COMMONS AMENDMENT (Hansard, 8 November 1989)

§ The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 140. I should also like to speak to Amendments Nos. 141 and 146.

The amendments deal with emergency protection orders. Those orders, and the lesser child assessment order which we have just considered, will spearhead the new statutory framework for the protection of children. The Government tabled first drafts of the three amendments at Committee stage in the other place and also a draft clause on the child assessment order but did not press them so as to be able to reflect on what was said. My honourable friend the 783 former Minister for Health, Mr. Mellor, also had further discussions with interested voluntary and other organisations on those and other matters.

Amendment No. 140 amends the grounds for an emergency protection order in Clause 36(1) to provide specifically that the court may make an emergency protection order if it is satisfied that the following circumstances apply. Where the application is by a local authority, first, the authority is making inquiries to enable it to decide what action it should take to safeguard or promote the child's welfare under Section 39(1)(b); secondly, those inquiries are being frustrated by access being unreasonably refused to a person authorised to seek access; and, thirdly, the applicant has reasonable cause to believe that access is required as a matter of urgency. Where the applicant for the emergency protection order is an authorised person defined in new paragraph (1A), first, that he has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm and is making inquiries with respect to the child's welfare; secondly, as for applications by a local authority, that those inquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access; and, thirdly —again, most importantly —that the applicant has reasonable cause to believe that access is required as a matter of urgency.

We accepted the arguments put forward by my noble friend Lord Mottistone and others earlier this year that the social worker would probably not be able under the present grounds in subsection (1)(a) and (b) to obtain an emergency protection order where access had been unreasonably refused and there was only limited evidence to suggest an emergency. Your Lordships may remember that my noble friend produced some examples on which he sought my comment. Having considered those examples I thought that they might be brought under the then existing drafting. However, I appreciated that there was a chance that they might not. Accordingly, we make this proposal in order to deal with that matter. It might be difficult, when there were signs of a possible emergency but a lack of firm information to satisfy the present test that there is reasonable cause, to believe that the child is likely to suffer significant harm if he is not removed or kept where he is.

That is a principal point on which the provisions in respect of unreasonable access differ from those of the child assessment order, which is also to be available in cases of unreasonable refusal of access. The emergency protection order is to be available where access and perhaps other emergency action is needed as a matter of urgency; the child assessment order is to be available where the circumstances show, and the court is satisfied, that assessment of the child is the appropriate next step and that there is no particular urgency sufficient to justify an emergency protection order.

An important part of the test for the court is whether the refusal to allow the child to be seen is unreasonable. The court might well consider a refusal unreasonable if it were not accompanied by 784 co-operation in some form —such as taking the child to the GP —sufficient to allay fears about the child's welfare. Rules of court governing these applications will require the applicant to explain what steps he had taken to communicate with the person having care of the child and to warn that emergency protection order proceedings could result.

I understand that the Association of Directors of Social Services and the NSPCC, who were very much involved in these discussions, support the changes. Others have suggested that the changes and the introduction of a child assessment order have upset the balance previously achieved in the Bill between the need to remove children from seriously abusing parents and the need to protect families. It is important that we strike the right balance and not tip the scales too far in one direction. I believe that we have reached this balance.

Part of the argument which has been put is that at the end of the day social workers will find it hard not to remove children under an emergency protection order, in spite of constraints on such action built into Clause 36 and to be strengthened if Amendment No. 141 in this group is agreed. I do not accept that in the new climate of greater awareness of available powers and responsibilities which the Bill is intended to create, the removal power will be misused.

The emphasis on urgency, court scrutiny of applications, making orders only where this is necessary and removing the child only when that is necessary will ensure that the balance we seek is achieved in practice. A better argument is that we did not get this balance quite right in early versions of the Bill, because in the serious frustrated access case it would have been too difficult to secure an emergency protection order.

Amendments Nos. 141 and 146 are intended further to improve the provisions on emergency protection to ensure that the power of removal and power to prevent the child's removal from a safe place, such as a hospital, are used only when it is necessary for the welfare of the child to do so.

Subsection (3)(a) as presently drafted requires any person who has parental responsibility for a child as a result of an emergency protection order to take, but only take, such action in meeting that responsibility as is reasonably required to safeguard or promote the child's welfare, having regard to the duration of the order. This requirement applies to action under subsection (2)(b) and (c); that is, removal or prevention of removal and the exercise of parental responsibility.

We think however that this important message can be strengthened still further. Amendment No 141 recasts subsection (3) to refer specifically to the power to remove the child or prevent removal of the child under subsection (2)(b), and to require while an emergency protection order is in force that this should be exercised only in order to safeguard the welfare of the child. In other words, in this part we have taken out, promote the welfare of the child". That means he should not use the subsection 2(b) powers unless it is necessary to do so in order to 785 safeguard the child's welfare. This is a much stronger restraint on unnecessary removal than the present formulation.

Subsection (7) requires the emergency protection order applicant who has exercised either of these powers to return the child (or allow him to be removed from the hospital etc.) if he considers it safe to do so. Amendment No. 146 makes specific reference to exercise of each of the powers in subsection 2(b)(i) and (ii) for greater emphasis. I beg to move.