Children Bill [H.L.]

HL Deb 16 March 1989 vol 505 cc341-425

3.39 p.m.

Read a third time.

Lord Mottistone moved Amendment No. 1:

After Clause 4, insert the following new clause:

("Local authority duty to children.

—

1. (1) Every local authority shall take steps to identify the extent to which there are children in need within their area.
2. (2) Every local authority shall take reasonable steps, through the provision of services under this Act, to prevent children within their area suffering ill-treatment or neglect.").

The noble Lord said: My Lords, on Report I moved an amendment not dissimilar from this one, the point of which was to try to persuade your Lordships that the general principles of the Bill (Part I on page 1 relates to the general principles) should include reference to the duties of local authorities regarding the welfare of children. My noble and learned friend the Lord Chancellor did not at that stage, in my humble opinion, produce a convincing answer against it.

Perhaps I may make a few brief comments. Although a Bill or an Act produced by Parliament is intended for guidance of the courts, it is also read by the public. The public needs to know that local authorities, and their part in this Bill, is one of the general principles. It is for that reason only that I propose this amendment. I beg to move.

Lady Kinloss

My Lords, this amendment establishes preventive work as a general principle and will focus the minds of local authorities and the public on the importance of preventive services. Services which prevent the abuse and neglect of children are the cornerstone of this Bill and should be firmly placed at the beginning of the Bill.

Lord Mishcon

My Lords, I merely want to add a few words from the Bench on which I sit to say how much we welcome the fact that this Bill contains a very definite duty upon local authorities which is enshrined in the Bill itself. I feel that any technical argument in regard to this matter is not appropriate. Every member of the public in every local authority should know, when the Bill leaves this House, that we have provided firmly and clearly in the statute that local authorities have to take steps to identify the extent to which there are children in need within their areas and that they should take reasonable steps as set out in the second paragraph.

I would have said that ordinarily; I say it extraordinarily in view of recent events of which your Lordships are well aware and which inspired, if that is the right word to use, the birth of this Bill. It would be appropriate for this amendment to be accepted by the noble and learned Lord.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I agree that a statutory provision of this kind is appropriate and that it is made in the appropriate place in the Bill as drafted. The question is whether it would be better in Part I of the Bill. When we considered this matter at the Report stage I indicated that I would see whether it would be possible under the heading of "General Principles" to introduce some kind of provision referring to the local authority.

I have considered that carefully with the draftsman since the last stage and I have been advised that to do this would be to make confusion of the structure of the Bill. One of the difficulties, as my noble friend Lord Mottistone said, is that the public read the Bill, and rightly so. I believe that among the Bills referred to earlier the public will perhaps find this Bill easier to understand than most, if they read it all. It is important when they read the Bill that generally speaking they should find the references to local authorities together in the Bill. Therefore I have concluded that it would not be wise to make this change.

On the other hand, as a result of the discussions I have come to the conclusion that it is not appropriate to refer to Part I as "General Principles" when one looks at the Bill as a whole. These are really the directions to the court as the court functions throughout the Bill. As I have said, after discussion with the draftsman I believe that it would be wise to change the heading. No amendment is required for that. The draftsman would offer a new heading for Part I as "Introductory", thus giving the part of the Bill dealing with local authorities a more important place, though not at the beginning. I hope that my noble friend feels that I have tried to follow his wishes as far as possible. I am sure that he would not wish the Bill as a whole to suffer. If this particular alteration is made to the heading it might meet his point. Then the particular statutory provision that he has brought forward will find its proper place in the part of the Bill dealing with local authorities.

Lord Mottistone

My Lords, I thank my noble and learned friend very much for the care that he has taken in trying to deal with this problem. I see the difficulties as they arise. Although I was happier with "General Principles" as covering them all, if it is headed "Introductory" perhaps there would not be the same strength of need to incorporate this because it comes as a complete part in itself. In any case if this kind of argument is to be pursued it will be one for another place. If they care to do it there, that is their business. At this stage I beg leave to withdraw my amendment.

Lord Mishcon

My Lords, before the noble Lord sits down, perhaps I may say that I too am satisfied that the words "General Principles" should come out. I was unhappy that those words did not include this principle. In view of what the noble and learned Lord has said, I entirely agree with the noble Lord, Lord Mottistone.

The Lord Chancellor

My Lords, I am very grateful to both my noble friend and to the noble Lord, Lord Mishcon.

Amendment, by leave, withdrawn.

Clause 5 [Appointment of guardians]:

The Lord Chancellor moved Amendment No. 2:

Page 4, line 18, leave out from ("Where") to ("a") in line 22 and insert ("—

1. (a) on the death of any person making an appointment under subsection (2) or (3), the child concerned has no parent with parental responsibility for him; or
2. (b) immediately before the death of any person making such an appointment,").

The noble and learned Lord said: My Lords, in moving this amendment I wish to speak at the same time to Amendments Nos. 4 and 5. These are drafting amendments only and they do not alter the effect of subsections (6) and (7) of Clause 5. In moving them I wish to acknowledge the Government's indebtedness to the noble Lord, Lord Kilbracken, for drawing our attention at Committee stage to the fact that the present drafting of these provisions was susceptible to improvement. I beg to move.

3.45 p.m.

Lord Kilbracken

My Lords, I am very grateful to the noble and learned Lord for tabling these three amendments that deal very successfully with the points that I raised at the Committee stage. There is one little exception. It seems that a further drafting amendment is necessary in the form of the amendment standing in my name as Amendment No. 3. It may be for the convenience of your Lordships if I speak to that amendment now.

When Amendment No. 2 is embodied in the Bill Clause 5 (6)(b) will read: Where, immediately before the death of any person making an appointment … a residence order in favour of the deceased was in force with respect to the child". Immediately before the death of that person there was not yet a deceased. No deceased person existed before he died. In the light of the noble and learned Lord's Amendment No. 2 I believe that that has to be changed so that it reads: Where, immediately before the death of any person making an appointment … a residence order in his favour was in force". That is the purpose of my amendment.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Kilbracken, for tabling Amendment No. 3. When he moves it I propose to accept it. I agree that it is also an improvement on what we had before.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 3:

Page, 4, line 22, leave out ("favour of the deceased") and insert ("his favour").

The noble Lord said: My Lords, I am very grateful for what the noble and learned Lord has said. I am glad that he is accepting this amendment and I beg to move it.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 4 and 5:

Page 4, line 25, leave out ("immediately before") and insert ("on").

Page 4, line 27, leave out ("had one or more parents") and insert ("has a parent").

The noble and learned Lord said: My Lords, I have already spoken to these amendments. With your Lordships' permission I propose to move them en bloc.

On Question, amendments agreed to.

Clause 7 [Residence, contact and other orders with respect to children]:

Lord Kilbracken moved Amendment No. 6:

Page 6, line 14, leave out ("settling the arrangements to be made as to") and insert ("specifying").

The noble Lord said: My Lords, this is rather more than a drafting amendment. It has the advantage of replacing eight words with one word. I am not certain whether the Bill will still have the same meaning as the noble and learned Lord intends. We are here talking about the new residence orders that will take the place of the custody arrangements that exist at present. The definition of a residence order is: an order settling the arrangements to be made as to the person with whom a child is to live". I am not at all clear what that means. The wording speaks of an order: settling the arrangements to be made as to the person". What are these arrangements? Surely a residence order will be given and it will simply state where the child is to live. It does not set out any arrangements that have to be made. Therefore, my feeling is that it should be stated that a residence order means simply an order specifying the arrangements to be made. That seems to be not only much shorter but much more accurate. I beg to move.

The Lord Chancellor

My Lords, we have had help from the noble Lord regarding earlier amendments; but I regret to say that I am not sure that this amendment is an improvement. The amendment would make it possible only to say with whom the child is to reside. Specifying the person would restrict it in that way. A residence order should be slightly more ample than that. An order made in favour of a father might provide that the child should live with him only as long as he remained in a particular neighbourhood; for example, where the child might be close to other relatives. It would be possible under our formulation to make provisions ancillary to the actual specification of the person which would be connected with that person and appropriate tube made in conjunction with naming the person.

There is also the point that following the break-up of a marriage children may spend periods living with both of their estranged parents. The residence order would specify not only the two parents but also the period for staying with each, and details of that kind. Our proposals allow details to be added, in addition to specifying the person with whom the child is to reside, which it would be useful for the courts to be able to settle.

Lord Kilbracken

My Lords, I am grateful to the noble and learned Lord for setting out in such detail the facts about orders which I had not fully realised. In the light of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 7:

Page 6, line 15, after ("person") insert ("or persons").

The noble Lord said: My Lords, the definition of "residence order" settles the arrangements, to be made as to the person with whom a child is to live". I am aware that, just as the male embraces the female, as we are always happy to remind the House, so the singular embraces the plural; and that the "person" in that definition therefore includes more than one person. It is made clear in Clause 10(6) that a residence order may be made in favour of more than one parent. Nonetheless, I feel that as the Bill is presently worded the indication is given that it will be the invariable rule that the residence order will be in favour of one parent. It would be preferable to make it perfectly clear at this stage of the proceedings that by adding the words "or persons" after the word "person" in that definition, the residence order may be granted in most cases to both parents. I beg to move.

The Lord Chancellor

My Lords, the noble Lord has already explained the background to and the bearing of the Interpretation Act on this point. Clause 10(5) makes it abundantly plain that a residence order can be made in favour of more than one person. It expressly makes that provision. The draftsman feels that the correct way to deal with the matter is consistently through the Bill as a whole, and he has relied on the Interpretation Act. It would be out of keeping with the general method by which the Bill has been constructed unnecessarily to put in these words and it might well lead to speculation as to why it has been done in this case. It is plain enough from Clause 10(5) that a residence order can be made in favour of more than one person. In the light of that explanation, I hope that the noble Lord will not press the amendment.

Lord Kilbracken

My Lords, I accept what the noble and learned Lord says. However, I should like to point out that although lawyers and members of the legal profession know all about the Interpretation Act and know at once that singular will include plural, that is far from being the case for laymen. I have discussed the Bill with a number of such laymen and they had the definite impression from reading the definition that because of the wording it would be possible to give a residence order only in respect of one parent. I had to explain the Interpretation Act, and so on. Although I withdraw the amendment, I am glad to have drawn attention to I he point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Power of court to make section 7 orders]:

The Lord Chancellor moved Amendment No. 8:

Page 7, line 34, leave out ("has been made") and insert ("is in force").

The noble and learned Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendment No. 9. These are minor amendments to Clauses 9(4)(b) and 14(2)(b) for clarification. Under the first subsection as at present drafted, a person is entitled to apply to the court for any Section 7 order with respect to a child if he is a person in whose favour a residence order has been made with respect to the child. Under the second subsection a person who may be named in a family assistance order includes a person in whose favour a contact order has been made with respect to the child. The words "has been made" are not precise enough: they could let in someone who had the benefit of an order which was subsequently discharged.

The words "is in force", which we propose to insert instead, will make clear that the residence order must still be in force. I beg to move.

On Question, amendment agreed to.

Clause 14 [Family assistance orders]:

The Lord Chancellor moved Amendment No. 9:

Page 10, line 35, leave out ("has been made") and insert ("is in force").

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

On Question, amendment agreed to.

Clause 15 [Provision of services for children in need, their families and others]:

The Lord Chancellor moved Amendment No. 10:

Page 11, line 32, leave out ("modify or repeal") and insert ("amend").

The noble and learned Lord said: My Lords, this amendment fulfils the undertaking winch I gave at Report stage to remove the power of the Secretary of State under Clause 15(4) to repeal by order any of the specific duties of local authorities in Part I of Schedule 2 to the Bill. I gave the undertaking largely as a result of the initiative of the noble and learned Lord, Lord Elwyn-Jones, eloquently supported by my noble and learned friend Lord Simon of Glaisdale. The amendment inserts the word "amend" in the place of "modify or repeal" in accordance with that undertaking. I beg to move.

Lord Elwyn-Jones

My Lords, my noble and learned friend Lord Simon of Glaisdale and I will I am sure be pleased to observe that the noble and learned Lord has gone at least some of the way to meet our criticisms. I am bound to say that what most shocked us was the intention to give to the Secretary of State power to repeal. That seemed to us to be a new concept, and I am glad that that is to go. The word "modify" also involves a considerable power. Some voices in the Chamber were not even content to accept "amend". Some amendments can be destructive, and some can achieve the same purpose in different words. I hope that what the noble and learned Lord has in mind in the use of the word "amendment" in regard to what is a crucially important part of the Bill—Schedule 2 which provides particulars for local authority support for children and families—will not be directed to reducing or eliminating some of the services that are set out in these important provisions.

If the noble and learned Lord could at this stage spell out the kind of amendment which might prove to be necessary, that might assist the House. So far as it goes—and perhaps I am being a little churlish in putting it as modestly as that—I am grateful to the noble and learned Lord for giving great thought to the matter. The words "modify or repeal" produced at the time almost a sense of outrage. Those sentiments are now under control, and so far as it goes, I welcome the amendment.

Lord Simon of Glaisdale

My Lords, Clause 15(4) links up with the questions and answers at Question Time today; namely, the arrogation by the Executive of the traditional powers of Parliament. We have always accepted that we have parliamentary democracy and that an Act of Parliament, if it is passed with the advice and consent of both Houses after discussion, shall be amended, repealed, added to or whatever by the same traditional process. As my noble and learned friend Lord Elwyn-Jones said, the provision struck us with a sense of shock. It gives the Secretary of State power to: modify or repeal any provision of Part I of Schedule 2 or add any further duty or power". It is only possible to measure the importance, the outrageous importance, of that provision if we realise that Part I of Schedule 2 is part of the main provisions of the legislation; it is incorporated by subsection (2) of this clause. Further, it is only because it is incorporated into the body of the statute that the definition of "in need" becomes adequate. Part I of Schedule 2 has been repeatedly analysed and there has been absolute concensus as to its importance. There have been many attempts to move it into the body of the Bill, the latest of which was only a few months ago when the noble Lord, Lord Mottistone, took out two provisions and sought to put them into the body of the Bill.

My noble friend Lord Henderson of Brompton analysed these most important new duties imposed on local authorities for the protection, and to advance the interests, of children. With his vast experience of parliamentary procedures and of membership of the Renton Comittee, he was in no doubt that the whole of that part should be in the body of the statute. However, as I said, it has been incorporated; so that the subsection gives the Executive power to repeal, modify, add to and put additional powers in the hands of local authorities. All that can be done by executive order without the trouble of coming to Parliament. That is the first point to note because it is important.

The second point is this: the provision does not stand alone. In another Bill which is actually before your Lordships' House at present—namely, the Companies Bill—there is a similar provision. We have never had an explanation as to why it is necessary to arrogate these extraordinary powers to the Executive. Your Lordships will remember that the Donoughmore Committee examining the Henry VIII clauses, as they were called—indeed, as this would be called—which were of a far more innocuous character, because they were transitional, made two conditions unanimously. The first was that any such provision should be explained by the Minister and justified to the hilt. They were the words used, and that has not been done. The second thing which the committee recommended was that it ought to be shown that such an extraordinary constitutional process was not merely convenient but essential. Again no attempt has been made to do so.

When the clause was under criticism my noble and learned friend, sensing that some concession had to be made, said that he would take out the word "repeal" upon which my noble and learned friend Lord Elwyn-Jones concentrated principally. However, much that is objectionable still remains. For example, add any further duty or power". In other words, the Minister is empowered to do what Parliament is now doing; that is, laying important duties on a local authority in the interests of children. In my respectful opinion, the whole of this subsection should have been removed; but we must now leave it to the other place. Fortunately, however, this will not be the last opportunity for review.

I should like to say a word about the way my noble and learned friend on the Woolsack has sought to implement the undertaking he gave that the word "repeal" would be removed. That removal would have left the word "modify". Any court on judicial review would examine the powers under which the regulation was made and would be perfectly capable of saying, "This goes beyond modification". But, what my noble and learned friend has now done is not only to take out the words "modify or repeal" but has also put in the word "amend". I say confidently that no court could possibly find that any amendment was in excess of powers. The courts will not realise, and cannot possibly know, that because of the sound reasons advanced a short time ago by my noble and learned friend the Lord Chancellor, your Lordships have recoiled at the inclusion of the word "repeal"; but an "amendment" can go right up to the edge of "repeal".

I echo the sentiments expressed by my noble and learned friend Lord Elwyn-Jones. He said that he might seem grudging, but I am bound to say that his reaction to the amendment was sweetness and light compared with mine. However, the matter will now have to be left to the other place, where I trust that the whole subsection will be removed.

I should like to add just this. The whole matter raises the question of control of the draftsman and the role of the legislation committee. I had proposed to deal with such matters in regard to Clause 74, because it was on that clause that the noble Lord, Lord Rippon, made so notable a contribution at the Report stage. That can wait. We are bound to ask why this provision got into the Bill at all. Is it mere coincidence that it got into the Companies Bill at the same time when the two Bills emanated from different departments? There are only two common factors. The first is that the Parliamentary Counsel's office drafted both Bills and the second is the absence of scrutiny by the Legislation Committee. I accept the amendment most grudgingly and hope that the matter will be put right in another place.

Lord Mottistone

My Lords, I have listened with care to both noble and learned Lords. I believe that their protests about the amendment go too far. In Amendment No. 10 my noble and learned friend the Lord Chancellor has gone some way in the direction that we wanted, although admittedly it is the minimum. That, coupled with Amendment No. 59, which provides for an affirmative resoluton, goes about as far as we could expect at this stage. Here I do not agree with the noble and learned Lord, Lord Simon of Glaisdale, because I believe that it is important that parts of Part I of Schedule 2 should be capable of amendment. Parts of it of course are immutable, and those are the parts that I wanted put on the face of the Bill.

Lord Simon of Glaisdale

My Lords, will the noble Lord allow me to intervene? I would not quarrel with him when he says that parts should probably be subject to amendment. My point was that it should be amended by Parliament and not by the Executive.

Lord Mottistone

My Lords, I would go further and say that they should be subject to amendment by secondary legislation because of recent experiences which have uncovered all sorts of unpleasant things that have been happening to children. We do not know whether they happened in the past or whether they are new. All sorts of difficulties have arisen for the local authorities trying to cope with the situation. I fear that in the future we may have to strengthen part of Part I. We may find that we want to alter parts of Part I. We will not want to wait for the next opportunity to have primary legislation to do that.

The ideal situation would have been to re-examine Part I and pick out the bits that should be immutable. If we do not put them on the face of the Bill they should be put separately. We should leave the flexibility to have secondary legislation to amend the parts which experience will probably show will be required to be amended. I hope that there will be no question of Amendments Nos. 10 and 59 being resisted by the House because I believe that they go in the right direction.

4.15 p.m.

Lord Rippon of Hexham

My Lords, I do not want to repeat the speeches I made on Report and on other occasions. I welcome the amendment, but I should like to say how much I agree with what has been said by the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord, Lord Elwyn-Jones, said that it was with a sense of shock that he noticed these words in the Bill. All I can say is that the sense of shock has come rather late because in recent years we have been building one bad precedent upon another, with each Bill coming forward and each Minister saying, "This clause, after all, is no more than a repetition of what has been put in recent legislation".

The noble and learned Lord, Lord Simon of Glaisdale, referred to the Companies Bill. The Water Bill is also being considered in another place. It not only provides for repealing and amending the primary legislation but even repealing or amending any local or Private Act. I hope that my noble and learned friend the Lord Chancellor can give some assurance that he will scrutinise all the legislation going through Parliament which contains similar clauses and will take the necessary steps to ensure that similar amendments are put forward by the Government on every occasion.

Lord Renton

My Lords, I was away at the Report stage so I was interested to hear the previous speeches today with which I broadly agree and therefore I shall not repeat what has been said. We should be grateful to my noble and learned friend the Lord Chancellor for going as far as he has. Amendment No. 59 is important in that context, and I am surprised that it was not grouped with Amendment No. 10.

I want to make a further plea with regard to the future. If, after the eminent persuasion that we have heard, it is found that in the context of this Bill there should not be a modifying or repeal of the provisions, even of a schedule by order, surely that is good for all time and all legislation. I hope that my noble and learned friend the Lord Chancellor will make it known to other Ministers and of course to the Parliamentary Counsel's Office, for which the Prime Minister has responsibility as Minister for the Civil Service, that this is a gambit of which Parliament disapproves and hopes not to see again.

I wish to make a further point which I do not believe has been made. The subsection not only allows amendment of the provisions in Part I to the second schedule, but it enables the Secretary of State to add further duties or powers to those mentioned. That does not necessarily mean an existing statutory duty or power; it means any further duty or power that he may care to think of. A further fear arises from the subsection: that we shall have legislation by ministerial order although, fortunately, owing to Amendment No. 59 Parliament will have some control over the matter.

The Lord Chancellor

My Lords, I am grateful for the degree of welcome that the amendment has received. I should like to say two things. First, Part I of Schedule 2 is given effect by Clause 15(2). There is an overriding provision which has the effect of setting out the scope of Part I of Schedule 2.

As regards other legislation, I can let my colleagues know—if they do not always follow with complete attention all that happens in your Lordships' House—what has happened in relation to this clause. What is an appropriate clause in a Bill depends upon the whole circumstance of a Bill. I have sought to explain the reason for putting this power into the Children Bill. It would be for those having carriage of the Companies Bill to deal with matters relating to that Bill. I shall ensure that this matter is drawn to the attention of the First Parliamentary Counsel.

The later amendment, which makes the appropriate procedure by affirmative resolution, has been dealt with separately so that the matter can be mentioned again. My noble and learned friend Lord Simon of Glaisdale was going to say something further in relation to that amendment.

Lord Elwyn-Jones

My Lords, before the noble and learned Lord sits down, can he enlighten the House on the kind of contingency that he and the Government have in mind which may require amendment in due course?

The Lord Chancellor

My Lords, I sought to try to do that when I was seeking to justify the clause before.

As my noble friend Lord Mottistone has explained, we have in mind the likelihood that there will be developments in the social work practice which underlie this provision. The reason for this provision is that it would be unwise to force a wait until primary legislation could be obtained if some development of practice came along which would enable that development in social work practice to be available in this very important area. We have put the provision in statute. I explained this originally in answer to the noble Lord, Lord Prys-Davies, when we first discussed the matter in Committee. It is important that these are statutory provisions. It is important that Parliament shows that it regards them as important, but that it should not be necessary to pay the penalty that they can be changed only by waiting for full parliamentary time for primary legislation.

It is a developing area and one where developments may be extremely important for children. It would be an unnecessary and harmful wait not to give children immediately the benefit of any development that this area of practice shows. That is the basis on which I sought to justify this power and I am glad that at least so far it has enabled this clause to be justified in the form in which I am now proposing that it should be amended.

Lord Renton

My Lords, before my noble and learned friend sits down, could he answer my suggestion that parliamentary counsel should be told, in effect, that Parliament has disapproved of that gambit of modify or repeal? We hope that they will not repeat it on future occasions.

The Lord Chancellor

My Lords, I said that I would let First Parliamentary Counsel know what had occurred. My noble and learned friend Lord Simon of Glaisdale has discussed this matter in more detail than I have. I do not think it is right in this situation to make it an absolute rule. It is a question of circumstances. However, it would be fair for me to say that I could say to First Parliamentary Counsel and to all the others who would be involved that if such a clause is put in it is highly likely that a fairly particular justification of it will be required. I shall be able to vouch that from my own experience with more detail if necessary.

On Question, amendment agreed to.

Lord Henderson of Brompton moved Amendment No. 11:

Page 11, line 41, at end insert— ("() It shall be the duty of every local authority when making provision for day care or foster care for children in their area, to have regard to the racial groups comprising the population of their area, and the term 'racial group' shall have the meaning assigned to it in the Race Relations Act 1976.").

The noble Lord said: My Lords, I hope that the House will agree to discuss Amendment No. 11 on its own, although there are other amendments which are of a similar substance. Those are Amendments Nos. 21, 37, 40, and 47 to 49. However, I suggest that those other amendments be discussed together but this one alone now.

This amendment, and the others to which I have referred, emanate from the Commission for Racial Equality and if only on that ground deserve the favourable consideration of this House and of the noble and learned Lord. These amendments especially were drafted after full consideration had been given to the comments of the noble and learned Lord on previous amendments that I moved on Report. The amendments have been modified and amended in the light of the noble and learned Lord's comments on the last occasion. We have repealed, so to speak, one amendment because the noble and learned Lord's remarks on amendment of Clause 43 were so persuasive that we dropped it.

Amendment No. 11 places a duty on local authorities when making provision for day or foster care in their area to have regard to racial groups comprising the population of their area. The expression "racial group" attracts the same meaning as it does in the Race Relations Act 1976.

The amendment that I have put down does not follow exactly the wording that the race relations commission would like. In line 3, after the word "area", the commission would like to insert the words, "when selecting the groups of persons providing the day care or foster care". Quite frankly, those words make the duty of the local authority more specific. But I hope that the words that I have proposed—omitting those words—would suffice. I hope that if this amendment is agreed perhaps the extra words that the race relations commission would like might be inserted in another place.

We have gone out of our way to make the operative words "have regard to" sufficiently wide to meet objections which were raised on Report to narrower expressions such as "is representative or, or, "correspond to", or "reflect". I believe that we have done so in such a way that the words "have regard to" do not detract essentially from the importance of the duty laid on local authorities.

I reiterate now my warm welcome on Report for the provisions of Clause 18(5)(c) which were put into the Bill by the Government. This amendment, and the other that I shall move later, are moved in furtherance of that provision of the Bill. I believe that it is only by doing their best to ensure that the pool of day and foster carers has regard to the ethnic composition of the area that local authorities can properly fulfil the duties that are laid on them by Clause 18(5)(c). If every local authority were doing its duty in this respect, there would be no need for this amendment. However, some local authorities, regretfully, are not taking the action that they should. They are not even taking the most elementary step of placing advertisements in local minority ethnic papers. I find that this amendment is necessary. For that reason, I beg to move.

Lord Kilbracken

My Lords, before the noble Lord sits down, can he tell us what constitutes a racial group, and in particular whether the Irish constitute a racial group? I ask that on the eve of St. Patrick's Day.

Lord Henderson of Brompton

My Lords, I refer the noble Lord to the Race Relations Act 1976, where "racial group" is defined.

The Earl of Selkirk

My Lords, why does my noble friend not bring in the word "religion" at this point? It is in Clause 18 already. It seems dangerous to use the word "racial" without associating it with religion. Many people of the same race are of different religions. I can quote a very violent example in Singapore. It took place before my time there. A Christian family brought up a Moslem child, and because he was being christened the crowds in Singapore rose up in rebellion. That went on for some time. I should have thought it was dangerous to use the word "racial" without bringing in the word "religion".

4.30 p.m.

Lord Henderson of Brompton

My Lords, in answer to that, I should say I have a great deal of sympathy with what the noble Earl said. But that suggestion would cause such difficulty that I do not think it is practical. There are so many different religions. As the noble Earl is familiar with India, I do not need to remind him of the number of religions that exist. For that reason, the word "religion" has not been added. However, the word "cultural" appears in the Bill. I think that embraces religion.

Lord Elwyn-Jones

My Lords, I rise to support the amendment in the absence of my noble friend Lady David. I am happy to be able to say that my noble friend is in Hungary on parliamentary duties. I thought I should make that clear in case there was alarm and despondency in the House about the possible political implications of her journey.

I support the amendment moved by the noble Lord, Lord Henderson of Brompton. It is a modest amendment. It does not prescribe particular steps; nor does it make it mandatory to place children with day carers or foster carers of the same racial group or background. The history of race relations in this country has shown the need for legislation to bring about changes leading to the elimination of racial discrimination and the promotion of equality of opportunity and good relations between persons of different racial groups. This amendment will promote that purpose. Accordingly, I have pleasure in supporting it.

The Lord Chancellor

My Lords, let me first of all say that the Government's general position on this matter is quite plain. We fully endorse the spirit of this amendment, and the other amendments related to it which the noble Lord, Lord Henderson of Brompton, will move later on.

The first point I have to make in answer to this amendment is that this duty is already, under the Bill and the existing legislation, imposed on authorities. I spoke at some length in the earlier stages of the Bill on similar amendments. As the noble Lord has pointed out, these amendments are somewhat different, but the ideas are the same. I wish to stress that the Bill already, in general terms, achieves the effect of these amendments.

The first thing to be said is that local authorities are bound by the Race Relations Act 1976, which prohibits discrimination in the provision of services in Section 20 and requires them to make appropriate arrangements with a view to securing that their functions are carried out with due regard to the need, to promote equality of opportunity, and good relations, between persons of different racial groups and, to eliminate unlawful racial discrimination". These responsibilities are clearly established already and there is no need to repeat such provisions in this legislation. The noble Lord relies on that definition from the legislation.

Clause 15(1) sets out the general duty which local authorities shall have to, safeguard and promote the welfare of children within their area who are in need… by providing a range … of services appropriate to those children's needs". Under paragraph 1 of Schedule 2 they have to, take reasonable steps to identify the extent to which there are children in need within their area". The needs of the children in their area who are in need may be many and varied, and local authorities' provision of services will necessarily entail taking account of a range of needs, including the needs of different racial groups in their area. Other factors will include, for example, the numbers of disabled children and the age distribution of children in need in the area. Considerations of this kind must apply to the provision of day care and fostering services.

It is evident that this must be so. Guidance will in any case make this clear. In resisting this amendment I am in no sense wishing to play down the significance of racial factors, but rather suggesting that they do not need giving further special emphasis. As I have said before in several other contexts, highlighting particular aspects of a general duty to make provision or promote and safeguard the welfare of children can easily raise doubts about the full scope and balance of the duty.

As the noble Lord explained in moving the amendment, it is stimulated or suggested by the Commission for Racial Equality. I was shown some provisions in the briefing paper of that body. The noble Lords may have that paper. I have seen the commission's comments on my previous attempts to deal with these amendments. The commission had read my reasons for rejecting the amendments with interest and had benefited from them. I was particularly glad to notice that. The briefing paper further states: However, we maintain that (with the exception of one amendment) these amendments are necessary to ensure that the relevant authorities are fully aware of their duty to take account of a child's racial origin, cultural background and language". If that is the purpose of the amendment, as I think it probably is, repetition of the same duty stated in other words, or even in the same words, in a statute is not necessary. We must seek to promote guidance that draws the attention of authorities to the existence of the statutory duty. Guidance is the appropriate place to ensure that authorities are aware of existing responsibilities. Primary legislation should not be used to repeat particular provisions in order to draw attention to their full effect. I believe my noble friend Lord Renton might agree with me in this.

The phrase, religious persuasion, racial origin and cultural background", appears in the Bill as one of the factors to which a local authority, voluntary organisation or children's home must have regard when making decisions relating to a child whom they are looking after. Its insertion was recommended in Review of Child Care Law. The Bill therefore deals with the decision-making stage and ensures consideration of relevant factors in relation to the child and its parents.

The point that my noble friend Lord Selkirk raised has a bearing on this. I suggest to your Lordships that this amendment is unnecessary and that the purpose for which it is put forward is a purpose that can be served by guidance. While I agree with the spirit of the amendment, I invite your Lordships not to agree to its being included in the Bill in this place.

Lord Henderson of Brompton

My Lords, I am gratified by the endorsement of the noble and learned Lord the Lord Chancellor of the spirit of these amendments. I am sure that the commission will be very glad to hear his comments. To a certain extent I agree with the noble and learned Lord that where a duty is laid down in a statute it does not need to be set out again in subsequent statutes.

On the other hand, time and again the commission comes across blatant cases where local authorities are not fulfilling their duties. The contention of the commission is that by placing these special provisions in the Bill—as the noble and learned Lord rightly said, the provisions are no more than provisions that are already in the Bill—the attention of the authorities concerned will be drawn to what their duties are. Otherwise they might neglect those duties. That is why these amendments, and this amendment in particular, are being proposed.

If every local authority did its duty, there would be no need for this kind of amendment. The noble and learned Lord suggested most helpfully that what is necessary is guidance. Is he perhaps suggesting that the Government will issue guidance, or is he suggesting that the commission should issue guidance? That is a very interesting suggestion, and I should very much like to hear what the noble and learned Lord has to say on it.

The Lord Chancellor

My Lords, with the leave of the House, I had in mind that that would be an important aspect of guidance. I had not directed my attention to who might issue it, but it may well form part of the guidance which the Secretary of State would issue in respect of the Bill once it is enacted. No doubt the precise form could be discussed with the commission as a useful precursor to the issue of the guidance.

Lord Henderson of Brompton

My Lords, that is most helpful. I am sure that the commission will pay attention to what the noble and learned Lord has said. I hope that the result of having moved the amendment will indeed be guidance issued by the Secretary of State. That would represent some progress. I thank the noble and learned Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Masham of Ilton moved Amendment No. 11A:

Page 12,1ine 19, at end insert— ("() If one or both parents have a disability this alone shall not be sufficient reason to assume the child is in need.").

The noble Baroness said: My Lords, at present many disabled people feel insecure. We live in a society which is becoming very materialistic. There have been cases in which a child has been taken into care solely because the parent or parents were disabled, when, with a little support, that might not have been necessary.

The noble Baroness, Lady Faithfull, has been saying for years that many social workers need more training. Many social workers do not know very much about the needs of disabled people. Disabled people should not be thought automatically to have problems. With a little help some of them could manage very well. There should be an assessment of needs.

At the Committee and Report stages the noble and learned Lord the Lord Chancellor was sympathetic to a similar amendment. However, it is felt that sympathy is not enough. Guidelines are often forgotten in time and there is a very high turnover in staff in social services departments. RADAR, the Royal Association for Disability and Rehabilitation, feels the amendment is necessary. Guidelines give no commitment; it would be preferable to have something positive written into the Bill.

I apologise to the House for the fact that the amendment has a star, but we had hoped until the last moment that the Government would put down their own amendment. I beg to move.

Baroness Faithfull

My Lords, I should like to point out that under the 1985 Education Bill, which was based on the Warnock Report on children's special educational needs, education departments were enjoined to leave children with special educational needs in the community with their parents and families as far as possible and practicable. The noble Lord, Lord Carter, will remember the amendment. Therefore, Amendment No. 11A would be in line with the 1986 Education Act.

One wonders what the situation would be if a child was removed from its parents and yet the education department wished the child to be left in the community. There could be disagreement between the two departments concerned. I draw the attention of the House to that situation in relation to this amendment.

Lord Renton

My Lords, while I sympathise with the spirit of the amendment, I must confess that, considering Clause 15(10) and the purpose of the amendment, I should not have thought that it was necessary. Subsection (10) states that: For the purposes of this Part a child shall be taken to be in need if", and sets out three sets of circumstances. They are fairly wide circumstances, but nowhere is it suggested that if the parents have a disability the child shall be considered to be in need. I should have thought that it was common sense that, although both parents may have disabilities of one kind or another—one may be crippled and the other deaf—that does not mean to say that the child, who may be an affectionate child and have a wonderful relationship with its parents, is necessarily in need. Therefore, with deep respect to the noble Baroness, I should not have thought that the amendment was necessary.

Lord Kilbracken

My Lords, I agree completely with the noble Lord, Lord Renton. I also feel that if it was thought necessary to say that a child was in need and the parent or parents happened to be disabled, the social worker could simply say, "Yes, that is true, but the fact that he or she is disabled has nothing to do with this decision".

Lord Prys-Davies

My Lords, we supported an identical amendment moved at Report stage by my noble friend Lord Carter. I wonder whether the noble and learned Lord the Lord Chancellor can give an assurance to the House that if one or both parents have a disability, that alone shall not be sufficient reason to assume that the child is in need. Can we have that assurance?

If it is not possible to incorporate that assurance in the Bill, do we have a firm assurance that that point will be incorporated in the guidance to be issued to social services departments which was referred to by the noble and learned Lord at Report stage (col. 1389 of Hansard of 6th February 1989).

4.45 p.m.

The Lord Chancellor

My Lords, I have listened to what has been said today and what was said in relation to earlier amendments to like effect. I understand the concerns of parents with disabilities and of the groups representing them that local authorities may look upon their disability as a reason to intervene. It is natural that people should seek reassurance when they have such fears concerning their rights to care for their own children. That assurance can be given unequivocally.

The matter can be answered by looking at the definition. The amendment refers to the definition of a "child in need" under Clause 15, and proposes that a child should not be assumed to be in need merely because one or both parents are disabled. The notion of a child in need is used as a trigger to the local authority's powers and duties under Part III of the Bill to provide services to children in need and their families. It is also relevant to Part IV. The basis for providing services is that the child meets the conditions set out in Clause 15(10), which includes the child being disabled. Those conditions are based entirely on an assessment of the child's needs—of his health and development. There is no suggestion in the definition that the parents' disability of itself could give rise to that need. Whether or not his parents are disabled is simply not relevant to that assessment unless their disability adversely affects the child and prevents the parents from looking after the child properly.

My noble friend's amendment contemplates that that might be the case because it uses the word "alone". It may be that a parent is disabled and that the child is also in need, but the parent's disability does not constitute the child's need and there is nothing in Clause 15 to suggest that that could be so. As I have said on previous occasions, guidance will be issued on the subject when the Bill is implemented. I give that assurance categorically.

The noble Lord, Lord Carter, who was responsible for the amendment at Report stage, asked whether the guidance would have statutory force. The answer is that under Section 7 of the Local Authority Social Services Act 1970 general guidance on this exercise of local authority functions issued by the Secretary of State has to be complied with and local authorities are aware of that.

Noble Lords, and perhaps in particular my noble friend who moved the amendment, have said that parents who are disabled are also concerned that their children may be removed from them because of their, the parents', disability. That has been the concern of RADAR. Part III of the Bill concerns local authority services which are available to families, and this amendment affects Part III. Those services include providing accommodation for children in need when it is appropriate. However, an essential feature of that is that it is voluntary. I shall come back to this point in another context a little later.

No service under Part III can be forced upon parents or children where they do not feel that they need it. Part III is voluntary. If accommodation is provided, perhaps on a respite basis, the parents are to be able to remove the child at any time they wish to do so and they would have negotiated the arrangements in advance with the local authority.

Social workers do not and will not have any power to remove a child from his home without an order from the court. This amendment would only apply to services under Part III where there is no compulsion available. However, it is worth adding—and I mentioned a moment ago that I would come to this point—that under Part IV of the Bill the grounds for a care order (that is, compulsory intervention) are also child based. The first ground that must be satisfied before a care order may be considered by the court is that the child has suffered or is likely to suffer significant harm.

The child's parents may or may not be disabled. That again will only be relevant when their disability affects adversely the child in a way that contributes to the satisfaction of the conditions in Clause 26(2). That is a fundamental principle of the Bill which we shall be careful to make clear when rules and guidance are issued.

I venture to think that in a sense, if one were to incorporate this amendment, it would cast some doubt upon that relevance. The Bill as it is drafted relates the basis for being in need solely to the child. Similarly it puts the basis for making a care order solely on the child. One may read that passage and then come across the statement that the mere fact that one or other of the parents is disabled is not a necessary factor. It is not in the right context. 'We are considering the child—the child's health and the child's development. That is what is relevant. We must not be distracted from that consideration. The emphasis of the Bill is very strongly on that point.

While I fully appreciate the point that has been made, I believe that it is already fully catered for by directing the attention of the local authority in Part III to the child and by the court making an order in Part IV for the child—the child's health, the child's development and significant harm to the child. If there is anxiety about this matter, as indeed there is, the appropriate way to dissipate it is to point in the guidance to the fact that this by itself would certainly not be a sufficient condition; and I suggest it should be backed up by pointing out that the whole emphasis of the Bill is on the child—the child's health and harm to the child.

In the light of that explanation, I hope that my noble friend will feel able to withdraw the amendment. I give the assurance, first of all, that on no view of the Bill could this by itself constitute a ground to hold the child in need, and, secondly, that we shall make that clear in the guidance to be issued under the Bill.

Baroness Masham of Ilton

My Lords, I thank the noble and learned Lord the Lord Chancellor for his reply. I hope that when the guidelines are drawn up it will be done in conjunction with the organisations for disabled people so that they can register their agreement with them. I think that in the past the problem has been that some children have unnecessarily been taken into care away from loving parents who with a little more help perhaps—somebody to do the shopping or the provision of meals on wheels, for example—could have had their children remain with them.

Disability is a complicated affair. Sometimes only a little help is needed. Parents can be the very best that there are. However it may be easier for social workers to take the children into care. That is the problem: lack of knowledge, lack of facilities available on the spot. That is why it was felt that this amendment was necessary. There has been no news about Griffiths and we must protect those who need protection. However, on the undertaking of the noble and learned Lord the Lord Chancellor——

The Lord Chancellor

My Lords, before the noble Baroness tells the House how she intends to deal with this amendment, I should like in view of her question to me to add that we can certainly undertake that the guidance would be issued after consulting the associations that represent the disabled. That would be normal practice in the consultation that precedes the issue of guidance.

Baroness Masham of Ilton

My Lords, I thank the noble and learned Lord and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 12:

Page 12, line 21, leave out ("disabled, in relation to a child,") and insert ("a "disabled" child").

The noble Lord said: My Lords, in Clause 15(11) on page 12 at line 21 we move on to the important definition of the word "disabled". I have tabled five amendments—Amendments Nos. 12 to 16 inclusive—of which the first and last (this amendment and Amendment No. 15) are purely drafting amendments. Amendments Nos. 13, 14 and 15 raise points of some substance. I intend to take those together but separately.

Noble Lords will see on the first point—in Amendment No. 12—which I raised briefly at an earlier stage, that: disabled", in relation to a child, means a child who is blind, deaf or dumb", etc. As I pointed out, and as I think will be clear to anyone with the smallest knowledge of the English language, the word "disabled" is an adjective—or perhaps I should say a past participle (I am not quite sure) —and the word "child" is a noun. It is absolutely impossible for an adjective to have the same meaning as a noun. It can only mean something that is the same part of speech. So one simply cannot say that "disabled" means a child who is blind etc.

There are two ways of remedying this. One would be to say: 'disabled' in relation to a child means blind, deaf or dumb", etc. Or one could say—as I am proposing: a 'disabled' child means a child who is blind, deaf or dumb", etc. I think that that is the better of the two proposals that I have suggested but I believe that one of them has to be accepted. I hoped that I would have made that point sufficiently clear to the noble and learned Lord, especially when otherwise this Bill, if I may say so, has been so extremely well drafted. I beg to move.

Lord Renton

My Lords, we are dealing here with Amendment No. 12 only. I hope that it will not come as a great shock to your Lordships to hear that I wish to support the noble Lord, Lord Kilbracken, on this amendment. I do not consider that the present definition is in any way felicitous or well drafted. I think that his amendment goes some way toward plainer English and I should like to support it.

Lord Simon of Glaisdale

My Lords, the great advantage of Amendment No. 12 is that it puts in three words what the Bill states in six or seven. At any rate the amendment puts it far more succinctly. So far as I can see, "disabled" is a description of a child in subsection (10)(c). The word "disabled" occurs several times in the relevant schedule where the expression used is "disabled children". On the principle in the Interpretation Act, that meaning includes a disabled child. In the mass of language that we now put into the Bill it may seem a small thing to save three words but it is worth while beginning somewhere. I hope that my noble and learned friend will look favourably on Amendment No. 12.

Lady Kinloss

My Lords, I should like to support these amendments. May I refer to Amendment No. 13?

Lord Kilbracken

My Lords, I suggested that at this stage I would speak to Amendment No. 12 and then come to Nos. 13, 14 and 15 separately.

5 p.m.

The Lord Chancellor

My Lords, some concern has been expressed both about the form of this definition and, perhaps more importantly, in relation to its substance. I think that there is quite a lot to be considered in relation to this. If the noble Lord will allow me, I should like to consider this amendment because we are certainly considering recasting the definition of a disabled child in the light of various discussions that have been going on.

It is a fairly big subject. Unless your Lordships want me to go into it in some detail now, I would rather leave it over for further consideration. It is something that requires a certain degree of consideration not only on the form but also on the substance of the definition.

Lord Kilbracken

My Lords, before the noble and learned Lord resumes his seat, may I ask whether he is planning to bring this up on the Motion that the Bill do now pass? May there be another attempt to deal with this definiton on that occasion, or is the noble and learned Lord leaving it to another place? Since this is the only opportunity that he will have to reply, may I further ask him whether he cannot, at this stage, deal with Amendment No. 12, which is simply a drafting matter, without dealing with the others that I have not yet moved?

The Lord Chancellor

My Lords, certainly we could take the amendment by itself, but I think it is not worth while when we have to consider the substance of the whole provision. As the noble Lord knows full well, the later amendments go to the substance of the provision and the way the whole thing should be done. There may be consequences from an amendment like this to other parts of the Bill.

I am reluctant to do that until the draftsman has had an opportunity of reconsidering the whole matter. Therefore, my answer is that I hope that the noble Lord will allow me to leave over consideration of this matter further until the Bill is considered in another place.

Lord Kilbracken

My Lords, there are important points that arise on Amendments Nos. 13, 14 and 15 which I shall raise and which may be of interest to other noble Lords. I should like to refer to them briefly when the time comes. On the question of Amendment No. 12, I should first like to say how much I appreciate the support that was expressed from all parts of the House for what I said. I really do not believe that my proposal can be opposed.

I know that the Minister will always go to any lengths to defend the draftsman and to avoid accepting an amendment, although he was so good as to accept one of mine earlier in this Bill. I cannot see any reason for opposing my Amendment No. 12, which turns what is bad, impossible English into what is acceptable English. Of course I would not dream of dividing the House on it, but at the same time I do not feel that I can simply withdraw it. Therefore, I propose to move it but riot to take it any further than that, unless I receive more support than I expect to get.

The Lord Chancellor

My Lords, the Question is that Amendment No. 12 be agreed to. As many as are of that opinion will say "Content".

Lord Renton

My Lords, I understood that the noble Lord was, in effect, asking leave to withdraw his amendment.

The Lord Chancellor

No, my Lords, not at all. That is a misunderstanding. Perhaps I had better just start again.

On Question, amendment negatived.

Lord Kilbracken moved Amendment No. 13:

Page 12, line 21, leave out ("is blind, deaf of dumb") and insert ("has seriously defective sight, is very hard of hearing or has a serious speech defect").

The noble Lord said: My Lords, I come now to the substance of the definition of the word "disabled". I was glad to hear that the noble and learned Lord on the Woolsack feels that it needs further attention, but I wish to take this opportunity of drawing attention to the points that I feel require looking into. I shall just take the definition in stages as it goes along. It says: 'disabled', in relation to a child, means a child who is blind, deaf or dumb". This seems to me to be the wrong language for two quite simple reasons. One is that the words "deaf" and "dumb" in particular—not so much the word "blind" —are not words that we expect to see used any more in enlightened education about people who are disabled. People who are deaf do not like being referred to as deaf. They are always described as the "hard of hearing". The word "dumb" has other connotations, meaning foolish and stupid, so that people do not like it either if their child, for instance, is described as dumb.

The other point is that it seems to me that these words ar far too strong for a definition of "disabled". A child has to be blind, so far as his eyesight is concerned, to be disabled. We all know what blind means. It means incapable of seeing. There are not degrees of blindness. Either you can see or you cannot see. Therefore, a child who is extremely shortsighted, or perhaps has lost the vision in one eye, or has great difficulties of sight, is not considered handicapped because he is not blind.

Similarly, I do not know whether "deaf" means totally deaf. I suppose one could say, "Well, he is a bit deaf", or "I am rather deaf today", but I am not so concerned about the use of the word "deaf". Then again presumably the word "dumb" means incapable of making any articulate sound. Or does it mean incapable of making any sound? There again that is going far too far in a definition of "disabled". My Amendment No. 13 proposes saying instead that a child is disabled if he, has seriously defective sight, is very hard of hearing or has a serious speech defect". I would far rather see that than the uncompromising "blind, deaf or dumb" of the Bill.

The Bill goes on that he is handicapped if he, suffers from mental disorder of any kind" — I do not object to that— or who is substantially and permanently handicapped by illness, injury", et cetera. Permanently? Does that mean that he is going to be handicapped by that illness for the rest of his life? Is that not what "permanently" means? I do not know what else it could mean. It does not mean for another week or two, or for another month or two; it means for the rest of his life. I do not think that word "permanently" has any place in this definition.

Finally it speaks of, permanently handicapped by illness, injury or congenital deformity". Congenital deformity only? Congenital must mean inherited from a parent. Therefore in order to be considered handicapped he has to have a deformity that he inherited from a parent. If he has a deformity that is not congenital, something that has not been so inherited and cannot be proved to be congenitally acquired, then he is not handicapped. This is all nonsense, if I may say so. I therefore propose in Amendment No. 13 to redefine "blind, deaf or dumb", in No. 14 to leave out "permanently" and in No. 15 to leave out "congenital". I beg to move.

Lady Kinloss

My Lords, I support Amendment No. 13. At an earlier stage in the Bill I said that many organisations were not happy with the word "dumb". It may be that it has a rather unkind meaning in the sense that children may tease one another by saying, "You are dumb". I hope that the noble and learned Lord will be able to consider the amendment.

The Lord Chancellor

My Lords, as I have indicated, this has already been discussed, as the noble Lady said, and I then indicated certain difficulties. The definition has a statutory history. Any change will require careful consideration. I undertake that the matter will be considered as the Bill goes through another place.

I can give further reasons why I cannot accept the amendments, however reasonable they look. I do not know that it would serve any purpose as we discussed the matter fairly fully earlier when I gave the main reasons. If the noble Lord is prepared to withdraw the amendment, I can give the undertaking that I have outlined.

Lord Kilbracken

My Lords, I am grateful to the noble Lady, Lady Kinloss, for her support. I am grateful also to the noble and learned Lord for saying that he will reconsider the definition and that later—presumably in another place—the matter will come up again. In view of that undertaking, I beg leave to withdraw Amendment No. 13.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 and 15 not moved.]

Lord Kilbracken moved Amendment No. 16:

Page 12, line 25, leave out ("be") and insert ("become").

The noble Lord said: My Lords, this is purely a drafting amendment. My words may be of help to the draftsman when, as I hope, he subsequently comes to redraft this.

The definition refers to a person who is substantially handicapped by illness, injury and so on or who is likely to be so handicapped. This clearly means a person who is likely to be so handicapped in the future. I beg to move.

The Lord Chancellor

My Lords, the draftsman will have this point put to him along with the other matters raised in the consideration to which I have referred.

Lord Kilbracken

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Clause 16 [Day care for under fives and supervision of school children]:

Lord Prys-Davies moved Amendment No. 17:

Page 13, line 4, at end insert— ("(5A) The local authority shall, together with the education authority, keep under review the provision of daycare within the authority for both under fives and over fives. (5B) The review under subsection (5A) shall include a plan for future provision, and the results of the review shall be published at least once every three years. (5C) When exercising its duties under subsection (5A) the local authority shall take into account the views of—

1. (a) relevant voluntary organisations within the authority, and
2. (b) the district health authority, or district health authorities, within the area.").

The noble Lord said: My Lords, this amendment is almost identical to an amendment moved by my noble friend Lady David on Report. The only difference is that this amendment refers specifically to the provision of day care facilities for both under fives and over fives. When Clause 16 was discussed on Report, the noble and learned Lord agreed to look further into the issue raised by the amendment and an allied amendment although he did not agree that the Government could go to the length of imposing on local authorities the duties spelt out in the two amendments.

We should like to know whether the Government have completed their consideration of the issues raised. Is it likely that the Government will draw a line between the duties of local authorities to provide services for under fives and their duties to provide services for over fives? Is it intended to have a code of practice of general application for children both under five and over five?

If the answer to those and other relevant questions cannot be revealed until the Government table their amendments to the Nurseries and Child-Minders Regulation Act 1948, can the noble and learned Lord indicate when such amendments are likely to see the light of day? This is in fact a probing amendment. I beg to move.

Lady Kinloss

My Lords, am I correct in understanding that the government amendment to revise the Nurseries and Child-Minders Regulation Act 1948 is to be introduced shortly as part of the Children Bill to take over fives out of registration legislation? Can the noble and learned Lord reassure the House that this will not involve the deregulation of provision for over fives because, unless the legislation for registration is built into the Children Bill, instead of improving the protection and quality of day care for over fives, the new legislation could lead to lower standards and less provision?

The Lord Chancellor

My Lords, we are proposing to introduce provisions dealing with the child-minder statute. Perhaps the noble Lady will be good enough to await the proposal.

As to the amendment, I had hoped to be ready, but I regret to say that I have not quite made it. We are still considering the matter—it would be fair to say sympathetically—but I am not yet in a position to give an answer. The consideration will go forward to another place. When the Bill comes back in due course I hope that the matter will have been attended to.

Lord Prys-Davies

My Lords, is it amendment to the 1948 Act or the subject matter of the amendment that is being sympathetically considered?

The Lord Chancellor

The latter.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord for that answer. It is important that the Government's thinking should be known in good time and certainly before the Bill is considered in another place. I therefore beg leave to withdraw the amendment.

The Lord Chancellor

My Lords, I should make clear that my comment about sympathetic consideration referred to an amendment on the lines of Amendment No. 17 and the amendment moved earlier by the noble Baroness, Lady David. As to the child-minder legislation, I said that we must wait to see what is proposed.

It is proposed to consider these matters. I hope that by the time that Committee stage is reached in another place the Amendment No. 17 matter will be resolved in such a way that we can make a decision.

Lord Prys-Davies

My Lords, that assurance is acceptable. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Provision of accommodation for certain children]:

The Lord Chancellor moved Amendment No. 18:

Page 13, line 39, at end insert ("if they consider that to do so would safeguard or promote his welfare.").

The noble Lord said: My Lords, amendments were made at Report stage which simplified the power of a local authority under Clause 17(5) to provide accommodation in community homes for young persons aged between 16 and 21. This was done in response to suggestions made in Committee.

Other powers and duties to provide accommodation under Clause 17 in subsections. (1), (3) and (4) are subject to certain welfare considerations. For example, under subsection (4) the authority may provide accommodation for any child in its area if it considers that to do so would safeguard or promote the child's welfare. There is no similar qualification in subsection (5), which allows the authority to provide accommodation for adults up to 21. On reflection we considered that both provisions should be governed by the same welfare qualification. The amendment provides accordingly that Focal authorities may provide accommodation if they consider that it would safeguard or promote the person's welfare. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 19: ("(7) Where a local authority provide accommodation under this section they shall enter into an agreement in writing with any person who has parental responsibility for the child, or in the case of a child of sixteen or seventeen, the child himself. (8) The agreement in subsection (7) above shall include details of the type of accommodation to be provided, schooling, contact and the notice which is to be given by either side before the child returns home. The period of notice may only be a period of up to and including 8 days.").

The noble Baroness said: My Lords, although this is the Third Reading, I shall speak somewhat fully to this amendment. To be able to understand these amendments one has to know that under the Children Act 1948 parents may apply for their children to be accepted into care. If the local authority accepts them into care—they do not take them—it is therefore a voluntary agreement between the parents and the authority.

If parents are subsequently found to be unsatisfactory and not suitable to look after their children, parental rights can be assumed, with notice being given to the parents. At the last stage of the Bill the noble and learned Lord, the Lord Chancellor said that this was a voluntary agreement and therefore to consider such an amendment would be stepping outside the voluntary side of the agreement between the local authority and the parent. However, this has given rise to real difficulties.

I shall give three factual examples from my own experience. A single parent family asked for her child to be accepted into care and it was agreed that the child should be accepted. The woman was a prostitute and was finding that the area where she was practising was not very profitable. She wanted to move to another area and had the offer of a lift to London. At 10 o'clock at night she appeared at the children's home and asked for her small child, aged seven, to be restored to her. As the child was in voluntary care there was no option but to give that child to that parent, the child having been put to bed at 7 o'clock and was fast asleep. The child inevitably suffered.

A second case was of a woman admitted to mental hospital suffering what was thought to be an "episode" that would not last. The child was accepted voluntarily into care, but the episode proved to be much more serious and the woman turned up at the foster home and asked for the child to be returned to her.

By the same token there is the parental point of view. Some authorities, I regret to say, have on occasions moved a child without telling the parents to which children's home or foster home they have moved the child. The amendments are suggested to safeguard the child but also to help the parents.

I take up another point. Let us suppose that a parent voluntarily asks for a child to be accepted into care and asks for the child to attend a certain school. The noble Earl, Lord Selkirk, asked about religion. It ought to be possible for a contract to be agreed that a child can go to a particular school. Understandably, at the last stage of the Bill, the noble and learned Lord said that the agreement was voluntary and that we should keep it voluntary. Nevertheless for both the child's, the parents' and for the sake of those who are caring for the children, I feel that we should ask for the amendments to be considered. I beg to move.

Lord Prys-Davies

My Lords, I should like to support the amendment moved by the noble Baroness, Lady Faithfull. In Amendment No. 19 I should like to emphasise that it is not intended that the written agreement required by that amendment should be restricted to the topics mentioned in the amendment. The topics are not exhaustive. It seems to us that to clarify the arrangements which have been agreed between local authorities and parents and to embody them in an agreement would be a positive process. It would encourage the local authority to consider and decide what is the most appropriate plan and arrangement for the individual child and the family. It would be seen by the parent as a negotiated agreement involving them as parents. We would hope that that would lead to co-operation and involvement.

I should like to add a few words to the argument in support of Amendment No. 20. Your Lordships will recall that the need to give notice before removing a child from voluntary care was discussed at some length in Committee and on Report. The requirement of 24 hours' notice was contained in an amendment then before the House. That would have been read into every agreement. The noble and learned Lord the Lord Chancellor opposed that amendment on the main ground that it was the essence of a voluntary agreement that it should be free.

By the noble and learned Lord's test, the earlier amendment was flawed because it would require a 24-hour notice to be inserted into every agreement whatever be the will of the parents. Having reflected on the statement made by the noble and learned Lord, at Report stage, we are returning with Amendment No. 20 which we believe meets the main criticism levelled at the earlier amendment by the noble and learned Lord the Lord Chancellor.

Amendment No. 20 acknowledges by implication that an agreement between the parent and the local authority may (if that is in the agreement) incorporate a term requiring the giving of notice before removing a child from care. It appears to us that the inclusion of such a term is consistent with the principles of the White Paper. In paragraphs 5(b), 17 and 26 we have specific references to a voluntary partnership with parents. Invariably a partnership agreement contains provision for its termination.

Paragraph 23 of the White Paper deals specifically with notice and states: an arrangement under which parents will give notice that they wish to take the child back should also normally be settled by mutual agreement between the parents and the local authority in order to prepare a child for returning home". Unless this kind of amendment—here I refer specifically to Amendment No. 20—is accepted, there is a danger that parents may rely on Clause 17(8) and ignore any agreement arrived at with the local authority as to the need for notice and remove a child from care, contrary to the terms of the voluntary agreement. If it is inended that they should have such a right, notwithstanding an agreement between the local authority and the parents, in our submission that is far less than voluntary partnership.

Lady Kinloss

My Lords, some voluntary agencies are concerned that there is nothing in the Bill or regulations to ensure that local authorities work in partnership with parents; nor is there enough to encourage local authorities to use voluntary arrangements except for very short periods. Adolescents who cannot live at home are often in voluntary care at the moment and they can remain there for three or four years at a time. If the parents have to give notice that they wish to have them back, it gives everybody a period of time to arrange for the young person to return home or for the local authority to take some form of legal action if they do not want the child to return home for one reason or another.

5.30 p.m.

The Lord Chancellor

My Lords, we have already debated this matter to some extent. The amendments, particularly No. 20, take account of some of the issues that I raised in respect of earlier amendments.

Amendment No. 19 would require local authorities providing accommodation for a child to enter into a written agreement with the parents—or with the child himself if he was aged 16 or 17. It would also specify the details to be included in the written agreement with the parents—schooling, contact and a period of notice—before the child can return home. The second linked amendment would prevent a person with parental responsibility from removing the child before the period of notice specified in the agreement had expired.

As I have said previously, the Bill already provides powers for different types of placement to be governed by separate sets of regulations. These powers are broad enough to make provision for voluntary arrangements to be recorded in writing and to deal with certain specified matters. It is not necessary to duplicate these powers. The appropriate place for the provision of written agreements on voluntary arrangements placements is in the regulations alongside the other matters governing the placement of children. It is important to provide for flexibility in the way in which these agreements operate so that they can apply to the widest possible variety of circumstances. I have already given assurances in the strongest possible terms that we shall include provision in the regulations, and that these will be subject to further consultation before they are made. I can do no more than repeat that this remains our firm intention.

On previous occasions I have emphasised our commitment to the voluntary nature of the arrangements. I do not believe that a compulsory agreement has any place in a voluntary scheme (if such a thing is possible) and I have not yet heard anything on that point to make me change my mind. The "24 hours" may have been of that character. We should expect the local authority and parents to come to sensible agreements about important matters which would be recorded in writing. These would include, among others, the matters referred to in the amendment: schooling, contact and a period of notice. I am sure that local authorities will impress upon parents the seriousness of these agreements; but the essence of the agreement is that it is voluntary.

In particular, we remain opposed to the requirement for the parent to give a period of notice before removing the child from a foster parent or other placement. It may be helpful if I remind noble Lords of the current provision. Present law allows parents to remove the child at any time, so long as he has been in voluntary care for fewer than 6 months. The existing notice period applies only to longer placements. In the Bill we are extending the principle which at present governs only shorter placements and which, so far as I am aware has not caused particular problems. I appreciate that on occasions situations may occur such as those instanced by my noble friend Lady Faithfull. I do not therefore accept the argument that local authorities will no longer be prepared to use voluntary arrangements for short-term requirements. Nor do I accept that they will take more compulsory orders than they need because of the lack of an enforceable notice period.

On the other hand—and this is the important issue which we wish to consider—the present law encourages an unhelpful blurring of the distinction between the rights of parents and the legal status of a child in a voluntary placement, and a child who is cared for on a compulsory basis under a court order. One of the fundamental purposes of the Bill is to remove this lack of clarity and to emphasise the voluntary nature of the services which the local authority can provide. A compulsory period of notice would undermine this clarification and the possibility of a new constructive partnership between the local authority and parents. Parents need to be reassured that if they seek help with their children they will not be prevented from exercising their responsibilities as they see fit—and that includes taking their child home with them if they consider that to be appropriate.

I imagine that in most cases notice would be given in accordance with the written agreement, but this would be a voluntary matter. Many of us would consider it very unreasonable in similar circumstances if we were required to give a period of notice; for example, before removing a child from a boarding school or other residential situation if a family crisis had occurred. I do not think that it is appropriate to apply a different standard to families who may have difficulties in caring for their child and wish to seek help from the local authority.

If there are questions about the parents' competence to care for the child there are ways of dealing with the situation without resorting to compulsory notice periods. As I said previously, the Bill clarifies what it means to have parental responsibility and Clause 3(5) makes it plain that those who have the care of a child have powers to do what is reasonable to safeguard the child. That would apply to a child who is already in bed late at night. In my view, this would empower a foster parent to prevent a parent who was incapable from drink or drugs from removing the child. If the matter was serious the help of the police could be sought or an emergency protection order applied for. This is much the same approach which many of us might adopt if we temporarily had care of a child and were faced with an unreasonable request to take the child home. What would an ordinary person do in that situation?

The other type of situation, which I know causes concern is the possibility of an inconsiderate parent removing a child at a whim—perhaps on more than one occasion or after a long period under stable voluntary arrangements—so that the child's sense of security is undermined. But in such cases the written agreement would have been broken. In my view the local authority would have good cause to take this very seriously. It might justifiably take this into account in considering whether an application for a care or supervision order was appropriate.

I can see that situations may arise in which an incident occurs after an arrangement has been made, such as my noble friend instanced. In order for the amendment to work it would be necessary to have agreed a period of notice in advance. It may be that people who believe that they may find themselves in such a situation will not be willing to agree a period of notice. The provision would work only if there was an agreed period of notice.

I believe that the real point is that if the agreement is to work as a purely voluntary agreement, the parent must have the assurance that he or she is not committing the child to the local authority in a way which will enable it to keep the child against the parent's wishes. That is the essential point in the provision that we are trying to promote. That has been a difficulty with voluntary arrangements. As a result of the blurring to which I referred, people have been afraid that if they voluntarily put their children into the care of the local authority a situation may develop where they cannot get the child out. We believe that it is most important to lay down safeguards. The point of Amendment No. 20 is that it gives the local authority the right to retain the child against the wishes of the parent. I agree that the parent had already specified a period of notice, but it gives that right to the local authority.

My noble friend and your Lordships have greater experience of such matters, and I base myself on what I have been told. I believe that that is one of the difficulties which arises when people use the voluntary arrangements. We are most anxious that the voluntary arrangements should be used to the full rather than having to resort to compulsory measures of care.

It is a difficult matter and I know that there will be continued discussion. However, that represents our view at the present stage.

Baroness Faithfull

My Lords, I shall not divide the House at this stage of the Bill. However, I am disappointed with my noble and learned friend's reply. We believe, as is stated in the Bill, that the interests of the child are paramount. Perhaps 80 or 90 per cent. of parents who ask for their children to go into voluntary care are reasonable people with whom one can establish a relationship. One makes a voluntary arrangement with them not to withdraw their children at the drop of a hat. They should not withdraw their child at night time or from school, for instance, because sudden change is bad for children. What is required for children is planned change; whether it be to go home or to go into care.

At every boarding school I know a term's notice must be given, if not one must pay the fees for that term. I believe that notice must be given in most boarding schools.

I agree with the noble and learned Lord that only a few children are involved in such situations. However, those of us who had to deal with children who have been withdrawn late at night or very suddenly without any plan know that it cannot be right for the preparation of the children apart from anybody else. Therefore, I feel deeply disappointed that these amendments have not been accepted, but there will be a time and place for them to be dealt with elsewhere. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 18 [General duty of local authority in relation to children looked after by them]:

Lord Henderson of Brompton moved Amendment No. 21:

Page 14, line 45, after ("origin") insert ("language").

The noble Lord said: My Lords, we had a discussion on the generality of these amendments which emanate from the Commission on Race Relations. However, I reserved the right to speak to Amendments Nos. 37, 40, 47, 48 and 49 together with Amendment No. 21. I think I can be a good deal briefer than I otherwise would have been because at an earlier stage the noble and learned Lord said that the substance of these amendments is more appropriate to a directive than to legislation.

If it is indeed the case that the Secretary of State, after the passing of this Bill, will send directives on the point of all these amendments to local authorities or other authorities concerned, I believe that we shall have achieved something by drawing these amendments to the attention of the Government and we shall gain some sort of satisfaction. If my understanding of that is right, the noble and learned Lord's intimation is perhaps in the nature of an undertaking and I do not need to go into great detail.

However, I should like to say something in regard to Amendment No. 31 because that specifically includes the word "language" —the language which the child speaks—among the duties to which the local authority must have regard when it takes children into care or when it fosters them. I believe that that is particularly important for the nursery stage, for the little ones. It will remain important throughout their lives but that importance will diminish as the child grows older. However, I hope that the House agrees that maintenance of contact with and development of fluency in the language and culture of the child's origins is very important for the child's well-being. I am assured that it is also important for the child's emotional, intellectual and academic progress.

In that connection, I should say that amendments were pursued at an earlier stage of the Bill by the noble Lord, Lord Prys-Davies, and other noble Lords. They expressed their anxieties about the needs of unaccompanied refugee children which would not properly be met unless amendments such as these are accepted. However, I hope that those who expressed that concern are happy with what the noble and learned Lord, the Lord Chancellor said about directives. It is not a small problem. Over the past 10 years I am told that several hundred such children have arrived in the United Kingdom from all over the world. They come mostly from South-East Asia, but they also come from such countries as Iran, Sri Lanka, Ethiopia and Poland. Therefore, although I shall not press it, I believe that Amendment No. 21 is important and I hope that it will form the subject of a directive by the Secretary of State.

I do not believe that I need to speak to Amendments Nos. 37, 40, 47 and 48 because they are all covered by the undertaking given by the noble and learned Lord.

Amendment No. 49 is rather different because this concerns the welfare of privately fostered children. I believe that without this amendment no other safeguard will exist in this area. On Report the noble and learned Lord the Lord Chancellor said: there are limits to the extent to which we can expect or would want a public authority to intervene further in private arrangements often made by parents for the care of their child"; — [Official Report, 6/2/89; col. 1375.] That may be so. We certainly do not wish to interfere too readily in that area. On the other hand, we should not neglect it. Therefore, I respectfully agree with the noble and learned Lord that for that reason this is perhaps not a subject for insertion into primary legislation but I believe it should be inserted into directives by the Secretary of State. I mention this amendment particularly because I do not believe that it is covered by the general provisions of the Bill.

Finally, in my view this group of amendments is of the greatest importance. As the noble Lord, Lord Elton, said yesterday in our general debate, the most important factor in bringing up children is a loving and stable environment. Here we are concerned with the care of children outside their own homes. I should have thought that that loving and stable environment can only be given effectively if requirements are imposed on local authorities and others concerned with the care of children, if not in primary legislation, then in directive by the Secretary of State after the passing of this Bill. I beg to move.

Lord Pitt of Hampstead

My Lords, I hope that the Minister will accept this amendment. In the Bill we have already agreed that the child's religious persuasion, racial origin and cultural background should be borne in mind. I believe that it is just as important that its language should be borne in mind.

The noble Lord, Lord Henderson, pointed out that it is particularly important for the pre-school child and I endorse that. It is particularly the young child who, if he or she is accustomed to a particular language, will feel secure with that language. If at that stage the child has to become accustomed to something new, then that security is disturbed. Therefore, whatever decision may be taken on other amendments, I really believe that the language should be in primary legislation along with the requirement that religious appreciation, racial origin and cultural background should be taken into account. Language should be included because it is as important as the others.

I agree with the noble Lord that the matters raised by the other amendments can be dealt with through regulations or guidelines. However, in the case of language I believe that it should be in primary legislation in view of the fact that those other matters are also there.

Lord Prys-Davies

My Lords, I should like to support Amendment No. 21 in particular. A child's language is as fundamental to the child as his religious persuasion, racial origin and cultural background. That should be recognised in the subsection. Indeed, to leave out the word "language" means that the language is deemed to be less important than the other matters listed in the clause.

The child, when removed from his family of birth, should wherever possible be able to continue to use his mother tongue. We think that that will help the child to maintain his identity. Moreover, there is a strong argument that it is through the m other tongue that the child is best associated with his cultural background, which is recognised by the subsection. Therefore, we very much support this amendment.

The Lord Chancellor

My Lords, as I said in relation to the earlier amendment, the matters that are dealt with in these amendments will certainly be the subject of guidance. It is right to repeat that we also undertake to consult the Commission for Racial Equality. However, in view of the particular emphasis placed on language by the noble Lords, Lord Henderson of Brompton, Lord Pitt, and Lord Prys-Davies, I should like to say that my understanding is that language is part of the cultural background. That is our understanding of the way in which the words have been used. It is not, of course, the whole of it but an important part. Therefore, since there is a duty to give due consideration to the child's cultural background, there is already in the legislation a duty to have due regard to the child's language as part of that. The guidance will certainly make clear that language is an important part of cultural background.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord for giving way. Is not "language" a much more specific, identifiable and positive an element than "cultural background" generally? Having learnt to speak English at the age of four I know how important it would have been if my experience had cast me into the hands of purely English people at that time.

The Lord Chancellor

My Lords, I am sure that what the noble and learned Lord learnt at four would be part of his cultural background thereafter and I am sure that what he learnt before he was four is also part of his cultural background. In the case of bilingual children it may be more difficult to say what is their language, so surely it is more appropriate to refer to cultural background, which embraces all the languages of those who have the good fortune to come from a place which starts them off with a richness which we associate with those people from the Principality. The language may not be unique. It may be that consideration should be given to more than one language. The noble and learned Lord's intervention has emphasised the wisdom of using the phrase, "cultural background" to include language or languages.

Lord Pitt of Hampstead

My Lords, before the noble and learned Lord sits down, will he take it from me that for the child's security the language to which the child is accustomed is of the utmost importance? Merely referring to "cultural background" will not in fact cover that. Therefore, will the noble and learned Lord undertake to reconsider with that in view? As we have already indicated that cultural background, social and racial origin should be in primary legislation, it would be wise to include language.

The Lord Chancellor

My Lords, having regard to the authority of the noble Lord in this area I certainly undertake to consider the matter further. Of course, it will now be for another place to deal with the matter.

Lord Henderson of Brompton

My Lords, I am in something of a quandary because the noble Lords, Lord Prys-Davies and Lord Pitt, both spoke strongly in favour of Amendment No. 21 and wished to see the word "language" in the Bill. On the other hand, I feel that the noble and learned Lord has been so accommodating that it would be churlish not to accept his undertaking which I found strongly reinforced what he said earlier. He said that the matters contained in the amendments would certainly be the subject of guidance by the Secretary of State.

Secondly, it is important, as the noble and learned Lord said, that when the guidance is being considered full consultation with the commission will take place. I hope that the noble Lords, Lord Pitt, and Lord Prys-Davies, will accept that that goes a considerable way towards our way of thinking.

I should like to make one further comment. I hope that the noble and learned Lord's undertaking—what I like to call an undertaking—is not without prejudice to his consideration of Amendment No. 21 and putting the word "language" into the Bill if, after consultation, he sees fit to do so. With that very welcome answer from the noble and learned Lord on the Woolsack, I beg leave to withdraw the amendment.

The Lord Chancellor

My Lords, before the noble Lord withdraws his amendment I should perhaps turn the nod into something for the record. I undertook to the noble Lord, Lord Pitt of Hampstead, that further consideration would be given to whether "language" should be identified on the face of the Bill. That in no way detracts from my undertaking that consideration in relation to guidance would be given to all the matters covered in the amendments.

Lord Henderson of Brompton

My Lords, I am grateful for that clarification and once again I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [Provision of accommodation and maintenance by local authority for children whom they are looking after):

The Lord Chancellor moved Amendment No. 22:

Page 16, line 7, at end insert— ("() Where a local authority provide accommodation for a child whom they are looking after and who is disabled, they shall, so far as is reasonably practicable, secure that the accommodation is not unsuitable to his particular needs.").

The noble and learned Lord said: My Lords, this amendment is the result of my undertaking in Committee to consider Amendment No. 83 which was moved by the noble Lord, Lord Meston. That sought to introduce into Clause 17(6) a requirement that, where a local authority provided accommodation for a child under Clause 17, it should give due consideration to any physical or other handicap and to his educational needs including any special education needs". I said at that time that a local authority's general welfare responsibilities under the Bill embraced these matters. Clause 18(3) requires an authority to safeguard and promote the welfare of any child it is looking after, and we would not wish to cast doubt on the extent of the meaning of "welfare" by specifying particular aspects. I am reluctant therefore to make provision of this kind in either Clause 17 or Clause 18 which define general responsibilities in respect of duties to provide accommodation and to secure the welfare of children looked after by local authorities.

Clause 19, however, concerns the more specific responsibilities of local authorities in respect of the manner in which children may be accommodated. This clause, unlike Clause 17, relates to all children who are looked after by a local authority, including those who are subject to care orders. We have considered whether it would be helpful to place a duty on local authorities under this clause to have regard to disability and to educational need. One of our principal concerns was that we should not say anything in relation to particular children unless we were requiring the authority to do something extra for them over and above what they have to do for children they are looking after generally.

All children being looked after will have educational requirements and these, whether of a special educational kind or not, must be addressed if the child's welfare is to be promoted and safeguarded. The noble Lord, Lord Meston, referred in Committee to co-operation between authorities in this regard and in Clause 23 (dealing with co-operation between authorities) we provide at subsection (4) that every local authority shall assist any local education authority with the provision of services for any child within the local authority's area who has special eductional needs. I believe, therefore, that the noble Lord's concerns in respect of education are adequately met.

Disability is an aspect of a child's need which may well affect the way in which he should be accommodated. That is another aspect of his welfare to which the general duty should apply, but on balance in the specific area of the provision of accommodation we think there would be at least presentational value in highlighting the need to ensure that particular account is taken of disability. It is in that spirit and for that purpose that the amendment is proposed. I hope that it meets the concern expressed by the noble Lord, Lord Meston. I beg to move.

Lord Mishcon

My Lords, I am sure that all of us who have at heart exactly the same motives as the noble and learned Lord in regard to physically disabled children will be delighted that this is on the face of the Bill. However, I wonder whether the noble and learned Lord does not agree that if it is to appear on the face of the Bill it might be in a rather more positive form. To put a requirement on the local authority in regard to disabled children, to say that it is not unsuitable to their particular needs, is to put a negative requirement which is not always very helpful, especially when you have the proviso in the amendment of the words: so far as is reasonably practicable". With those words left in, surely one can have the positive form that the accommodation: so far as is reasonably practicable, is suitable to his particular needs". To have the limitation of the words, so far as is reasonably practicable and then to have a negative, does not seem to be quite as helpful as, on consideration, I am sure the noble and learned Lord would wish it to be.

6 p.m.

Lord Renton

My Lords, I feel obliged to support the noble Lord, Lord Mishcon, in what he has just said. I have had a great deal of experience of many kinds of disabled children and especially the mentally handicapped. I believe that this is not placing a strong enough obligation upon the local authority. I wish to see this amendment, which is welcome up to a point, rephrased. I propose to send the noble and learned Lord, if I may, a suggestion for rephrasing it and I hope for slightly better drafting.

Lord Rochester

My Lords, I am sorry that my noble friend Lord Meston is unable to speak for himself on this matter. I understand that he has been detained unavoidably in court in Oxford. Perhaps I may on his behalf thank the noble and learned Lord for what he has been able to do to meet the point made by my noble friend at an earlier stage. Like the noble Lords who have spoken—namely, the noble Lords, Lord Mishcon and Lord Renton—I hoped that it might have been feasible to deal with this matter in a more positive manner than has been found possible. Perhaps the noble and learned Lord will take note of what has been said. If it is possible in another place to go a little further, then I am sure that we shall all be most grateful.

Lord Hunt

My Lords, I intended to rise to make the same point made by the noble Lord, Lord Mishcon. I rise to ask only out of curiosity whether it is not rather unusual in parliamentary drafting to have not merely a negative to which the noble Lord, Lord Mishcon, has drawn attention, but the use of a double negative? I wondered whether there was some subtle significance in the drafting.

The Lord Chancellor

My Lords, I believe that it is fair to say that there is some subtle significance in the drafting. The point is that the general duty to provide suitable accommodation for the child is in Clause 18 already. In a sense we are unable to add to that. For every child, disabled or otherwise, the obligation is to provide suitable accommodation. But it is particularly desired to highlight a special aspect of it here. I can assure your Lordships that this has not been arrived at without a certain amount of consideration.

I was very anxious to get the point recognised regarding disability, and that accommodation might well require to have special features in t. This is the way in which it has been found possible to highlight that point. The main issue is that Clause 18(3) construed by itself has the effect of imposing a duty which would involve the provision of suitable accommodation. That takes account of the disability of the child, and so on. Therefore I am not really able to add to that. The need to highlight this is really a presentational one. If we were to express it in the positive form, we might well find ourselves in a situation where we are unintentionally qualifying the generality of the duty as it applies to others. Therefore I hope that your Lordships will accept that this is the best that we have been able to do so far. Of course, we shall take account of what your Lordships have said. Members may appreciate that this is not the first time that it has occurred to us. But this is as far as we have been able to get.

Lord Mishcon

My Lords, before the noble and learned Lord sits down, perhaps I may say that this is a particularly important point. With great consideration, the noble and learned Lord has taken into account what the noble Lord, Lord Meston, suggested on a previous occasion with the general agreement of the Chamber, as I understand it. It would have needed some kind of presentational addition to the Bill in order to make it perfectly clear that the words that are so often used in a housing Bill and elsewhere; namely, "suitable accommodation" do not simply mean that there is a room where the child can be properly accommodated for sleeping purposes and that there is other accommodation in the house which one needs for proper sanitary purposes. "Suitable accommodation" could well be defined in that way.

The purpose of the noble and learned Lord's amendment, following on the remarks of the noble Lord, Lord Meston, and others, was surely to see that, if the matter is to be a presentational one, that a local authority, when looking at a phsycially disabled child, would have a duty (it can be seen in the Act) to see to it that there was suitable accommodation, so far as is reasonably practicable for that child. I see no diminution whatever in the other duty imposed in the Act which is a general one. I only see a positive element. There is no amendment tabled to the amendment of the noble and learned Lord. Therefore, there is nothing for me to move as regards the matter at this stage. I am merely asking as I believe have all other noble Lords who have spoken, that the noble and learned Lord, in further considering this wording, could see whether it is possible before the Bill leaves this House or in another place, that positive wording is inserted.

Lord Mottistone

My Lords, before the noble Lord sits down, does he really believe that it is reasonable at the Third Reading of a Bill to make two quite long speeches on the same subject and saying the same things? On the noble and learned Lord's amendment, to which he has given a perfectly satisfactory answer, it really is against the rules.

Lord Mishcon

My Lords, with leave, I am going to make a third and short address to the House. The noble and learned Lord is always courteous in these matters. I was dealing only with an observation made in answer to the speech that I made. In those circumstances, I believed that the House, especially when dealing with handicapped children, would not rely upon a point of order.

Lord Mottistone

My Lords, it is still wrong.

On Question, amendment agreed to.

Clause 20 [Advice and assistance for certain children]:

The Lord Chancellor moved Amendment No. 23:

Page 16, line 16, leave out ("section") and insert ("Part").

The noble and learned Lord said: My Lords, this is a clarifying amendment to apply the definition of a "person qualifying for advice and assistance" to all of Part III of the Bill, which encompasses Schedule 2, instead of restricting it to Clause 20, as at present. The reason for this is that paragraph 16(1) of Schedule 2, dealing with support for children in need who are pursuing deeds of apprenticeship or articles of clerkship, also uses this expression. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 24:

Page 17, line 1, leave out ("(7), (8) and (9)") and insert ("(7) to (9)").

The noble and learned Lord said: My Lords, in moving this amendment, I also speak to Amendment No. 51. These are drafting amendments that have no effect on the meaning of the clauses, but merely seek to ensure conformity of drafting style on cross-references throughout the Bill. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 25:

After Clause 20, insert the following new clause:

("Provision for under 21s

.—

1. (1) The Secretary of State shall make regulations to provide for young people under the age of 21 who are unable to live with parents or someone acting in the place of parents.
2. (2) Regulations made under subsection (1) above shall provide an income adequate for any young person mentioned in section 17 to live independently where, in the opinion of the local authority Social Services Department, it is not appropriate for the young person to live in accommodation specified in section 17(5) or section 20(2).
3. (3) There shall be prescribed schemes for reimbursement of any costs incurred by a local authority of any provisions made under subsections (1) and (2) above.").

The noble Baroness said: My Lords, I am in very real difficulty over this amendment. It was drafted before a press release was issued by Mr. Nicholas Scott, the Minister of Social Security. I am very grateful to him for having written to me personally regarding the question of extra help for 16 and 17 year-olds who have been in care. I do not propose to go into how the extra help is to be given. I have looked at the matter carefully. Although we are grateful to the Minister for the extra help to 16 and 17 year-olds under the social security system, we feel that it is quite inadequate. The measures clearly represent a step in the right direction but they are quite insufficent to enable children who have no home background to survive independently.

Under the Bill young people leaving home who have no home background on which to rely may be assisted and befriended. Yet the arrangements made by the Minister for Social Security although better, are inadequate. Where does responsibility lie for helping these young people if the social security system is inadequate to meet their needs? They have to set up homes of their own and they have no families behind them. I am in some difficulty. I shall in due course withdraw the amendment. But in view of the fact that the social security system will be inadequate to help these young people, how will social services departments be able to assist and befriend them?

There are two lines to take. We acknowledge the extra money from the Minister for Social Security and we are grateful to him for it. However, it is inadequate to deal with the problem. We should be grateful if the noble and learned Lord could tell the Minister the feeling of the House on this matter. We should also like a categoric answer as to where the responsibility lies. According to the Bill, young people may be assisted and befriended, but the social security system does not provide them with an adequate amount of money on which to live. I beg to move.

Lord Prys-Davies

My Lords, I should like to support the amendment so ably moved by the noble Baroness, Lady Faithfull. While we welcome the recent announcement in another place by Mr. Scott, the case for the amendment remains valid. There is by now general agreement among voluntary organisations and local authorities that a minority of young people are facing real difficulties as they seek to live independent lives. Their problems are magnified because of past histories of unsettled lives— problems not of their choice or of their making—histories of conflict with parents from whom they were removed for good cause, and because of a lack of resources.

We agree that Mr. Scott's statement is an improvement and a step in the right direction. However, I am assured by the voluntary organisations which are near to the problems and have analysed the Minister's statement that much more is required; in particular there will be a need for local authorities to top up to a subsistence level the income of many young people leaving care so that they are able to live independent lives in the community.

The amendment recognises that there is a problem. That is why it places on the Secretary of State the responsibility to make regulations to ensure that young people under the age of 21 who are unable to live with their parents and have no resources are given adequate resources to live independently. It would be a great encouragement if the noble and learned Lord could give an assurance that the Government recognise that there is a problem, that they will consider how best it can be resolved and that they will bring forward an amendment when the Bill reaches another place.

Lord Mottistone

My Lords, I should like to support the principle of the Bill. In the Isle of Wight we have found it necessary to develop an Isle of Wight Youth Trust to care for young people between the ages of 17 and 25; and not just 21. It is true that there are not too many of them, but unfortunately more people are being referred every year. It is difficult to obtain funds for the trust, let alone for the people. In principle, I support this care for people who officially are no longer children but who, sadly, in many cases behave like them.

6.15 p.m.

The Lord Chancellor

My Lords, my noble friend Lady Faithfull has asked us to take account of the statement made in another place by my honourable friend Mr. Scott. This requires consideration of the different aspects of the matter. Under the social security system a person's circumstances are to be taken into account. The statement referred to is a provision of the social security system and has a special bearing on those who are estranged from their parents and who live in accommodation other than their own homes, with consequent increases in expense. In those circumstances the social security system has a responsibility for them. This has been acknowledged in that provision.

What is asked for in the amendment is a different matter. Aftercare for children who are looked after by local authorities is the responsibility of the local authorities. That is over and above any entitlement the children looked after by the local authorities, and now out of their care, may have under the social security system. Cash is payable, but only at the discretion of the local authority, under Clause 20(5). The House is aware that the Secretary of State has indicated that the whole effect of the social security system on young people is being monitored. The Minister for Social Security has indicated in another place that monitoring of the reforms as they affect young people has been given a particular priority. I shall ensure that the points made today are drawn to his attention.

This amendment would require the Secretary of State to make regulations which establish an adequate income for any young person mentioned in Clause 17 required to live independently in certain defined circumstances. It would also require the establishment of prescribed schemes for the reimbursement of any costs incurred by a local authority in this respect.

The implications of the amendment are that the local authority would be required to bear the burden of financially supporting such young people up to the age of 21 at a level determined by the Secretary of State, and for such expenditure to be reimbursed, I assume, by the Department of Social Security. Therefore, in the ultimate, the amendment must be one which seeks to place responsibility on my right honourable friend the Secretary of State for Social Security. I have already made it clear on previous occasions that what we are dealing with in this Bill, and particularly in Clause 20, is the responsibility of local authorities for young people leaving care. The Bill cannot deal with any perceived inadequacies of the social security system. The appropriate opportunity for seeking to make changes to that would be in relation to a social security Bill.

Perhaps I may sum up. Clause 20 already makes important, and I believe very helpful, improvements to the powers and duties of local authorities in respect of young people leaving care. My right honourable friend the Secretary of State for Social Security has now announced the measures he intends to take to alleviate the particular hardship faced by 16 and 17 years-olds required to live independently and drawing income support and housing benefit, and will continue his urgent monitoring of the social security reforms for the older age group.

Against that background it seems to me that this provision in Clause 20 is as far as it is reasonable to go in this Bill for the purpose of making improvements to the situation of those young people who come out of care. In the light of that explanation I hope that your Lordships will feel that it is not an appropriate amendment for this Bill. As I said, I shall certainly draw what has been said to the attention of my right honourable friend. Indeed what has already been achieved is to some extent the fruit of what has been said in this House, and especially at the meeting which my noble friend Lady Faithfull had with the Secretary of State for Social Security. In fact I understand that other noble Lords may well have been present on that occasion. The result of that meeting is what he has proposed so far.

Baroness Faithfull

My Lords, I should like to thank the noble and learned Lord for his explanation. I realise that this issue relates to the social security system. But the noble and learned Lard has also referred to Clause 20(5) which says: Where as a result of this section a local authority are under a duty, or are empowered, to advise and befriend a person, they may also give him assistance". If that provision is clearly understood, and if the local authorities do not interpret the word "may" as opting out in certain cases, then we are happy with the situation. However, we are a little worried that local authorities "may" only give assistance. As the noble Lord, Lord Prys-Davies, said, some authorities may not feel that they can top up as is necessary. In those circumstances obviously the right thing to do is to get the social security system right so that one does not have this dual control all the time. I do not feel very happy about the whole situation, but I fully apppreciate that it is not within the realms of possibility to discuss the work of another department. We shall, however, pursue the Minister and the department on the matter; but we should like it very clearly understood by the local authorities that should that not be possible, these young people must nevertheless be helped.

In conclusion, it is not cost-effective for such young people not to be helped. After all, money has been spent on them for, perhaps, four or five years and if between the ages of 16 to 21 they are unable to lead an independent life which keeps them afloat, then I regret to say that some of them—although to their credit, not all of them—will turn to drugs. Further, some of them—though certainly not all of them—will find other ways of earning money. I hope therefore that under the Bill it will be fully understood that if the social security system cannot help such young people, the local authorities will assist and befriend them. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

The Lord Chancellor moved Amendment No. 27:

Page 19, line 3, at end insert— ("() requiring the authority to inform the child of any steps he may take under this Act;").

The noble and learned Lord said: My Lords, at the Report stage my noble friend Lord Mottistone moved an amendment which would have provided specifically that the Secretary of State could include in regulations as to reviews under Clause 22 a provision requiring the local authority to inform children of their right to seek discharge or variation of an order made under Part IV. I undertook to consider the matter, including whether such a provision should be cast more widely to cover any other matters of which the child should be informed.

I was struck by one remark in particular that my noble friend made on Report, which was that a reminder of his rights would help the child to focus on the course of action he or she wants. With that in mind I concluded that it would be appropriate that if at the review stage the child is to be informed of any of his or her rights under this Bill, then he or she should be informed of all of those likely to be relevant. That will include the child's right to seek discharge or variation of a care or supervision order under Clause 26, orders as to contact under Clause 29, and his or her right to make use of the representations procedure under Clause 22 if he or she wishes.

I hope that my noble friend agrees that this would be a valuable addition to Clause 22. I beg to move.

Lord Mottistone

My Lords, I should like to thank my noble and learned friend most deeply not only for responding to my earlier pleas, but also for widening the provision and providing more than that for which I asked. Indeed it is a great pleasure to see the provision now incorporated in the Bill.

On Question, amendment agreed to.

Lord Prys-Davies had given notice of his intention to move Amendments Nos. 28 and 29:

Page 19, line 21, at end insert ("or on behalf of').

Page 19, line 23, after (parent") insert ("or grandparent")

The noble Lord said: My Lords, it may be for the convenience of the house if I were to speak also to Amendment No. 29, because both amendments are designed to open up access to the complaints procedure by those who have knowledge of, and interest in, the child; and by grandparents respectively. To a lawyer the words "or on behalf of" contained in Amendment No. 28 imply that the complainant must have knowledge of and interest in the child. The amendment would therefore enable such persons as a health visitor, a doctor, a teacher or someone from a voluntary organisation to register a complaint on behalf of the child. However, the amendment which is to be moved by the noble and learned Lord the Lord Chancellor—Amendment No. 30—expressly states what is implied in Amendment No. 28. Therefore it is superior to Amendment No. 28 and I shall be pleased to rely upon that amendment when we reach that stage.

I turn now to Amendment No. 29. The amendment gives specific right to a grandparent to register a complaint. We know that a grandparent can be very close to a child, can often develop a strong link with the child, and indeed, may well be the first person to realise that there is a problem. Further, the grandparent will usually have a proper interest in the welfare of a child. Noble Lords may have read an article which appeared in the Sunday Timeson 5th March which advocated, as I understand it, that grandparents should have an automatic right to register a complaint.

Having reflected upon Amendment No. 30, which is to be moved by the noble and learned Lord the Lord Chancellor, I am content to rely on that provision. Indeed I think that to grant automatic rights to a grandparent may possibly be erring just a little. Therefore, in those circumstances, I am quite content not to move Amendments Nos. 28 and 29 and to rely upon Amendment No. 30. However, it may well be that my noble friend Lord Mishcon or the noble Lady, Lady Saltoun, will have other views on the matter.

Lady Saltoun of Abernethy

My Lords, the noble Lord, Lord Prys-Davies, has expressed exactly what I feel; I shall also be happy to rely upon the amendment to be moved by the noble and learned Lord the Lord Chancellor

[Amendments Nos. 28 and 29 not moved.]

The Lord Chancellor moved Amendment No. 30:

Page 19, line 26, at end insert— ("(e) such other person as the authority consider has a sufficient interest in the child's welfare to warrant his representations being considered by them,").

The noble and learned Lord said: My Lords, as the noble Lord, Lord Prys-Davies, said, I have endeavoured to take up the various points which have been mentioned. I have tried to cover in a fairly wide way all the eventualities, including those mentioned in Amendment No. 31. Therefore it is a happy occasion when we are able to encompass all this material in one amendment. I am grateful to all your Lordships who raised those points because it is an improvement in the provision for representation procedures. I beg to move.

Lord Mottistone

My Lords, I too should like to thank my noble and learned friend for his Amendment No. 30, which more than encompasses my Amendment No. 31. Having had two new grandchildren during the past week——

Baroness Faithfull

Congratulations!

Lord Mottistone

——I feel especially strongly that grandparents should be covered and I believe that they are.

On Question, amendment agreed to.

[Amendment No. 31 not moved.]

6.30 p.m.

Lord Prys-Davies moved Amendment No. 32:

Page 19, line 29, leave out subsection (4) and insert— ("(4) The procedures shall include provision for—

1. (i) at least one person who is not a member or officer of the authority to take part in—
   1. (a) the consideration,
   2. (b) any discussions which are held by the authority about the action (if any) to be taken in relation to the child in the light of the consideration;
2. (ii) the appointment as complaints officer of a senior officer of the authority not employed by the Social Services Department who shall be responsible for the proper working of the procedure;
3. (iii) time limits for dealing with the various stages of the procedure;
4. (iv) the definition of the role of councillors within the procedure;
5. (v) arrangements for publicising the procedure;
6. (vi) arrangements for training of staff in the operation of the procedure;
7. (vii) arrangements for monitoring complaints;
8. (viii) details of how to make a complaint to a Local Commissioner under Part III of the Local Government Act 1974.").

The noble lord said: My Lords, the object of the amendment is to ensure that the complaints procedure set up under Clause 22(3) incorporates the eight features which are listed in the amendment. As the Bill stands, the procedure need only include the three features referred to in subsections (4), (6) and (7) together of course with the monitoring which is proposed by the noble and learned Lord the Lord Chancellor in Amendment No. 33.

It might be helpful if I were to mention the additional features provided for in the amendment. They are: the need to appoint a complaints officer—your Lordships will recall that we discussed that matter in Committee—the need for a timetable for the various stages of the procedure; the need to train staff in the operation of the procedure; the need to define the involvement, if any, of the elected members of the authorities; and the need to inform a complainant of his right to address a complaint to the ombudsman.

We are trying to move from a situation where the complaints machinery is woefully inadequate to one where complaints will be properly examined. Research studies show that it will not be easy to bring about such a change. There is considerable evidence to show that the service is resistant to complaints to a surprising extent. That is why it is necessary to spell out the features of the complaints procedure.

In support of the amendment, I wish to rely on one important research project. It is the research undertaken in 1986 at Sheffield University, which was sponsored by the Department of the Environment, the Education and Scientific Research Council, and the English, Scottish and Welsh Commissions for Local Administration. The research had a powerful parentage.

The researchers were critical of local authority procedures. They pointed out that they often lacked a procedure for handling complaints. We hope that the Bill will go some way towards meeting that criticism. In view of the discussions that we had in Committee, I should say that the study concluded that complaints officers should be appointed. In their general conclusion, the researchers recommended that special attention should be paid to the needs of children in care—the very subject matter of the Bill.

It behoves us to get the procedure right. Taking into account the amendment to be moved by the noble and learned Lord the Lord Chancellor, which will empower the Secretary of State to make regulations to require local authorities to monitor the procedure, we are getting nearer to the target; nevertheless, I urge your Lordships and the Government not to leave monitoring and the other features of the complaints procedure to regulations which may or may not be made at some time in the future. They should be spelt out in the Bill.

The object of the amendment is to ensure that the procedure is spelt out in the Bill and that the features of the procedure are known to the practitioners. I beg to move.

Lady Saltoun of Abernethy

My Lords, the noble Lord, Lord Prys-Davies, has put the case for the amendment so clearly that it only remains for me to give it my warmest support.

Baroness Faithfull

My Lords, I shall make just two comments. I support the amendment. The noble Lord, Lord Prys-Davies, said that the amendment was designed to safeguard the interests of children. I hope that the complaints procedure will also apply to parents. The present disclosure procedure will also apply to parents. The present disclosure procedure adopted by many local authorities is so long drawn out that many men are kept away from their families when they have not been proved guilty. I hope that the complaints procedure will apply to parents as well as children for the sake of the children.

I hope that the complaints procedure will be carried out, as it says in the amendment, by A senior officer of the authority not employed by the Social Services Department". Those people who have a complaint to make against the social services department are unlikely to make a complaint if they feel that it will be dealt with within the department.

The Lord Chancellor

My Lords, the amendment sets out in some detail certain arrangements that local authorities should make when establishing representation procedures, by adding to subsection (4) a list of further provisions. They are details of the kind which one would expect to see in regulations. Clause 22(5) has been included for that purpose. However, certain aspects were considered to be of sufficient importance to be provided for in Clause 22; that is, that an independent person should be involved in the procedure—that is one of the fundamental points—and that local authorities should give publicity to the procedure. It is usual for other more minor provisions to appear in the regulations.

The amendment deals with matters generally. It would require the procedure to include provisions for time limiting; for a definition of the role of councillors; for arrangements for training, and so forth; but it does not precisely say what those arrangements should be. If those questions are to be left to local authorities to determine, the amendment would not be of great value, especially as the Secretary of State could, in any case, determine the details of such matters in regulations made under subsection (5). The provision by itself would not be of great assistance.

So far as concerns the main provision, I believe that regulations are required. The requirements for an independent person and for publication are provided for in Clause 22(4) and (7). Encouraged by an amendment tabled by the noble Lord, Lord Meston, in Committee, I shall be moving shortly—I had better not say how long—an amendment which will enable regulations to require local authorities to monitor their procedures, because I do not believe that it is plain that that is possible.

The remaining elements of the amendment are largely matters of detail which I believe to be inappropriate for primary legislation, but are all factors which we shall consider when drafting regulations governing the representations procedure under Clause 22(5).

The point to which the noble Lord referred about the difficulty in relation to these matters is a point in favour of regulations because, with the experience of setting up a procedure, one may see defects in it. If people are reluctant by any chance to operate the procedure, some further provision may be necessary to tighten up what has already been provided. In this area, power to make regulations is the best way to ensure that the complaints and representations procedure works well. I am grateful to the noble Lord and to those who have supported him for drawing to our attention the matters upon which the amendment focuses, which will have attention in the drafting of the regulations. The noble Lord may therefore feel that the amendment has not been without purpose.

Lord Prys-Davies

My Lords, we thank the noble and learned Lord for his sympathetic response to our amendment. I should have added that one advantage of bringing together the main features, either in the Bill or in regulations, is that it would go a long way to ensure that complaints are treated in similar fashion whatever part of the country the complaint originates from. That is an advantage.

I am content to rely on the guidance given by the noble and learned Lord that this is a matter that could best be pursued in regulations. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 33:

Page 19, line 37, at end insert— ("() The Secretary of State may make regulations requiring local authorities to monitor the arrangements that they have made with a view to ensuring that they comply with any regulations made for the purposes of subsection (5).").

The noble and learned Lord said: My Lords, this is the amendment designed to deal with the point that was originally put down by the noble Lord, Lord Meston, and moved by the noble Lord, Lord Banks. It is indicative of the importance that we attach to these procedures and ensures that they are effective and, in so far as it is desirable, that there is a broad conformity in practice. It is a matter to which the noble Lord, Lord Prys-Davies, referred a moment ago. I beg to move.

Lord Simon of Glaisdale

My Lords, I am quite sure that I have misunderstood, since my noble and learned friend has explained already what this amendment proposes. It refers back to subsection (5) and provides that local authorities shall monitor the performance of the regulations in subsection (5). However, subsection (5) states: In carrying out any consideration of representations under this section" — it refers to subsections (3) and (4)— a local authority shall comply with any regulations made by the Secretary of State for the purposes" — and I was expecting to read subsections (4) and (5), but it continues— of this subsection". It seems to me like astronomers finding a black hole, the thing collapses on itself.

It is a very late stage to raise such a drafting point. However, I should be most grateful if my noble and learned friend can clear my mind.

Lord Rochester

My Lords, that is a drafting point, about which I too shall be interested to hear what the noble and learned Lord the Lord Chancellor has to say. On behalf of my noble friends perhaps I may thank him for what he has been able to do in this amendment to meet the representations that we made earlier.

Lord Prys-Davies

My Lords, we should also like to express our gratitude to the Lord Chancellor for bringing forward this amendment.

The Lord Chancellor

My Lords, if I have understood my noble and learned friend rightly, he thought that the amendment that I proposed should refer to subsections (4) and (5). However, the regulations are referred to in subsection (5). It may be that I have not completely understood what he has said. Perhaps he will allow me to read this. If there is a matter which appears to require further consideration, I shall ensure that such consideration is given.

Lord Simon of Glaisdale

My Lords, I am most grateful to my noble and learned friend. I am quite content.

On Question, amendment agreed to.

[Amendment No. 34 not moved.]

Clause 26 [Care and supervision orders]:

6.45 p.m.

Lord Prys-Davies moved Amendment No. 35:

Page 21, line 35, leave out subsection (1) and insert— ("(1) On application of—

1. (a) any local authority,
2. (b) any authorised person,
3. (c) the child, or
4. (d) any person who has parental responsibility for the child, the court may make an order placing the child with respect to whom the application is made in the care of a designated local authority.

(1A) On the application of any local authority or authorised person the court may make an order putting him under the supervision of a designated local authority or of a probation officer.").

The noble Lord said: My Lords, this amendment was discussed quite extensively in Committee and again at Report stage. Nevertheless, we are anxious that the amendment should be given further consideration. I should like to make three points. They arise out of the discussion at Report stage.

First, I confirm in reply to a point made by the noble and learned Lord the Lord Chancellor that the grounds for making an application by a parent or a child are those set out in Clause 26(2). It is not proposed that there be additional grounds peculiar to an application by a parent or a child.

Secondly, the noble and learned Lord resisted the amendment on the grounds that the local authorities are best placed to judge whether care is needed, and they should not be compelled by the court against their judgment to take a child into care. That is a very attractive argument. In general we would agree with it. However, it should be pointed out that the Bill recognises in Clause 26(1) an exception to the rule as it allows a third party—in practice this will be the NSPCC—to apply for a care order under which a local authority can be compelled to take a child into care, possibly against the wishes of the local authority. This amendment, by giving the parents and the child the right to make an application, would not be establishing a precedent.

Thirdly, we believe that the Bill fails to address itself adequately to the position where the local authority has failed in the eyes of the parent or the child to initiate care proceedings. The local authority is a human institution and can therefore make mistakes. To where do we go if there is a mistake? At Report stage the noble and learned Lord referred the House to a judicial review as a remedy. But does judicial review provide a satisfactory remedy? Can the court and the judicial review direct a local authority to commence care proceedings? At best, it appears to us that this expensive remedy would probably require the authority to reconsider the initial decision not to apply for a care order, and no more. It has been pointed out that this is hardly an adequate remedy for a child who may be at risk of abuse or who has run away and is living on the streets.

On the question of remedy, the noble and learned Lord referred to the reserve powers vested in the Secretary of State as a possible remedy. But the Children's Legal Centre, which knows a thing or two in this field, is puzzled by this reference. It would be helpful if the noble and learned Lord could clarify this statement.

This amendment provides a remedy in those cases where a child or a parent believes that the local authority has failed him or her in not seeking a care order. The right given to the NSPCC to initiate proceedings shows that there is a precedent for this amendment. One could argue that if the Government fear that this amendment may open the door to vexacious or trivial applications, this could be met effectively by requiring the applicant 'to obtain the leave of the court to initiate the proceedings. I beg to move.

Lord Renton

My Lords, a great deal depends upon who an authorised person may be. Clause 26(8) states: 'authorised person' means a person (other than a local authority) authorised by order of the Secretary of State to bring proceedings under this section and includes any officer of a body which is so authorised". I envisage that sometimes the headquarters or a branch of a local society will discover the condition a child is in. It may be the National Society for the Prevention of Cruelty to Children, MENCAP or almost any well-known body. It would help very much to understand the importance of the amendment, and whether it should be accepted, if my noble and learned friend will tell us whether the Secretary of State, in making orders, will refer only to specific cases. That seems unlikely, as there may be hundreds of cases all over the country. Or, will the Secretary of State make a kind of enabling order which would allow the principal officer of MENCAP, for example, to make an application? If we could be given that information, we could better assess whether the amendment is necessary, or indeed whether the Bill as it stands is quite sufficient.

The Lord Chancellor

My Lords, on the question of my noble friend Lord Renton, I believe I am right in saying that the Secretary of State's power to authorise is a power which is exercised at present only in favour of the National Society for the Prevention of Cruelty to Children. As my noble friend knows, that society has a very special place in this situation. Because of the need for a very considerable amount of particular expertise and resource, it is unlikely that any other bodies would be authorised.

The main point of this amendment is that it would allow applications for care orders from the child or any person with parental responsibility for the child. It would make no change to the provisions for supervision orders. So the Bill as it stands, as regards this particular point, would not be affected.

We have had some discussion about this matter already at various stages of the Bill. I have also studied the briefing prepared for the All-Party Parliamentary Group for Children on this particular matter. I mentioned judicial review before as a possibility. But, looking at the matter afresh, I should say that we intend to replace Section 3 of the Children and Young Persons Act 1963, which allows parents to seek to compel local authorities to bring care proceedings. It is little used and, as I said in Committee when it was proposed that Section 3 should be reinstated, it would in our view be contrary to the thrust of the Bill, and in particular contrary to the responsibilities of local authorities to take steps to reduce the need to bring care proceedings. The whole thrust of the Bill is to try to reduce the need for care proceedings. It would be contrary to that to have a provision that authorities could be forced to bring care proceedings.

It is correct that wardship will not be available to a child who wants the local authority to take him into care. Clause 69(2)(a) expressly prevents this, so as to ensure that all applications for care and supervision orders are pursued in accordance with the statutory scheme. The child's position is however improved, in that he will be able, subject to Clause 9(7), to apply for Section 7 orders in respect of himself, including specific issues orders. The parent or guardian, or indeed any person in whose favour a residence order has been made in respect of the child, is entitled to apply for Section 7 orders without fetter. If in such proceedings the court considers that it may be appropriate for a care or supervision order to be made, it may, under Clause 32(1), direct the local authority to undertake an investigation of the child's circumstances. The authority must in these circumstances report back to the court and give its reasons, if it decides not to apply for a care or supervision order, under Clause 32(3).This would be an opportunity for the child or parents to challenge the authority's conclusion without having to rely on judicial review. That is perhaps a more suitable vehicle than the one I had originally suggested.

It is possible that we may be able to widen access to the representations procedure in Clause 22(3) to provide for complaints from or in respect of children who are considered to be in need but are not being looked after by the local authority. At present, use of the procedure is limited to cases where the child is being looked after by the authority, either under voluntary arrangements for the provision of accommodation or by virtue of a care order. It seems to me that the local procedure, which will include an independent element, could be another way of having the issue of the child's needs examined when there is a dispute between the child or parent and the authority. We shall have to consider the implications of such an extension and I cannot promise that it will be possible to proceed in this way, but we shall certainly consider most carefully this particular matter and what has been said.

I could repeat the other points I made in Committee and on Report about the need not to cut across local authorities' responsibilities to provide services under Part III and their duty in Schedule 2 to seek to prevent the need to initiate proceedings, but I hope that, in view of what I have said earlier, it is not necessary to do so.

I mentioned on a previous occasion the reserve powers of the Secretary of State. There are presently reserve powers, but we are proposing to repeal them. That was not a very happy reference on my part, therefore. I was thinking against the background of the existing law. We shall be considering this matter a little later in respect of Amendment No. 50, which I believe considers this question of reserve powers for the Secretary of State.

I hope the noble Lord will feel that what we are considering in this area is a reasonable way forward, and that it would not be wise to give power to the child or parent to, as it were, force a local authority to take the child into care as a direct application.

Lord Prys-Davies

My Lords, it seems that the Government have set their face against this amendment. We felt that, without this amendment, there was no fail-safe element within the Bill to provide for those exceptional cases where a local authority might have got it wrong. Nevertheless the noble and learned Lord the Lord Chancellor has identified two indirect routes to possibly achieving the desired end. No doubt those with whom we consult will have to explore whether those routes will take us to the desired end. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 36:

Page 22, line 3, leave out ("a similar") and insert ("such a").

The noble and learned Lord said: My Lords, we have spoken at some length on earlier occasions about the meaning of the phrase "a similar child" in the context of the court being required before making an order under Clause 26 to consider the standard of care that it would be reasonable to expect the parent of a similar child to give to him.

I have said that we are seeking to fix on the particular needs of the child in question, as the child may require different aspects of care according to' his personal qualities. The question is whether the term "a similar child" conveys this sense. We have carefully considered a number of alternatives and have come to the conclusion that the option which best expresses what we intend was that suggested by the noble Lord, Lord Mishcon, in Committee; namely, that the clause should refer to the standard of care which it would be reasonable to expect the parent of such a child to give to him. This brings out the point that the court should focus on the needs of the child in question. It also avoids the problems of making comparisons with hypothetical children and avoids listing specific attributes which may not be exhaustive.

I am very grateful to noble Lords for their helpful contributions in these discussions. I am grateful in particular to the noble Lord, Lord Mishcon, who has led us towards what I consider to be an appropriate formulation for Clause 26. I beg to move.

Lord Mishcon

My Lords, perhaps I may say briefly how gracious the noble and learned Lord is on this occasion, as he usually is.

On Question, amendment agreed to.

[Amendment No. 37 not moved.]

7 p.m.

Lord Mottistone moved Amendment No. 38.

Page 22, line 28, leave out ("or on behalf of a local authority") and insert ("the local authority except as a consequence of an order made under Part V").

The noble Lord said: My Lords, I moved a similar amendment at Report stage. This amendment seeks to ensure that an authorised person can continue to initiate care proceedings when the child is accommodated by the local authority, as is current practice. The Bill allows the NSPCC to take proceedings if the child is living at home, placed with relatives, in accommodation with another voluntary agency or in hospital. However, as it is worded at present, without my amendment, the Bill does not allow the NSPCC to take proceedings if the child is accommodated by a local authority. I should add that the society does not initiate proceedings if the child is in voluntary care or is an orphan and, in line with good social work practice, does not seek to cut across the welfare duties of local authorities.

On 7th February (at col. 1527 of Hansard) I explained at some length the situation as it stands at the moment. We are seeking to ensure that current practice—which seems to work very well—can continue without interruption.

On earlier occasions when we discussed the amendment in Committee and at Report stage it seemed to me that my noble and learned friend and I were at cross purposes. He appeared to be arguing from a different base. We have since discussed the matter and I hope that he may be able to give me some encouragement. I beg to move.

Lady Kinloss

My Lords, I should like to support the amendment. At present the NSPCC is able to initiate care proceedings where the child is accommodated by the local authority. If a child is in need of long-term protection and there is complete local agreement that that is so, it seems very odd to cut off one avenue of achieving that end. In circumstances in which the local authority cannot allocate cases, the NSPCC is still able to act. That arrangement works well in many areas and it would be a great pity to alter existing working practice.

The Lord Chancellor

My Lords, as my noble friend has said, we have discussed the matter, but I am sorry to say that I do not think that I can take it very much further.

An immediate difficulty about the amendment as proposed is that it is wider than I suspect my noble friend and the National Society for the Prevention of Cruelty to Children want. It would allow an authorised person to initiate care or supervision proceedings in any case where a child who was the subject of an emergency protection order had been provided with accommodation by the local authoity following an emergency protection order. That would be so whether the authority had obtained the order itself or taken over the benefit of the order from someone else, including another authority, under the regulations provided for in Clause 42(3). The modification is not limited to cases where the National Society for the Prevention of Cruelty to Children itself takes out the emergency protection order and, while the NSPCC might eschew any wish to take over other cases, it would not be satisfactory to have in the scheme so wide an exception. Furthermore, the amendment's removal of the words "on behalf of would remove from the scope of subsection (6) any case where the accommodation was being provided on behalf of the local authority. More important, however, are the arguments about local authority responsibility which I gave at Report stage.

My noble friend Lady Kinloss and the NSPCC are anxious to continue the smooth running between the NSPCC and social services departments which operates at present. It is said that that depends on maintaining the status quo, which appears to mean leaving unclear who has the final responsibility for deciding what action is appropriate in the child's interests. I do not find that attractive. The work of the NSPCC is widely respected and I see no reason why the society and local authorities should not continue to co-operate fruitfully within a clearer framework of statutory responsibility. There will, I am sure, continue to be cases where the local authority readily agrees that the society is best placed to see forward a case on its behalf. The provisions on co-operation in the Bill, the Working together guidance and the further guidance which will be issued in support of the Bill when enacted will also encourage co-operative working.

I hope that my noble friend will accept that precedence must be given to the local authority's legal responsibilities and that the society will have nothing to fear from that. We shall continue to emphasise the importance of local authorities and agencies such as the NSPCC working together in the interests of the child.

I think that I understand what my noble friend wishes to achieve but there are difficulties in complying with those wishes. I believe that in practice the situation will continue to work smoothly. However, no doubt the matter will be considered during the further stages of t he Bill.

Lord Mottistone

; My Lords, I thank my noble friend for giving even more thought to the problem. To a certain extent I am reassured, but not entirely. That is unfortunate because we cannot pursue the matter further here. It could be that it will come back at a later stage in another place, but at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 39:

Page 22, line 38, leave out first ("a") and insert ("any officer of the National Society for the Prevention of Cruelty to Children and any").

The noble Lord said: My Lords, the amendment seeks to include the National Society for the Prevention of Cruelty to Children as an "authorised person" within the meaning of the Bill. We debated the matter in Committee when my noble and learned friend said that he would consider carefully the possibility of the society being mentioned in statute. Hitherto it has been mentioned only in regulations. We determined that this was a point in the Bill where the society could be so named without making the Bill hybrid, which was one of the potential problems which had been mentioned elsewhere. I wonder whether my noble and learned friend has come to a conclusion on the point and whether he can accept the amendment, or whether the matter should be pursued later. I beg to move.

The Lord Chancellor

My Lords, the short answer is that we are still considering the matter. I regret that I am not in a position to give a final answer. Sympathetic consideration continues.

Lord Mottistone

My Lords, I thank my noble and learned friend for that reply. I hope that that further consideration will be favourable eventually. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Effect of care order]:

[Amendment No. 40 not moved.]

Clause 33 [Interim orders]:

Lord Prys-Davies moved Amendment No. 41:

Page 29, line 9, leave out subsection (8) and insert— ("(8) A direction under subsection (6) shall not affect any legal right the child may have to refuse consent to the medical or psychiatric examination.").

The noble Lord said: My Lords, with the leave of the House, I shall also speak to Amendment No. 43. These two modest amendments do not establish a new principle. They seek to preserve the existing rights of young people to consent or not to consent to a medical examination. By virtue of Section 8 of the Family Law Reform Act 1969, young people aged 16 and 17 have the same rights as adults to refuse their consent to medical examination. Young people under the age of 16 years have the right under the Gillick principle to refuse their consent to a medical examination, subject to their doctor's judgment or their maturity to understand the implications of the proposed examination. I have with me a letter from the parliamentary officer of the BMA supporting the amendment and advising me that the doctors' understanding of the legal position is as I have indicated.

The amendments are important for two reasons. First, unless the Bill is amended along the lines proposed, in our view it would erode the existing legal rights of young people to withhold their consent. Secondly, the possible examination of a mature young person constitutes very poor practice in child abuse cases. Surely young people who one suspects are being abused—and in most cases it would be sexual abuse—should be persuaded rather than compelled to disclose the situation.

As I said, these are modest proposals. They do not seek to establish new rights; they preserve rights. I trust that they will be acceptable to the noble and learned Lord and to the House. I beg to move.

The Lord Chancellor

My Lords, Clause 33(6) provides that: Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination of the child". Clause 33(8) provides that when an interim supervision order is made and the question of the medical or psychiatric examination of the child arises, the court shall act under subsection (6), and as if paragraphs 2 to 5 of Schedule 3 were omitted from the Schedule. Those disapplied paragraphs provide, among other things, that no requirements as to medical or psychiatric examination or treatment may be included in a supervision order unless the court is satisfied that the child has sufficient understanding to consent.

The noble Lord's amendment would delete subsection (8), the effect of which would be to reapply the provisions of paragraphs 2 to 5 of Schedule 3 and put in the place of subsection (8) the statement about the child's right to refuse consent to a medical examination as set out in the amendment. Another amendment would introduce a similar provision in respect of court directions as to medical examinations where the court makes an emergency protection order. In this difficult area the Government have tried to achieve the right balance between the need to protect the welfare of children and the need to recognise their independence. Earlier when we debated equivalent amendments, I said that I was not satisfied that we had reached the right answer and I promised to consider the matter further.

This is an extremely difficult matter, as the very statement by the noble Lord has shown. Therefore I hope that noble Lords will not be too disappointed to hear that we have not yet completed our consideration of the matter and that we should like to leave further debate on it to continue in another place. It is a vitally important balance. There are some cases in which one would like to think that a medical examination occurred. However, in other cases which may be very similar one's thoughts would go the other way. It is a difficult area. I hope that the noble Lord will not press the amendment tonight but allow us to continue the consideration that we have undertaken to give to the matter.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord for his response. We are content that the matter should be pursued further by the noble and learned Lord. It is a complex issue but we are very anxious that this Bill, which enhances the position of children, should not erode their rights in this area. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Clause 35 [Representation of child and of his interests in certain proceedings]:

Lord Prys-Davies moved Amendment No. 42:

Page 31, line 6, leave out paragraph (b) and insert— ("(b) for the management of panels of guardians ad litem by the Lord Chancellor's Department through the establishment of regional committees;").

The noble Lord said: My Lords, we now come to the panels of guardians ad litem. There has been considerable debate on the need to establish the independence of guardians ad litem from the local authorities, particularly as the local authorities are the instruments by which care proceedings are taken. It has generally been agreed by all noble Lords who spoke in the debates that the guardian must be seen by other parties and especially the parents to be professionally and financially independent of the local authority. Their impartiality must be and must be seen to be unquestionable.

The noble and learned Lord accepted that the present arrangement whereby guardians are appointed and paid by the local authorities can lead to possible conflict. It could also be said that under the present system the appointment or the existence of guardians is pretty patchy up and down the country. However, he believed that the weakness in the service could be remedied by a better management structure, which possibly could be facilitated if the local authorities were grouped on a sub-regional basis. Bearing in mind that the guardian ad litem panels were set up only five years ago, it would appear to be the Government's view that we should seek to build on what we have by setting up a better management structure within the present system.

There is another view. It is argued that the present structure is an inappropriate model; accordingly, instead of seeking to improve the existing model, we should seek a different model which would fully ensure and preserve the independence of the guardians. That view is supported by organisations which I think I should name: the British Association of Social Workers; the Association of Metropolitan Authorities; the Law Society; the Children's Legal Centre, the Family Rights Group; the National Children's Home; the National Children's Bureau; the Voice for the Child in Care; the British Agencies for Adoption and Fostering; and the All-London Panel of Guardians ad litem and Reporting Officers.

That is a considerable body of support for the alternative view. Those bodies consider that the present structure is inappropriate, and that view is also supported by research undertaken at Bristol University on behalf of the DHSS. It is a wrong model. We should not seek to build on it. We should seek a different model. This amendment suggests the outline of a different model. What is wanted is a guardian ad litem service that is centrally resourced, possibly the Lord Chancellor's Department, the Home Office and the DHSS jointly, administered on a regional basis and ultimately answerable to the Lord Chancellor's Department.

Instead of speaking generally about the need to enhance the independence of the guardians ad litem, this amendment brings forward a positive suggestion. Indeed it could be argued that along these lines the regional panel, centrally resourced, would not only ensure the independence of the guardians but could also pave the ground for a centrally resourced and regionally administered family court support service. I accept that that is another issue; nevertheless it could lead the way to the establishment of family court support services.

I do not think that I can take the matter any further. I beg to move.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord Prys-Davies. I agree absolutely with him that a conflict of interests arises when the guardians ad litem are connected with the local authority social services departments. At the same time I believe that the local authorities have to be involved.

The pattern set up by the London Boroughs Children's Regional Planning Committee is a good one: a panel administrator is appointed by a committee! and on this committee he serves the several local authorities—I repeat, several local authorities, not just one or two of them. There is therefore no conflict of interest with one particular local authority.

As the noble Lord, Lord Prys-Davies said, it is important that there should be a proper structure. I hope that my noble and learned friend on the Woolsack will feel that perhaps the London Boroughs committee shows the right way to go about obtaining it.

The Lord Chancellor

My Lords, I accept that the current arrangements, although fairly recently set up, give rise to concerns particularly about conflicts of interest. We have accepted that these concerns have some validity and, as I explained on previous occasions, we are taking steps to address the problem. We are suggesting something very like the proposal of my noble friend. We seek to give the Secretary of State the power to group local authorities together, in order that there may be available within a group people who are independent of the specific authority in question and with a structure that enables a person to manage the group effectively. That is building on the present arrangements; but it does so in a way that does not rule out further development, for example, on the lines of this amendment.

As I am sure your Lordships know, last summer the department put out a consultation paper about these matters. There are a great number of difficulties in settling management and organisation without a good deal of further investigation and consideration. I also believe that there is a good deal to be said for the view that this should not be considered in isolation from the administration and role of the other welfare services in this connection. Therefore, I believe that it is right to build on the existing structure but in a way that preserves the option of moving further in the direction of this amendment if, on further work, consideration and experience, that should prove right.

I am particularly heartened at the roll call of organisations that appear to have confidence in the Lord Chancellor's Department as one to promote a central administration for this purpose. I would certainly like to reflect that; but I believe that not only should confidence be experienced at the beginning, but one would like to see it continue, and I do not have confidence that if we went too fast I would not dissipate the support of these organisations rather quickly. It is better to move with caution, and that is what we are seeking to do. I hope that the noble Lord will feel that the spirit of his amendment is not lost on us, although we are not able to go so far as he would like at the present moment.

Lord Prys-Davies

My Lords, I am gratified that I have been able to bring heartening news to the noble and learned Lord. The noble and learned Lord the Lord Chancellor contemplates that the local authorities could be grouped for the purposes on a sub-regional basis. I would only mention that the independence of the guardians would not necessarily be strengthened by grouping the authorities. The factors that erode his independence can grow within a group of authorities just as much as within one authority

I have listened carefully to the Lord Chancellor. I am particularly pleased that he perceives in this amendment a possible shape for the guardian ad litem panel at some time in the future. At this hour of the night, and considering that this is Third Reading, I do not think that I should press the matter any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Orders for emergency protection of children]

[Amendment No. 43 not moved.]

Lord Mottistone moved Amendment No. 44:

After Clause 36, insert the following new clause:

("Child Assessment Order.

.—

1. (1) Where any local authority, NSPCC officer or authorised person (the "applicant") applies to the court for an order under this section with respect to a child, the court may make the order if it is satisfied that there is reasonable cause to believe that—
   1. (a) the child concerned may be suffering harm; and
   2. (b) any of the following have failed or refuse to produce the child for prompt medical or psychiatric examination on request—
      1. (i) a parent;
      2. (i) any person who is not a parent but who has parental responsibility for him;
      3. (iii) any person with whom the child is living
2. (2) An order obtained under this section (child assessment order) means that the child shall be produced by any of the following—
   1. (a) a parent;
   400
   2. (b) any person who is not a parent but who has parental responsibility for him;
   3. (c) any person with whom the child is living, for medical or pshychiatric examination.
3. (3) In this Act "medical or psychiatric examination" may include developmental assessment, and may be extended to further examination after the initial one.
4. (4) A child assessment order shall specify the time and place of the assessment which shall take place within 24 hours.
5. (5) Where there is a failure to comply with a child assessment order without reasonable cause, the applicant shall immediately apply for an emergency protection order.
6. (6) In this section "the applicant" means a local authority social worker or an NSPCC officer, or an authorised person.").

The noble Lord said: My Lords, this amendment relates to the assessment order, which we have talked about before. Since the last stage of this Bill there have been meetings between the Association of Directors of Social Services and the NSPCC. There are still professional disagreements about this point, although it has to be stressed that the parties to the agreement are seeking the best way in which to protect children. There is no disagreement in principle, it is just a matter of resolving what is best in practice.

Your Lordships may remember that it says in Clause 36(1) that the court must be satisfied that significant harm is liable to the child before it will make an emergency protection order. I gave an example of where certainly a magistrates' court and even a more superior court might feel that where the child could not be found, or seen, that that was not good enough to be sure that it had suffered significant harm.

Since the Report stage my noble and learned friend wrote me an interesting letter on the 8th March putting his point of view, and we had a meeting last week at which he advanced other ideas, one of which indicated that he accepted that my argument about what the court might or might not see as significant harm had perhaps a point. I have put down this amendment mainly in the hope that my noble and learned friend might be able to tell the House what he told me in his letter and when we discussed it last week. I beg to move.

The Lord Chancellor

My Lords, I think it best simply to say that I have been considering the matter further since the last time, and that the problems are certainly quite difficult. I would not wish to move from the "significant harm" as the level of injury to the child justifying emergency intervention by the state. We discussed this point fairly fully before. The source of the clause was the advice in the Review of Child Care Law at paragraph 15.

I have not yet heard any more appropriate level suggested than "significant harm" as the level of harm at which compulsory intervention is justified. I do however recognise that it may be difficult for the social worker to persuade the court that there is a likelihood of significant harm to the child when he, the social worker, has not seen the child because access has been refused. I commented on this at col. 315 of Hansard on 16th February. We take the view that a combination of factors—the concern about the child that prompted the request to see the child in the first place, the refusal to allow the child to be seen (which will usually be a prima facie indication that something is wrong) plus any other information that may be known about the child and family by other agencies, or can be gleaned from inquiries locally, should be sufficient to meet the grounds for an emergency protection order.

The example given by my noble friend on Report, of a child about whom there was concern not having been seen or produced on several occasions, is a classic example of the kind of case that can go terribly wrong if positive action is not taken. Initial information about that child, what was known about the child by other agencies, whether neighbours had seen the child, the grandmother's story and the parents' evasiveness could in sum provide a picture that experienced professionals could recognise as requiring emergency action. A professional approach to investigation and multi-disciplinary assessment of the available information should put the social worker in a position to satisfy the court, when the authority decided to apply for an emergency protection order, that significant harm to the child was likely. We are considering however whether there is a case for putting something into the Bill that might help in that connection.

The difficulty is that one also has to take account of the right not to be interfered with improperly; not to be interfered with for too little reason. We also made the point—and my noble friend Lady Faithfull and the Association of Directors of Social Services were concerned about the risk—that if the medical assessment order does not prove effective for reasons out with the control of the person applying for it, that there is a kind of hiatus in that system. It is probably right that the police could immediately take the child into police protection; but perhaps that is not the most happy way forward as a general rule. They would have to be sent for, and so on.

We are anxious to ensure that the scheme in the Bill has the full confidence of all concerned. I believe that ultimately we shall be able to secure some agreement on this matter among the professionals in the field. It may be that apart from the possibility of helping the court to draw the inference by setting out some inferences that were possible, it could also be a way forward that the authorities' investigation duty under Clause 39(1) should be extended to include trying to see the child; and then if that fails the significant harm test would be more easily satisfied. I understand that these matters are still being discussed between the society and the directors. We welcome their help and the active interest of my noble friend in these matters. I understand that the professionals expect to meet again after Easter. I hope that out of all this a good and agreed approach may emerge.

Lord Mottistone

My Lords, I thank my noble and learned friend for taking us very much further forward. I am sure that the continuing discussions will produce some results and that the various amendments to meet the other points that my noble and learned friend has mentioned will result in a conclusion to the benefit of children. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Rules and regulations]:

7.30 p.m.

Lord Mottistone moved Amendment No. 45:

Page 39, line 35, after ("authority") insert ("and the applicant, if the applicant is an authorised person").

The noble Lord said: My Lords, in moving Amendment No. 45 I wish to speak also to Amendment No. 46. When we were discussing the point earlier, my noble and learned friend felt unable to accept my argument that the applicant and the local authority would need to agree to the transfer of an order as this would leave the child in limbo if the applicant was not able to initiate further proceedings. However, where the applicant is also an authorised person, this would not be a problem. That is dealt with by Amendment No. 45.

Amendment No. 46 seeks to ensure that a mechanism is established to resolve disputes, which in all probability will be a rare occurrence, in cases where an authorised person and the local authority or two local authorities find themselves in disagreement. It is possible to see cases in which two local authorities disagree as to the best course of action: authority X might view neglect cases in a different way from authority Y. There must be a way to resolve these matters if the child is not be become a football bouncing against different local authority policies. I hope that my noble and learned friend may feel able to accept, if not the amendments as they stand, at least the principle that they cover. I beg to move.

Lady Kinloss

My Lords, I support the amendments. In the real world of social work there may be occasions where dispute is the best way of caring for or protecting a child. These disputes may be few and far between, but some mechanism must be established to resolve them quickly and fairly. This is an appropriate area for regulation which does not conflict with any other principle in Clause 44 and provides a step towards the practical implementation of the Bill.

The Lord Chancellor

My Lords, I understand well the interest that the noble Lord, Lord Mottistone, and the noble Lady, Lady Kinloss, take in these matters. There is no doubt that the proper way forward is by co-operation. The difficulty is in making provision for a disputes machinery where the dispute is between the society and the local authority.

I think the answer is that the local authority has the ultimate statutory responsibility. I do not think that anybody disputes that. The local authority will therefore have to carry out whatever is further to be done. It does not look as though it is worth while to investigate the matter too much. We shall try to do what we can to secure a way forward by consent. However, if consent absolutely fails—I have not heard of many cases between local authorities and the society where anything of this kind has happened—and breaks down altogether, we have to say that the responsibility is on the local authority. We have taken this as far as we can. I hope that the noble Lord may feel that the right way forward is not to have a more elaborate procedure but to hope that no procedure is required and that the local authority and the society will continue to work together well.

Lord Mottistone

My Lords, I thank my noble and learned friend for taking the matter this far and indicating that he will give further consideration to it as the Bill progresses through Parliament.

Although one does not want to deny that the local authority must be, as it were, the authority of last resort in such a matter, it is important that the legislation or regulations should be so framed that social workers do not get too big for their boots, with the result that the child suffers. That is the problem. If the legislation indicates that there is a disputes mechanism, people will be warned off getting to the disputes mechanism stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Clause 50 [Duties of voluntary organisations]:

[Amendment No. 47 not moved.]

Clause 53 [Welfare of children in children's homes]:

[Amendment No. 48 not moved.]

Clause 56 [Welfare of privately fostered children]:

[Amendment No. 49 not moved.]

Lord Prys-Davies moved Amendment No. 50:

After Clause 61, insert the following new clause:

("Unreasonable action by local authority

—

1. (1) Subject to the following provisions of this section, 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. (2) The Secretary of State shall not have powers under subsection (1) of this section to give directions about any matter which is or has been subject to court proceedings.
3. (3) The Secretary of State may only give a direction under subsection (1) of this section if satisfied—
   1. (a) that all practicable steps to resolve the matter have been taken under subsections (3) to (6) of section 23 of this Act, and
   2. (b) that if he does not give a direction the child's welfare is likely to be seriously prejudiced.").

The noble Lord said: My Lords, this is similar to an amendment moved in Committee. In subsections (2) and (3) we introduce two refinements to the earlier amendment, with which we trust the amendments will be more attractive to the eyes of the noble and learned Lord.

The noble and learned Lord promised in Committee to consider what further could be done in this direction, possibly in relation to classes of children. I may not have made it sufficiently clear in Committee that the amendment is addressed not to generalised complaints about local authority functions but to the treatment of individual children.

The Bill already provides power for the Secretary of State to institute inquiries into local authority functions that cover issues affecting classes of children. On the other hand, the Bill does not provide power for the Secretary of State to intervene with respect to the exercise of a local authority's powers in relation to an individual child. This would give him such power subject to the safeguards in subsection (3)(a) and (b). I beg to move.

The Lord Chancellor

My Lords, as the noble Lord has mentioned, an amendment similar to this was discussed in Committee. I said that we were considering the matter. There are difficulties. We are in the area of a balance between central government and local government and the question discussed earlier today. I regret that we have not completed our discussion of the matter.

I assure the noble Lord that the amendment and what he has said in support of it will be taken into account in our further consideration of the point. On that assurance, I hope that he may be prepared to withdraw the amendment.

Lord Prys-Davies

My Lords, I thank the noble and learned Lord for his assurances. Those involved in the child care system are particularly anxious that this kind of provision should be made in the Bill. I know that the principle of the amendment is under active consideration. In reliance on the assurances given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 [Research and returns of information]:

The Lord Chancellor moved Amendment No. 51:

Page 58, line 16, leave out ("(3), (4) and (5)") and insert ("(3) to (5)").

The noble and learned Lord said: I spoke to Amendment No. 51 when moving Amendment No. 24. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 52:

Page 58, line 21, after ("training") insert ("and the number of persons in such training").

The noble Baroness said: My Lords, the noble Lord, Lord Seebohm, has unfortunately had to leave. He is very disappointed and has asked me to move his amendment. He was particularly anxious for me to read what he would have said had he been here. He says he hopes that this small amendment will be accepted. The whole country is now deeply disturbed and doubtful about the professional competence of social workers to deal with the complex problems of society and in particular with the special problems of children. As Lord Justice Butler-Sloss pointed out in the Cleveland Report: We share and endorse the concern expressed by the national social work organisations that a new initiative and additional resources are needed to ensure adequate training for the various professional groups involved". I hope therefore that the noble and learned Lord the Lord Chancellor will be sympathetic towards the amendment and accept it. Those were Lord Seebohm's words.

My name is also on these amendments. The situation is serious. In 1988 a report on the workforce planning for the personal social services estimated that a minimum of 5,000 newly-qualifed social work staff would be required each year just to maintain the status quo. It is felt that at present it is so important to the country and to the services concerned that Parliament should be kept informed of the response of the training system which is set up. Therefore the noble Lord, Lord, Lord Seebohm is anxious that the matter should be reported, either annually to Parliament or perhaps three-yearly. I beg to move.

Baroness Elliot of Harwood

My Lords, I support the amendment. For many years the question of training of social workers has come up at different times in this House and we have never really tackled it in the way I hoped we would. It is vitally important. Social workers are an essential part of everything we have been speaking about and they have never had support for training in the way that doctors, nurses, or other professions have. I support strongly what my noble friend Lady Faithfull has said on Amendment No. 53 and what she repeated on behalf of the noble Lord, Lord Seebohm, on Amendment No. 52.

Lady Kinloss

My Lords, I too should like to support this amendment. Every time there is a child abuse inquiry, the recommendations in the report highlight the need for improved training. It is a matter of major public concern and the general public want to see highly skilled and trained social workers. The matter should be kept under review by Parliament, perhaps every three years as the noble Lord, Lord Seebohm, would like to see.

Lord Prys-Davies

My Lords, I rise to express my full support for the amendment moved by the noble Baroness, Lady Faithfull. As a layman I venture to add a few words about Amendment No. 53.Members of Parliament are constantly involved with services given by social workers for the welfare of their constitutents. Members of Parliament should therefore know the results of the review to be conducted under subsection(8). They should know whether the training and the number of persons in training is sufficient or insufficient. If the facts are made known to Parliament—and it is in the interests of the service for children that they should be made known—then Parliament through its Select Committees or by other means should be able to offer the appropriate guidance and advice to the Government.

7.45 p.m.

The Lord Chancellor

My Lords, at Report stage in response to amendments proposed by my noble friends Lady Faithfull and Lord Campbell of Alloway and supported by others of your Lordships, I moved an amendment which required the Secretary of State to keep under review the adequacy of the provision of child care training and to receive and consider information from, or representations made by, the Central Council for Education and Training in Social Work, representatives of local authorities, and other persons or organisations.

Review of the adequacy of such training must of necessity include consideration of the number of persons being trained. It could also, for example, include the appropriateness to the needs of practitioners of the training being given. The Secretary of State will be able to seek information from employers, training organisations and the Department of Health's own data and he will be able to consider this information in the context of developments in training needs and any particular priorities. In so far as the number of persons who need to receive training is determined by the number of staff needed to work in child care and their experience, this is a matter which can only be assessed at a local level in response to local needs and demands. In that respect the Secretary of State cannot have a direct role in determining the number of persons who need training.

The number of persons receiving training at any one time is only one aspect of the review which is provided for in Clause 63, and, in view of what I have said, I see no need to pick out this particular item as an additional provision. It would suggest that numbers in training fell outside the scope of the review as drafted. I hope that your Lordships will accept that Clause 63(8) already embraces this matter.

As to the suggestion of an annual report to Parliament on steps taken in respect of child care training, the Secretary of State will be required to lay before Parliament annually a consolidated and classified abstract of information transmitted to him by local authorities and voluntary organisations under subsections (3), (4) and (5).

The Secretary of State may require returns of information on training under these provisions. He would then have to provide to Parliament an abstract of such information in his annual report to Parliament under subsection (6). So he must report on the information that he requires local authorities and others to provide to him. The duty to review training will be continuous and a duty to report specifically on this subject each year would not be appropriate. It would of course be open to Members of either House to question the Minister on his duties in the ordinary way at any time.

For these reasons, I do not see any particular need further to extend the new duties that have recently been introduced into Clause 63. These new duties are significant and will ensure that child care training receives proper attention. I therefore invite my noble friend not to press this amendment.

Baroness Faithfull

My Lords, when discussing this matter with the noble Lord, Lord Seebohm, and the noble Lady, Lady Kinloss, we agreed that we expected exactly the answer that the noble and learned Lord has given. I realised that there might be some difficulty in reporting to Parliament.

Somehow, over the years, because there has not been an annual report, Parliament has been lulled into an acceptance of the situation and becomes concerned and worried, distressed indeed, only when difficulties such as those highlighted in the Blom-Cooper and Cleveland Reports are published. As my noble and learned friend has said, there is nothing to stop Members of Parliament from asking, but unfortunately we often forget to ask and without a report coming to Parliament we do not know what the situation is.

I am sure that the noble Lord, Lord Seebohm, would wish me to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment No. 53 not moved].

Lord Henderson of Brompton moved Amendment No. 54:

Before Clause 64, insert the following new clause:

("Cruelty to children 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 Lord said: My Lords, with this amendment it may be convenient also to discuss Amendment No. 73. These amendments were tabled on Report. I do not wish to divide the House on them, though I should like to see them in the Bill. I tabled them for two purposes of which I have given the noble and learned Lord notice. The first is that they give the noble and learned Lord the opportunity to make any further comments which he may wish to make about the legal effect of the amendments in view of the difference of legal opinion between himself and the eminent senior Queen's Counsel, Mr. Stephen Sedley, on whom I relied.

I also hope that the noble and learned Lord will take this opportunity to state what is Her Majesty's Government's general view about the corporal punishment of children by parents in view of recommendation No. 85(4) in 1985 of the Council of Europe Committee of Ministers of which the Foreign Secretary was a member and in which he took part.

The recommendation advised all member states: to review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment". If the Government do not intend to carry out that recommendation in the Children Bill, where will they do it? I believe it is only right that the Government should be asked to state what their view is now before the Bill leaves this House so that it may be clear to another place when the Bill reaches that House.

The purpose of the amendment was plainly stated on Report and in Committee. I state it again now. It is to remove any confusion as to whether the law tolerates cruel punishment likely to cause unnecessary suffering or injury.

Following Mr. Stephen Sedley, I believed that the amendments removed confusion. However, the noble and learned Lord believed that they did not and made the confusion worse. Mr. Sedley and I believed that the repeal affected by the amendment would tend to criminalise punishment likely to cause unnecessary suffering or injury. I am just as anxious as the noble and learned Lord to ensure that the law should be clear but believe that it is not. It is highly desirable that an authoritative statement is now made by the noble and learned Lord before the Bill goes to the House of Commons. I beg to move.

Baroness Elliot of Harwood

My Lords, I should like to support the amendment and have done so during the passage of the Bill. I hope that the noble and learned Lord, with whose wisdom and views I agree, will interest himself in the subject and see what influence he can bring to bear.

The subject has been discussed a great deal in this House. We are deeply distressed by the fact that so many children appear in courts and elsewhere having been cruelly treated. We are the only European country which allows this to continue. That is a severe criticism of our law and I hope that the noble and learned Lord, who is the most influential person in this area, will support the proposal and have that abolished.

The Lord Chancellor

My Lords, the present situation is that the common law recognises that a parent, or someone with lawful control or charge of a child, has a right to administer reasonable chastisement to that child. It is to put this beyond doubt that this is so that Section 1(7) is there. Section 1(7) of the Children and Young Persons Act 1933 is there to put beyond doubt that Section 1(1) is qualified by the common law.

I am grateful to the noble Lord and my noble friend for affording me another opportunity to explain why the Government take a different view from Mr. Sedley, supported by the noble Lord, Lord Henderson of Brompton.

I think we can all agree that it is the responsibility of the parents to provide for their children's welfare and, in doing so, to use restrained and reasonable discipline in bringing up those children to become responsible citizens. Members of this House will each have their views on what is a proper way to discipline a child.

The common law right of a parent to administer punishment to a child has never extended beyond reasonable punishment. And reasonable punishment (today, at least) would never be recognised as punishment that was something more than an ordinary assault, which is the implication of Section 1.

Perhaps the principle reason for the inclusion of subsection (7) was that Parliament considered the language of the preceding provisions of Section 1 to be lacking in precision. In order that the well-understood and well-supported parental right should not be thought to be nullified by the offence provisions of Section 1, it was expedient to stipulate that nothing in the section should be construed as affecting that right.

At all events, remarkably little uncertainty seems to have resulted. But take away subsection (7) now, and at once it would be argued that Parliament must have intended to make some change of substance. Since the right of a parent to inflict punishment on a child in his charge has never extended beyond punishment that was reasonable, it would be argued that the intention must have been to take away even that right.

It remains the Government's view that the amendment would create obscurity where at present there is a clearly understood distinction between that which the common law permits to a parent and that which Section 1 prohibits to everyone.

That is the view of the Government. I have considered the matter carefully since our previous discussions and I state our view plainly. I am sure that the noble Lord will not wish to press the amendment. Those views lead to the conclusion that it would not be right to allow the amendment to be passed.

Lord Henderson of Brompton

My Lords, before the noble and learned Lord sits down, will he not express a view, as I requested, about the Government's opinion of what should be the law—as opposed to what is the law—about the corporal punishment of children by persons? Does the noble and learned Lord have a statement to make about the Government's policy in that regard?

The Lord Chancellor

My Lords, I have no statement to make, apart from stating the existing law. I have no proposals to put forward on behalf of the Government for any change in the law.

Lord Henderson of Brompton

My Lords, I must confess that, together with the noble Baroness, Lady Elliot, I found that reply most disappointing. I did so especially in view of Recommendation No. 85(4) made as long ago as 1985 in the Council of Europe and to which the Foreign Secretary was a party.

Only yesterday the Austrian Parliament unanimously voted that corporal punishment should be abolished in that state. It was followed by four Scandinavian countries, Norway, Sweden, Denmark and Finland. This country is lagging behind even after the Foreign Secretary was a party to the recommendation made in 1985.

We are reaching the end of our consideration of the Children Bill in the House and still the Government have no plans for altering a provision which was last seriously discussed 100 years ago. Is the noble and learned Lord seriously saying that in respect of this important subject—which exercises us all in the light of the abuse of children which often follows from violence by parents—the Government have no further thoughts for amending the law since it was formulated 100 years ago? I find that to be astonishing. If the noble and learned Lord continues to sit in his place and cannot give a view, I hope only that the point will be further pressed in another place and pressed hard.

Before leaving the issue I should like to point out that on Report the noble Baroness, Lady David—who is more happily in Hungary than here—was roundly rebuked by the noble and learned Lord. She was rather miffed by that rebuke. He said that he regarded as irrelevant or wrong the fact that in the course of her speech she should give an opinion on my amendment. She said that she believed in the total abolition of corporal punishment, although the amendment was not about that. Her remarks were incidental, and so were mine. I cannot see that it is in any way improper to express one's views. In his concluding remarks the noble and learned Lord went so far as to say that the amendments were unprincipled—that is, by implication. They are not unprincipled. It is perfectly clear that I was trying to improve the clarity of the law. However, it was perfectly possible in the course of that for the noble Baroness to say that she believed in the abolition of corporal punishment in the home, as I do. On the contrary, I should have thought that far from being unprincipled, it would have been considered underhand if we had concealed our personal views. I make it plain that I hope to return to this subject whenever possible again and again, as I am sure does the noble Baroness. I hope that another place will also do that.

Having said that, I shall clearly make no further progress in this House and I wish better luck to another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 [Care and supervision orders in criminal proceedings]:

8 p.m.

The Lord Chancellor moved Amendment No. 55:

Page 58, line 42, after ("1969") insert ("(care proceedings in juvenile courts)").

The noble and learned Lord said: My Lords, with this amendment I shall also speak to Amendment No. 56. These amendments insert into Clause 64(1) and 64(2) the side headings from Sections 1 and 7(7) of the Children and Young Persons Act 1969, which Clause 64 abolishes. This is an explanatory measure and one which is in keeping with the approach used in the drafting of the Bill generally. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 56:

Page 58, line 46, after ("Act") insert ("(alteration in treatment of young offenders etc.)").

On Question, amendment agreed to.

Clause 72 [Reporting officers and guardians ad litem for purposes of Adoption Act I976]:

[Amendment No. 57 not moved.]

Clause 74 [Regulations and orders]:

The Lord Chancellor moved Amendment No. 58:

Page 63, line 44, after ("instrument") insert ("except one made under section 15(4)").

The noble and learned Lord said: My Lords, with this amendment I also speak to Amendment No. 59. These amendments would have the effect of making the order-making power in Clause 15(4)subject to the affirmative resolution procedure. This is what was sought by my noble and learned friend Lord Simon of Glaisdale when he moved similar amendments at the Report stage. Having listened to his impressive speech and to the informed contributions of other noble Lords, I was happy to accept that the importance of the provisions of Part I of Schedule 2 to the Bill is such that the affirmative procedure is appropriate. I trust that these amendments will meet with your Lordships' approval. I beg to move.

Lord Simon of Glaisdale

My Lords, my noble and learned friend has amply fulfilled what he undertook to do and I am very grateful to him. However, we should not close our eyes to the fact that as a revising Chamber we have not dealt with the regulations under this Bill in the way in which they should have been dealt with. We must recognise a question that is very closely connected with that; namely, that it is extraordinary that this amendment has not been made until Third Reading and up until now that the Bill has proceeded on the basis that all the regulations should be subject to the negative procedure.

The background is really this. In the Legal Aid Bill my noble and learned friend on the Woolsack, my noble and learned friend Lord Hailsham, and my noble and learned friend Lord Elwyn-Jones, elucidated for us and expressed a general concensus that there should be a distinction between the affirmative and negative procedures and that it should be judged separately in the case of each set of regulations.

There are a great many regulations under this Bill that are of great importance. That has been recognised throughout. Yet only one, the one which cried out from the outset for the affirmative resolution procedure, have we dealt with and only that at this late stage. Therefore, we must ask: how is it that that state of affairs has come about? As I ventured to indicate earlier, there are really two reasons. The first is the absence of clear responsibility for drafting. If there was proper departmental responsibility, it would have been impossible that the regulations which were due for affirmative procedure were not so specified and that this one, for which the affirmative procedure was clear, was not dealt with from the outset. That is the first reason; the absence of departmental responsibility for the general principles of drafting, not on the specific Bill but a general matter of that sort.

The second reason was the one given by the noble Lord, Lord Rippon, when your Lordships last discussed this: that the Legislation Committee has now abdicated its duty of scrutinising legislation and has dissolved, so far as one can judge, into a pure business committee so that there is now no committee charged with the scrutiny of Bills before they are introduced.

Perhaps I may go back to the first point concerning the draftsman. The background is that for years there were complaints about the drafting of Acts of Parliament and that was reflected in the very terms of reference of the Renton Committee. It said that its terms of reference signified a general discontent with drafting, that it is too complex, lacks clarity, and they could have added—and in fact it was implicit in the report—that it suffered from prolixity. That was a most distinguished committee. I had the honour of giving evidence before it and I cannot imagine a more eminently composed committee. That reported in 1975.

Since then there has, if anything, been deterioration in the drafting of our legislation. It has enormously increased in volume. Even though there were fewer public and general Acts in 1987, a decade after Renton, they took up many more pages than was the case in 1977. At the same time the regulations that were churned out increased proportionately so that there was a continuing general prolixity and in some cases an absolutely baffling failure to make the meaning clear. One has only to think of the Financial Services Act, a series of housing legislation measures, including the most recent, and the Companies Bill now before your Lordships to see that there is a determination to take no notice at all of Renton.

I am grateful for the presence of the Lord Privy Seal tonight. He allowed both the noble Lord, Lord Renton, and myself to make representations to him. I finally wrote to him in, I am afraid, exasperation asking whether we really must accept that the draftsmen have no intention of implementing the main recommendations of the Renton Committee, to which the Lord Privy Seal was very wisely silent. However, subsequently he invited the noble Lord, Lord Renton, and myself to meet Sir Robert Andrew who was charged by the Prime Minister with reporting on the government legal services. Sir Robert Andrew in due course recommended that the Parliamentary Counsel's Office should come within the purview of the Law Officers Department. That was not the most favoured option of the noble Lord, Lord Renton, and myself but it meant that there was some departmental responsibility' for the general principles of drafting.

However, that recommendation was rejected. the Lord Privy Seal was kind enough to write to me. He stated: Under existing arrangements Parliamentary Counsel already consult the Law Officers in the preparation of legislation and all Bills are submitted to them before introduction. However because the language and form of legislation cannot be separated from its substance it was felt that it is right that responsibility for individual Bills should remain with Departments and the individual Departmental Ministers". The first question I venture to ask my noble and learned friend on the Woolsack is this. Does that mean anything else but that the present system which has now for 20 years caused dissatisfaction is to continue unchanged? Secondly, do not the Scottish draftsmen come under the Lord Advocate? They certainly did at the time I gave evidence to Renton. If they can operate successfully and constitutionally in that way, why cannot parliamentary counsel in England come under the Law Officers?

My third question is this. Was this Children Bill submitted to the English Law Officers? Was their attention drawn to Clause 15(4)? Was their attention drawn to the fact that that Henry VIII clause, giving the Executive the right to legislate in such a way as to change, repeal and add to Acts of Parliament, was subject only to negative resolution? Was that done? I do not seek to peer into the arcana imperii, but that question arises directly from the letter that the Lord Privy Seal was kind enough to write to me.

So much for the parliamentary counsel. I refer now to the Legislation Committee. I became a member of that committee when Financial Secretary and I stayed on when I became Solicitor-General, so there were two Law Officers who were members. We could then easily encompass reading closely every English Act that came before the Legislation Committee. The Lord Advocate did the same for Scottish Bills. After I left that committee, the noble Lord, Lord Renton, continued as a member and probably overlapped the noble Lord, Lord Rippon. He described how, if a Bill was unsatisfactory it was referred back to the department. For example, if the provision in Clause 15(4) (the Henry VIII clause) had been spotted, in those days it would have been seen that it was subject to only negative resolution.

That does not seem to happen now and is the second reason why we continue to have extremely unsatisfactory legislation. Therefore, although I am grateful to my noble and learned friend for what he has done, we have left to the other place the sorting out of which regulation, in addition to this one, should be subject to affirmative resolution; we have left to another occasion the putting right of the oversight of parliamentary counsel and have left the Government to put their scrutiny machinery in order.

8.15 p.m.

The Lord Chancellor

My Lords, I have listened to the observations of my noble and learned friend Lord Simon of Glaisdale on these various matters. The arrangement, as I understand it, which presently prevails is that the Minister in the department responsible for the Bill is also responsible for ensuring that the Bill is according to his wishes before it is introduced to Parliament. Of course the drafting of the Bill is the responsibility of parliamentary counsel. That is the present system and it has been so for some time.

It is true that the Scottish legal draftsmen are in the Lord Advocate's Department but they also have the function of being advisers to the Lord Advocate on matters other than simply drafting. They have the function of drafting but they also provide assistance to the Lord Advocate in relation to his advisory functions.

I do not think that it is appropriate for me to discuss the detail of the way in which this Bill was presented, or the detail of the present arrangements in relation to scrutiny of it. I certainly take responsibility for putting the Bill before this House and for dealing with the points about it that have been raised. I have endeavoured to do that to the best of my ability, and with the help of all your Lordships. The result as regards this particular provision is that I have proposed an amendment to fulfil the undertakings that I gave.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 59:

Page 63, line 45, leave out ("and") and insert— ("() An order under section 15(4) shall not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament. () Any statutory instrument made under this Act").

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

On Question, amendment agreed to.

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

The Lord Chancellor moved Amendment No. 60:

Page 77, line 20, leave out ("and").

The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendment No. 61. I was happy to accept in principle Amendment No. 61 moved on Report by my noble friend Lord Campbell of Alloway, and the present government amendment would give effect to it. It is intended to ensure that secure accommodation is used only where absolutely necessary by placing on the local authority a duty to take steps to prevent its use. As I said at Report stage, this does not only mean reducing the need to initiate proceedings under Clause 21, but also to prevent the need to place children in secure accommodation for short periods of less than 72 hours, for which no court authority is required. I believe that my noble friend is content that his concerns in this particular matter have been adequately met. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved amendment No. 61:

Page 77, line 21, at end insert ("; and (c) to avoid the need for children within their area to be placed in secure accommodation.").

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

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 62:

Page 79, line 15, leave out ("so far as is reasonably practicable and") and insert ("unless it is not reasonably practicable or").

The noble and learned Lord said: This amendment would strengthen the duty of a local authority to endeavour to promote contact between a child who is being looked after by a local authority and his parents. This duty would arise unless it is not reasonably practicable or consistent with his welfare. At present the duty applies so far a; is reasonably practicable and consistent with his welfare. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 63:

Page 79, line 20, after ("any") insert ("relative, friend or").

The noble and learned Lord said: My Lords, in moving this amendment, I wish to speak to Amendments Nos. 64, 65 and 66. These amendments would circumscribe the class of persons presumably defined namely as "any other person connected with [the child]"in paragraphs 13(1)(c), 14(2)(a)(iii) (twice) and 18(1)(d) of Schedule 2. These would then read, "any relative, friend or other person connected with him". My noble and learned friend Lord Simon of Glaisdale raised a question as regards the phrase, any other person connected with [the child]". As the result of these exchanges, he persuaded us that there could be confusion as regards the meaning of "connected" in some situations, and that it would be best to make that clear. That we have now done. All these amendments raise the same matter. I beg to move.

Lord Simon of Glaisdale

My Lords, I received my noble and learned friend's letter about this matter yesterday. Though I answered it immediately and delivered it by hand, he may not have seen it yet. I wish to thank him, and to say that it seems not only an improvement but a particularly felicitous way of drafting this provision.

The Lord Chancellor

I am very grateful to my noble and learned friend. I received the letter with particular pleasure. I am glad that he feels that this is a good way to go about the matter.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 64 to 66:

Page 80, line 15, after ("any") insert ("relative, friend or").

Page 80, line 23, after ("any") insert ("relative, friend or").

Page 82, line 17, after ("any") insert ("relative, friend or").

The noble and learned Lord said: I have already spoken to these amendments, and with your Lordships' leave I propose to move them en bloc.

On Questions, amendments agreed to.

Schedule 4 [Management and Conduct of Community Homes]:

The Lord Chancellor moved Amendment No. 67:

Page 95, line 39, leave out first ("the") and insert ("any").

The noble and learned Lord said: My Lords, in moving this amendment, I wish also to speak to Amendments Nos. 68 and 69. These are merely clarifying amendments which relate to paragraph 4(2)(i) of Schedule 4, paragraph 7(2)(f) of Schedule 5 and paragraph 10(2)(i) of Schedule 6. These paragraphs make identical provision regarding the Secretary of State's power to make regulations as to the provision and use of secure accommodation in community homes, voluntary homes and registered childrens homes.

As presently drafted, it is not entirely clear when the permission of a local authority should be obtained before a child can be placed in secure accommodation. These amendments are intended to make clear that such permission would need to be obtained only in cases where the child is actually looked after by a local authority. I beg to move.

On Question, amendment agreed to.

Schedule 5 [Voluntary Homes and Voluntary Organisations]:

The Lord Chancellor moved Amendment No. 68:

Page 100, line 6, leave out first ("the") and insert ("any").

The noble and learned Lord said: My Lords, having spoken to this amendment, I beg to move.

On Question, amendment agreed to.

Schedule 6 [Registered Children's Homes]:

The Lord Chancellor moved Amendment No. 69:

Page 104, line 43, leave out first ("the") and insert ("any").

On Question, amendment agreed to.

Schedule 7 [Privately Fostered Children]:

The Lord Chancellor moved Amendment No. 70:

Page 105, line 10, after first ("parent,") insert ("adult").

The noble and learned Lord said: My Lords, I believe that paragraph 2(1)(a) of Schedule 7, as currently drafted, may lead to some confusion. It excludes from the definition of a privately fostered child any child who is being looked after by a person in premises in which a relative is for the time being living. According to the definition of "relative" in Clause 75, this may include, for example, brothers or sisters, who may only be young children themselves. Young siblings who lived together could never therefore become privately fostered children. This of course was never intended.

This amendment seeks to clarify what is intended in paragraph 2(1) by qualifying "relative" with the word "adult". This makes clear that the exclusion applies where there is a person resident in the household who can be assumed to be taking responsibility for the child in question. I beg to move.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 71:

Page 106, line 18, leave out ("may") and insert ("shall")

The noble Lord said: My Lords, with the leave of the House, in moving this amendment, I shall also speak to Amendment No. 72. These amendments are addressed to the need for an effective prior notification of a private fostering arrangement. There are sound grounds for believing that a significant number of placements occur without the social services being formally notified. That can place the children at risk. The noble and learned Lord has assured the House that the need for prior notification will be covered by regulations to be made under Schedule 7.

We have been reminded by the Save the Children Fund in particular that the Foster Children Act 1980 that currently covers private fostering provides in Sections 3 and 4 for the making of regulations, but those regulations have never appeared. In the light of that experience it is not surprising that we have been urged to introduce into the Bill a provision for prior notification and not to leave it to a regulation which may be made in the future. We have the noble and learned Lord's assurance that regulations will be made.

As there is this firm intention to make regulations to provide for notification, is there any good reason why this amendment which substitutes "shall" for "may" should not be acceptable to the House? If the amendment is not acceptable—I have a feeling that it may not—can the noble and learned Lord give the House an indication of when the regulations under Schedule 7 will be made, bearing in mind that there are about 35 sets of regulations to be made under this Bill? I beg to move.

Baroness Faithfull

My Lords, a number of us have had correspondence with Lincolnshire County Council. The council tells us that people from overseas have placed children in private foster homes and have then left. Sometimes they do not visit the children and occasionally they do not come back for them at all. This is a serious matter. The private foster parents have not registered, and the chairman of the social services department of Lincolnshire County Council is deeply disturbed that the regulations are not in force.

8.30 p.m.

The Lord Chancellor

My Lords, the provisions in Part IX of the Bill could not work without the notification procedure being provided for in regulations. Notification is currently dealt with in primary legislation in the Foster Children Act 1980. However, we believe that it is right to use the more flexible vehicle of regulations to achieve more detailed and flexible provisions than exist at the moment.

The provision of these regulations is necessary for the implementation of the Bill. For the reason I have just given Part IX could not work without that. The noble Lord asked why, if we are going to do it anyway, we do not insert "shall" instead of "may". To be precise, "shall" would require us to say by what time, in order for the Bill to be clear. In a case such as this, "may" is appropriate, particularly as the provisions in Part IX could not work without this. I said at Second Reading that we hoped to bring all of the provisions into place together as soon as we possibly could.

Lord Prys-Davies

My Lords, I am grateful to the noble Baroness for her support and for drawing the attention of the House to the difficulties experienced in Lincolnshire. I thank the noble and learned Lord for his response. I had not appreciated that we cannot introduce the word "shall" into the legislation unless it is accompanied by a timetable. I was under the impression that, by introducing the word "shall", we were introducing an imperative duty which would have to be observed. I am grateful for the noble and learned Lord's message. In the light of experience with the Foster Children Act 1980, he will recognise that this matter deserves high priority. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Schedule 8 [Minor Amendments]:

[Amendment No. 73 not moved.]

Baroness Faithfull moved Amendment No. 74:

Page 110, line 22, at end insert— ("1CC) 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 that such requirement is appropriate because of the seriousness of the offence.").

The noble Baroness said: My Lords, Clause 64 abolishes care orders in criminal proceedings. This part of Schedule 8 provides courts instead with a new power to order young offenders to spend a specified time in residential care.

When this matter was discussed at the previous stage of the Bill, the noble and learned Lord said that children who had committed a minor offence could nevertheless be referred to the court and that residential care should be used, particularly if the home circumstances were such that it was not suitable for the child to be at home. Does my noble and learned friend agree that one ought not to confuse criminal cases with care cases? To make a residential order for care reasons and not for criminal reasons would be confusing and would cause anger, frustration and resentment to a child. I very much hope that the noble and learned Lord will either accept the amendment or bring forward another one at the next stage of the Bill in another place.

Lord Henderson of Brompton

My Lords, I support what the noble Baroness has said. If a young person needs residential care for welfare reasons, the appropriate course to take is civil proceedings. A court appearance for minor offending should not be used as a pretext, which is likely to happen unless one or other of the two alternative amendments is passed, for removing a child from home for welfare reasons. The investigation into a child's needs is much less thorough in criminal proceedings than in civil proceedings. It would appear excessively severe for a child to be removed from borne in criminal proceedings. I hope that the noble and learned Lord will be able to put forward an amendment so that that does not happen.

The Lord Chancellor

My Lords, as my noble friend Lady Faithfull has already pointed out, Amendment No. 74 is the same as one we discussed on Report. Its effect is to add a further qualification to the circumstances in which the new "removal from home" requirement may be added to a supervision order made in criminal proceedings.

If I may remind your Lordships, the conditions which have to be met before the court can add such a requirement are set out in paragraphs (a) to (d) of Section 12(1A). Paragraph (b) says: the offence of which he has been found guilty is an offence which, in the case of an offender over the age of twenty-one, would be punishable with imprisonment". Amendment No. 74 would require the court also to be of the opinion that a "removal from home" requirement was appropriate, because of the seriousness of the offence". Your Lordships may recollect that when we discussed this on Report, I indicated that I had some sympathy with the proposed amendment but asked your Lordships to consider two broad points. The first was to remind the House about the circumstances in which a "removal from home" condition might be added to a supervision order—the point here being that by the time the court is considering whether it would be appropriate to add such a requirement, the juvenile will by definition have committed a previous offence. The second point was to suggest that a balance needed to be struck between the qualification of the further offence and the home circumstances condition in subsection (c) of Section 12(1A).

Removing children from home is a serious step which should be considered only after all other options have been looked at and discounted. This is especially the case where the juvenile is before the court for a minor offence. The Government's policy in this respect is quite clear and continues to be reflected in the proposed new "removal from home" requirement which may be added to a supervision order under this part of Schedule 8. There are already a set of quite stringent tests which have to be met before such a requirement can be included.

I mention this point because I am aware that my noble friend Lady Faithfull and the National Association for the Care and Resettlement of Offenders, which has been assisting my noble friend with these amendments, had deduced from my remarks at Report stage on an identical amendment that there had perhaps been a departure by the Government from this view. I hope I can reassure my noble friend and NACRO that this is certainly not the case. I was not intending to suggest that it would be appropriate in criminal proceedings to impose a residential requirement for welfare reasons on a young person whose offending is minor.

The Government have already given careful consideration to the points which were made by noble Lords when the amendment was debated at Report stage and which have been so forcefully repeated today. In the light of that consideration and the further points made during the debate, I am happy to accept the principle underlying the amendment and undertake to consider the substance of the proposed amendment further in consultation with the parliamentary draftsman. So far as concerns the second alternative, I think that in view of what I have said it may not be necessary for me to deal with that aspect in any detail.

Baroness Faithfull

My Lords, perhaps I may thank the noble and learned Lord for his response. We are all most grateful for what he has said. It must be said that the number of children we have in residential care is far too high, and this provision would go some way towards helping the magistrates to realise that residential care orders cannot be made so easily. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 75 not moved.]

On Question, Bill read a third time; an amendment (privilege) made.

The Lord Chancellor

My Lords, I beg to move that this Bill do now pass.

I should first like to place on record my gratitude and appreciation for the help and encouragement I have received from all sides of the House during the Bill's passage in your Lordships' House.

I was heartened when the Bill was published by the general welcome which was given to it from most quarters; and again by the positive and completely non-partisan contributions of noble Lords and noble Ladies as it has progressed through your Lordships' House. No one who has observed any part of the proceedings in this Chamber could have the slightest doubt that those who took part in our deliberations did so with genuine concern for the welfare of children, with in many cases considerable experience of social services and voluntary work for children, and with the desire to improve an already fine Bill.

We have heard strongly held views on a number of important issues yet such differences as there have been between us have generally been about ways the law should achieve a common end. The Bill is better for the 30 or so amendments which have been made to meet your Lordships' concerns. If this is not a large proportion of the several hundred amendments considered during our five days in Committee and three days on Report, and again today, many of these other points will inform not only progress in the other place but also secondary legislation under the Bill and guidance to be issued under it. The overall structure and content of the Bill has not changed in spite of some concern about the use of schedules and secondary legislation; but a number of significant improvements have been made.

My noble and learned friend, Lord Simon of Glaisdale, took me to task with firmness, but unfailing courtesy, on constitutional and drafting questions on more than one occasion. I gladly concede that the Bill is better for the changes to the Secretary of State's powers in relation to Clause 15(4), which, supported by other noble Lords, he promoted.

We were fortunate to have had available to us the wisdom and practical experience of my noble friend Lady Faithfull who most effectively chairs the all-party Parliamentary Group on Children. We have taken careful note of her particular concerns, which others shared, about the effectiveness and independence of guardians ad litem. Further, she and my noble friend Lord Campbell of Alloway, with support from all sides of the House, secured explicit provision that the Secretary of State should keep under review the adequacy of child-care training. Indeed, the noble Lord, Lord Seebohm and the noble Lady, Lady Kinloss, also had a particular interest in that aspect.

Noble Lords drew attention to the position of young people leaving care, and may claim some credit, I am sure, for the Secretary of State's announcement on Monday about improvements in arrangements for income support and housing benefit for 16 to 17 year-olds living independently.

I have valued the support of my noble friend, Lord Mottistone. He has been stalwart in his efforts to include specific recognition of the work of the National Society for the Prevention of Cruelty to Children and, with support from the noble Lord, Lord Meston, in his promotion of the child assessment order.

Your Lordships' House listened with great respect and attention to my noble friend Lady Elliot of Harwood on the sensitive issue of corporal punishment, on which the noble Baroness, Lady David, and the noble Lord, Lord Henderson of Brompton, also spoke with great conviction.

I should just like to say at this point that I was sorry to hear from the noble Lord, Lord Henderson of Brompton, that the noble Baroness, Lady David, for whom I have the most profound respect, felt in some way rebuked by what I said in answer to an amendment she put forward on Report. It was certainly not my intention to do anything of the sort. I hope that I do not go in for rebuking people—at least not much. What I was seeking to point out, although possibly fairly forcefully, was that the amendment which was being considered would not have the effect of changing the law in the way that the noble Baroness desired. At best, the amendment would have had a much more limited effect. Further, if the law were to be changed in the way she desired, one would have to go about it in a different way. That was what I intended to say.

Indeed, the last thing in the world that I should like to do would be to offend her in any way or suggest that I did not have the greatest respect for the remarks she made. In fact, I much appreciated them during the discussions on the Bill, because I know how deeply she feels on this particular subject, as well as on many other matters. I shall of course take the first opportunity to express that sentiment to her personally. I must say that she never indicated to me that she was in any way offended. Indeed, when I saw her recently I said that I was sorry that she could not be here today because of a parliamentary commitment, which has already been referred to, that has taken her to Hungary. However, on her early and safe return, I shall do what I can to make it clear that I am extremely sorry if I offended her in any way.

My noble friend Lord Campbell of Alloway has pressed with strong legal instincts for reform of the law on restricting the liberty of children and knows that the Secretary of State for Health is examining this important question with care.

Handling of this Bill in your Lordships' House has been made a particular pleasure by the helpful and constructive approach of noble Lords and noble Ladies on the Benches to my left. Their contributions have not been free from criticism, but have always been reasonable and moved by concern for the welfare of children and their families.

I want particularly to thank the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Mishcon, Lord Prys-Davies, Lord Irvine of Lairg and Lord Carter on the Opposition Front Bench, who have presented their points with great persuasion and complete fairness, drawing on a wealth of legislative experience. The Bill will carry greater authority for their general endorsement of its provisions.

I return to the noble Baroness, Lady David. Her extensive contribution was, as always, penetrating and well-informed. One of the important issues to be considered further as the Bill progresses in the other place is providing for the older child's consent to medical examination when emergency protection orders and interim orders are made. I think that the noble Baroness was the first Member of this House to raise that point, although it has been pursued by others.

We have been greatly assisted too by the noble Lord, Lord Banks, on, among other things, parental responsibility agreements and have had the benefit of the relevant professional experience of the noble Lord, Lord Meston. I acknowledge also the distinctive and thoughtful contributions of the noble Lady, Lady Kinloss, and the noble Lord, Lord Seebohm. I also thank the noble Lord, Lord Kilbracken, for his ever-careful scrutiny of the Bill, which I was able to acknowledge by accepting some of the amendments he put forward.

I regret that, despite our best endeavours, the Bill will leave your Lordships' House somewhat incomplete. It will be necessary to introduce in another place provisions to amend adoption law: to flesh out Clauses 67 and 68 on jurisdiction and procedure, including appeals; to deal with the absconding and recovery of childen in local authority care and to complete consequential amendments, transitional and repeal provisions. We shall also provide for replacement with modifications of the Nurseries and Child Minders Regulation Act 1948 which regulates independent day care services for the under fives. My colleages and I are extremely grateful for your Lordships' forbearance on these matters.

Noble Lords have complained from time to time, always with good humour but no less forcefully for that, that reliance on rules of court and regulations has been a further factor in denying them a complete picture of this legislation. The noble Lord, Lord Mishcon, and my noble friend Lord Mottistone, pressed me strongly in Committee for an assurance that rules of court in respect of emergency protection order proceedings would contain certain provisions as to notification. I have written to them giving what I hope are satisfactory assurances, and I have placed a copy of this letter in the Library for the convenience of other noble Lords.

I believe that we can all take satisfaction from contributing to the passage of the Bill in this House. I said on Second Reading that it represents the most comprehensive and far-reaching reform of child law which has come before Parliament in living memory—and some living memories are longer than others. It deals with issues of fundamental importance—the care, protection and upbringing of children and the provision of services to them and their families, and reform of private child law. It meshes the two strands of law into a single consistent code and paves the way for ongoing reform of family jurisdiction and court procedure and practice. The Bill addresses these issues the better for your Lordships' consideration of it.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, as the noble and learned Lord the Lord Chancellor has said, this is an important Bill, affecting as it does the well-being of a large number of children in our community and their families. It is a complex Bill with several inter-related clauses and 50 pages of schedules. It requires, as my noble friend Lord Prys-Davies has said, 35 sets of regulations to provide direction and guidance for practice. Those who have to follow and apply it hereafter face a Herculean task.

I feel that I shall carry the House with me when I stress two matters as the Bill is on its way to another place: first, the need for a speedy implementation of the provisions, which has not always been experienced in this field; and, secondly, the need for adequate resources to support the child-care training programme and for the Bill's long-term implications.

The Bill leaves the House after the acceptance of a number of amendments—not of course anything like enough in view of those who sit on the Opposition side of the House. It has been a process over which noble Lords on all sides of the House have laboured long throughout all its stages. I feel that I shall carry the House with me if I add that we have all been impressed by the commitment and sense of purpose of so many charitable and professional organisations which have so fully assisted all of us at all stages of the Bill's consideration.

I cannot say farewell to the Bill without expressing the gratitude of noble Lords on all sides to the noble and learned Lord the Lord Chancellor for his handling of the Bill which he did single-handedly throughout.

Noble Lords

Hear, hear!

Lord Elwyn-Jones

My Lords, if I may say so with great respect, it has been the successful achievement of a Herculean task. It brings to my mind one of Mr. Gladstone's famous observations when he introduced his last Budget. He would not call the task Herculean because Hercules could not have done it. I suspect the noble and learned Lord the Lord Chancellor may have felt that from time to time, and we are grateful to him.

Baroness Seear: My Lords, from these Benches we should like to express our appreciation for the conduct of the Bill and for its importance. I speak at a great disadvantage in so doing and will be brief. I am disadvantaged because it should be either my noble friend Lord Meston, who is unfortunately unable to be here, or my noble friend Lord Banks who is, as your Lordships know, sadly very ill, who should be saying this. I am standing in on their behalf to say how important we think the Bill is. It deals with a number of matters which have long needed attention. It pulls together many issues of great importance.

I should like to stress, as has been stressed by the noble Lord, Lord Prys-Davies, the importance of the training element for those dealing with child care. It is by no means a matter that can be left to common sense and kindness. It requires extremely well trained people to handle the issues which come before them. It is good that the provision is incorporated into the Bill.

The Bill is a good example of the House of Lords at its best. It has not been controversial on a party basis. It has raised a number of important matters. The law of the land will be greatly improved by the Bill and the contributions made from all sides of the House. It is also a good example of the wisdom of starting Bills in your Lordships' House. It is to be hoped that the Government Benches will take on board, as they do not always do, the benefit that can be gained from beginning Bills in this House where they can be given the detailed attention at this time of year which it is so difficult to give Bills in either place as the year proceeds.

It is not for me to speak on behalf of a member of another party, but in response to what the noble and learned Lord the Lord Chancellor said about the noble Baroness, Lady David, whom I have known for a mere 57 years, I should like to say that I am certain that she will not have been too brought down by anything that he has said, and that she will greatly appreciate the courtesy and generosity with which he referred to her contributions.

This is the end of this stage of the Bill. It is a pity, although I fully understand the reasons, that a number of important matters will have to be dealt with in another place. We may not all have total confidence that in another place they will be dealt with with the expertise and attention that they receive in your Lordships' House, but we can rest assured that the noble and learned Lord will not allow the Bill, to which he has given great attention and so much of his time and skill, to be anything but the best Bill that it can be when it finally goes through both Houses.

Lord Mottistone

My Lords, I too should like to give my congratulations and thanks to my noble and learned friend the Lord Chancellor for having steered the Bill and us through a long period of consideration. He has accepted a great deal and promised a great deal, much of which has reached fruition. It is a much better Bill than it was when it arrived here. I should like to thank him on my behalf and that of the NSPCC, which has asked me to do so. I should like to thank my noble friend on the Cross-Benches, if I can so describe her, Lady Kinloss, for helping with the amendments that we have tabled together.

It is a much better Bill. I hope that it will be even better if the right things happen to it in the next place.

Lord Simon of Glaisdale

My Lords, before I venture to associate myself with the felicitations that have been so happily expressed—I do not propose to go over what we have been discussing for months now—I want to say something about the substance of the Bill. We have all felt united in the thought that we were undertaking a worthwhile task, because children are vulnerable and on their well-being depends the future of our society. At the beginning, with that in view, we asserted that the child's welfare was paramount. I venture to ask whether we really mean that. Obviously we mean it and have so indicated within the provinces covered by the Bill. It includes the welfare of a child once its parents have been divorced, but it does not include the welfare of a child whose parents contemplate divorce.

The child's interests at that moment are not paramount. They are deferred to the wishes of the parents to disembarrass themselves of their contract towards each other, so often to find new mates and spouses. Those children are numerous. Before the Divorce Reform Act 1969 came into force, there were some 60,000 children under 16 whose parents were divorcing. Today there are over 150,000. There is ample evidence that the disruption of a child's family background can be immensely damaging to the child. The evidence goes back to Professor Carr- Saunders in the 1930s. A recent study has clearly shown the connection between juvenile delinquency and broken homes. I merely say that when we proudly proclaim that the child's interest is paramount, should we not ask ourselves whether we are prepared to carry that through to wherever the child's interests might be adversely affected?

Having said that, what brought me to this Bill was in part the representation of part of Cleveland in another place—I was naturally deeply distressed at the events that were investigated by Dame Elizabeth Butler-Sloss; and partly that I have been a matrimonial judge. However, listening to the proceedings here, I have felt awed by the devotion and expertise that have been brought to bear on this Bill. It would be invidious for me to mention anyone. However, I think that we all agree that the noble Baroness, Lady Faithfull, has a unique contribution to make and has made it.

We cannot pass from this Bill without each of us expressing our appreciation for what has been done by my noble and learned friend on the Woolsack. He obviously brought a vast knowledge of matrimonial law from his forensic and curial experience. However, all noble Lords will have been amazed at the way in which he has mastered the social aspects, which cannot all have been within his experience. My noble and learned friend has become what the gossip columnists call a member of the international jet set, but invariably he came freshly to your Lordships, in complete command of the material. He has placed us all very greatly in his debt.

Lady Saltoun of Abernethy

My Lords, I too should like to thank the noble and learned Lord for his understanding of our many and very serious concerns, to which he has listened with such patience and has tried so hard to meet. I believe that many unfortunate children will in future have cause to be grateful to him for this.

Lady Kinloss

My Lords, I too should like to thank the noble and learned Lord for his kindness in always answering any queries that I may have had throughout this Bill.

The Lord Chancellor

My Lords, I am grateful to all noble Lords and to the noble Lady, Lady Saltoun, for bringing to our attention the need to have particular regard to the closer relatives who sometimes are apt to be overlooked in these provisions.

I am grateful to all noble Lords who have said very kind things about what I have done. I have found it a great pleasure as well as a very important responsibility. I should like to associate myself with what the noble and learned Lord, Lord Elwyn-Jones, said about the skill and devotion of the very many organisations which have been helping us in the background. They find themselves at the sharp end of these matters. Their knowledge of the law and the regulations relating to their activities is extremely useful. Perhaps above all it has been their practical experience of the law's working in everyday life that has contributed most. It is therefore with confidence that I renew the Motion that this Bill do now pass.

On Question, Bill passed, and sent to the Commons.