AS AN AMENDMENT TO COMMONS AMENDMENT NO. 48 (Hansard, 8 November 1989)

§ Lord Mottistone
My Lords, this is my amendment. Observing what my noble and learned friend has just said, it seems to be the philosophy behind this part of the Bill to encourage parents to feel confident that arrangements for the provision of accommodation will be entirely voluntary on their part provided only that certain criteria in Clause 17 are met, including the criteria that my noble and learned friend has just moved in his amendment in addition.
This is a thoroughly desirable principle and I acknowledge that there must be a clear differentiation between voluntary care which has been agreed upon between the parent and the local authority and the child coming into care through the use of a statutory order. However, the details of the arrangement must acknowledge that the child has his or her own needs, wishes and feelings. That is acknowledged in subsection (6), which places a duty on the local authority to ascertain and consider the child's wishes and feelings before providing accommodation, but there is no comparable duty on either the local authority or the parent to consider the child's wishes before he or she is removed from the accommodation.
Children cannot be treated as articles of luggage which can be deposited and reclaimed at will. It may be that the child may be in voluntary accommodation because his or her parents have previously shown erratic behaviour patterns, perhaps as a result of drug/alcohol dependency or mental illness. In those circumstances it is easy to imagine a parent demanding the instant return of the child to the family home, which after reflection the parent will regret. This would be a most unsatisfactory state of affairs for the child, particularly if the child is in long-term placement and has developed emotional ties with foster carers.
I am grateful to the noble Baronesses who have added their names to my amendment. It provides that where a person who has parental responsibility for the child has agreed in writing with the local authority prior to a voluntary accommodation arrangement that the child should not be removed without a period of notice, the provisions of subsections (7) and (8) shall not apply until such time as the agreed period of notice has expired.
736 I believe that this amendment recognises the principle of the voluntary nature of such care arrangements but also that the child has wishes and feelings of his or her own. If nothing else, the child may wish to say goodbye to his or her foster carers or newly made school friends etc.
I shall not pursue this any longer. Suffice it to say that I hope that my noble and learned friend will have some sympathy with the amendment. It seems to me that it fills a gap without upsetting the principle on which Clause 17 has been written. I beg to move.

§ Lady Kinloss
My Lords, I hope that this amendment will not have the effect of opening a local authority to charges of illegally holding a child if a parent refuses to honour a written agreement. Perhaps I may ask the noble and learned Lord the Lord Chancellor whether that is so. If so, is it not rather important to local authorities?

§ Baroness David
My Lords, I wish to support the amendment. It is not very strong. There have been a number of efforts in the course of the Bill passing through both this House and another place to try to provide for the occasion when a parent tries to take a child away without any notice from the place where he or she is staying and where the child may have been for a long time. This is just in order to give time for thought. I appreciate that it is difficult under subsections (7) and (8) of the clause. However I hope that the difficulties have been recognised and that possibly this rather mild amendment might be accepted as a form of compromise.

§ Lord Meston
My Lords, I, too, wish to support the measure. Amendment No. 48 is valuable so far as it goes, but Amendment No. 48A is a particularly useful addition to it. It addresses a problem repeatedly raised in this House when the Bill was before us the first time round. I hope that such agreements become, if they are not already, a standard procedure.

§ Lady Saltoun of Abernethy
My Lords, I, too, wish to support the amendment. I do not think that it is ever a good thing, except in dire emergency, to remove a child without reasonable notice from where he is living. Apart from the reasons that the noble Lord, Lord Mottistone, has mentioned, the child should have time to be prepared for what is going to happen to him so that he can adjust to his change of circumstances.

§ Lord Prys-Davies
My Lords, we support the amendment for the reasons given by the noble Lord, Lord Mottistone, and others. However, I am in a little doubt whether the amendment, if it were accepted, would be in conflict with subsection (8). That subsection appears to me to override any agreement between the parties. As I understand it, we cannot at this stage amend subsection (8). We could not therefore have two inconsistent provisions in the Bill. I wonder whether the department would 737 nevertheless encourage local authorities to enter into agreements with parents and whether such agreements could incorporate a notice provision.

§ The Lord Chancellor
My Lords, there are obvious advantages in having agreements which would operate in practical terms. However, whether it would be right to have legally enforceable agreements in this area is much more doubtful. As has been mentioned, one of the important principles underlying this matter is to distinguish very clearly between a local authority's compulsory role and its voluntary role in this area. One of the practical matters that has arisen is that people are less willing to involve themselves in voluntary arrangements if they fear that those arrangements can be backed up with compulsion; in other words, if the boundary between the voluntary giving of a child to a local authority and the compulsory taking of a child by a local authority were to be confused.
As has been said, we considered this matter very carefully while the Bill was in this House. It was also considered very carefully during the passage of the Bill through another place. My honourable friend the then Minister responsible or health, Mr. Mellor, and his officials have discussed this fully with organisations which are particularly concerned.
The noble Lord, Lord Prys-Davies, raised a question as regards the effect of the amendment. Even if the amendment is passed, subsection (8) will remain. Therefore, there is an apparent conflict between the two provisions. However, I believe that as the amendment is attached to subsection (7), which deals with a local authority's position on a parent's objection, and not to subsection (8), which concerns removal of the child, the effect of the amendment is by no means clear. If the intention is to provide in statute for a constraint on a person's right to recover a child whenever a written agreement on notice has been made but not complied with, that intention will probably be unaffected as it is unlikely that it would be construed to override subsection (8). The latter subsection allows any person who has parental responsibility for a child to remove him at any time. That is a technical difficulty. However, the main point is that writing into the Bill provisions on written agreements on notice would, we fear, undermine the voluntary nature of agreements. As I have said, one of the fundamental principles is to distinguish between voluntary and compulsory roles.
One of the difficulties this proposal raises is the question of sanctions which would be available if the parents failed to comply with the terms of the agreement by acting under subsection (8) and removing the child. The usual sanction applied to an individual who fails to comply with a legal requirement is the possibility of liability for an offence or some other form of court action. This can happen under the present law. A person who removes a child from voluntary care and fails to observe an agreed notice period is liable to commit a criminal offence. This emphasises how inappropriate it would be to include a compulsory agreement in a voluntary arrangement.
It is true that the amendment does not require there to be an agreement on termination of 738 placement. If there were no agreement, the provisions would not apply. However we believe it would be good practice always to have the arrangements set out in writing and that they should include a plan and details of how the arrangements can be brought to an end. One assumes that in practice these arrangements would be followed. I can make some of the assumptions that the noble Lord, Lord Mishcon, made about the general way the public operates. Regulations will set out the way these voluntary arrangements should be drawn up. Although we do not believe an arrangement should be legally enforceable, this does not mean that it would be ineffective. I do not see any disagreement between us as regards what would happen in practice.
However, in the majority of cases it would only be necessary to remind the parents of the arrangement and explain that time was needed to prepare the child to return home and make practical arrangements. In this way by use of good practice, precipitate action by the parents would generally be avoided. I believe that this is the right way forward. As I said when the Bill was previously before this House, there are a number of arrangements in place for dealing with emergencies which could be invoked. While I very much understand the basis on which this amendment has been tabled, I hope that in the light of my explanation and the importance of the principle of the voluntary agreement in this field, the mover of the amendment will feel able to withdraw it.

§ Lord Brightman
My Lords, my understanding of the amendment is that it does not seek to give any legal enforceability to such an agreement, but merely to give a local authority a discretion to provide accommodation. As it is purely discretionary in that way, it seems to me that it is in no way in conflict with subsection (8). I respectfully suggest to the House that this amendment is perfectly innocuous. It is entirely discretionary; it is in no conflict with the Bill.

§ The Lord Chancellor
My Lords, I shall seek to deal with the matter as it has been put forward by my noble and learned friend Lord Brightman. If the provision is not intended to be legally enforceable, there is no problem as regards practice because arrangements will be set out in practical terms for this to occur. There is nothing in the Bill which prevents that from being the practice. I cannot see how putting into the Bill something about an agreement which is not intended to be legally enforceable really advances matters. I suggest that it tends to introduce confusion because agreements referred to in statute law are normally intended to have legal effect. Accordingly, while I appreciate fully what my noble and learned friend said, I fear that to introduce this amendment into the legislation would be a mistake. However, it would be right to regulate the practice in the way that the noble and learned Lord and the other speakers who have spoken in support of the amendment have suggested.

§ Lord Mottistone
My Lords, I thank all those who have contributed to the debate and who have supported the principle of my amendment. I see the 739 difficulties to which my noble and learned friend who sits on the Woolsack has referred. It is unfortunate that we should have to discuss the matter now. At an earlier stage of the Bill it would have been possible to iron out any differences and if necessary modify subsection (8) in order to make the two sit together.
Reassurance that the procedure could well become established practice is helpful. The amendment was written with the deliberate intention that it would not be statutorily compulsory to have a written agreement, thus preserving the voluntary nature of the clause. The proposal therefore lends itself to a code of practice approach rather than to statutory legislation. I shall take the advice of my noble and learned friend and beg leave to withdraw the amendment.