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. 94 and 95. In moving these amendments I speak also to Amendment No. 100.

These amendments attempt to clarify the relationship between a local authority and a person with parental responsibility for a child who is under a care order. At present a care order operates to give a local authority parental responsibility and such responsibility is additional to that of a parent or guardian. Clause 2(7) of the Bill states that where more than one person has parental responsibility for a child, each may act alone and without the other or others in meeting that responsibility. It is conceivable, therefore, that a parent may strongly disagree with a local authority decision (for example, regarding education) and wish to seek to reverse its effect by exercising his parental responsibility.

760 To a large extent we think that Clause 2(8) deals with this potential for conflict. It says that the fact that a person has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any order made with respect to the child under the Bill. Therefore, a parent could not exercise his parental responsibility in a way which is incompatible with a care order.

We have remained concerned in the light of all these discussions that the operation of these rules may still lead to room for doubt. It may be difficult to decide whether action is "incompatible" with a care order. As a result we have thought it helpful to make it clear that in the end in care cases the local authority must be in the driving seat. It has the responsibility, guided by statute and regulations, to care for children and we must give it power to carry its duties out. We have therefore made it clear with Amendment No. 94 that an authority may determine the extent to which a parent or guardian may meet his parental responsibility for the child. This would give the local authority the ability to prevent a parent from undermining its decisions, for example regarding placement of the child.

This power to determine is subject to a number of safeguards. First, by new subsection (2B) the authority may exercise it only if it is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare. Secondly, by new subsection (2C) a parent or guardian who is currently looking after a child (for example during a contact visit) may still do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare. This ensures that a parent may always take reasonable steps to care for the child. Clause 3(5) of course permits a person who has not got parental responsibility to take such steps.

Thirdly, new subsection (6), which is introduced by Amendment No. 100, ensures that the power to determine does not detract from a parent or guardian's right or duties under other enactments. For example, a parent's statutory right to consent to marriage or adoption is not affected by the Amendment No. 94.

Fourthly, parents and guardians will have the right to have their wishes and feelings ascertained and taken ino account by a local authority which is taking decisions with respect to the child. Clause 18(4) and (5) impose such a duty of consultation wherever it is reasonably practicable to carry it out. Where a parent is aggrieved by a local authority's actions he or she will also be able to use the complaints and representations procedure outlined in Clause 22 which was developed in the proceedings in your Lordships' House. With all these safeguards I think we can be confident that the power given to local authorities by Amendment No. 94 will be sparingly used and only where its use is justified.

Amendment No. 95 makes an amendment which is consequential to Amendment No. 94. It removes what would otherwise be a duplicatory reference to a local authority receiving parental responsibility by virtue of a care order.