COMMONS AMENDMENTS (Hansard, 8 November 1989)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 83 to 87. Amendment No. 83 is extremely important. It arises following a great deal of discussion in earlier stages. The present condition, contained in subsection (2)(a), for a care order or supervision order is that the child concerned has suffered significant harm or is likely to suffer such harm. Subsection (2)(b) sets out casual conditions which must also be satisfied. It was those that we found difficult. We all had similar ideas about what should be covered but the difficulty arose in ensuring that the words did so.
We consider on reflection that in this very important question of deciding whether compulsory intervention in the upbringing of the child is necessary the test should be whether the child is at present suffering significant harm and not whether he has suffered such harm in the past. Strictly, under the present test, an order could be made on the ground of significant harm suffered several years before and not likely to be repeated (provided that the causal condition in subsection (2)(b) and the general principles in Clause 1 were satisfied). The law would not be satisfactory if left like this. The future ground: is likely to suffer such harm", would of course be retained.
Amendment No. 84 is a proposal by the Government to amend one of the threshold conditions for a care order or supervision order in Clause 26. The threshold conditions for a care or supervision order are set out in subsection (2) of Clause 26.
Under Clause 26(2) the court has to be satisfied that the child concerned is suffering or is likely to suffer harm and that the harm is attributable to one or other of the conditions at subsection (b)(i) and (ii). The first is the standard of care given to the child or likely to be given to the child if the order were not made being below that which it would be reasonable to expect the parent of such a child to give to him. Alternatively, the harm or likelihood of harm must be attributable to the child's being beyond parental control.
The amendment concerns the first of these attributable conditions. There was some criticism during the Bill's progress in this House that the phrase: the parent of such a child is potentially confusing and could lead to long arguments between lawyers in court —and your Lordships know it need not be tremendously 756 confusing to have that effect. We want to avoid that if possible. It has been argued that the parent of such a child", could call for difficult hypothetical judgments about "such a child" in individual cases and leave uncertain whether aspects of background, wealth and so on should be taken into account. It would be better, it was suggested, to find a way of focusing the assessment more directly on the parents than on the child.
If the amendment were adopted subsection (b)(i) would read: the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him". By dropping "such a child" the condition seems to centre more on the needs of the child whose case is before the court rather than on some hypothetical child and the hypothesis is transferred to the parent.
The test has to be, in effect, what care it would be reasonable to expect a reasonable parent to give that child. If the test were what care it would be reasonable to expect the parent (that is, the child's parent) to give, one might have to allow for, say, chronic irresponsibility on the part of that person to the upbringing of children. The standard of care which would be reasonable in such a case could be very low.
On balance, we think that the new version, in avoiding the words "such a child" and focusing more specifically on the child in question, is simpler and more helpful. Other differences between the two versions are of minor importance. "Standard of care" has been simplified to "care". The rest is minor redrafting to accommodate the principal change.
Amendment No. 85 is to make clear for the avoidance of doubt that the court on an application for a care order may make a supervision order, and vice versa.
As regards Amendments Nos, 86 and 87, in the other place the Government heard further agruments in support of those advanced by the noble Lord, Lord Mottistone, on behalf of the NSPCC for removal of the restriction at Clause 26(7)(c). This restriction would prevent the court entertaining an application for a care order or a supervision order if at the time the application was made the child in question was being provided with accommodation by or on behalf of the local authority.
On further reflection the Government have accepted that the bar is unnecessary. The important point was made that the NSPCC, whom this point chiefly concerns, always endeavours to work with the full co-operation and support of local authorities in its child protection work and in the comparatively few cases where it judges it necessary to initiate care proceedings. Such co-operation is essential and in subsection (5) the Bill requires the authorised person who proposes to make an application under Clause 26 to consult the relevant local authority if it is reasonably practicable. I am sure that there will be no difficulty on that score with the NSPCC.
Amendment No. 87 removes the restriction at subsection (6) and Amendment No. 86 is a simple 757 adjustment of the drafting of what would remain in subsection (6).
When the Bill left this House for the other place in March the Government were still considering amendments moved by the noble Lord, Lord Mottistone, in Committee and on Report seeking to establish on the face of the Bill the right of the NSPCC to initiate care proceedings. At present it may do so on the authority of the Secretary of State by order made under Section 1 of the Children and Young Persons Act 1969 —the only body so authorised. The amendment recognises the special position in child protection work of the NSPCC. In all the circumstances we are persuaded that the NSPCC should be identified specifically in Clause 26 and should not need to rely on a subsequent order by the Secretary of State to continue to carry out this part of their work.
Amendment No. 92 is intended only to clarify the meaning of "care order" under the Bill. The basic definition is given in Clause 26(10), but Clause 75(1), while pointing to Clause 26(10), also carries some further detail. This includes orders which are deemed to be or to have the effect of care orders. This amendment merely places a corresponding cross-reference into Clause 26 to ensure that references in the Bill to a "child in care" carry the broader meaning.

§ Lord Mottistone
My Lords, I should like to thank my noble and learned friend for this group of amendments and particularly for the earlier group of amendments which he described; that is, Amendments Nos. 83 and 84. Those are the result of long discussions which we had starting in Committee on this rather delicate point. It seems to me that the Government have come up with a solution which is as good as one could possibly expect. They have taken regard of all the points made by the NSPCC and indeed by others.
Of course, I am simply delighted to see Amendment No. 91, which again is the conclusion of a long discussion between us. I should also like to thank my noble and learned friend for many other amendments, and to save the time of your Lordships' House I have not popped up each time. They show that in another place and indeed in the shape of my noble and learned friend in this House, the Government have listened as much as they possibly can to many of the arguments which the NSPCC and others have put forward. I thank my noble and learned friend for that.

§ Lord Mishcon
My Lords, perhaps I may herald with equal enthusiasm the victory of the noble Lord, Lord Mottistone, and my defeat. I believe that it was I who ventured to suggest the formula "such a child" in our earlier deliberations in this House. We now have a very much better formula. Therefore, I say that I herald my defeat with enthusiasm.

§ Lord Meston
My Lords, I also wish to welcome the undoubted improvements to Clause 26 and in particular the reference to the suffering of harm as a continuing state of affairs. However, the very fact that these amendments have to be produced supports the view that it is too difficult to produce a comprehensive, watertight statutory code of criteria for care and that it is too dangerous to remove the safety net of wardship. However, I know that that battle has been fought and lost and I shall not pursue it now.

§ The Lord Chancellor
My Lords, I should like to say two things. First, it has been the Government's aim in the carriage of this Bill to try to secure as broad an agreement as possible on its various provisions. That takes time and a good deal of consideration and willingness to change what one has embarked upon. I believe that these amendments are the fruit of that.
As regards having a watertight definition, I believe that the more one strives for a watertight definition and sets one's aims high, the more likely one is to reach it. I believe that we have now reached a very good definition. Of course certain powers of the High Court remain and I have no doubt that, if necessary, it would find a way to use those powers, although not to make a care order.