shown how wrong one can be.

The point to be mentioned in relation to Clause 71 is perhaps the wider point of concern. The value of the wardship jurisdiction is something that is hard to describe, but it is readily appreciated by all those who practise in that jurisdiction. It allows a thorough and sensitive hearing, usually by a High Court judge, with advocates of specialised expertise who all treat their task as one of great seriousness and importance for the child or children concerned. It is a jurisdiction which is valued by local authorities not only for the expertise of the forum but for the authoritative decision which is produced and the guidance which the courts can provide in individual cases.

The best indication of the value of the wardship jurisdiction is shown in the Cleveland report, which of course advocated the retention of the wardship jurisdiction. There is no evidence that local authorities under the present regime unnecessarily invoke the wardship jurisdiction. It is flexible. It is therefore a jurisdiction which should not be discarded unless we are absolutely sure that it serves no useful purpose. It has developed over the years to cover events which were not envisaged. For example, it has developed in recent years to deal with cases in which there is grave concern for the child, in circumstances which do not fit easily into the existing statutory code; for example, cases in which sexual abuse cannot be proved to a suitable standard and yet a court has sufficient concern for the child to feel that there is an unacceptable risk that sexual abuse will occur in the future.

It is a misapprehension to think of the wardship jurisdiction as something of a fifth wheel to the wagon. If the Government are right in the hypothesis on which the clause is based, then the wardship jurisdiction will diminish naturally and there is no need for the severely restrictive provisions of the clause.

The courts would not allow the wardship jurisdiction to be exercised improperly, but we should be careful before we allow the children to come before the courts to be deprived of the traditional protective role of the High Court in its wardship jurisdiction, a role which enables the court not only to make a decision as to what has happened, factually in the past, but to give directions for the future, long term and short term, and to provide a measure of oversight for the child or children concerned.

There are a number of points of detail in relation to Clause 71 which I had intended to invite the noble and learned Lord to deal with, but I do not think it is appropriate at this hour to go into further detail. I hope he will have read, or will have the opportunity to read, some of the serious representations which I know have been made to him on this point and also, for example, to read the article in last week's New Law Journal, which raised a number of detailed points which involve questions of how appropriate it is to restrict this extremely valuable traditional jurisdiction of the High Court in these cases. As I say, it is not appropriate to develop the argument further on this point. Nevertheless, I beg to move.

Lord Mottistone

I agree with a lot of what the noble Lord, Lord Meston, has said. There has been—if I may talk a little generally—a good deal of criticism about the increasing number of wardship proceedings used by local authorities. In some cases, it is probably true to state that the cases could have been resolved elsewhere and that the use of wardship has been inappropriate. However, wardship proceedings provide a valuable safety net for children and the expertise and experience of High Court judges has proven to be very useful in resolving difficult cases.

As Clause 71 is currently drafted, it is difficult to imagine in what circumstances wardship proceedings could be used. Even if a local authority or other interested parties were granted leave to apply, the jurisdiction is to be so restricted that it appears the court would be unable to determine a remedy. It is questionable whether the statutory codes are flexible enough to compensate for the restriction of the jurisdictions proposed in the Bill, and in this clause in particular.

I should like to say a little about Amendment No. 236 which is linked with this first group of amendments in my name. The amendment seeks to remove subsection (2) from the clause. That subsection severely restricts the exercise of the High Court's inherent jurisdiction with respect to children. If this subsection were to remain, the High Court would find it difficult to resolve issues brought before the court, particularly issues arising in connection with the aspects of parental responsibility for the child.

There seems to be little point in retaining the inherent jurisdiction if the court is unable to direct that a child be placed in local authority care or be accommodated by the local authority. Perhaps this subsection would still allow for such matters as deciding upon, for example, sterilisation. However, the application should remain much wider.

Social workers dealing with the day-to-day problems of abused children are most concerned that the High Court's jurisdiction is not so curtailed as it would be in this subsection (2). Experience has shown that the powers available to the High Court are most useful in the sensitive resolution of complicated cases which is, in part, what the noble Lord, Lord Meston, said. Indeed, I hope that my noble and learned friend will find a way of either reducing the effect of Clause 71 or possibly even of getting rid of it altogether.

Lord Campbell of Alloway

This is not really the time to go into too much technical detail, but subsections (1) and (2) of Clause 71—I merely say this for the sake of the record—raise totally disparate problems which perhaps my noble friend Lord Mottistone could reconsider between now and Report.

Clause 71, as such, as my noble and learned friend the Lord Chancellor has already observed, interacts on other clauses of the Bill. In particular, it has an effect on Clause 22 as regards the establishment of a satisfactory complaints procedure to which I spoke on Amendment No. 113. At the outset—and I support the amendment—it is accepted that the practice of resort to wardship, to which my noble friend Lord Mottistone correctly referred, in lieu of the complaints procedure as an indirect method of challenging certain decisions of the local authority, is unacceptable.

It is also accepted that forum shopping as between the magistrates' court and the High Court is unacceptable and an abuse of the process of the court, but it achieves the result by overkill. There is no case whatever for the removal of wardship as proposed by Clause 71(1) save on financial grounds, again referred to at page 10 of the financial memorandum, where it is expressly and avowedly financial. The Committee can see it stated with a reference to Clause 71.

What are the effects? First, the High Court would no longer have power to place a ward of court in care or under supervision of a local authority in the exercise of its inherent jurisdiction. Secondly, a local authority could not apply for a residence order or a contact order—that is, the care and control and access orders. A local authority would be permitted to invoke the inherent jurisdiction of the court only for a care order as provided by Clause 26, and then only if the local authority can satisfy the court that the child will suffer significant harm. A significant risk of abuse or harm would not appear to suffice.

In the result—let us be practical—to give but one example, if a parent of a child who has been in voluntary care for some time threatens to remove the child, the local authority will no longer be able to issue a wardship summons to contain the sitution. As has been said by other noble Lords, there are always novel, distressing, urgent and exceptional cases in which the flexible and adaptable process of wardship may be the only means to provide an appropriate and immediate provisional resolution in the interests of the welfare of the child.

The recommendations of the Butler-Sloss report, to which I referred at column 507 on Second Reading, are that wardship should be retained, if not extended. The only apparent justification for rejecting the Butler-Sloss recommendation would appear to be financial and administrative in context with the rules of court to be issued under Clause 69 or regulations, as the case may be. If the interests of children are truly at stake, that is no justification at all to support this amendment.

The Lord Chancellor

There appears to be a certain amount of misunderstanding about Clause 71. Clause 71 does not proceed on the basis that the code in the Bill is complete. Rather, Clause 71 provides that the inherent jurisdiction of the High Court cannot be used as an alternative to a care or supervision order. That is what it says. It does not say that it cannot be used at all, but it cannot be used as an alternative procedure for a care or supervision order. The situation is that if one wants a care or supervision order one has to satisfy the statutory criteria. In my submission, that is perfectly right.

Clause 26 of the Bill provides protection for the integrity and independence of families from unwarranted intervention by the state in the guise of local authorities by specifying detailed conditions which must be fulfilled before a care or supervision order may be made. Similarly, in Part V of the Bill the conditions and procedures for the making of emergency protection orders have been carefully designed to enable children to be effectively protected but to prevent the lives of children and their families being interfered with and disrupted unnecessarily.

There is nothing in that that restricts the wardship jurisdiction of the High Court, except to provide that it cannot be used as an alternative to these procedures. We looked at the basic arrangements for this in detail when we went through the clauses. It is quite wrong to suggest that we are destroying the wardship jurisdiction of the High Court altogether. We are saying that the inherent jurisdiction of the High Court, with the leave of the court, in situations which are not covered by care and supervision will be available, subject to what subsection (5) says.

11 p.m.

Lord Campbell of Alloway

Will my noble and learned friend permit me to intervene? I am most grateful. I wonder whether he will take on board that the construction which I advocated is held quite widely in the profession. Of course I accept the view of my noble and learned friend when he says that the intention is as he has stated. Would it be possible to clarify the drafting so as to ensure that there is no room for misapprehension and that it is only to ensure that it is not an alternative to care?

The Lord Chancellor

Obviously there may be something which could be improved upon, but Clause 71(1) says: Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect". In other words, it is provided there that putting a child in care shall not be a power available in wardship proceedings. It is a power which will have to be exercised in accordance with the statutory requirements for care or supervision, as set out in the Bill.

The effect of subsection (2) is in line with the same point. It may he that some people have misunderstood, but if they look at it again in that light they may see that that is what the Bill requires. It cannot be right that local authorities should be able to circumvent these carefully thought out and carefully enacted provisions by simply making a child a ward of court. Once a child is warded, the High Court would have a wide discretion to make whatever order it thought fit, including an order placing the child in the care of or under the supervision of the local authority, subject only to the very general provisions in Clause 1(1) of the Bill that, the child's welfare shall be the court's paramount consideration". in determining any question with respect to the child's upbringing. We clearly want to make sure that that point is covered.

To take the example given by my noble friend—or perhaps it was the noble Lord, Lord Meston—if a parent threatened to remove a child who had been in long-term foster care, that would certainly give grounds for a care order if it were likely to result in significant harm and the removal would not be a reasonable exercise of parental care.

Members of the Committee will see that subsection (5) of Clause 71 says that the subsection applies to any order, made otherwise than in the exercise of the court's inherent jurisdiction; and … which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)". The purpose of that is to ensure that where the statute has provided a way of doing it, that way must be used. That is all. I venture to think that perhaps some of the difficulty which is anticipated in the profession is not justified by the language of the clause. In the light of those considerations, I hope that the noble Lord may feel able to withdraw the amendment.

Lord Meston

I am very grateful for the support I have received both from the noble Lord, Lord Mottistone, and from the noble Lord, Lord Campbell. I am particularly grateful to the noble Lord, Lord Campbell, for supplementing what I inadequately sought to express, and in particular for giving examples which I had not given of some of the situations which are giving cause for concern. It was never suggested by me that this clause seeks to destroy the wardship jurisdiction.

It is suggested by me, however, that it is a clause which undervalues the wardship jurisdiction. It is unnecessarily restrictive. To use the expression of the noble Lord, Lord Campbell of Alloway, it is "overkill". Particularly restrictive is the combination of this clause and Clauses 81 and 84.

This is a Bill the provisions of which, as the noble and learned Lord the Lord Chancellor indicated earlier today, should last for a long time. It is therefore particularly important that we get it absolutely right in so far as we are able. This is a matter to which I wish to return at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 232 to 234 not moved.]

Lord Campbell

of Alloway had given notice of his intention to move Amendment No. 235: Page 61, line 11, at end insert ("but without derogation from the right of any interested person to apply to the President of the Family Division for leave to issue wardship proceedings"). The noble Lord said: In effect I have spoken to the principle behind this, to save time, on Amendment No. 231. I only ask respectfully that my noble and learned friend the Lord Chancellor should take this on board as a possible alternative way of avoiding the overkill. It is not as draconian as removing Clause 1. I spoke to the whole merits on Amendment No. 231 and, therefore, in the hope that my noble and learned friend may consider the position, I shall not move the Amendment.

[Amendment No. 235 not moved.]

[Amendments Nos. 236 to 240 not moved.]

Lord Mottistone moved Amendment No. 240A: Page 61, line 21, leave out subsection (3) and insert— ("(3) Upon the application of any interested party, the High Court may exercise its inherent jurisdiction with respect to children.").

The noble Lord said: I shall speak briefly to this amendment, which is in the next group of amendments starting with Amendment No. 240. This amendment seeks to ensure that any interested parties are able to apply for wardship proceedings. This should be explicit within the legislation.

In 1986 local authorities issued 1,845 of the 3,399 originating summonses. This leaves over 1,500 applications by other parties. Children, grandparents, parents and others felt the need to use wardship and obviously will continue to do so. It would be sensible to recognise this within the Act, although this really refers to common law rights.

I make that point only against what my noble and learned friend said earlier, to ask that in looking at this again, which I trust he will, he makes sure that other people apart from local authorities are in his mind. I also ask that he should consider a different title for the clause, which has unduly alarmed people when really he is trying to adjust the use of wardship jurisdiction in view of the nature of the Bill. I suggest to my noble and learned friend that that may help. I do not propose to proceed with my other amendments to this part at this stage because, to a certain extent, part of the reason for asking my noble and learned friend to look again at the precise wording of the Bill is to ensure that people understand clearly what it is about. I beg to move.

The Lord Chancellor

I am not absolutely clear what is intended by the amendment. If the idea is that anyone could apply and be heard without the leave of the court that would appear to be a rather wide provision. I find it difficult to see precisely what the effect would be. I am grateful for the remark about the side note. That is not part of the Bill but is perhaps a point that needs thought.

I think that it ought to be clear that there is nothing in the Bill to restrict the use of wardship by private individuals. Apart from limiting the use of wardship by local authorities we have postponed reviewing wardship itself until we see how the Act works. To some extent that deals with the point made earlier by the noble Lord, Lord Meston. The purpose of the provision is to make sure that wardship is not used as an alternative to the statutory jurisdiction. I hope that in the light of those remarks the noble Lord will feel able to withdraw the amendment.

Lord Mottistone

I thank my noble and learned friend for that reply. We shall think about all the amendments in the group before the next stage of the Bill, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 241 to 245 not moved.]

11.15 p.m.

Baroness David moved Amendment No. 245A: Page 61, line 36, at end insert ("(6) The court may grant leave—

1. (a) for a ward of court to be appointed a full party to the proceedings and
2. (b) for a ward of court to represent his own interests and choose his own solicitor, without a guardian ad litem being appointed on his behalf.

(7) The court may only grant leave under subsection (6) of this section if satisfied that the child has sufficient understanding to instruct a solicitor and wishes to do so.").

The noble Baroness said: The amendment would allow wards who are competent to be parties in their own right with legal representation of their own choosing. It seeks to end the present unfair position in wardship whereby wards are never parties in their own right but, when they are joined as defendants, are represented through a guardian ad litem—usually the Official Solicitor—who does not act on their instructions.

The Children's Legal Centre has received a number of complaints about that system from wards and those concerned about their welfare. The centre has also been aware of a high level of dissatisfaction among the legal profession with the role of the Official Solicitor. However, lawyers undertaking High Court case work oppose the Official Solicitor at their peril. Any questioning of his department's work is always rejected and the critic rebuked. It is therefore not in clients' interests to attack, or even cross-examine, the Official Solicitor.

The court has the ability to make a ward a party to proceedings. However, because of rising numbers of wardship cases—over 500 children are now made wards in a year—a practice direction in 1982 provided that that should be done only in exceptional circumstances; the norm should be that the child's interests be considered simply through a court welfare officer's report. If the child is made a party—for example, where he or she is the sole defendant or where there is some very complicated aspect to the case—the High Court ruled (Re JD, 1984) that the Official Solicitor should normally be appointed as guardian ad litem. If someone else wished to act as guardian ad litem the matter should be considered by a judge, not a registrar.

The duties of the Official Solicitor are summed up in a letter sent by him to a client of the Children's Legal Centre: My duties as your guardian ad litem are to represent you in wardship proceedings and to endeavour to safeguard your best interests, taking account of your expressed wishes. This does not, however, impose on me the same obligation as a normal solicitor taking instructions from a client, as I am sure you will be able to imagine circumstances in which a child on whose behalf I am acting expresses views which it will be impossible for me to act upon".

Although the Official Solicitor acts in terms of the child's best interests, not the child's instructions, he is not professionally qualified to assess those interests. The Official Solicitor is himself a solicitor but he employs a staff of—in his own words—"career civil servants". In an interview given in 1982 he goes on to say: While I try to choose 'horses for courses' in assigning them to their duties, I cannot claim they are, nor would I wish them to be, hand picked for dealing with children's cases. I emphasise this as I feel that the courts already have available a vast fund of professional expertise in wardship and my staff can sometimes bring the unfettered approach of the man or woman in the street to the problems of these cases". The recommendation of the Official Solicitor has a powerful influence with the wardship judge. However, the standard of his reports is often weak and compares badly with the work of guardians ad litem in care proceedings, who are professionally qualified social workers. Lawyers, including those on the Law Society Child Care Panel, are often frustrated by lack of judgment or failure to consider important factors in the Official Solicitor's report. However, it is a rule of practice in the wardship court that the writer of the Official Solicitor's report is never subjected to cross-examination.

In other words, the Official Solicitor tries to do two jobs simultaneously—the job of a solicitor and the job of a court welfare reporter—and does neither of them well. He has two conflicting roles: the role of the inquisitor investigating the "best interests" issues of the case, and that of the advocate. The impossible contradictions between those two roles may have disastrous consequences for the child.

The children's centre knows of examples of cases where the Official Solicitor felt unable to act on the instructions of the ward. For example, there was a case where a young person was locked up in secure accommodation and wished her placement to be opposed. Unfortunately, because she was a ward she did not have an advocate as the Oflicial Solicitor supported the professional view that she should be locked up. Had she had any other legal status in care she would have been able to instruct a solicitor to represent her wishes.

In another case a 13 year-old ward wished to live with her mother who had muscular sclerosis but she was placed with her father. She appealed to the Official Solicitor. He sought advice from a psychiatrist who, although observing that the "current situation was fraught", recommended that it was important for the girl's, adolescent development that the adults stand firm in terms of the arrangements that have been made and help the children with the inevitable painful feelings that follow". The Official Solicitor followed that advice—not the girl's instructions—and did not recommend a change in placement to the court. Only after the girl ran away and sought assistance from private solicitors was she able to live with her mother.

Where momentous decisions are being made about an older child's life, such as deprivation of liberty or separation from a preferred parent, it is obviously unfair that they do not have a right to legal representation of their own choosing. It is also in breach of Articles 6 and 14 of the European Convention on Human Rights. Article 6 provides that in determination of civil rights: everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Cases on this point have ruled that this should include access to a solicitor of choice. Article 14 provides that: the enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race … etc… birth or other status". Should children's legal status as wards deprive them of rights to a fair hearing?

It may be that the wording of this amendment is technically faulty in that in the eyes of the law a ward of court who is represented through the medium of a guardian ad litem may be a full party; but by "full party" we mean a party in his own right, that is, without a guardian. I beg to move.

Lord Meston

I had not intended to speak but feel in relation to this amendment that I must do so. I do not know the nature of the complaints that have been received about the Official Solicitor's operation in these cases but from my own experience I do not agree with the criticisms of the Official Solicitor, his staff or the reports that are produced. The Official Solicitor and his staff seem to me to serve children extremely well and their reports serve the courts extremely well. The fact that the Official Solicitor does not act simply as a mouthpiece for the child enhances rather than diminishes the role of the Official Solicitor as a guardian ad litem. It does not prevent the Official Solicitor acting as a medium by which the voice of the child is heard by the court in these cases. If that is a matter which is to be removed by this amendment, it is an amendment which I could not possibly support in this form.

The Lord Chancellor

I explained in answer to an earlier amendment that we are not seeking to review the wardship situation in this Bill because the Law Commission recommended that the Bill should be put in place, the wardship jurisdiction should be retained, and then considered in the light of the position when the Bill is in place.

On the detailed matters, the remarks of the noble Baroness are along the line that we discussed when we spoke about secure accommodation. I understood what she said then. The Official Solicitor is an official under the direction of the Lord Chancellor. Therefore I would find it very difficult to accept criticism of him which was not vouched for in a very detailed way. He is obliged to act under the directions of the Lord Chancellor. I therefore have responsibility for his activities. The noble Lord, Lord Meston, who practises to a considerable extent in this area, speaks on this matter with personal experience. However, I do not think it would be appropriate to go into the detail of the general wardship jurisdiction and the procedures under which it operates in this Bill.

The role of the Official Solicitor in care proceedings—which will be in the High Court now for the first time—is under consideration. Members of the Committee will remember that there was a question—I think by my noble friend Lord Campbell of Alloway—about whether at each stage a different guardian ad litem should be used and so on. That is under consideration. In family proceedings generally it would be right to look at that.

This Bill does not attempt to do anything about the wardship situation generally. I doubt very much whether it would be wise to attempt partial incursions into that rather recondite subject.

Baroness David

Clause 71 deals with wardship. It therefore did not seem totally wrong to bring this matter forward. On the point put forward by the noble Lord, Lord Meston, I understand that the Official Solicitor is not always the voice of the child, as he suggested he was. However, I shall once again read what the noble and learned Lord has said. In the meantime, I withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 agreed to.

Clauses 72 and 73 agreed to.

Clause 74 [Reporting officers and guardians ad litem for purposes of Adoption Act 1976]:

Lord Meston moved Amendment No. 246: Page 63, line 25, leave out paragraph (b).

The noble Lord said: Although Amendments Nos. 247 to 251 are different amendments concerned with different aspects of Clause 74, perhaps I may speak to them together on moving Amendment No. 246, to abbreviate matters at this hour of the evening. These amendments ensure that the regulations are seen to provide for the financial independence of guardians ad litem to prevent the possibility of any conflict in the position of the guardian ad litem who—although meant to be representative of the child whose future is being considered by the local authority—is also a person who is directly or indirectly an employee of the local authority.

It has struck a good number of organisations that that is an undesirable position. It is therefore the purpose of this body of amendments to endeavour to remove the dependence of guardians ad litem on the local authority in financial matters. I am conscious of the fact in the way these amendments are framed that the power to make regulations is simply permissive. The objective of the amendments may be achieved by some more convenient method, other than by trying to alter or modify the regulation-making power. I hope that the point of this group of amendments is sufficiently clear to enable the noble and learned Lord to respond to them. I beg to move.

Lord Prys-Davies

I should like briefly to support these amendments. The criticisms we hear of the guardian ad litem panel and arrangements point to the need to strengthen the independent status of the guardians ad litem. It seems to us that the Bill does not really face up to the issue. The question is: how can the independence of the guardians ad litem be enhanced? How can they become independent of local authorities? The amendments of the noble Lords, Lord Meston and Lord Banks, seek to achieve this by severing the connections with the local authorities specifically provided for in four of the paragraphs and by introducing the need for co-ordination and the establishment of national professional standards which are mentioned in the last paragraph. For those reasons we wish to support the amendment.

The Lord Chancellor

These amendments are practically identical with Amendments Nos. 183 to 188 which were proposed for Clause 36 in relation to guardians ad litem in care and related proceedings. Clause 74 with guardians ad litem and reporting officers in adoption proceedings and the points which I made in reply to Amendments Nos. 183 to 188 apply here too.

The problem is that we have an existing system set up comparatively recently upon which we must build. The method by which we are seeking to secure even greater independence than exists at present is to give the Secretary of State power to allow associations of local authorities to provide panels. In that way one will be able to take out of the panel dealing with a case in local authority a person who is not provided by that local authority but by one of the other local authorities in the association. This goes a good distance towards achieving the independence which is required. I made a number of other detailed points in answer to the earlier amendments which I believe are equally applicable here. Perhaps I might, for brevity's sake, be allowed to hold them as incorporated here.

Lord Meston

Like the noble Lord, Lord Prys-Davies, we are concerned that the problem of guardians ad litem being seen to be independent has not been addressed. In an ideal world such guardians would operate independently whoever was financially responsible for them. It is not an ideal world. Now is not the time to develop the argument in answer to the noble and learned Lord. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 247 to 251 not moved.]

Clause 74 agreed to.

[Amendment No. 252 not moved.]

Clause 75 agreed to.

11.30 p.m.

Clause 76 [Regulations and orders]:

Lord Elwyn-Jones moved Amendment No. 252A: Page 64, leave out line 11 and 12 and insert— ("(2) Any statutory instrument exercising powers conferred by sections 10, 27, 29(8), 36(9) and (10), 38(8), 43 and 69 must be laid in draft before and approved by a resolution of each House of Parliament. (2A) Any statutory instrument exercising any other power conferred by the Act shall be subject to annulment in persuance of a resolution of either House of Parliament. (2B) Any such statutory instrument may—").

The noble and learned Lord said: The amendment seeks to ensure that the key regulations—which I venture to be the correct description of what is set out—are provisions for which there should be a necessity for inclusion in the Bill, instead of dealing with the relevant proposals as being merely statutory instruments subject to annulment.

Members of the Committee will see that they are important provisions relating to Clause 10 dealing with the powers of the court to control the timetable of children's cases; Clause 27(3) directed to avoiding delay in disposing of applications; Clause 29(8) dealing with parental contact with children in care; Clause 36(10) dealing with guardians ad litem; Clause 38(8) dealing with emergency protection orders; Clause 43(1) dealing with rules of court and regulations with respect to the emergency protection of children; and, finally, Clause 69 which gives the courts jurisdiction under this Bill.

The amendment proposes that any statutory instrument exercising the powers conferred by those clauses should be laid in draft before, and be approved by a resolution of, each House of Parliament and not dealt with by the summary procedure which is proposed. They are far too important. I beg to move.

The Lord Chancellor

This matter is always one of judgment. Where duties are set out in the Bill and only procedural matters remain to be disposed of, I believe that the negative procedure is the proper means of regulation. It is an effective means. Any objection to the matter can be raised; whereas if there is nothing contentious it can be dealt with without involving parliamentary time.

That is the structure we have attempted to follow in the Bill. I am amenable to looking at particular provisions but this appears to be a reasonable general principle. I hope that in the light of the explanation of the way in which we work the noble and learned Lord will be able to withdraw his amendment.

There are one or two areas in the Bill where the matter may require further consideration but, generally speaking, that has been our approach and we have endeavoured to give effect to it.

Lord Elwyn-Jones

I am grateful to the noble and learned Lord. At an earlier stage we considered the substitution of a more satisfactory procedure than the annulment procedure. Perhaps he will reconsider these provisions, which are of great importance, and we can return to the matter at a later stage. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 [Interpretation]:

The Lord Chancellor moved Amendment No. 253: Page 64, line 25, at end insert ("and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order").

The noble and learned Lord said: The amendment would add to the definition of "care order" in the interpretation clause to make clear the fact that "child in care" means a child in local authority care by virtue of a care order. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 253A: Page 64, line 33, at end insert— (" "community home" has the meaning given by section 44;"). On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 253B: Page 64, line 44, at end insert ("and the question of whether harm is significant shall be determined in accordance with section 26(9)"). On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 253C: Page 65, line 4, leave out ("had") and insert ("has"). The noble and learned Lord said: This is a minor amendment to change the tense to the appropriate one. I beg to move.

On Question, amendment agreed to.

Lord Kilbracken had given notice of his intention to move Amendment No. 254: Page 65, line 36, leave out from ("child") to end of line 38 and insert ("has the meaning given by section 57(1);"). The noble Lord said: I believe it is admirable that there should be listed in this clause for easy reference all the definitions which have already appeared in this Bill. However, I noticed that in the case of "relative" at line 36 the definition which had already appeared in Clause 57(1)(c) was repeated verbatim and I could not see why such an exception was made.

However, in my absence, the noble and learned Lord moved Amendments Nos. 208A and 208B, which deleted Clause 57(1)(c). Perhaps to ensure that it is not repeated, he has done it that way round. Therefore, it is essential that the definition of "relative" should remain where it is and I do not have to move this amendment.

[Amendment No. 254 not moved.]

Lady Saltoun of Abernethy moved Amendment No. 254A: Page 65, line 38, after ("affinity)") insert (",cousin").

The noble Lady said: This is a probing amendment. I am rather concerned at the very narrow definition of "relative" in this Bill. The word "relative" appears in Clause 52(4)(a)(iii), Clause 57(1)(a)(iii) and Clause 58(5)(a)(iii). It is the concept of what I believe is called the nuclear family as opposed to the wider family. I fear that that is a concept which is rather prevalent among social workers. It is the result of the loss of contact with relatives in the past by people who moved from their ancestral areas to pursue their fortunes elsewhere at a time when communications were far less good than they are today.

A child may not have grandparents or they may not be able to take him in or to help very much. If neither of his parents has brothers or sisters he will have no uncles or aunts. However, people with no brothers or sisters are often very close to their first cousins, who would be the first cousins once removed of the child. In such a case, they would probably be very familiar to him and the best people to care for him or do whatever may be required.

I am conscious that "cousin" may be too loose a definition but I am concerned at the exclusion of cousins such as I have described from this Bill. Perhaps the noble and learned Lord could explain the thinking behind that and consider the desirability of widening the definition to include at least the first cousin once removed, for the reasons I have explained. I beg to move.

The Lord Chancellor: This point arose originally in relation to Amendment No. 209. That was an intimation provision. This perhaps depends on the particular context in which these matters arise. However, the problem is, as the noble Lady, Lady Saltoun, mentioned, that the word "cousin" is rather imprecise because it would include cousins of a great variety of degrees.

The other point is that the definition of "relative" under child care law has excluded cousins and more distant relatives for over 100 years. We have no evidence to suggest that this has caused any difficulty. It does not mean, of course, that cousins—first cousins in certain circumstances—would not be appropriate people to look after children; I understand that. The problem is that one must draw a line which is on the safe side. In other words, one wants to be sure that what is included as "the family" will necesarily be close to the child in question. That is the thinking behind the provision. To fully examine the problem that the noble Lady has raised one must look at the context in which "relative" is used in every place. I mention the first context to show that it would not make a lot of difference but would require additional information to make sure that the local authority appreciated what was happening.

Lady Saltoun of Abernethy

I am grateful to the noble and learned Lord. It is only in connection with fostering and the placing of children in temporary homes that this question arises.

I should have thought it possible to define "cousins" as first cousins once removed or first cousins. I am still concerned that nowadays the social workers' concept of a relative may be narrower than in the past. I should be grateful if the noble and learned Lord would perhaps bear in mind what I have said. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 225: Page 65, line 41, at end insert— (" "service", in relation to any provision made under Part III, includes any facility,").

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

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 255A and 255B: Page 66, line 5, leave out ("placed (or to be placed)") and insert ("who is (or is to be)"). Page 66, hoe 6, leave out ("placed (or to be placed) by" and insert ("(or is to be) by virtue of").

The noble and learned Lord said: These are drafting amendments which do no more than offer a more natural phraseology in the definitions of "supervised child" and "supervisor". With the Committee's leave, I move the two amendments together. I beg to move.

On Question, amendments agreed to.

Lord Kilbracken moved Amendment No. 256: Page 66, line 13, leave out subsection (2).

The noble Lord said: This amendment proposes the deletion of subsection (2) from Clause 77. This is not because I do not think it is important that we should be told exactly what is meant by, a child whose father and mother were, or … were not, married to each other at the time of his birth because it is extremely important in this Bill, as in the Family Law Reform Act, that the usual meaning of such references is greatly extended.

This precise language has already appeared in Clause 2(3) and it is important that the substance of that subsection should have appeared at the start of the Bill so that we know a special language is being used. However, I do not see how it can be necessary to repeat, absolutely verbatim, in this subsection what has appeared in an earlier subsection. Therefore, I believe that the subsection should be removed from this clause. I beg to move.

11.45 p.m.

The Lord Chancellor

This is a very important provision. The noble Lord and myself had a discussion in which the importance of this particular concept arose in another connection. He may remember it. I believe it is very necessary to have this explanation at the beginning of the Bill in Clause 2(3) because there the matter is being elucidated. The interpretation clause normally carries all the special interpretations that exist. That is the reason why I prefer to have the deletion in the earlier provision in the similar situation that we were speaking about. In this case we are in a fairly important and a rather new field as regards the Family Law Reform Act 1987. It still requires to sink in, as it were, as part of the statutory framework. Though this is a duplication, I believe that in the context of the Bill it is quite important and I would rather hold on to it. I hope that the noble Lord feels, in the light of the explanation, that it is not wise to press the amendment.

Lord Kilbracken

I remember the discussions that I had with the noble and learned Lord on this subject when we were dealing with the Family Law Reform Bill, and even more the discussions that I had with his noble and learned predecessor, the noble and learned Lord, Lord Hailsham. Nonetheless, I find it remarkable that it is necessary in the same Bill to have two subsections that say exactly the same thing. If something is important does that mean that we have to say it twice or perhaps three times?

I shall not take the matter any further. I feel that when three or four lines can be deleted from a Bill they should be. After all, lawyers are accustomed to seeing what effect one subsection will have all the way through the Bill and ahead of it. There may also be a subsection at the end of the Bill which affects everything that has been read until then. I do not know why an exception is made in this case. Certainly at this hour I will not press the amendment further and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 256A: Page 66, line 34, after first ("or") insert ("an order under section 7(7)(b) of").

The noble and learned Lord said: This is a drafting amendment and reflects the fact that if the Bill is passed as drafted courts will still be able to make supervision orders under Section 77(b) of the Children and Young Persons Act 1969 but not under Section 1 of that Act. I beg to move.

On Question, amendment agreed to.

Clause 77, as amended, agreed to.

Clause 78 agreed to.

Clause 79 [Short title, commencement and extent]:

Lord Prys-Davies moved Amendment No. 256B: Page 67, line 15, at end insert ("but before making any order bringing section 71 of this Act into force the Secretary of State shall consult with the Lord Chancellor, the Home Secretary such other bodies as he thinks fit and shall then lay before Parliament a report stating what resources have been made available for the transfer of the wardship jurisdiction of the High Court.") The noble Lord said: I shall not detain the Committee for long over this amendment. We have listened carefully tonight to the noble and learned Lord's explanation of the Government's approach to Clause 69 that contains details of the new jurisdiction. We are grateful for the guidance that the noble and learned Lord has given to the Committee.

Clearly, the magistrates' court at least at first will play a critical role within the new system. But there are strong objections in some quarters among the voluntary bodies who have an interest in this field to the role that is proposed for the magistrates' court. It is feared that the magistrates may wish to hang on to a case in their domain or they may not have the breadth of vision, if I may put it like that, to identify a problem when they see it and to acknowledge its existence.

Concern has been expressed that the skills that will be necessary at the magistrates' court and at the county court are not currently available and that the skills will have to be recruited. Moreover, the noble and learned Lord told the Committee a few days ago that court resources are finite. The purpose of the amendment is to ensure that at least Clause 71 will not be implemented until the Lord Chancellor is satisfied that all the resources are available. This springs from unease that the system may not work as well as is hoped. I beg to move.

The Lord Chancellor: A good number of changes not only to jurisdiction but also to the substantive law are proposed in the Bill. It would be misleading in so major a rearrangement to isolate and identify the resource implications of one change without taking account of all the many other changes and the resource implications for the various courts involved. The Committee will have in mind that we have devoted a good deal of work to trying to get a good definition of the basis on which care orders can be made so that the magistrates will be able more easily to apply them. In the financial memorandum attached to the Bill we have given a description of the Bill's consequences. It is right to look at the matter as a whole.

The amendment refers to a "transfer of the wardship jurisdiction". No actual transfer is proposed but I understand the noble Lord's point. My basic answer is that trying to take out one part would be a mistake. We want to look at the matter as a whole. That we have done in the financial memorandum which shows that the matter is difficult to estimate in an accurate manner.

Lord Prys-Davies

I am content that I have brought to the Committee's attention the concern that has been voiced by voluntary organisations active in this field. I am also content to leave the matter there. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 257 and 258 not moved.]

Clause 79 agreed to.

Schedule 8 [Minor Amendments]:

The Lord Chancellor moved Amendment No. 258A: Page 108, line 36, after ("the") insert ("legal").

The noble and learned Lord said: This is a drafting correction. I beg to move.

On Question, amendment agreed to.

[Amendment No. 259 not moved.]

The Lord Chancellor moved Amendments Nos. 259ZA, 259ZB and 259ZC: Page 109, line 15, leave out from ("sixteen)") to end of line 19 and insert ("for subsections (3) and (4) there shall be substituted— (3) The persons who are to be treated for the purposes of this section as responsible for a girl are (subject to subsection (4) of this section)—

1. (a) her parents;
2. (b) any person who is not a parent of hers but who has parental responsibility for her; and
3. (c) any other person who has care of her.

(4) An individual falling within subsection (3)(a) or (b) of this section is not to be treated as responsible for a girl if—

1. (a) a residence order under the Children Act 1989 is in force with respect to her and he is not named in the order as the person with whom she is to live; or
2. (b) care order under that Act is in force with respect to her,"").

Page 109, line 24, after ("responsibility") insert ("for"). Page 109, line 27, at end insert—

(" .After section 46 of that Act there shall be inserted—

"Meaning of 'parental responsibility'.

46A. In this Act 'parental responsibility' has the same meaning as in the Children Act 1989."").

The noble and learned Lord said: The amendments relate to paragraphs 9 and 11 of Schedule 8, which themselves amend the Sexual Offences Act 1956. The first amendment would affect the definition of a person who is treated as responsible for a girl and who therefore may be convicted of causing or encouraging her prostitution. It would insert reference to the girl's parent. This would reflect the policy of the current law and correct an omission in paragraph 9. It would also insert into Section 28 a new subsection (4) to the effect that an individual is not to be treated as responsible for a girl if there is a residence order in force with respect to her and he is not named in the order as the person with whom she is to live, or the girl is subject to a care order. At present subsection (4) is to similar effect but only as regards parents who have been deprived of the custody of a girl by a court order. The second amendment inserts the missing word "for" into paragraph 11(1). The third clarifies that the phrase "parental responsibility", when used in the 1956 Act, has the meaning given by the Bill. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 259ZD: Page 109, line 36, leave out from beginning to ("there") in line 40 and insert ("After section 7(7) of that Act (alteration in treatment of young offenders, etc.)"). The noble and learned Lord said: The amendment removes paragraph 14(1) of the schedule, which would have substituted the phrase, person who is not a parent of his but who has parental responsibility for him for the word "guardian" in Section 7(7)(c). That would have changed the category of persons who may he ordered to enter into a recognisance in respect of a young person who is convicted of an offence. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259ZE: Page 109, line 46, leave out ("child or").

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 259A: Page 110, line 42, at end insert— ("(1EE) A court shall not impose a requirement under subsection (1A) of this section in respect of a child or young person unless it is of opinion— (a) that such requirement is appropriate because of the seriousness of the offence; and (b) that the child or young person is in need of care or control which he is unlikely to receive unless the court imposes such a requirement.").

The noble Baroness said: The amendment restricts the circumstances in which courts can make a residential requirement as part of a supervision order. It spells out that such a requirement can only be imposed if, first, it is appropriate because of the seriousness of the offence, and, secondly, the young person needs care or control, which he would not otherwise receive.

Those conditions were laid down in Section 23 of the Criminal Justice Act 1982. As a result, the introduction of the conditions in the 1982 Act, which was implemented in May 1983, was followed by a sharp drop in the number of care orders made in criminal proceedings. If the amendment is put in the Bill, I hope that it will have a similar effect. I beg to move.

Lord Henderson of Brompton

I support the amendment. The noble Lord, Lord Hunt, would very much have liked to be here because he is interested in intermediate treatment rather than institutional treatment for children. The amendment which has been so briefly but effectively moved by the noble Baroness would make the courts think because they would have to satisfy the two criteria contained in the amendment before they could make an order for residential care.

There is a real danger, as the Bill stands, that the new residential requirement could be used by courts inappropriately to send young people into residential care when more appropriate intermediate treatment could be used. I thank the Government for Clause 66 and Schedule 7, which provide a new power for young offenders to spend time in residential care rather than be subject to care orders in criminal proceedings. That is a great advance. I should like the noble and learned Lord to consider the improvement which would give courts a strong incentive in suitable cases not to send young people into institutional care.

Baroness David

Perhaps I may add my support as my name is on the amendment, which has been so admirably spoken to by the noble Baroness and the noble Lord. The amendment would be a great improvement and I hope that the noble and learned Lord will accept it.

The Lord Chancellor

This new power can be used only in closely defined circumstances as set out in subsection (1A), paragraphs (a) and (d).

It may be useful if I describe the circumstances under which this power can be exercised. By virtue of sub-paragraph (d), the offender must, at the time the offence was committed, already be the subject of a supervision order requiring him to comply with the directions of the court and by definition, therefore, is already likely to have a history of offending. The court can then exercise its new power only if, under the provision of sub-paragraph (b), the offence for which the juvenile is again before the court is one which, in the case of an offender over the age of twenty-one, would be punishable with imprisonment". We are, therefore, talking about a group of young people who have a history of offending; who have already been required to participate in community-based intermediate treatment activities, and despite this have been found guilty of committing another imprisonable offence.

But that is not all. In addition to the young person's history and the offending test which I have just described, the court has also to he satisfied by virtue of sub-paragraph (c) that, the behaviour which constituted the offence is due, to a significant extent, to the circumstances in which the child has been living". In other words, the court has to take into account the offender's home circumstances and be satisfied that they have contributed to his offending behaviour.

I do not see how the proposed amendment could sit alongside this provision. To have the two provisions together would suggest that there are some situations in which, despite the juvenile's domestic circumstances having contributed to the offence, he either does not need "care or control" or needs them but can receive them without any enforced change in his living arrangements.

So, really, the need for change in the living arrangements is focused by the necessity that his domestic circumstances have contributed to the particular offence in question. I hope the noble Baroness will accept that there is nothing between us about our desire to avoid the unnecessary removal of young people from their homes. On the other hand, it is necessary that the new power, which, as the noble Lord, Lord Henderson of Brompton, has said—and I am grateful for his remarks—is a new power, should be clear. To put the two alongside would introduce an element of possible confusion. I hope that the noble Baroness, in the light of that explanation, may feel able to withdraw the amendment.

Baroness Faithfull

I thank the noble and learned Lord for his explanation. I should like to think about this matter and read carefully what has been said. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12 midnight

The Lord Chancellor moved Amendment No. 259B: Page 111, line 21, at end insert— (" .In section 34(1) of that Act (transitional modifications of Part I for persons of specified ages) for the words "13(2) or 28(4) or (5)" there shall be substituted "or 13(2)".").

The noble and learned Lord said: In moving Amendment No. 259B I wish to speak also to Amendment No. 262. These are drafting amendments with no other effect. I beg to move.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

Schedule 9 [Consequential Amendments]:

The Lord Chancellor moved Amendment No. 259C. Page 112, line 28, after ("4(l)") insert ("and (2)").

The noble and learned Lord said: This amendment would insert subsection 4(2) of the Children and Young Persons Act 1933 into paragraph 3. This would complete the list of references to "custody, charge or care" of a child in the 1933 Act which are to be replaced by "responsibility for" him. This change is consequential to replacement of the old terminology such as "custody" in the Bill. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259D: Page 112, line 33, at end insert— (".In section 10(1A) of that Act (vagrants preventing children from receiving education), for the words from "to bring the child" to the end there shall be substituted "to make an application in respect of the child or young person for an education supervision order under section 31 of the Children Act 1989".").

The noble and learned Lord said: This amendment would replace the local education authority's duty in Section 10(1)(a) of the Children and Young Persons Act 1933 to consider whether to bring care proceedings in respect of a child by a duty to consider bringing proceedings for an education supervision order under Clause 31. This duty arises before the authority institutes proceedings against a person for habitually wandering from place to place, thereby preventing the child from receiving full-time education. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 259E, 259F and 259G: Page 112, line 43, leave out from beginning to ("and") in line 44. Page 112, line 45, leave out ("actual"). Page 113, line 4, leave out ("actual").

The noble and learned Lord said: I beg to move Amendments Nos. 259E, 259F and 259G and speak at the same time, to Amendment No. 259L. These are, in effect, drafting amendments. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 259H: Page 113, line 9, leave out ("(6)") and insert ("(7)").

The noble and learned Lord said: I beg to move Amendment No. 259H and will speak at the same time to Amendment No. 259K. The first corrects the reference in paragraph 5(2) of Section 34 of the 1933 Act by inserting subsection (7) in place of subsection (6). The second clarifies the reference to Section 107 in paragraph 6 by inserting subsection (1). I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259J: Page 113, line 13, after ("by") insert ("or on behalf of").

The noble and learned Lord said: This amendment has the effect that the duty to inform the local authority of the arrest of a child or young person is extended to where accommodation is being provided on behalf of the local authority as well as by that authority. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259K: Page 113, line 17, after ("107") insert ("(1)").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259L: Page 113, line 19, leave out ("actual").

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 259M and 259N: Page 114, line 12, after ("to") insert ("first"). Page 114, line 18, after ("to") insert ("first").

The noble and learned Lord said: I beg to move Amendments Nos. 259M and 259N en bloc. These are purely drafting matters to correct similar amendments to the Mines and Quarries Act 1954 and the Factories Act 1961. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendments Nos. 259P and 259Q: Page 114, line 25, leave out ("(xx)") and insert ("(xix)" inserted by paragraph 19 of Schedule 5 to the Child Care Act 1980"). Page 114, line 32, leave out ("(xxi)") and insert ("(xx) inserted by paragraph 20 of Schedule 5 to the Child Care Act 1980").

The noble and learned Lord said: I should like to move Amendments Nos. 259P and 259Q en bloc. These correct errors in the numbering of paragraph 12. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 259R: Page 116, line 8, at end insert—

("The Powers of Criminal Courts Act 1973 (c.62)

.In Schedule 3 to the powers of Criminal Courts Act 1973 (the probation and after-care service and its functions), in paragraph 3(2A) after paragraph (b) there shall be inserted—

"and

(c) directions given under paragraph 2 or 3 of Schedule 3 to the Children Act 1978".

The Rehabilitation of Offenders Act 1974 (c.53)

.In section 7(2) of the Rehabilitation of Offenders Act 1974 (limitations on rehabilitation under the Act) for paragraph (d) there shall be substituted— (d) in any proceedings relating to the variation or discharge of a supervision order under the Children and Young Persons Act 1969, or on appeal from any such proceedings; (dd) in any proceedings relating to the making, variation or discharge of a care order or a supervision order under the Chidren Act 1989, or on appeal from any such proceedings".").

The noble and learned Lord said: Amendment No. 259R is an amendment which empowers each probation committee to provide facilities for enabling directions given by a supervisor under paragraphs 2 or 3 of Schedule 3 to the Bill to be carried out effectively. The second part would retain for proceedings relating to care and supervision orders under the Bill the benefit of Section 7(2) of the 1974 Act, which currently applies to care proceedings under the 1969 Act. This subsection allows evidence relating to previous convictions to be given in those proceedings even though for other purposes the Act treats those convictions as spent. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 259S: Page 116, line 24, at end insert ("(within the meaning of the Children Act 1989).").

The noble and learned Lord said: This is a purely technical amendment, made with the aim of clarifying that the phrase "parental responsibility", which has been inserted into Section 131(2) of the Mental Health Act 1983 by Schedule 9, has the meaning ascribed by this Bill. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 259T to 259X: Page 116, line 36, leave out ("(b)"). Page 116, line 38, after ("persons)") insert— ("(a) in paragraph (a), for the words "parent or guardian of a disabled person under the age of sixteen" there shall be substituted— (i) the parent of a disabled person under the age of sixteen, or (ii) any other person who is not a parent of his but who has parental responsibility for him"; and (b) in paragraph (b)"). Page 116, line 40, leave out ("(5)"). Page 116, line 41, at end insert— ("( ) In subsection (3)(a) for the words from second "the" to "by"" there shall be substituted "for the words 'if so requested by the disabled person' there shall be substituted 'if so requested by any person mentioned in section 1(3)(a)(i) or (ii)'.""). Page 116, line 42, at beginning insert ("In subsection (5)").

The noble and learned Lord said: I beg to move Amendments Nos. 259T to 259X and to speak to Amendments Nos. 259Y to 259CC and 267. The first two amendments extend the power to make regulations for the appointment of authorised representatives of disabled persons under the Disabled Persons (Services, Consultation and Representation) Act 1986. These regulations may in future provide for a parent or a non-parent who has parental responsibility to appoint an authorised representative. At present this power is limited to parents and guardians. The change will cover persons who are not parents but who have the benefit of a residence order.

The remaining amendments, except for the last two, have the same effect as regards Section 2(3) of the 1986 Act. They will mean that a parent and any person who is not a parent but who has parental responsibility for the child may require the local authority to permit the authorised representative to take part in the provision of local authority services as set out in Section 2(1) and (2). Amendment No. 259AA makes the same substitution of the word "guardian" in Section 5(7)(b) so that the relevant persons may request that a child under the age of 16 is not assessed for the provision of services, as would otherwise be required. Amendment No. 259CC removes the definition of "guardian" from this schedule, since it has now become unnecessary, and defines "parental responsibility" by reference to the meaning in the Bill. Amendment No. 267 to Schedule 11 will remove the existing definition of the word "guardian" from the 1986 Act. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 259Y: Page 116, line 43, after ("by") insert ("or on behalf of").

The noble and learned Lord said: If I may, I should like to speak also to Amendment No. 259DD. The first amendment updates the reference to children who are accommodated by local authorities in paragraph 26(2) by adding reference to those who are accommodated "on behalf of" an authority. This ensures that children who are, for example, fostered by the authority are covered in the same way as those accommodated on local authority premises. The second amendment ensures that reference to a child who is "looked after" by a local authority in the Disabled Persons (Services, Consultation and Representation) Act 1986 has the meaning ascribed by the Bill. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

The noble and learned Lord the Lord Chancellor has already spoken to Amendments Nos. 259Z and 259AA.

The Lord Chancellor moved Amendments Nos. 259Z and 259AA: Page 116, line 45, after ("(c)") insert ("of subsection (5)"). Page 116, line 48, at end insert— (".In section 5(7)(b) of that Act (disabled persons leaving special education) for the word "guardian" there shall be substituted "other person who is not a parent of his but who has parental responsibility for him".").

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 259BB: Page 117, line 3, after ("substituted") insert (" "means—").

The noble and learned Lord said: This corrects a drafting error. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

The noble and learned Lord the Lord Chancellor has already spoken to Amendment Nos. 259CC and 259DD.

The Lord Chancellor moved Amendments Nos. 259CC and 259DD.

Page 117, line 9, leave out sub-paragraph (2) and insert—

("(2) After the definition of "parent" in that section there shall be inserted—

" 'parental responsibility' has the same meaning as in the Children Act 1989." ").

Page 117, line 18, at end insert—

("( ) At the end of that section there shall be added—

"(2) In this Act any reference to a child who is looked after by a local authority has the same meaning as in the Children Act 1989." ").

On Question, amendments agreed to.

Schedule 9, as amended, agreed to.

Schedule 10 agreed to.

Schedule 11 [Repeals]:

The Lord Chancellor moved Amendment No. 259EE: Page 117, line 44, column 3, leave out ("Section 34(2)") and insert—

("In section 34(8), "(a)" and the words from "and (b)" to the end.")

The noble and learned Lord said: This amendment corrects the repeal of words in Section 34 of the Children and Young Persons Act 1933 which have been made obsolete by the Bill. Section 34(8)(b) requires that where parental rights and duties are vested in a voluntary organisation by a local authority resolution, that organisation rather than the child's parent or guardian should be informed of the child's arrest. Such resolutions are repealed by the Bill, so that Section 34(8)(b) itself may be repealed. Section 34(2) should remain unamended. I beg to move.

On Question, amendment agreed to.

[Amendment No. 260 not moved.]

The Lord Chancellor moved Amendment No. 261: Page 118, line 35, column 3, leave out (" "as") and insert (" "and as"). The noble and learned Lord said: This is purely a drafting change. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

The noble and learned Lord, the Lord Chancellor has already spoken to Amendment No. 262.

The Lord Chancellor moved Amendment No. 262: Page 119, line 26, column 3, leave out from ("34") to ("(2)") in line 30.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 263: Page 120, line 31, column 3, at end insert—

("In Schedule 3, in paragraph 3(2A), the word "and" immediately preceding paragraph (b).").

The noble and learned Lord said: This is purely a drafting amendment. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 264: Page 120, line 36, column 3, at end insert—

("In section 5, in subsection (5)(e) the words "a care order or"; and in subsection (10) the words "care order or".").

The noble and learned Lord said: This amendment removes the references in Section 5 of the Rehabilitation of Offenders Act 1974 to care orders made in criminal proceedings. It follows from the repeal of the power to make such orders by Clause 66 of the Bill. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 265: Page 120, line 58, at end insert—

("1978 c. 30. The Interpretation Act 1978

In Schedule 1, the entry with respect to the construction of certain expressions relating to children.").

The noble and learned Lord said: This amendment would delete from the Interpretation Act 1978 three definitions of terms used in states, namely "the parental rights and duties"; "legal custody" and any reference to the person with whom a child has his home. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 266: Page 121, line 35, column 3, at beginning insert—

("In Schedule 2, the entry relating to section 16 of the Child Care Act 1980.").

The noble and learned Lord said: This amendment is to the Police and Criminal Evidence Act, in effect. It would repeal the reference to the power in Section 16 of the Child Care Act 1980 to arrest a child in care who has been abducted or has absconded. In future the recovery of such children will be covered by powers which the Government intend to introduce by way of amendment in due course. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 267: Page 121, line 43, at end insert—

("1986 c. 33.

The Disabled Persons (Services, Consultation and Representation) Act1986.

In section 16, in the definition of "guardian", paragraph (a).").

The noble and learned Lord said: This amendment removes the definition of "guardian" as regards England and Wales from the 1986 Act. This definition is no longer needed following the amendments to the Act made in Schedule 9. I beg to move.

On Question, amendment agreed to.

Schedule 11, as amended, agreed to.

House resumed: Bill reported with amendments:

House adjourned at sixteen minutes past midnight.