Criminal Justice Bill

HL Deb 22 April 1991 vol 528 cc75-128

House again in Committee.

Clause 46 [Further amendments of enactments relating to children's evidence]:

Lord Mottistone moved Amendment No. 87:

Page 31, line 40, at end insert: ("() In subsection (1) of section 32 of the 1988 Act (evidence through television links) leave out the words "but evidence may not be so given without the leave of the court" and insert "whether evidence shall be so given shall be determined by the wishes of the child witness." ").

The noble Lord said: Clause 46 extends the provisions of the Criminal Justice Act 1988 which allow child witnesses to give evidence by means of a video link. In the case of alleged sexual offences, the clause allows witnesses up to the age of 17 to give evidence in that way. Under current legislation, a child witness may give evidence by live video link instead of in open court only at the judge's discretion. Perhaps I may direct noble Lords' minds away from the technicalities of allowing witnesses up to the age of 17 to give evidence in that way. I refer to young children—very young in some cases. The current procedure means that it is impossible to let child witnesses know before the trial the manner in which they will be expected to give evidence at the trial.

Such uncertainty can only add to the already considerable stress experienced by many children waiting to give evidence in criminal trials involving allegations of violent or sexual offences. Many such children are extremely frightened at giving evidence in open court with the accused present. In some cases they are more likely to break down while giving evidence if called upon to give it in that way. Uncertainty about the manner in which evidence is to be given may deter some children from giving evidence; and indeed we have had examples quoted by other Members of the Committee during earlier amendments. It may also make parents reluctant to allow their children to give evidence.

If child witnesses could be assured from the outset that they would be able to give their evidence by television link, the fear and uncertainty experienced by many children could be considerably reduced, and that would lead to a reduction in the number of cases which collapse because of children's distress. My amendment seeks to alleviate the stress experienced by children waiting to give evidence at criminal trials by making provision to enable any child witness who wishes to do so to give evidence by live television link.

The Government have expressed the view that it is inappropriate for the witness to determine the method in which his or her evidence is given. In the case of child witnesses giving evidence at trials of alleged sexual or violent offences, I suggest that that consideration is outweighed by the importance of being able to assure children during the extremely stressful period while they are waiting to give evidence that they will not be expected to do so in the presence of the accused. The ability to provide such an assurance to a potential child witness would not impede the course of justice. It seems more likely to assist the course of justice as it would result in fewer cases collapsing because of the child's distress.

There are not many Members of the Committee in the Chamber. However, at Amendment No. 81 my noble friends Lord Renton and Lord Campbell of Alloway were distressed by placing executive power in the hands of the child. That is what we seek to do now. I am sorry that they are not present to argue their case on that point. However, I repeat the argument which was rather lost in some of the earlier amendments. We seek not only to ensure that children can give evidence under circumstances which are palatable to them but also to make sure that justice is done. If children are required to give evidence under circumstances in which they will not tell the truth or will not wish to say anything, then justice will not be done.

Although the position is unusual, and there may be a better way of describing what I seek to achieve which is not quite so blatant and enables the judge to consider that he has some say in the matter, I believe that such an amendment allows the child to have a hand in deciding whether the video link should be used. If my noble friend cannot agree to the amendment, perhaps between now and the next stage an amendment may be put forward which satisfies the obvious desires of the judge to be in charge of a case in the way in which the Bill provides but also provides that the child witness shall have a say. I beg to move.

Baroness David

I support the noble Lord, Lord Mottistone. During the Children Bill, the Child Support Bill and indeed this Bill, I have tried to support the case that the child's wishes and standing should be recognised. Children are people. They should have the right to express their views. There is a strong case for making such provision. One is more likely to have satisfactory evidence if one responds to their wishes. There is great logic in the amendment. If the noble Earl cannot accept the wording, I hope that he will accept the spirit of the amendment. Children should have the opportunity to choose how they will give evidence. That is likely to achieve the best solution and the best evidence.

Baroness Faithfull

I agree with the spirit of the amendment. I worry that children of three, four or five would not understand if one asked them whether they wished to appear in open court or in comfortable surroundings. When one takes a child of three or four to a big courtroom he or she often will not give evidence and one is in difficulties.

The thought of giving evidence in front of their abuser fills boys and girls of seven, eight or nine years with such horror and apprehension that they often will not give evidence; or they say that they will give evidence but when they reach court they do not do so. I am behind the spirit of the amendment but the wording needs to be changed because the situation is different with children of different ages.

Lady Kinloss

I support the amendment because it is crucial in preventing child witnesses from giving evidence in open court. Under the present system a great deal of distress is caused to children and to their families by having to wait until the trial to find out the manner in which the child's evidence is to be given. If the child witnesses can be assured from the outset—that is, if they are old enough to understand—that they will be able to give their evidence by television link, the fear and uncertainty experienced by many children will be considerably reduced. That will lead to a reduction in the number of cases which collapse because of children's distress.

Lord Morris of Castle Morris

I speak tentatively and hesitantly about the amendment because as a non-lawyer, although not as an anti-lawyer, I am conscious that I am treading ignorantly in an area where so many Members of the Committee have great and expert knowledge. I take the point made by the noble Baroness, Lady Faithfull, that there are difficulties in the amendment as it affects small children. Surely the object of the exercise is to give the court the benefit of the child witness's evidence and to ensure that it is given freely, clearly and without fear. We must ensure that the evidence is given at its best, as the noble and learned Lord, Lord Ackner, reminded us. Surely justice is not served if the court is denied evidence because the witness is too frightened to testify. Children are easily frightened by adults. Lawyers too often forget that a court of law can be an awesome and intimidating place.

The noble Lord, Lord Mottistone, drew our attention to the current legislation under which a child witness can give evidence by a live video link instead of in open court only at the discretion of the judge. The inevitable effect of that is that one cannot let the child witness know before the trial the manner in which he or she will be expected to give evidence. That inhibits the giving of evidence.

There are ways around that difficulty. One way might be to legislate so that, if asked, the judge is required to give a ruling at the earliest possible stage in the conduct of a case. But there are also problems and perils in that approach. The present amendment—one might wish to see it a little more felicitously worded—avoids them and offers a simple alternative. If child witnesses could know from the beginning of a case that they would be able to give their evidence by a television link, their fear and uncertainty might be considerably reduced. They would therefore give their evidence better which would be an advantage to the court. Furthermore, more courts and more children would be enabled to receive and give such evidence. Fewer cases would collapse and there would be greater efficiency in the administration of the criminal law. Surely that is a consummation devoutly to be wished.

The Government have expressed the view that it is inappropriate for the witness to determine the method by which his or her evidence is given. I find that view difficult to understand. To what is it inappropriate? Is it unsuitable or not fitting in the pursuit of truth or the achievement of a just verdict? If so, I should be grateful to hear evidence of that surprising assertion. On what published research is the view based? What deep well of legal experience has been plumbed to bring up that particular dead fish? We are breaking new ground and, as the noble Lord, Lord Hutchinson, said, we are dealing with matters unique in the criminal process.

If in this case the child witness were allowed to decide by which of two methods to give evidence, is it true that some fearful precedent would be set which would reverberate throughout the entire legal system? Would the authority and prerogative of the judge be fatally vitiated? Would the proceedings of the court run wildly out of control? Surely not! Would not any such putative risk be entirely outweighed by the importance of being able to assure children during the extremely stressful period of waiting to give evidence that they will not necessarily and unless they choose be expected to do so in the presence of the accused?

8.15 p.m.

Lord Hutchinson of Lullington

I find it distasteful that I appear to be cast in the role of the dinosaur lawyer. I have spent a great deal of my legal career trying to find a solution and assist children to give evidence. I have taken a particular interest in that matter. The noble Lord, Lord Morris, asked why the proposal is said to be inappropriate. It is that the substitution of the court's determination of an issue by the wishes of a prosecution witness is totally inappropriate.

Perhaps he will understand that the important issue in all our discussions is the question of justice and not that of the interests of the child. It is extraordinary to suggest in a statute that a prosecution witness is the person who determines the way in which evidence is given. That is an example of the child lobby going over the top. It is a perfectly simple matter which is in the hands of the judge. All such matters are in the hands of the representative of justice in the court; that is the judge. If one party wishes that one course should be taken, that party would make a submission to the judge.

As regards the administration of justice, the judge decides what is right in the circumstances and makes an impartial decision. If the child wishes to give evidence in one way or another the person who represents the child stands up and tells the judge that. The judge listens to the submission. He then listens to the submission of the other side because there is another side. Then the judge impartially makes a decision. I cannot understand why there is all this fuss. The matter is perfectly simple and straightforward and can be decided in the normal way.

Lord Mottistone

Perhaps when the noble Lord, Lord Hutchinson, reads Hansard tomorrow he will understand that, if he had been present in the Chamber to hear my introductory speech, I answered many of his questions before he spoke.

Earl Ferrers

After that little rebuff I say only to the noble Lord, Lord Hutchinson, that the modest mantle of dinosaur lawyer suits him well, in particular when he is right. We have returned to the old issue of the rights of the child, the rights of the defendant and the balance to be struck between them. I sympathise a great deal with what my noble friend has said. I am sure he will agree that it is fundamental to the process of justice that the judge decides within the framework of the law and the rules of the court how the proceedings in his court should be conducted. He must ensure that they are conducted in a way which is fair to all parties to the proceedings and which ensures that justice will be done at the end of the day. That is a difficult responsibility. The amendment, in effect, delegates that decision from the judge to none other than the child witness or to his or her parents.

It is not right nor fair to place such a responsibility on a child witness and his or her parents or supporters. By definition a child witness is a person of tender years and probably with no previous experience of the legal process—how on earth can children have that? Such a person is hardly in a position to judge which method of giving evidence will be in his or her own best interests, still less which will be most likely to result in justice being done at the end of the day. However despicable the crime, we must never forget that the defendant also has a right to a fair trial. Important matters of court procedure cannot be left to be determined by the wishes of a person who in many cases will be the chief prosecution witness.

Nothing in the Bill prevents the child's representatives taking account of his views about the manner in which he gives evidence. However, neither the Bill nor the Criminal Justice Act 1988 which preceded it gives to the child the final decision.

I am sure that the courts will consider carefully and sympathetically the wishes of a child witness and will take them into account in deciding how the interests of justice will best be served in each case. I fully expect that in the vast majority of cases the child witness will be permitted to give evidence by live television link. That has been the experience so far.

I have every sympathy with the aim to eliminate the fear and stress associated with a court appearance by a child witness. I hope that, as a result of what I have said, Members of the Committee will see that this amendment goes too far.

I should mention also a technical but fairly serious objection, in that the amendment is unsuitable because it overlooks the provision for determining whether an adult witness who may be eligible to give evidence under Section 32 of the 1988 Act should be permitted to do so. That section of the Act says that in certain cases any person—adult or child—may give evidence through a live television link if the court gives leave. My noble friend's amendment replaces those words by reference to the wishes of a child only. Therefore, adults have disappeared from our considerations. For those reasons I do not advise Members of the Committee to accept my noble friend's amendment.

Lord Mottistone

I am grateful to all Members of the Committee who have taken part in this debate. I am sorry if I was rather abrupt with the noble Lord, Lord Hutchinson, and I hope that he will forgive me.

One point does not quite come through, although my noble friend touched upon it; that is, it would be helpful if a child could know before it came to court the circumstances in which it will be required to give evidence. There may be very good reasons—and I accept that—why the judge decides that the child must give evidence in court. In that case it would be helpful for the people looking after the child to introduce the child to the court and explain what is involved. A court is very awe inspiring, almost as frightening as I found your Lordships' House to be when I first arrived here.

On the other hand, if the child or the people looking after the child know that the evidence is to be given through a video, then the child can be prepared for that. My noble friend Lady Faithfull mentioned that the child should be in comfortable surroundings. In my experience there are no comfortable surroundings in court buildings. Therefore, that will create a problem. However, at least the child can be prepared in the right sort of way.

As I said in my opening speech, the judge must take charge of the proceedings, as the noble Lord, Lord Hutchinson, impressed upon us. Moreover, the judge may well not make a decision on this until the trial date because he must hear from submissions on both sides. The child needs to be prepared for what will be, in any event, a great ordeal. Therefore, there is a problem. It is easy to say that we must be fair to everybody. However, I return to my point that it will not be possible to get the best evidence from the child unless that evidence is given in the right circumstances.

Having said that, I shall study what has been said. We may return with another amendment on Report. However, at this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 agreed to.

[Amendment No. 88 not moved.]

[Amendment No. 89 had been withdrawn from the Marshalled List.]

Lord Mottistone moved Amendment No. 90: After Clause 46, insert the following new clause:

("Review of child witness procedures

—(1) The Secretary of State shall keep under review the provisions of this Part.

(2) In particular he shall keep under review the provisions relating to—

1. (a) evidence given by children;
2. (b) video-recordings of testimony from child witnesses;
3. (c) cross-examination of child witnesses;

and any other such matters as he considers appropriate.

(3) Where the Secretary of State has conducted a review he shall publish the results, together with any proposals he may have with respect to the matters reviewed.").

The noble Lord said: A similar amendment was moved in another place and was rejected on the basis that the Government did not wish to be held to a strict timetable imposed on the review duty. My amendment still covers a duty to review the new provisions but does not insist upon a timetable. Therefore, I hope that it meets the Government's objections.

A major recommendation made in the Pigot Report on the use of video recorded evidence was that, following the introduction of such a system, it should be subject to review at an early stage. The NSPCC and other child care organisations such as the National Children's Bureau and the Children's Legal Centre endorse that recommendation and believe for a number of reasons that this Bill should include a provision for gathering information.

First, as with the introduction of any new measure, there is a need for careful monitoring and assessment of best practice and development of the service. Such an accurate assessment is only possible if supported by detailed written information. Secondly, information gathered about the use of video recordings and the reasons why some videos are not admissible will contribute to the development of appropriate procedures and best practice in the making and use of video recording techniques.

The requirement to publish the results of those reviews should encourage consultation with a wide section of the professionals working directly with children and their families. The views and opinions of children should also be sought. I hope that that is acceptable. It should help to ensure that children receive the most appropriate service at a most traumatic period in their lives. A view would help directly to improve practice, and, hence, the quality of the service.

There is a relative paucity of hard data about children in criminal proceedings. Perhaps I may take one example. Neither the Home Office nor the Lord Chancellor's Department collect statistics on case disposition times by offence. Therefore, we are in a position where it is almost impossible to obtain information about categories of offence in which victims are, by definition, children. Nor is information about disposition times obtainable from special data collection exercises related to child abuse. Effectively, we are in a situation in which there is no hard information about the numbers of child witnesses or the time delay for cases coming to court.

My amendment would provide some of that missing information. It seems dreadful to say this but the best information we have about child cases is what we read in rather purple terms in the press and not through statistics carefully kept by the government departments responsible.

Therefore, as the pressure of a timetable has been removed, I hope that my noble friend will accept an amendment similar to this for inclusion in the Bill because I believe that it is important that it is written on the face of the Bill rather than allowing it to come about by some other secondary means. It is important particularly because, as many Members of the Committee have said in relation to my earlier amendments, this is breaking fresh ground. When fresh ground is being broken it is particularly important to know what one is at and to gain all the advantage possible from such experiments as one is prepared to make. Therefore, I believe this review to be terribly valuable and thoroughly justified for inclusion in the Bill. I beg to move.

Lord Morris of Castle Morris

All Members of the Committee who have served in the armed forces in peace or war will be familiar with the concept of debriefing. After any reconnaissance, mission or patrol, participants were interviewed and questioned by the debriefing officer so that the maximum information could be extracted from the exercise. A good intelligence officer—and I was a very good intelligence officer—could learn more from the debriefings than from any other source of information. We were always taught that a debriefing must be informed, immediate and interrogatory. The same impulse informs this amendment, which it gives me great pleasure to support.

In any review of child witness procedures, as we are becoming used to saying, we are breaking new ground. Videos and television links are new; the whole exploration of the sordid underworld of child abuse is new. It is therefore no more than common sense that we should be vigilant to check and assess our activities.

The amendment does no more than require the Secretary of State to monitor the new activities and publish the results. Surely it is necessary to do that. We have all heard stories of a child who, immediately after an alleged assault, tells a highly detailed and marvellously convincing story to the camera. A week or a month later that same child tells a totally different story in open court. The case is dismissed and our confidence is shaken. But how many such incidents are there in any year? Are they on the increase? Or is it almost unheard of and is that why it becomes anecdotal?

At the moment we must argue by anecdote because there is no other way to argue. We are free as the wind to speculate because we have so few facts and almost no statistics. The amendment, if the Government will be so good as to accept it, will start a process of appraisal which will build up a database of fact and of evidence which will enable researchers and practitioners to propose adaptations to our systems which will be built on the rock of knowledge and not on the sand of speculation.

As the noble Lord, Lord Mottistone, said, the requirement to publish the results of the reviews would encourage a process of consultation with the people most nearly concerned. I stress that one should seek the views and the opinions of the children involved. We should listen to what those children say. I remember all too well when, in universities, we arrogantly assumed that there was no point in having students on academic committees because they would not know what they or we were talking about. We were wrong then and I hope that we shall not make the same mistake here.

To consult the children as part of the process could only be of benefit. In this relatively untrodden area of new technology and child witnesses we are setting a fresh course. We are breaking new ground and at the same time we are walking in a minefield. Surely we need all the help that we can get.

8.30 p.m.

Earl Ferrers

The Pigot provisions in Clauses 43 to 46 represent radical changes to the way in which the courts treat the evidence of children. The Government entirely accept that they have a clear responsibility to monitor the implementation and the operation of what are important reforms.

I repeat the undertaking given in another place by my right honourable friend the Minister of State and assure the Committee that the Government will be keeping a close eye on how the reforms work out in practice. The amendment seeks to place an obligation upon the Secretary of State to carry out the review and publish the results. One must be careful to realise what that means. It is important to include in the Bill that which is important. The Pigot Committee certainly recommended a review, and rightly so. However, it did not recommend a statutory provision to that effect, and perhaps it did not do so because it considered that the Government would heed the recommendation. Indeed we shall, and I suggest that we do not need a statutory duty to do that.

The purpose of the new provisions is to enable children's evidence to be more easily heard by the courts and to reduce the stress on a child witness giving evidence in court so that more child abusers can be brought to justice. That is the purpose of the alterations. Of course we want to ensure that the new provisions are achieving those aims and that the departments concerned are dealing with them properly. Indeed, those departments are already discussing how best that may be achieved. We have in mind commissioning independent research specifically for those purposes and will, of course, make full use of the statistical resources both in the Home Office and in the Lord Chancellor's department.

I assure the Committee that we shall not withhold the results of such a review nor any proposals arising from it. However, the formal process of the new clause would make the process rather inflexible and cumbersome and, because the Government intend to do it anyhow, it would be unnecessary.

Lord Mottistone

Before my noble friend sits down, perhaps he will comment on the point that I made. The present statistics produced both by his own department and by the Lord Chancellor's department do not provide any information of hard data in regard to children such as we want to see. What is distressing is that the current picture about evidence in regard to crime in relation to children is so inadequate. We are concerned that the Government will do no better in the future unless there is pressure to make them do so.

Lord Hylton

The noble Earl the Minister repeated what he described as an existing undertaking to review. I believe he went on to say that the results of such a review would not be withheld. Perhaps he would care to comment on the text of the amendment, which imposes a duty to publish the results. Is there not a difference between publication and not withholding?

Earl Ferrers

If I may say so, the noble Lord, Lord Hylton, is indulging a little in semantics. It is difficult to believe that a Government who have introduced new arrangements of a far-reaching nature in relation to children will not take great care in regard to the effect that those provisions will have. Of course they will take care. It is our intention to take care.

New research is being commissioned on this important area. My noble friend will be glad to know that we shall not be relying solely on statistics. We want to see the provisions work as much as everybody else. If the statistics do not give the right information then new provisions must be introduced; that is precisely what we are doing. The noble Lord, Lord Hylton, says that there is a difference between "publishing" information and "not withholding it". It is our intention that the statistics and information which flows from them should be public knowledge.

Lord Mottistone

I thank my noble friend for his full response and other noble Lords for taking part in this debate. I am puzzled that the Home Office seems to be reluctant to accept statutory codes of practice and a statutory review process. Noble Lords who have attended the Chamber for a number of years will be aware that during the course of the past 10, even 20 years, countless Bills have been introduced where government departments have accepted statutory codes of practice and reviews. "What have they got to hide?" is the kind of question that springs to mind. Why do the Government make the firm decision that they will produce the information but do not want to be told to do so? That is rather petty for a government department, and I do not understand it.

I do not seek to be unreasonable. However, the government department concerned is being particularly careful not to have its affairs revealed to the great public who are to benefit from what is being done.

Earl Ferrers

I do not want to prevent my noble friend from withdrawing the amendment, if that is what he intends to do, nor do I wish to pre-empt him if that is not what he is going to do. We always have this fearful harangue over statutory codes of practice and requirements. Whenever we discuss affirmative or negative resolutions there is always a row.

I can only say to my noble friend and to the Committee that we talked earlier about statutory codes of practice. There is no point in putting something into a Bill unless it achieves a positive effect. When we were talking about a statutory code of practice it was suggested that the Bill should contain what was in the code of practice. As the Government intend to put them in the code of practice, there does not seem to be much point in making the provisions a statutory obligation. Where one has a code of practice, does it have a statutory effect on the court? That is the difference. In the amendment that we dealt with earlier that would not have been the case. There would not have been a statutory effect on the court. It would simply have obliged my right honourable friend to have drawn up a code of practice, which he intends to do in any event.

Here we have a very similar situation; namely, a statutory obligation put on to the Secretary of State to do some research, find out what the facts are and then to publish them. If my right honourable friend intends to carry out research and then to publish the facts, it seems pointless to put that requirement into the Bill because that is what he intends to do anyhow.

Lord Mottistone

I am grateful to my noble friend for his comments, but they do not take the matter very much further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Attendance at court of parent or guardian]:

Baroness Faithfull moved Amendment No. 91:

Page 32, line 39, at end insert: ("(1A) Where the court is satisfied that to require a parent or guardian to attend court at the times at which the court normally sits would jeopardise his employment, it shall arrange for the proceedings to take place at a time at which the parent or guardian does not normally work.").

The noble Baroness said: This amendment requires that, where attendance at court would jeopardise the employment of the parent of a juvenile offender, a sitting should be arranged in the evening or at some other time when the parent is not at work. On reflection, I am sorry that I have drawn this amendment so narrowly because, taking into account Amendment No. 94 which we shall be discussing later and the question of fining and binding over parents, I wish now that I had made this amendment much wider than dealing just with the question of employment.

I have often attended the magistrates' court when a child has appeared with no parent. More likely, one has been in court with a child when the mother only has attended and never, or perhaps very rarely, has the father attended. Therefore, it is always the mother who has to bear the brunt of everything. More women are going out to work than ever before. There is a great deal of unemployment. It will be a very serious situation when one or other of the parents has to give up work. Equally, I believe Section 2 of the Children Act 1989 states that there should be parental responsibility. I think that responsibility means responsibility on the part of both parents and not just one. That is only fair and right.

It should be possible for parents to say that they cannot attend court in the daytime. As is the case in Scotland where a parent cannot attend during the day, it should be possible to arrange a sitting in the magistrates' court in the evening. The Magistrates' Association has agreed with this proposal and thinks that it is right. Furthermore, the Justices' Clerks' Society says that its Members are aware from their daily experience that the repeated attendance of parents at court may jeopardise their employment.

I know it is said that if there is to be an evening court, as there is in Scotland, there will be extra costs, but I maintain that they will not be great. The country should be prepared to pay the costs. As I have said, I do not believe that they will be very great. Amendment No. 94 deals with fines and binding over. How can it be possible to bind over or fine parents if neither of them is there or if one parent only is there? If the parents do not wish to attend court because of their employment and the fact that they would lose money, if they did have to attend they may be unable to pay the fine. We should follow Scotland with its panel system. At any rate, we should give parents the choice of attending one evening, particularly as the Magistrates' Association and the Justices' Clerks' Society agree with this amendment. I beg to move.

8.45 p.m.

Lord Mishcon

I support this amendment. I remind the Committee of the obligation now contained in this Bill. That obligation is very clear. It states through a new clause to be inserted in our law that: Where a child or young person is charged with an offence or is for any other reason brought before a court, the court—(a) may in any case, and (b) shall in the case of a child or a young person who is under the age of sixteen years, require a person who is a parent or guardian of his to attend at the court during all the stages of the proceedings". There is a proviso— unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case". I am not sure that the words "the circumstances of the case" cover the circumstances of the parents. I think the words having regard to the circumstances of the case", make the requirement mandatory in the case of a young person or child under the age of 16 and discretionary in any other case.

That is a very serious obligation on the parent. We must be careful about what we are doing. If the court proceedings are held in the normal way during the day either the mother or father—the noble Baroness, Lady Faithful], has emphasised that in many cases it may be the mother—will have to go to the employer to get leave of absence. Apart from the inconvenience of giving that leave, the employer will no doubt receive an answer to his inquiry as to why the parent has to go to court—"Because my child is in trouble. There is a charge against him of stealing". That is not a very agreeable situation for a parent to face, especially where the parent has been absolutely dutiful in the way in which the child has been brought up; most likely the child has been encouraged to go to church and do all kinds of righteous things, but this situation has arisen.

Apart from the risk of losing a job, is it right that in this kind of case the courts should be the masters of the situation concerning the parent or should they be the servants? I do not think it is a bad thing for the juvenile courts to have the motto of the Prince of Wales, which is "Ich Dien" (I serve). Should not the juvenile courts also serve the proper interests of those who are before them when we are looking at a Bill which makes it mandatory in certain cases, if the courts so order, that the parent must be there throughout the whole of the proceedings? As the noble Baroness said, there may be inconvenience. She rightly pointed out that when the White Paper hinted at this provision about the compulsory attendance of parents, the magistrates themselves drew attention to the hardship and difficulties that might be caused if proper provision was not made for the convenient attendance of parents who are employed.

The noble Baroness also pointed out that the Justices' Clerks' Society felt—I am paraphrasing—that this might create grave difficulties. The Government should say, without equivocation and without the need for further consideration, that this is just. The courts were made for the offenders, not the offenders for the courts.

Lord Mottistone

I support the amendment. I recognise the difficulties that might be caused. My noble friend has said that the Magistrates' Association and the Justices' Clerks' Society support this provision. I believe that. The only argument I can possibly see against it is that one would perhaps have to have another court clerk on a particular bench in order to cover the extra work. One does not know what the extra work might be and one might have to have a little more money to pay them overtime.

I can see no other objection to this. I am sure that the magistrates in my own county, provided it is not too onerous a burden, would be prepared to spare the time. I am equally sure that my court clerks would be too if it was going to produce a better result. I cannot see any objections. Unfortunately we have on the Isle of Wight periodic riots and invasions by people on motor scooters and courts have to be called over a weekend. This would be the same sort of thing. It does not happen very often happily, because the summer comes only once a year and the visits come only once a summer. However, these things do happen. One does not want to be too rigid about this in looking at what would be a marginal amount of increased expense.

Baroness David

I support the amendment too. What the noble Lord has just said is quite right. Some magistrates might be quite pleased to sit in the evening instead of perhaps in the morning or the afternoon when they have to give up their work. I also support what was said by the noble Baroness, Lady Faithfull. So often one has been in court when there has been just the one parent of a child. I think it is very important, if possible, to have both parents there. They should be. I do not have anything more to say. This is a very sensible amendment and I hope the Government will accept it.

Lord Henderson of Brompton

I entirely agree with the amendment. The noble Baroness, Lady Faithfull, said in moving it that we should look north to Scotland where this is done already. If we look around us we find that, far from objecting to it, those who are most affected—the magistrates' clerks and the magistrates themselves—actually proposed this. If we look south to France we find that it has long been the practice. It is an amazement to them. They gasp and stretch their eyes when they find that we are so rigid that we do not put the family first. Putting the family first means adjusting sitting times to when the family can attend. Whether we look north, south or just around us, this amendment is acceptable.

Baroness Seear

I shall be very brief because it seems rather futile to stand up and say, after everybody else has said it, that I agree with this amendment, since I have my name to it. However, I should like to make one point. On second thoughts it is perhaps rather a pity that we included the phrase "would jeopardise his employment". It should not be necessarily only when employment would be jeopardised. I can think of all kinds of stupid and time-consuming arguments as to whether employment would be jeopardised. It should be a matter of agreement that a court would sit if a request was made by the parent and the court thought that this was a reasonable thing to do. It should not insist on evidence that it would jeopardise employment.

If it were considered that court sittings in the evening would not occur too often—although I agree that it would be rather a good thing—I should have thought that, with encouragement, quite a number of employers would not only give time off, certainly in the larger organisations, but would be prepared to pay for time off. If parents were not given paid time off but were given time off in the form of leave of absence without pay, the courts should pay for loss of earnings when a parent attends court and the court did not sit in the evening. There are variations around this theme as to how to get a parent into court. All of them are possible and they should be covered by this provision.

Lord Hutchinson of Lullington

I wish only to add that this amendment has far greater implications than the specific matter of the juvenile court. I hope that the amendment will be accepted by the Government and that it will send a message to the noble and learned Lord the Lord Chancellor that courts throughout the country sit not for the convenience of the judges and the magistrates but for the convenience of the public. That message should be taken on board by courts other than juvenile courts. I hope that that message will go home to the noble and learned Lord the Lord Chancellor. This amendment is a good occasion to make the point.

Earl Ferrers

I had hoped that the dinosaur lawyer would come up with a controversial point of view or one contradictory to that which had been expressed by others, but he did not do so.

The noble Lord, Lord Mishcon, expressed his hope that we would be able to accept this amendment without equivocation. One always hopes that but it does not always work out the way that one might wish. The noble Lord made one quite curious point. He said that the courts were made for offenders and not offenders for the courts. Courts are made for justice and justice includes both sides. The noble Lord, Lord Mishcon, shakes his head. Justice consists of two sides of an argument and not one.

The duty of the courts to require parents to attend court is not intended to be used without regard to the circumstances of the case or indeed the circumstances of the parents. Clause 47 makes it quite clear that the court need not require parental attendance if it is satisfied, that it would be unreasonable … having regard to the circumstances of the case". I agree with my noble friend Lady Faithfull that it is important that parents should attend and that it should not always be only the mother who attends.

The phrase "the circumstances of the case" is intended to encompass all eventualities, including the effect on the employment of the parent, where it is relevant. I entirely agree that it would be quite wrong to jeopardise a parent's employment by requiring attendance at a court. I have no doubt that the courts would, could and can take this into account.

The noble Lord, Lord Henderson, said that the magistrates' clerks and justices want this provision. The clerk to the justices already has power to list cases as he considers appropriate in the interests of justice. I understand that courts can and do sit at different times. However, in setting the cases which are appropriate in the interests of justice he will need to consider the needs of all those involved in the case—not only the needs of the defendant or the parents but the needs of the victim and of witnesses who also have work and domestic commitments. These all have to be taken into account. They are also important. If the victim or a witness is also a young person he too might lice his parents to be able to accompany him to court and to provide support. The court has to consider all these relevant factors. It would be wrong to place a specific requirement on the courts to arrange the times of the proceedings solely to suit the parent or the guardian of the defendant.

I understand the concern which is expressed by my noble friend and around the Committee. However, I think the ability for courts to arrange times of sittings is available now. It is important that they should make these arrangements in view of all the interested parties and not just one interested party.

9 p.m.

Lord Mishcon

The noble Earl may have misled himself on the matter. I am sure that he would never mislead the Committee. It is not just a question of fixing a time when it is convenient for all the parties involved; the amendment specifically says that when the court requires the attendance of a parent, it will, for the convenience of that person where the employment position is jeopardised, fix a hearing not for the whole case but for the time when it wishes to hear what that parent has to say. It is not a question of all the days of the hearing being arranged to suit the convenience of the parent. When the court requires the attendance of a parent and such attendance will jeopardise the employment position, then for the purpose of hearing the parent, the court will fix a time which will ensure that the employment position is not jeopardised.

At this stage, perhaps Members of the Committee will allow me to make a point which I did not make previously. If the parent's employment is jeopardised, what will the atmosphere at home and the relationship between parent and child be like? Surely the court will want to make that as solid, as firm and as warm as possible in order to get over the difficulty in which the juvenile finds himself.

Lord Harris of Greenwich

I hope that the noble Earl will be able to assist us on a different matter. Can he tell us what is the penalty position so far as concerns this clause? In other words, what happens if the parent is unable to attend court for one reason or another? I am sure that the noble Earl will be able to help us on that matter.

I am concerned to note that the noble Earl has chosen to ignore the position of the Scottish children's panel. That aspect was put to him by the noble Baroness, Lady Faithfull, but he chose not to reply. I hope that he will now be able to do so. If that is possible in Scotland, why is it not possible in England and Wales? The additional difficulty which the noble Earl must recognise is that we are often dealing with a situation where there is only one parent available. As we know, there are single-parent families in many inner-city areas, and many of the children in that situation have a disposition to appear before the courts. In cases where there is but one breadwinner, it seems to me to be quite astonishing that the Government are apparently not prepared to move in the direction suggested by the noble Baroness. I very much hope that they will think better of it.

Earl Ferrers

The Government are always prepared to consider such matters; but whether they consider them in a way which may be considered to be better is a matter ultimately for Members of the Committee to decide.

The noble Lord, Lord Mishcon, said that parents could be called at different times at the request of other parties. However, I do not think that that would be realistic in the context of a juvenile court hearing. Such matters are normally dealt with in one session. It would be remarkable if one were to attend a court which was specially convened to hear one person's evidence. With regard to the children's panels, the legal system in Scotland is different. Our juvenile court system works well and is suited to our needs.

I understand why Members of the Committee are concerned about the matter. I certainly do not wish to see a situation where a parent was unable to attend court, or a court sitting at a time when a parent could not attend. However, as I said earlier, I believe that there are many occasions when courts sit at different times in order to meet the convenience of certain parties. It would be wrong to put the onus totally upon the courts to sit at a time to suit the needs of one particular party in the case; in other words, the defendant. The courts have to consider the needs of all the parties involved, of which the defendant is one.

Lord Hylton

The Minister continually refers to defendants and the parents of defendants. Surely the amendment could be read the other way around. In other words, the parents in question might be those of the plaintiff.

Earl Ferrers

That is precisely the point I made at the beginning of my response. That is why it is most important that the court should take account of the needs of all parties in the case.

Lord Harris of Greenwich

The noble Earl is quite right to say that the Scottish legal system is different from that which exists in England and Wales. However, unhappily, that does not get over the problem. Were issues of the kind that we are now discussing to take place in Scotland, it would lead to a situation where a children's panel would meet in the evening. The issue is not about the legal system in Scotland. The question is: why are we not prepared to put parents in England and Wales into the same position as that which applies in Scotland?

I also asked the noble Earl, as no doubt he will recall, what was the penalty provision as regards a parent who fails to appear in court. Finally, in my view the noble Lord, Lord Mishcon, made a powerful point which was not wholly answered by the noble Earl. If one looks at the new Section 34A(1) of the 1933 Act, it will be seen that there is a requirement on, a person who is a parent or guardian of his to attend at the court during all the stages of the proceedings"— and then comes the particular point to which the noble Lord, Lord Mishcon, drew attention— unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance"— and these are the relevant words— having regard to the circumstances of the case". With the greatest respect, that does not seem to me to indicate that the court would take account of the problems of a parent in attending a court case; it relates to the circumstances of what is alleged to be a criminal offence, and that is a wholly different question.

Earl Ferrers

The noble Lord, Lord Harris, asked what the penalty was for non-appearance. I have an idea that he might know what it is. In the last resort, it is the issue to a constable of a warrant to arrest the person to bring him before the court. I accept that that is severe. I do not believe that it would happen often. I accept that there is anxiety about this matter, and I am prepared to consider what the Committee has said. I cannot give an undertaking to reach the agreement the Committee would like, but I shall consider what has been said to see whether there is any way in which we can meet the points. I doubt whether there will be, because there are a number of other sides to the coin. I shall consider what has been said.

Lord Harris of Greenwich

I am grateful to the Minister for what he has said. I do not suggest that he has made a commitment, but he has undertaken to look at the matter again, and I very much welcome that.

Baroness Faithfull

I am somewhat dazed by the replies given by my noble friend the Minister. He is usually down to earth and full of common sense, but it may be late in the evening. There are two matters I did not understand. First, did I understand him to say that it would be possible—and the provision is now available—for a court to be called? Secondly, he seemed to think that a special court would be called for a special case. As the noble Lord, Lord Harris, said, in Scotland a special court is not called for a special case. It is known that a court meets on a certain evening once a fortnight. One is therefore in a stronger position legally if a parent does not attend. The parent may say he cannot attend during the day. It would then be possible to say, "A fortnight hence there will be an evening court. If you attend then, it will be possible for the case to be heard". If the parent does not attend, from a legal point of view one is then in a good position to take action against him. If one merely says, "You must attend the court during the day", one is not in a strong position to charge the parent with not attending.

I shall withdraw the amendment for one reason: I feel that I have drafted it badly. It is too wide. It is not specific enough. I shall withdraw it because I have made a mistake which I should like to rectify. My noble friend said that he will look at the amendment. If I had drafted the amendment correctly I should have pressed it. I shall obviously not press it tonight, but I shall return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 91A: Page 32, line 40, leave out from ("person") to ("in") in line 1 of page 33 and insert ("who—

1. (a) is in the care of a local authority; or
2. (b) is provided with accommodation by a local authority").

The noble Lord said: The amendment is an attempt—I am sure that the Minister will appreciate it—to help the Government express what we believe to be their desire in this legislation but which we think, with great respect, is not carried out by the Bill's wording.

Clause 47 provides, as I said before, for a new section to be inserted into the 1933 Act in place of an existing section. As we have just seen, under new Section 34A(1) the Bill requires a parent to attend court. Subsection (2) states: In relation to a child or young person"— I emphasise these words— for whom a local authority have parental responsibility", a local authority representative attends in place of the parent.

Local authorities do not have parental responsibility for children provided with accommodation. I believe that under the Children Act 1989 the new term is "voluntary care". So we are coming to the Government's rescue with the amendment by making it abundantly clear that it is the local authority which should attend in both those cases, despite the fact that the latter case does not come within the definition in the Bill of a child or young person for whom a local authority has parental responsibility. The amendment is thrown as a present to the Government Front Bench. I hope that they will accept it with grace. I beg to move.

Earl Ferrers

I am grateful to the noble Lord, Lord Mishcon, for throwing a gift to the Government; it does not often happen. In view of his generosity, perhaps I may take the opportunity to explain to him exactly what we have sought to do in Clause 47 in relation to the attendance at court of local authority representatives with juveniles.

First we have provided for the local authority to be regarded as the parent or guardian of a child or young person in certain specified circumstances. This means that where those circumstances apply, the court will be able to require a local authority representative to attend court rather than the parent or guardian. This is intended to reverse in part the decision in a case in 1983 between Leeds City Council and West Yorkshire Metropolitan Police. It held that where a child or young person is in care, the local authority is not a guardians for the purposes of Section 55 of the Children and Young Persons Act 1933 (and by implication Section 34 also, which is amended by Clause 47).

Secondly, we have worked on the presumption that, when a child or young person appears before a court, it should in most cases be his or her parent or guardian who attends with that child or young person. Parents and guardians have direct and real responsibilities for their children. Even when the child is being looked after by a local authority, the latter must, under the Children Act 1989, try to ascertain the wishes of the parents before making a decision about the child. This is surely right. So in Clause 47 we have drawn very narrowly the circumstances in which the local authority must attend court. Two conditions must be met. The child or young person must be in the care of or provided with accommodation by the local authority. This reflects Section 22 of the Children Act, which places a general duty on local authorities in relation to children looked after by them. The second and more restrictive condition is that the local authority must have assumed parental responsibility for the juvenile in question as defined in Section 3 of the Children Act. In other words, it has assumed all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child. A local authority only assumes parental responsibility when a care order is made under Section 33 of the Children Act or an emergency protection order is made under Section 44. A local authority may have a number of general duties in relation to a child without assuming parental responsibility. But Clause 47 will bite on a local authority only when both conditions are satisfied.

I turn now to the gift of the noble Lord, Lord Mishcon, with his amendment. I suggest that it would simply remove the condition that a local authority must have assumed parental responsibility. This would increase the proportion of cases where the local authority representative would have to attend court with the child, since the local authority would be regarded as the parent or guardian in all cases where the child or young person was in care or was provided with accommodation by them and not just in those cases where a care order or an emergency protection order had been made as well. I doubt whether that is what the noble Lord intended, but it is the effect of the amendment, which is probably the reverse of what he intended.

9.15 p.m.

Lord Mishcon

I well understand that the Minister fears gifts if they are borne by Greeks, but we do not happen to belong to that nationality on the Opposition Front Bench.

Earl Ferrers

Did the noble Lord say something about Greeks? I missed his bon mot.

Lord Mishcon

I am not sure that the bon mot deserves repetition. Possibly the noble Earl follows the maxim that he fears gifts when they are borne by Greeks. However, the nationality of the Opposition Front Bench is not Greek; therefore he need not fear it.

I could not have made myself clear, or the noble Earl has been misled as to the reason for my amendment and thinks that it is unnecessary. I ask him a straight question: regarding children who are brought into voluntary care, does he intend that the local authority shall under this clause be present, be ordered to be present or be expected to be present in respect of a juvenile who is brought before the court and who is in voluntary care?

If the noble Earl believes that that is what the clause means, will he kindly look at the present wording at the beginning of subsection (2)? He will find that it is limited to those, for whom a local authority have parental responsibility". As for those who are in voluntary care, namely those who come under paragraph (b) and are provided with accommodation, the authorities do not have parental responsibility for the children. That is the legal position, as I understand it. So if the noble Earl intends authorities which have voluntary care of the children by providing them with accommodation to be covered by subsection (2) he, or the draftsman, has failed in that attempt. We are trying to put the matter right.

It is a straight question: do the Government intend that those in voluntary care should be covered by subsection (2) or not? If the Government do so intend, the wording of the clause is faulty and the amendment puts it right. If the Government do not so intend, I drop my point. But they will have to come back with an amendment at a later stage which provides that those in voluntary care should come within the purview of this subsection.

Earl Ferrers

I thank the noble Lord for making his point so clearly, and for making clear his action. The noble Lord asked whether the Government intend that subsection (2) should include children in voluntary care. The answer is that that is not the intention. Therefore, as I understand it, the noble Lord drops his case.

Lord Mishcon

I hesitate to repeat the words of my noble friend by way of his description of what this clause is in that event.

Earl Ferrers

I hope that the noble Lord will, because it was probably not in legal language and I should understand it.

Lord Mishcon

I shall resist the temptation to repeat it.

As I understand the position, there is no difference between (a) and (b), and therefore the alternative expressed by the word "or" is not intended; the Government do not intend to cover those authorities which provide the young persons with accommodation. If that is not intended, why is the wording of subsection (b) there at all as the alternative to the children who are in care? The alternative is "or is provided with accommodation by them". That is voluntary care. If the noble Earl says that the Government do not intend to cover voluntary care cases, why are those words in? The only words he needs are "is in their care".

The last thing in the world I want to do is to embarrass the noble Earl, and I shall continue to talk if that is of help.

Earl Ferrers

That will be unnecessary. The noble Lord never embarrasses me, or only about once a day.

The noble Lord has drawn attention to a certain point. My understanding is that that point was not intended to be covered, but as the noble Lord is concerned about the matter I shall certainly look at it and see whether the drafting is right or whether it should be improved.

Lord Mishcon

I cannot ask for more. On that understanding I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 agreed to.

Clause 48 [Responsibility of parent or guardian for financial penalties]:

Lord Mishcon moved Amendment No. 92:

Page 33, line 19, at end insert: ("(1A) After subsection (2) of that section there shall be inserted the following subsection— (2A) In taking the decisions required by subsections (1) and (1A) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

1. (a) whether the parents have neglected to exercise due care and control of the child or young person and whether any such neglect has caused or contributed to the commission of the offence,
2. (b) whether it is desirable that the child or young person himself should assume responsibility for payment of the sum,
3. (c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the sum to be paid by the parent or guardian,
4. (d) the respective means of the child or young person and the parent or guardian,

as well as to any others which appear to be relevant".").

The noble Lord said: As the Committee knows, there are very serious implications in this Bill for the parent of a young offender—namely the ability of the court to fine the parent, which can be a very substantial amount within the maximum fixed by the Bill, if the court decides that it is appropriate to do so. To leave the matter there without any guidelines at all as to the circumstances in which the court should penalise in that way a parent who is not before the court as a defendant is a very serious matter. I know that the Committee will have at heart the need to be clear about what we are doing in that regard.

In the amendment we set out what we believe should be inserted in relation to the taking of decisions of that nature. If those guidelines are available we shall avoid the vagaries to which those of us who are concerned with this issue have often drawn the attention of the House; namely, the unfortunate differences that occur in one court as against another. A magistrate or court in one area may well feel that it is sensible and proper to fine a parent in certain circumstances whereas in another area an entirely different view may be taken by the court, since the courts have no guidelines in our primary legislation as to how they should act.

In support of the amendment and the grounds that we have put forward for guidance for the court I should like to refer to a Home Office circular to courts—Circular No. 3/1983 entitled Criminal Justice Act 1982: Sanctions Against Parents and Guardians. Paragraph 3 of that circular contains, in the main, the provisions that we have included in the amendment. As it is not a very long paragraph I should like to place it on the record because it is so important. I ask for the Committee's patience while I read the paragraph. It reads: During the passage of the Bill, considerations which might be relevant to the question of whether it would be unreasonable to order payment by the parent or guardian were discussed. It was suggested, for example, that regard should be had to factors such as whether the parents had neglected to exercise due care and control of the child or young person"— the Committee will recognise that language in the amendment— or whether any such neglect had caused or contributed, whether directly or indirectly, to the commission of the offence;"—

again the Committee will recognise that that has been transplanted into the amendment— whether it was desirable that the child or young person himself should assume responsibility for the payment of the fine, compensation or costs, or for part of it; the relationship between the child or young person and the parent or guardian, and the likely effect on that relationship of ordering that the parent or guardian pay the sum adjudged; and the respective means of the child or young person and the parent or guardian. The Act leaves the assessment of what was reasonable or unreasonable in the circumstances to the discretion of the court; but the Government believes that considerations such as those mentioned above may well be among I hose to which courts will wish to have regard in coming to their decision as to what constitutes unreasonableness in E particular case".

I cannot do better than to repeat what is contained in the Home Office circular in relation to parallel circumstances to those which we are now considering. I feel that the Committee, and indeed the Government, would not wish to leave that power of the courts without any guidance in primary legislation as to the considerations which the courts should have in mind. I beg to move.

Lord Hylton

I should like to say that Clause 48 is a pretty horrible clause. It goes about amending the Act of 1933 and, in the process, refers to two subsequent Acts. I am quite sure that, if my noble and learned friend Lord Simon of Glaisdale were here, he would demand instant consolidation.

Having said that and referring now to the substance of Amendment No. 92, I believe that four important criteria have been picked out and well explained. I hope that the Government will take them extremely seriously.

9.30 p.m.

Lord Henderson of Brompton

Following the comments of the noble Lord, Lord Hylton, I should like to say that I find Clause 48 difficult to swallow. However, with the proposed amelioration, if that is the right word, which has been introduced by the amendment of the noble Lord, Lord Mishcon, I can just about swallow it, although I would much rather that it did not impinge on juvenile crime legislation at all. It will only exacerbate bad relations between member; of the families concerned, which is the very last thing that we want.

The approach that I should prefer is exemplified by a parent support group. I shall not name the place, but it is a voluntary self-help group, initiated by parents and supported by local social workers. The group was formed by the social workers and parents of children who have been in trouble. They are mainly single parents and the children have been getting into trouble, offending and truanting from school and have become involved in drug abuse and so on. The parents felt that they needed direction and a better understanding of why their children were getting into trouble. They simply did not know and felt that parents who were in a similar position would be better able to help each other than any other scheme which had been devised by social workers or anyone else. The group is able to look at the problems and stress that families face when their young people offend and enables families to cope with crises through mutual support.

Is not that the constructive approach? What is likely to be the effect of Clause 48 on the parent support group? It cannot make things better. It can introduce resentment and stress into an already stressful situation. I can only lament that the amendment can do no more than ameliorate a rough and unnecessary provision which has been inserted in the Bill by the Government. I find it difficult to believe that they regard the child as coming first in this and other cognate legislation which is going through at the moment. It will not make the situation better for the child or the parent and, but for the amendment proposed by the noble Lord, Lord Mishcon, I should expect it to be disastrous. I strongly hope that the Government will take account of what the noble Lord said and either accept the words that he proposes or something very like them, because these four principles are needed by the courts if they are to operate the clause effectively.

Earl Ferrers

The amendment would operate on Section 55 of the Children and Young Persons Act, which at present places a duty on the court to order a parent or guardian to pay a fine, costs or compensation imposed on a child or young person if it is decided that a financial penalty is the most appropriate disposal. There is to be a presumption that the court will order the parents to pay, but it does not have to do so if that would be unreasonable or if no parent can be found. In Clause 48 of the Bill we are making certain amendments to Section 55 of the young persons Act 1933, but we have retained the guiding principle that a parent should pay a fine imposed upon a child convicted of an offence unless there are overriding reasons why he or she should not. The purpose is not to punish the parents for their children's misdeeds but to bring home clearly to them the consequences of their children's unlawful behaviour. The implications for the parents themselves should encourage them to take a more active interest in what their children do.

The noble Lord's amendment would dilute that principle and reduce the impact of Section 55 on parents. Before a parent could be ordered to pay a fine the court would in all cases have to think of a number of factors, such as whether the offence resulted partly from a failure to exercise parental care and control and what effect making the parent pay would have on family relationships. The court would have to take a view on those factors and presumably that could be challenged on appeal. What it means is that a number of obstacles would be placed in the way of the operation of Section 55 and the clear principle which it embodies, and the amendment would weaken the existing responsibilities of the parent.

The noble Lord, Lord Mishcon, has quoted from Home Office Circular 3/83 relating to the Criminal Justice Act 1982. Paragraph 3 of that circular suggests, as he pointed out, that the court may well want to take account of certain factors, now produced in the text of the amendment, in deciding whether a parent or guardian should pay a fine imposed on a juvenile. He would be the first to agree that there is a world of difference between giving guidance to the courts and requiring them by statute to take account of those and other considerations in every case. I believe that would result in an inflexible approach and a slowing down of justice. That is the reason why we would prefer not to have the amendment which the noble Lord seeks to put into the Bill.

Lord Mishcon

I wish I understood that reasoning because I was anxious to do so, but I cannot. To say in regard to penal measures against people who are not defendants that we give no guidance to the courts of this land, they having been given this power, as to how to deal with matters of this sort is asking for chaos as well as injustice. I say with deep respect to the noble Earl that exactly the same argument could have been used in regard to other measures in the Bill. The Bill lays down criteria which courts must consider when imposing custodial sentences, fixing the length of custodial sentences, passing suspended sentences, imposing community service orders and fixing the size of fines. To leave a huge gap as regards the principle that when dealing with the question whether or not a parent should be fined it is much too much trouble for the courts to go through that list is not an answer which I believe the noble Earl would seriously want to give the Committee. If he seriously wants to give that answer I do not think the Committee will accept it for one moment.

Earl Ferrers

Of course the information was given in all seriousness. What the noble Lord is saying is that there are places in the Bill where the length of the sentence and what you do when you impose a community sentence are spelt out. That is perfectly correct. But he said that we do not give guidance to the courts. One does give guidance. Guidance is given under the circular.

Under the noble Lord's amendment the courts would have to take into account by statute the relationship of the child or the young person with his parents and the likely effect on that relationship of ordering a sum to be paid by the parent or guardian. If they came to a certain conclusion, the defendant would be able to appeal against it. That is far more difficult to write down as a statutory obligation than it would be to have under guidance. For many years courts have had the power to require parents to pay fines and been guided by the information which the Home Office circular has given.

The noble Lord seeks to put that guidance as a statutory obligation. I suggest that such things are not very easy to have as a statutory obligation against which people could appeal.

Lord Harris of Greenwich

If one wanted to take that argument seriously not only would the examples given by the noble Lord, Lord Mishcon, obviously have been withdrawn from this Bill but so would provisions such as the Bail Act and a whole series of items. If one were to take seriously the flexibility argument, that would not have been done.

No doubt it is true—and certainly it is true of this particular debate and arguably this Government—that when the word flexibility is mentioned one begins to be suspicious. One is suspicious because it is constantly used by governments of different political persuasions to resist amendments of the kind produced by the noble Lord, Lord Mishcon, which would give specific guidance to the courts. The fact of the matter is, as those of us who have spent any time in a juvenile court will know perfectly well, that there can be a situation where a member of the family appears and a rather frightened parent appears with the child. It represents a family crisis. What will happen if we pass this clause unamended is that there will be still more disruption within the family. One thing of which one can be quite certain is that if this clause is passed unamended, there will be appalling situations in some of those families. Children will be ejected from their homes. That is in no sense an overstatement of the position.

The fact is that the noble Lord, Lord Mishcon, rightly drew attention to the Government's circular of 1983. It seems to me that the language in that circular gives valuable guidance to the courts. The circular does not try to imprison the courts in highly restrictive language. It enables Parliament to give guidance to the courts as to how this matter should be handled.

The Government have said that they attach very high importance to the issue of family relationships. We heard that from the lips not only of the former Prime Minister but from many other Members of the Government. I can think of nothing that will do more damage to family relationships than provisions of that sort. It seems to me that the noble Lord, Lord Mishcon, has put before the Committee a perfectly reasonable formula whereby the courts will be given guidance by Parliament as to how they want this matter to be approached. It would be an enormous pity if we do not incorporate the language of this amendment in the clause.

Lord Hylton

The noble Earl, Lord Ferrers, mentioned the possibility of a circular of guidance to the courts. If he could say that in this case there will be such a circular and that it will incorporate the four paragraphs (a) to (d), that might give grounds for withdrawing the amendment. It might also overcome the point which the noble Earl himself mentioned of appeals from the first court to a superior court.

9.45 p.m.

Earl Ferrers

The noble Lord, Lord Harris, said that the courts needed guidance. Up until now the courts have had guidance. The noble Lord, Lord Mishcon, wishes to put that guidance in statutory form. It has not been in a statutory form heretofore because there has been guidance and it has worked. We believe that it should be in the form of guidance and not in the form of a statutory injunction, if one might so call it.

The circular will be considered and will no doubt be updated. I cannot tell the noble Lord what will be in it. However, I have no reason to believe that it will not contain the very points referred to in the amendment.

We should not be misled. We come back to the matter discussed earlier: whether it should be in the form of guidance, which is more flexible—to use a word which the noble Lord, Lord Harris, does not like—or whether it should be in the form of a statutory requirement. I believe that it is better in the form of guidance.

Lord Mishcon

I intend to be brief because the Committee has been extremely patient. However, it is a terrifically important matter. We are dealing with penalising those who appear before the court not as a defendant but as a parent of a defendant.

Members of the Committee who try to study the problem may be prepared—the noble Lord, Lord Hylton, was not so prepared—to say that in some cases it is admissible to make such a provision. I do not say that the power has not existed in the past. I merely say that it is a novel concept. When Parliament takes the responsibility for saying that that novel position shall obtain—namely, penalising those who are not before the courts as defendants—then Parliament has a responsibility to state in legislation the cases that it has in mind, without in any way saying that the court must be limited to those considerations—and one adds the words "and any other relevant consideration that the court may think appropriate". But those matters which Parliament and the Home Office have considered as being material should be there in the legislation.

The noble Earl seems to greet with apprehension the possibility that someone might be able to appeal against a court decision on the grounds that certain considerations were not taken into account. With respect, that is again a novel concept: that we are anxious to stop people from appealing against penalties, again, as I said, especially when the penalisation of those people is not against them as defendants but because of other considerations. I am not frightened by a right of appeal. I should have thought without a doubt that the right of appeal ought to be there.

The hour is late, the patience of the Committee is great and the courtesy of the Minister abundant. Taking all those matters into consideration, if the noble Earl would indicate that he will take into account this important debate and consider putting such provision into legislation, without undertakings of any kind, I should be prepared to withdraw the amendment. But I stand firmly by the need for it.

Earl Ferrers

I understand the noble Lord's anxiety, which he puts with great force and clarity. He said that it was a novel concept. However, in this case novelty goes back to 1933. It does not seem to me novel if it goes back nearly 60 years. Of course I shall consider what has been said. I realise that the noble Lord and other Members of the Committee feel strongly about the matter. I shall think about what has been said and consider the position.

Lord Mishcon

I am grateful to the noble Earl. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Skelmersdale)

If Amendment No. 92A is agreed to I cannot call Amendment No. 92AA.

Baroness David moved Amendment No. 92A: Page 33, line 20, leave out subsection (2).

The noble Baroness said: I shall speak also to Amendment No. 92B. Clauses 47 to 49 contain provisions relating to responsibilities of a parent or guardian. Clause 48 amends the 1933 Act which contains powers allowing a parent or guardian to be ordered to pay a fine instead of a child or young person. Clause 48(2) inserts a new subsection into Section 55 of the 1933 Act. Its effect is to put a social services authority in the same position as a parent or guardian in relation to a child or young person in the care of the authority and provided with accommodation by that authority. I submit that that is not reasonable. The Association of County Councils looks on the new provision as unacceptable.

The proposal to make local authorities responsible for the fines of young offenders under the age of 18 in their care appears to go against the grain of the philosophy behind the Children Act 1989. A local authority will consider receiving into its care only a child or young person who represents the most challenging of cases. It will resort to care only once all other available options have been tried and failed. Therefore by their very nature the young people in question will have a number of problems of which offending will be only one. The prospect of many of those children and young people ceasing to offend as soon as they enter care is remote. The fining of the social services authority in such circumstances appears to be inappropriate and positively harmful in relation to a programme of care and rehabilitation.

The ACC has invited the Department of Health and the Home Office to indicate the justification for the inclusion of this novel provision. Significantly no response has been received to date. The holding of a social services authority responsible as a parent or guardian is a precedent which is not logical to adopt when the Home Office is not responsible for offences perpetrated by prisoners in its care, on bail or on parole. If Clause 48(2) is appropriate, it would also seem logical to hold magistrates responsible for offences committed by alleged offenders to whom they grant bail.

As regards social services authorities, civil remedies are at present available in respect of third party claims against children and young people in care. Justification for the liability contained in Clause 48(2) is therefore by no means clear. I hope that the Government are prepared to think again about the clause. I agree entirely with the comments made by the noble Lords, Lord Henderson and Lord Mishcon, in respect of the earlier amendment.

I must repeat that it is unreasonable to expect local authorities to pay and it would in the end be counter-productive. I am glad to have the support of the noble Baroness, Lady Faithfull. My noble friend Lord Richard has tabled an amendment which combines our Amendments Nos. 92A and 92B with the obligation to be put on parents. I am in total agreement with his amendment but shall leave him to make his case. I beg to move.

Baroness Faithfull

I rise to support the noble Baroness, Lady David, in this amendment. Children come into the care of local authority social service departments through two routes. One is voluntary care. The parent asks for the child to be taken into care usually for a good reason—perhaps the parent cannot manage the child. Secondly, cases are committed by the courts to the local authorities, very often because the child is beyond parental control.

I had a very difficult case. I recommended to the court that the child should be sent to a penal institution because I recognised that the child was very difficult. The magistrates thought that it would be good for the local authority to be responsible for the child. Therefore, by order of the court it was my responsibility to look after the child. He was very difficult, had a shocking home background and was extremely unhappy. It is impossible to reform a child within two days of him coming into care. On the third day he slipped out of the children's home late at night and burnt down his school. The education officer rang me the next day and said, "If one of your children is going to burn down a school, could he burn down an old one instead of a new one?"

Under this Bill the local authority would be responsible for that child burning down that school. That is quite unreasonable. First, the child was committed to the care of the local authority by the court; and, secondly, it was impossible to reform the child within two or three days. A child is committed to the care of the local authority either by the court or by parents asking the local authority to take a child into care. Therefore it is quite impossible for local authorities to be responsible financially for the misdemeanours of the children in their care.

Lord Mishcon

Perhaps it may be for the convenience of the Committee if I speak to Amendment No. 92AA. The Committee will see that this amendment makes it quite clear that in relation to a child or young person who is being looked after by the local authority, an order under Clause 48 may not be made against the parent or guardian or local authority.

I believe that earlier the noble Earl quoted a case called Leeds City Council v. West Yorkshire Metropolitan Police. Whether or not he did, that case was decided under Section 55 of the 1933 Act to which we have referred quite often in our proceedings. That said very clearly that the fining under that 1933 Act was aimed at an individual and not at a public body or its agents such as foster parents. Therefore until this clause is put into the Bill, as I understand it, local authorities could not be penalised in the way in which we are penalising them now.

Sometimes legislation is put forward by those who have no intimate knowledge of the circumstances but to whom it looks like good law. If it looks like good law and it is possible to go for a local authority or parent where the child is being looked after by a local authority, why not do that? If parents are to be penalised generally, why should that not apply also to the local authority?

That this sort of legislation may be put forward by those who have no intimate knowledge of what really goes on is a relevant consideration this evening as regards this amendment. Anyone who knows anything about the situation in some of our juvenile courts knows perfectly well that there are some courts where it is known that there is almost an open feud between the magistrates and the social workers. To the Government's credit, they are doing everything they possibly can by persuasion to remedy that. I am sure that in this legislation they are trying to see that those relationships, which should be much better, between courts and social workers are fundamentally improved. I cannot imagine an improvement coming out of the provision with courts being able to fine local authorities in that way.

Another real life situation relates to whom the Government think they are punishing. If local authorities feel that there is a possibility of being fined, they will not use their powers to look after young people. They will say, "This chap looks as though he might be a risk. Therefore we will see that greater use is made of secure accommodation in his case. We cannot face our local committee and say that we have been fined, so we will not take the chance".

Whom do the Government think they are punishing? Do they believe that the juvenile offender will say, "My word, what a dreadful thing I have done. The local authority has to pay a fine for my conduct. It is dreadful. It will really make me reform"? The average juvenile offender will laugh his head off at the fact that the local authority, which he unfortunately often regards as an enemy rather than a friend, must pay his fine. He will rejoice. He will say, "They have made the local authority responsible for what I have done. What a jolly good thing that is".

Is that the situation we want to procure? I repeat, it is a provision which does not look at the reality of what occurs in these circumstances. I think the Committee will, and I hope that the Government, on reconsideration, will agree to the amendment.

10 p.m.

Earl Ferrers

I always thought that if I were to become involved in a tangle with the law—God forbid that it should ever happen!—there is nobody I should like better to defend my case than the noble Lord, Lord Mishcon. He makes arguments enormously attractive, and he makes it seem so obvious that he must be right. However, although he often is right, he is not always right. There is sometimes another side to the argument which gets lost in his rhetoric.

The purpose of Section 2 of Clause 48 is to bring local authorities within the scope of Section 55 of the Children and Young Persons Act involving the parental payment of children's fines. I know that the noble Lord, Lord Mishcon, does not like that, but that is the purpose of it: to try to make parents responsible for what their children do. As I explained in an earlier amendment, it is not a question of making the parents pay the fine for what their children do; it is to make the parents responsible for what their children do.

Section 4 provides for how a compensation order or fine imposed in such a case is to be calculated. We should be clear that Clause 48 will apply to local authorities only in certain restricted circumstances. Not only must the local authority have a general duty in relation to the juvenile by receiving him or her into their care, but they must also assume parental responsibility by virtue of a care order or emergency protection order. That gives them all the rights, duties, powers. responsibilities and authority which, by law, a parent has in relation to a child.

The noble Baroness, Lady David, said that the Home Office is not responsible for prisoners, and she asked why local authorities should be responsible for people under their control. The Home Office does not have parental responsibility for prisoners in this respect. It is only when the local authority takes on to itself the responsibilities of a parent that we believe it is right that they should share the responsibility for the children under their control which normal parents have for a child under their control.

The idea of parental responsibility entails an active interest in what a child or young person is doing. We take the view that those with parental responsibility must expect to face the consequences of what their children do and of their children's misbehaviour. If the important function of exercising parental responsibility falls to a local authority rather than to the parent or guardian, then the local authority should be liable to pay fine under Clause 48.

Some have argued that it would not be right to make the local authority pay a fine if a mischievous juvenile in care committed a crime because he wanted to cause trouble for the authority. Some have also argued that this would result in individual social workers being fined. The court would be able to waive the local authority's financial obligation if it is satisfied that it would be unreasonable to make it pay. The position in law is that the local authority and not the individual social worker would be liable to pay any fine which was imposed. Removing subsections (2) and (4) would have a number of unwelcome effects. It would dilute the meaning of parental responsibility which the local authority had assumed for the juvenile.

It is right that the social services department should take a close interest in what the juvenile is doing. Requiring the local authority to pay a fine resulting from a juvenile's misbehaviour emphasises that responsibility. It will make those responsible for the offender particularly diligent in trying to stop the juvenile committing crime. We seek to improve the present arrangements whereby victims are effectively deprived of compensation. Juvenile offenders in care will probably not have the means to pay realistic amounts of compensation. Under the Bill the youth court will be able to make a compensation order for up to £5,000 against the juvenile offender for personal injury, loss or damage resulting from an offence.

If the juvenile lives at home and his parent has responsibility for him, the parent may be asked to pay, although the court would obviously have to take into account the parent's means. If the juvenile is in care no one could be asked to pay. The victim can be properly compensated in the first case but not in the second. In other words, if, for example, his property was burnt down by a juvenile who had a fairly wealthy parent, the victim could expect to be compensated. If he had his property burnt down by a juvenile who was in the care of a local authority, under the amendment proposed by the noble Lord, Lord Mishcon, the victim would not receive any compensation.

The effect would be to ensure that neither the parent nor the local authority would be required to pay a fine imposed on a juvenile who was being looked after by a local authority. That makes the situation even worse. The amendment does not make clear who, if anyone, would have parental responsibility in such cases. The victim would probably not receive compensation to which he or she was entitled. I know that the idea of making parents responsible for their children and what they do through misbehaviour is not one that is necessarily attractive to the noble Lord, Lord Mishcon, but, if one accepts that that is the philosophy behind the Bill, then it is only reasonable that it should apply also to the local authority which has parental responsibility over the child in its control.

Baroness Faithfull

Perhaps I may ask my noble friend two questions. He said that the local authority takes unto itself responsibility for children. It does not take unto itself responsibility for children: it has responsibility for children by statute. Furthermore, a proportion of those children are in voluntary care, the parents having asked for the children to be taken into care. What is much more difficult is that the court has committed children to care and the local authority cannot refuse to accept them. It is an obligation incurred under statute.

A number of local authorities accept children into care, or have children committed to their care, but find that they have no suitable accommodation for a particular child. They therefore apply to a voluntary organisation, such as Barnardo's, the National Children's Home or the Church of England Children's Society, for a vacancy in one of their homes. The local authority then pays the voluntary organisation and the child is transferred to a home run by it. If the child then does damage, who is responsible under the provisions of the Bill? Is it the voluntary organisation by which the child is being looked after on behalf of the local authority or is it the local authority? If Barnardo's or any of the other voluntary organisations thought that they would be responsible I do not believe that they would accept the child.

Earl Ferrers

I dare say they would not. My noble friend said that some parents ask for their children to be taken into care voluntarily. That is perfectly true and I quite understand it. However, if local authorities are asked to take children into care voluntarily they very often do not assume parental responsibility at the same time. It is only when they do assume parental responsibility that this will actually operate.

My noble friend's second point concerned the local authority which takes a child into care but states it does not have sufficient provision for the child and therefore gives it over to Barnardo's. That is somewhat less easy. If the local authority has the parental responsibility for the child then it will be responsible. If it then places the child in a Barnardo's home it presumably does not transfer parental responsibility to the Barnardo's home. The local authority still retains responsibility. It is only in the case where the local authority retains parental responsibility that the provision operates. It operates on the child irrespective of where the child happens to be.

Baroness David

That seems a most ridiculous answer. It really does. I was going to make some of the points which the noble Baroness, Lady Faithfull, made about children being committed to care. Local authorities do not choose to have that responsibility put upon them—they have it thrust upon them. The Minister has shown very little understanding of what it is like in the social services. It is quite different from what he seems to think. It is most unfair to put this burden on to them. After all it will be the taxpayers or the local community charge payers who pay the fine. There is little enough money for the social services to do what they have to do.

I hope that the Minister will think again about the whole of Clause 48. The least he can do is to provide some criteria. If it were not so late at night I should be tempted to divide the Committee. I shall have to save it up for another time, perhaps a better time of day. This whole clause is totally misconceived. In the meantime I shall withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Mishcon had given notice of his intention to move Amendment No. 92AA: Page 33, leave out lines 22 to 33 and insert: ("(5) In relation to a child or young person who is being looked after by the local authority, an order under this section may not be made against:

1. (i) his parent or guardian, or
2. (ii) the local authority.").

The noble Lord said: I share with my noble friend Lady David disappointment that important matters of this kind—I do not blame anyone for it—seem to come up at a very late hour. They come up in a diminished Chamber—I always try and say this so as not to be too unpopular—diminished only in quantity and not in quality. It is so disappointing when the arguments go all one way and there is no argument against an amendment to find that, because of the lateness of the hour, it is quite impossible in practice to put the matter to the Chamber.

It is in that spirit, which is exactly the spirit of my noble friend, that I ask the Minister to consider what has been said and to balance, if he will, the evils that would result from this clause against the benefit to the victim that he was telling the Committee about. I hope that that reconsideration will lead to an agreement in regard to the amendment. I do not propose to move it.

[Amendment No. 92AA not moved.]

[Amendment No. 92B not moved.]

Clause 48 agreed to.

Clause 49 [Binding over of parent or guardian]:

Lord Skelmersdale

I have to inform the Committee that, if Amendment No. 93 is agreed to, I cannot call Amendments Nos. 93A and 94.

Lord Mottistone moved Amendment No. 93: Page 34, line 13, leave out from ("offence") to ("the") in line 17 and insert ("the court by or before which he is so convicted may exercise the powers conferred by this section if satisfied that it would be reasonable to do so given").

The noble Lord said: This amendment has been grouped with Amendment No. 94. However, I shall speak only to Amendment No. 93. Clause 49(2) gives the court a duty to exercise powers with the consent of the parent or guardian—it states that the parent or guardian should, enter into a recognisance to take proper care of a child under the age of 16 years—or, if such consent is refused, and the court considers the refusal unreasonable the court may order the parent or guardian to pay a fine of £1,000. In my view the wording is very strange, although that is often the case in such Bills. It is one thing to say that you will obtain the consent of parent or guardian and quite another then to say straight away that a penalty applies in the case of consent being refused. However, that is by the way. In effect, the clause makes it the duty of the court to bind over parents as regards responsibility for their children, whereas my amendment would remove that duty and turn it into an option.

I have been advised on this amendment by the Magistrates' Association. The association has extensive experience in juvenile courts throughout the country. That leads it to feel great anxiety about the present wording of Clause 49(1). Magistrates already have the power to bind over and they wish to retain it, although it is rarely used. Children who appear before magistrates come from families that are already fragile and under stress. I do not believe it to be part of the magistrates' role as sentencers to exacerbate that position by normally—I emphasise the word "normally"—imposing upon parents sanctions with which they may find it impossible to comply. Many of those parents need help and support, not punishment. Binding over parents could result in imprisonment, which would run totally contrary to the philosophy of the Bill.

As magistrates do not have to fine parents if they consider their refusal to consent to be reasonable, I suppose that my noble friend will say that it is an option in that sense. But that puts the courts in a difficult position. No doubt that is what the Government seek. However, it is putting them as courts in a much more difficult position as regards consent by parents in regard to complying with the law than if the existing situation with an option to bind over was to prevail.

It is all very well to say that we must have further ways to make parents take responsibility for their children. But, as the Magistrates' Association has advised me, it is the parents who find it difficult to tackle life and to make ends meet who will be most vulnerable to the provision. If we can, we want to persuade those people to accept the court, if not as a friend, then at least as a body which is very fair. The Bill, as worded, is not totally unfair because there are let-out clauses, but it creates a picture of a harsh court whose duty it is to be brutal if an excuse is not given.

It would be better if this provision were reworded in the way the amendment suggests. We should achieve the same result because the powers will still exist, but the courts would not be put in the position of having to exercise a power which they would find difficult to exercise and which magistrates do not like using in the way the Bill seeks. I beg to move.

Lord Richard

Perhaps I may speak also to Amendment No. 94. We have heard some strange arguments and considered some strange clauses in the course of discussing the Bill. I am bound to tell the Government that this is the silliest piece of legislation and the most arrant bit of nonsense with which we have been presented so far in Committee. What is the object of the exercise? As I understand it, it is to make parents take more responsibility for their children. I do not believe for an instant that we should persuade parents to take more responsibility for their children by having a presumption that if a child is convicted, the parent has to be bound over and that, if the parent refuses his consent to the binding over, he can face a fine of up to £1,000.

I can think of nothing that would be more disruptive of family relations than the automatic nature of what is proposed in the Bill. If the power were discretionary, as it is at the moment, I could understand it. Therefore in suitable and proper cases the court could say, "We think that in all the circumstances of the case it would be right to bind over the parents because there has been an absence of responsibility", or "They have ignored the child in the past and have not bothered about what the child was doing, and if there is the goad of the binding over order, they will take more responsibility in the future". But with an approach which, in the words of the clause, provides: it shall be the duty of the court, in a case where the relevant minor has not attained the age of 16 years, to exercise those powers unless satisfied that it would be unreasonable to do so, having regard to the circumstances of the case", I can only say to the Government that they have the presumption totally the wrong way round. The presumption should not be in favour of binding over. It should exist as a penalty which the courts can use in suitable circumstances.

I know of no organization—none that has written to me or about which I have read—concerned with matters such as we have dealing with which has expressed itself as being in favour of the proposal. All the groups which oppose the provision, including organisations representing magistrates—after all they are the ones who have to operate the system—justices' clerks, probation officers, social workers, and resettlement organisations such as NACRO, accept the importance of parental responsibility, as does everyone else, and are actively concerned to find effective ways of reinforcing it. They oppose the measure because they know that in practice it would damage rather than increase parental responsibility. The Times summed up the point in a leading article on10th November 1990 in which it said: This is the kind of proposal that makes perfect sense to middle class ministers, who generally leave the taming of adolescence to their children's boarding schools. For, say, the single mother in Brixton, struggling against odds to keep a young person on track, they represent only a threat. Many such parents will be tempted to wash their hands of their responsibilities. Parental influence—the last, best hope of deflecting the youngster from a life of crime—will be removed. The magistrates do not want these powers. Parliament should not force them to have them". On the face of it, this is a politically motivated piece of nonsense. The only organisation in favour of it is the Government. I hope that the Committee will accept the amendment.

Baroness Seear

I agree with the noble Lord, Lord Richard. Since every known organisation is against this, it would be extremely interesting if the Government would tell us from where this absurd idea came. Whose brain child is it—if "brain child" is the right term?

Baroness Faithfull

Amendment No. 94 is grouped with the amendment moved by my noble friend. It would leave out the presumption in Clause 49 in favour of binding over the parents of juvenile offenders. I shall not rehearse all the arguments put earlier by the noble Lord, Lord Mishcon, and other noble Lords who have spoken in this debate. If parents are to be bound over in this way, I assure the Committee that it will be impossible to work with their families. It is one or the other. If one has a relationship with a family, over the years it is possible to help the parents and children later on to live as a family. However, binding over would put paid to that and there would probably be more homeless children than at present.

I hope that the Government will think again about the matter. I assure the Committee that one cannot steamroller over personal relationships. If the Bill has this provision, then personal relationships will go out of the window. If that happens, children will be without a home and without parents interested in them. I hope that the Government will reconsider the point.

Lord Windlesham

I support Amendment No. 94 which will be moved by the noble Baroness, Lady Faithfull, and to which I have put my name. As I understand it, the Government's intention in this part of the Bill is not to punish the parent but to encourage parental responsibility and to strengthen family ties. It rolls well off the tongue, but I fear that the result of the three Clauses 47 to 49 and this clause in particular will be the opposite of what is intended. Many parents will feel that they have been punished and penalised. Family ties will be put under greater stress, causing a deterioration rather than an improvement in relations in the home.

I wish to dwell for a few minutes on the aspect of punishing or penalising parents for acts which they did not commit. The noble Lord, Lord Mishcon, touched on this in an earlier amendment. It is a matter of considerable importance. We should recognise that the provisions sail perilously close to the wind of criminal responsibility. We must never lose sight of the fact that it is the child not the parent who committed, or is charged with having committed, a criminal act. At common law the mens rea that the prosecution must prove the defendant to have had at the time of committing the crime in order to secure conviction requires one of two elements, and two elements only: that there was a direct intention to bring it about or there was recklessness as to whether or not such a consequence might come about. It is crucial to state that this cannot simply be transferred to another person. So the route that has been chosen is negligence or lack of care.

It is too late to go into the history of this ambition, this well worn grail that has been pursued for over 100 years. Just one example is that in this House in 1890 an unsuccessful Bill was introduced, seeking to make general negligence in the care and control of a child a statutory offence for which parents would be punished by a small fine or ordered to pay compensation and subject to imprisonment in default of payment of the fine. That was 101 years ago. The motivation was the same then as it is today. The Bill failed.

As we know, later legislation empowered the courts, where appropriate, to summon a parent to attend the court proceedings, or in certain circumstances to bind over parents to exercise due care and control of their children, but at the discretion of the court. The discretionary power was not widely used because the courts were aware of how counterproductive it could be in practice.

As we have heard, in Clauses 47 to 49 the discretionary powers are replaced by a statutory duty to secure the attendance of parents at court proceedings against juveniles below the age of 16 and to bind them over, by entering into recognisance to take proper care of and exercise control over their children, and if there is refusal to give consent-"give consent" are oddly chosen words to use in this context-there is a financial penalty of up to £1,000. If the child re-offends, that recognisance is forfeited to the amount that has been set by the court.

Those provisions must be regarded as penalties of a different order to that which we have seen before. The draftsman, probably acting on the instructions of the Leader of the House (who has joined us for this debate) when he was Home Secretary, has recognised that, because in Clause 49(7) we find an appeal: A parent or guardian may appeal to the Court of Appeal against an order under this section made by the Crown Court, as if he had been convicted on indictment and the order were a sentence passed on his conviction". So this is now appealable by statute, or would be if this clause went on the statute book.

There is much more to be said about the social impact in the family of this provision. I shall not repeat what has been said by my noble friend Lady Faithfull and others. I would only say to my good friend on the Front Bench whom I so much admire, the noble Earl, Lord Ferrers, who has been handling this Bill with such care for the Government, that although he remarked-not reading from his brief but speaking for himself-in reply to the noble Lord, Lord Mishcon, that the aim of this part of the Bill is to make parents or local authorities acting as guardians take responsibility for the wrong-doing of their children, the criminal law is not an instrument that can achieve that end.

Lord Hutchinson of Lullington

I should like to ask whether the Government have taken into consideration a point made by that highly practical organisation, the Justices' Clerks' Society, that these provisions are going to add to the congestion in the courts. A bind-over has always required the person's consent. Here such consent is simply a mockery because there is a fine if there is no consent. The result will be protracted hearings in the court when parents refuse their consent. There will also be protracted hearings as to whether the parent should have the recognisance forfeited. In addition, as the noble Lord, Lord Windelsham, has pointed out, there will be further appeals after those protracted hearings. Quite apart from all the points which have been made already, this is an absolutely crazy provision from the purely practical point of view of adding to the congestion of the courts.

I hope that the noble Earl will spell out to the Committee how it is that every single organisation involved at the coal-face is profoundly against this provision. Why is it? Have they all gone completely mad? I hope that he will point out why each and every one of them is wrong.

Baroness Faithfull

Before my noble friend replies perhaps I may ask one question. As my noble friend Lord Windlesham said, there will be a right of appeal. Will a woman living in one room in a high-rise block of flats receive legal aid in order to appeal?

Viscount Tenby

I should like to speak very briefly in support of Amendment No. 94 and of the remarks made by noble Lords and the noble Baroness earlier. In particular, because he was the last person to speak before me, I should like to support the noble Lord, Lord Hutchinson, who spoke about the amount of time that these new provisions will add to the magisterial system. I speak as a magistrate, and I can assure the Committee that it will indeed increase considerably the workload of magistrates' courts.

I fear that these provisions to compel parents to be responsible for their children's behaviour are in danger of being non-runners in the practical world in which judges, magistrates, probation officers and social workers have to work. We all agree in theory that parents should be made responsible for their children's behaviour. Indeed, for some parents of means who conspicuously refuse to accept their responsibilities it may be that the law has a role to play. However, the overwhelming number of families with which the lower courts have to deal are not in that category. They are disorganised, disadvantaged and in many cases despairing. Very many are one-parent, inner city families where family ties are fragile and under constant pressure. No measures are more likely to put those ties under strain than these.

I should like to remind the Committee that, as has already been said, magistrates already have power to require parents to attend courts and can take other actions as necessary. But such power is used sparingly. We ought to ask ourselves why it is used sparingly. Why do magistrates not make more use of that power? First, such action increases considerably the length of the proceedings, as the noble Lord, Lord Hutchinson, said. Secondly, it puts in even greater danger what may already be a fragile human relationship. Thirdly, the creation of such a grey area, though perhaps not altogether unwelcome in some legal circles, will increase uncertainty, and uncertainty is bad law.

So far as concerns the provisions of the Bill I accept that benches will have the power to proceed or not according to the defendant's circumstances and that no recognisance will be surrendered or fines imposed on parents without means. That was patiently and courteously made plain to me by the noble Earl the Minister in correspondence. However, I suspect that the majority will be people without means. So why are we going through all this emotional turmoil with no tangible and measurable end product in view and when the operation of such clauses will undoubtedly in some cases result in children leaving home—let us be quite frank about this: it will—or parents cutting themselves off from children in trouble who desperately need such a link?

We all deplore the collapse of responsible parenthood in modern society. Some, though perhaps not enough, deplore adultery as well. However, provisions against that in a Criminal Justice Bill would not, I suspect, get very far. The fact is that to legislate against social behaviour and certain aspects of the moral condition is fraught with dangers, apart from, as in this case, being rather like trying to put your little finger into a sluice gate to stop the flow of water.

Times change and people's perceptions of their moral obligations change with them. More could and should be done in the area of education for parenthood, and the courts must continue to exercise sympathetic and helpful control in that area. But that is the way forward. I have yet to speak to a magistrate or a probation officer who believes that the proposals will bring anything but heartache and muddle and that they will in effect be largely unworkable.

Lord Hylton

A great deal has been said about the amendments. I should like to support the general thrust of both of them and underline what my noble friend said about disorganised families. There is plenty of evidence to show that the majority of children and young people who come before the courts come from disorganised backgrounds.

That evidence takes many forms. The relationship between the parents may be rocky or non-existent or they may be totally separated or divorced. The relationship between the parents and the young person may be damaged and non-functioning in varying degrees. It is highly probable that the child or young person will have failed to get the benefit from education and schooling which one would normally have expected. There is a great deal of probation evidence on that point. By the time one reaches the point of a conviction—perhaps even a first conviction—the situation has probably gone too far and the intervention of the court will come too late. I ask the Government to think again on those grounds.

Earl Ferrers

Many points of anxiety have been raised this evening and I quite understand them. I see that the provision may well cause distress, concern and sorrow in various cases, but we must look back and think, what is the reason for the provision? The noble Baroness, Lady Seear, asked who thought of the idea. I disclaim personal responsibility, but the Government have considered the idea for this very reason: we have all been concerned over the years at the increasing number of crimes, including crimes of violence and theft from property and people. It is a pretty amazing fact that the peak offending age is in the teens.

Too often people have said, "What are we going to do? Nothing has been done. The youth was taken to court and nothing happened". Parents have often seen their children go to court and said, "That's little Tommy, it's his responsibility. It's nothing to do with me". Parents have a responsibility to look after their children. As I said earlier, the proposal was considered desirable, not to punish the parents, but to inculcate a little more responsibility on the part of parents for what their children, many of whom are in their teens, do. It is not always good enough for parents to say, "That's what little Tommy has done. It's up to him. It's nothing to do with me". Parents have a responsibility and, if they do not have it, they should have.

That is the background to the proposal. We hope that such a provision will encourage parents to take care and notice of what their children do, not just from a moral point of view, but because children's actions affect other people, perhaps offensively and harmfully. It is always possible to take a case at the far end of the spectrum and say, "What about the single-parent family living at the top of a block of flats in Brixton who has a hulking great youth of 15 and cannot do anything about it?". Of course there are cases like that.

My noble friend Lady Faithfull asked whether people who are bound over and forced to forgo their recognisance can appeal against the decision and obtain legal aid. In principle, they can obtain legal aid. The legislation allows it and it is for the magistrates to decide. In all the binding over provisions they will always exercise their powers unless the court is satisfied that it would be unreasonable to do so. The court will take into account the points that have been considered this evening as part of the reason for deciding whether the parents should be bound over.

The noble Lord, Lord Hutchinson, and the noble Viscount, Lord Tenby, say that that will clog up the courts. I have no doubt that if a lot of cases came before the courts it would add to the work of the courts. Whether or not it would clog them up is a matter for speculation. One thing which clogs up the courts is a lot of offenders committing offences where at the moment there appears to be very little responsibility. I will not deny that this would add to the work of the courts, but if we are not prepared to go along this sort of track, to a certain extent we are washing our hands of part of the problem. Both amendments would remove from the Bill the duty which Clause 49 places on the court to bind over the parent or guardian of an offender aged 10 to 15, unless it would be unreasonable to do so. In place of that duty the court would simply have a power to bind over parents and guardians to take proper care and exercise proper control over offenders aged 10 to 17. I think that would weaken the provision in Clause 9. We are not saying that the parents of an offender under 16 must be bound over in every case, but we are changing the presumption. The noble Lord, Lord Richard, does not like the change in presumption, but at present parents will be bound over only if there is a specific reason to do so in the case in question. Therefore, the presumption is against binding over. We think the presumption should be in favour of it.

In cases involving offenders aged under 16 the Bill requires the court to bind over a parent or guardian unless that would be unreasonable in the case in question. Children and young persons under 16 cannot be expected to take full responsibility for their actions. Their parents should, and in most cases do, exercise some influence over their behaviour. Parents and guardians have an important role to play in teaching their children to know the difference between right and wrong and to respect other people and their property. As we all know only too well, if they neglect their responsibilities their children may well fall into crime. If that happens the courts should in our view bring home to parents or guardians in a real way the consequences of their neglect. The prospect of being bound over should encourage them to take a greater interest in what their children do.

Responsible parents have nothing to fear from these provisions. Nor does Clause 49(1) pose a threat to those simply unable to exercise proper care and control - for example, if they are in hospital - since it does no: require courts to exercise the power to bind over if would be unreasonable to do so. We are not requiring the courts to exercise their binding over powers in cases involving offenders aged 16 to 17. It will be rip to the discretion of the courts to do so. Those young people are at an intermediate stage between childhood and adulthood. Some will be mature enough to take responsibility for their actions, others will not. I agree with the amendment to leave the courts with a discretion in those cases.

For offenders under 16, we believe the courts' powers need to be strengthened in the way suggested so that the presumption is changed from being against binding over to being in favour of it.

Those are the reasons that we have included these clauses ill the Bill, and I do not think it unreasonable, particularly in view of the amount of concern expressed over offending by young people.

Lord Richard

Before the Minister sits down, perhaps I may put to him two points. He is not strengthening the powers of the courts at all. He is not even altering the powers of the courts. He is telling the courts the way in which they must exercise those powers. That is entirely different.

The courts already have powers to bind over, as he knows. The presumption now is that one binds over "unless", which is a totally different situation from the present one. Let me put to him the fact that in 1989 40,300 juveniles were convicted of offences. If there is a similar figure for 1990 and 1991, how many binding over orders does the noble Earl think will be made when the presumption is now in favour of making them unless it is unreasonable to do so? We are talking in terms of tens of thousands of binding overs. If the noble Earl believes that the courts can cope with that situation without any undue difficulty, I can only say that he does not know much about the way in which the courts work.

Lord Harris of Greenwich

I return to a point that I made earlier. What exactly do the Government believe will happen to a family in a deep sense of crisis following a child of that family getting into trouble with the police? Do they not recognise that in many underprivileged households, and possibly others too, the likelihood is that some of those children will be expelled by their parents from their homes. It is sheer humbug for Ministers to go around saying that they believe that theirs is the party of the family when they are prepared to contemplate an absurdity of this sort. The noble Lord, Lord Richard, has rightly said that the implications for the courts are massive if that particular requirement is to be followed, as I suspect it will be in a substantial number of cases.

The question asked by my noble friend was: who exactly is in favour of this measure? It is quite obvious that no o le in this Committee, apart from the noble Earl, Lord Ferrers, is in favour of it. We have still to hear from anyone who is prepared to stand up and say that this is an admirable idea. Not a single voice has been heard in favour of this proposition. I see that the noble Lord, Lord Elton, is about to rescue the Minister from his position. Up to now he has said nothing, but I welcome his intervention.

Lord Elton

I rise with great diffidence. I do not believe in joining in debates of which one has not heard the beginning or in which the temperature has risen to such a level that one would have wished to have spoken before.

I must point out that two years ago I chaired the inquiry into discipline in schools. Among teachers there was a real concern to find some means of involving the aid of parents in the management of the behaviour of their children when they were in the school and away from home. I do not say that teachers ask for this measure; nor will I analyse it in detail since that has already been done, although I see that there is an escape clause for courts where it would be unreasonable to exercise the power which they are otherwise required to exercise on children under 16. But having heard the noble Lord, Lord Harris of Greenwich, say that not a word has been spoken in favour of the measure, I believe that it would be unjust not to reply that there are some people who are concerned with children who want something like it.

Lord Hutchinson of Lullington

Can the noble Lord, who has very great experience in this area, explain to the Committee why every single organisation involved in these matters is against this measure, and profoundly against it? We have not heard from the Minister, although he was invited to give the Government's view. I do not know whether the noble Lord, Lord Elton, would have a view as to why every single organisation is against this idea. There must be some reason for it.

Lord Hylton

In partial reply at any rate to the noble Lord, Lord Elton, is not the answer to the problem that he was raising a very much greater expansion of parent-teacher groups and associations? That is the classic kind of instrument in this type of case, particularly in the inner city and places where such things do not normally happen very much. To carry that point a little further, surely we need the kind of mutual support groups between parents which my noble friend Lord Henderson advocated a little earlier rather than this attempt to legislate and impose new duties on the courts.

Lord Elton

I was not embarking on advocacy; I was stating a fact. Perhaps I should state it more clearly. The committee over which I presided asked the Government to look into the possibility of making parents responsible—I believe that "vicariously" was the word that we used—for certain kinds of behaviour in school. We asked them to consider the matter. Whether or not this provision is the result of that request, I do not know. I do not believe that I ought to analyse what is needed for the reform of our schools at this time of night, a subject on which I could speak happily for an hour and a half.

Baroness Seear

My noble friend Lord Harris was in the middle of a sentence when the noble Lord, Lord Elton, intervened. He might at least be allowed to finish his sentence.

Lord Harris of Greenwich

My noble friend, as always, is extremely generous. I was coming to the conclusion of my remarks. The noble Lord, Lord Elton, was not quite so much help to the noble Earl, Lord Ferrers, as I suspected that he might be. He told us that under his chairmanship teachers had been worried about the matter, in particular in schools. I am sure we all share their concern.

The question before us is wholly different. Those Members of the Committee who have been present throughout the debate have noticed that no one has risen to support the proposals of the noble Earl. That is not altogether surprising given the fact that not a single organisation in the criminal justice area has done other than oppose the Government's proposals. Who knows the problems associated with crimes by juveniles? The Magistrates' Association and the justices' clerks are firmly opposed to what the Government propose. We have asked the Government—unhappily, we have not so far received a response—what organisation they can name which wants this provision? Is there a single organisation? I think that the noble Earl, Lord Ferrers, owes us some explanation on that.

Such a provision, which has the potential to create massive problems for the courts, and can lead to a situation where almost inevitably children will be expelled from their own homes by their parents, could hardly do more damage to family life.

Lord Mottistone

We were debating my Amendment No. 93. Noble Lords have talked for far too long on the subject. It is quite simple. I do not believe that the Government have given us a satisfactory answer. However, I do not think that it is so important as to be dealt with at this stage of the business of the House. As noble Lords have made clear, the issue affects the courts, and how they view the matter. The ordinary person who will be affected by the provision by being bound over will not read the legislation, nor understand it if he does, in particular when one considers the convoluted way in which the relevant subsection is written. It will make no difference to him.

I suspect that it is gross exaggeration to say that it will make extra work for the courts. I believe that the courts, as usual, will act sensibly and take advantage of the escape part of the clause. However, I believe that the Government are unwise to persist in their view that this will make any difference to the juvenile delinquency situation. It is probably a mistake to be quite so persevering.

In my view the best course is to bring the matter back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

Earl Ferrers moved Amendment No. 93A: Page 34, line 14, leave out from second ("by") to ("and") and insert ("which he is sentenced for that offence").

The noble Earl said: I speak also to Amendment No. 94A. Clause 49 places a duty on the court to bind over the parent of an offender under the age of 16 in every case except where the circumstances of that case mean that it would be unreasonable to do so. Where the offender is 16 or 17, the courts are not required to bind over the parents but they have a power to do so where they consider this appropriate.

Clause 49 allows the courts to bind over parents for up to three years. During such a period family circumstances may change. For example, it is possible that a child whose parents are bound over when he or she is 14 or 15 and still at school may leave school, get married and leave home before a bind-over period of this length has ended. To allow for such changes in circumstances Amendment No. 94A provides the courts with a power to revoke or vary an order binding over a parent if it would be in the interests of justice to do so. The parent or guardian must make an application to the court, and the court must be satisfied that there is a real and relevant change of circumstances. This is I believe a useful addition to the Bill. I am grateful to the noble and learned Lord, Lord Donaldson of Lymington, for drawing my attention to the need for such a provision.

Amendment No. 93A is a technical amendment. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull had given notice of her intention to move Amendment No. 94: Page 34, line 14, leave out from ("convicted") to end of line 18.

The noble Baroness said: The amendment has been debated but I am not happy about the situation. I shall not move the amendment but bring it forward at the next stage.

[Amendment No. 94 not moved.]

Earl Ferrers moved Amendment No. 94A: Page 35, line 4, at end insert: ("(8) A court may vary or revoke an order made by it under this section if, on the application of the parent or guardian, it appears to the court, having regard to any change in the circumstances since the order was made, to be in the interests of justice to do so.").

On Question, amendment agreed to.

Clause 49, as amended, agreed to.

Earl Ferrers moved Amendment No. 94B: After Clause 49, insert the following new clause:

Remands and committals to local authority accommodation

("—(1) For section 23 of the 1969 Act there shall be substituted the following section—

"Remands and committals to local authority accommodation.

23.—(1) Where—

1. (a) a court remands a child or young person charged with or convicted of one or more offences or commits him for trial or sentence; and
2. (b) he is not released on bail,

the remand or committal shall be to local authority accommodation; and in the following provisions of this section, any reference (however expressed) to a remand shall be construed as including a reference to a co remittal.

(2) A court remanding a person to local authority accommodation shall designate the local authority who arc to receive him; and that authority shall be—

1. (a) in the case of a person who is being looked after by a local authority, that authority; and
2. (b) in any other case, the local authority in whose area it appears to the court that he resides or the offence or one of the offences was committed.

(3) Where a person is remanded to local authority accommodation, it shall be lawful for any person acting on behalf of the designated authority to detain him.

(4) Subject to subsection (5) below, a court remanding a person to local authority accommodation may, after consultation with the designated authority, require that authority to comply with a security requirement, that is to say, a requirement that the person in question be placed and kept in secure accommodation.

(5) A court shall not impose a security requirement except in respect of a young person who has attained the age of fifteen, and then only if—

1. (a) he is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or
2. (b) he has a recent history of absconding while remanded to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded,

and (in either case) the court is of opinion that only such a requirement would be adequate to protect the public from serious harm from him.

(6) Where a court imposes a security requirement in respect of a person, it shall be its duty—

1. (a) to state in open court that it is of such opinion as is mentioned in subsection (5) above; and
2. (b) to explain to him in open court and in ordinary language why it is of that opinion;

and a magistrates' court shall cause a reason stated by it under paragraph (b) above to be specified in the warrant of commitment and to be entered in the register.

(7) A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, require that person to comply with any such conditions as could be imposed under section 3(6) of the Bail Act 1976 if he were then being granted bail.

(8) Where a court imposes on a person any such conditions as are mentioned in subsection (7) above, it shall be its duty to explain to him in open court and in ordinary language why it is imposing those conditions; and a magistrates' court shall cause a reason stated by it under this subsection to be specified in the warrant of commitment and to be entered in the register.

(9) A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, impose on that authority requirements—

1. (a) for securing compliance with any conditions imposed on that person under subsection (7) above; or
2. (b) stipulating that he shall not be placed with a named person.

(10) Where a person is remanded to local authority accommodation, a relevant court—

1. (a) may, on the application of the designated authority, impose on that person any such conditions as could be imposed under subsection (7) above if the court were then remanding him to such accommodation; and
2. (b)where it does so, may impose on that authority any requirements for securing compliance with the conditions so imposed.

(11) Where a person is remanded to local authority accommodation, a relevant court may, on the application of the designated authority or that person, vary or revoke any conditions or requirements imposed under subsection (7), (9) or (10) above.

(12) In this section— 'court' and 'magistrates' court' include a justice; 'imprisonable offence' means an offence punishable in the case of an adult with imprisonment; 'relevant court', in relation to a person remanded to local authority accommodation, means the court by which he was so remanded, or any magistrates' court having jurisdiction in the place where he is for the time being; 'secure accommodation' means accommodation which is provided in a community home for the purpose of restricting liberty, and is approved for that purpose by the Secretary of State; 'sexual offence' and 'violent offence' have the same meanings as in Part I of the Criminal Justice Act 1991; 'young person' means a person who has attained the age of fourteen years and is under the age of seventeen years.

(13) In this section—

1. (a) any reference to a person who is being looked after by a local authority shall be construed in accordance with section 22 of the Children Act 1989;
2. (b) any reference to consultation shall be construed as a reference to such consultation (if any) as is reasonably practicable in all the circumstances of the case; and
3. (c) any reference, in relation to a person charged with or convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.

(14) This section has effect subject to—

1. (a) section 37 of the Magistrates' Courts Act 1980 (committal to the Crown Court with a view to a sentence of detention in a young offender institution); and
2. (b) section 128(7) of that Act (remands to the custody of a constable for periods of not more than three days),

but section 128(7) shall have effect in relation to a child or young person as if for the reference to three clear days there were substituted a reference to twenty-four hours."

(2) In section 37 of the 1980 Act (committal of young person to Crown Court for sentence)—

1. (a) in subsection (1), for the words "17 years old" there shall be substituted the words "18 years old";
2. (b) in subsection (2), for the words "A person committed in custody under subsection (1) above" there shall be substituted the words "Where a person committed in custody under subsection (1) above is not less than 17 years old, he"; and
3. (c) after that subsection there shall be inserted the following subsection—

"(3) Where a person committed in custody under subsection (1) above is less than 17 years old—

1. (a) he shall be committed to local authority accommodation; and
2. (b) the court by which he is so committed shall impose a security requirement within the meaning of section 23 of the Children and Young Persons Act 1969." ").

The noble Earl said: I shall speak also to Amendments Nos. 94C, 94D, 95BA, 95BB, 95BC and 104BA. I apologise for the length of the amendments and the fact that they were not tabled earlier. They fulfil our commitment to improve the statutory arrangements for the remand of alleged offenders who are under the age of 17. I hope that meets with the approval of the Committee.

It has long been recognised that the present arrangements have serious shortcomings. The procedures are complex and confusing. They can lead to unsuitable decisions being made; but, more importantly, they rely on the use of adult prisons for remanded young people who need to be securely held. Despite the best efforts of the prison service, adult prisons are not satisfactory places in which to hold unconvicted 15 and 16 year-old boys. That was proved by the distressing suicide of one such 15 year-old in Swansea prison last summer. The provisions in the amendments before the Committee would mean that the courts would no longer have to rely on using adult prisons for these young people.

In February my right honourable friend the Home Secretary published the consultation paper setting out detailed proposals for reforming the juvenile remand arrangements. The principal objective was to end prison remands for juvenile defendants. We received more than 100 sets of comments on the consultation paper. Almost without exception they warmly welcomed the proposal to end juvenile remands in prison. Views on the other detailed proposals were mixed, but overall the Government's objective of improving the juvenile remand arrangements was supported. The Government have weighed carefully the response to the consultation paper. These amendments give effect to the proposals in the paper taking account, as far as they have been able to do so, of the comments received.

With that brief explanation and considering the hour of the night, I beg to move.

Lord Richard

Grouped with this series of amendments are Amendments Nos. 95ZC and 95ZD standing in my name. It may surprise the noble Earl, but I congratulate the Government on coming forward in this amendment with what we regard as a welcome and substantial step towards eliminating what up to now has been a blot on the reputation of British justice.

Having said that, I am afraid I cannot go much further in congratulating the Government. The need is to see a complete end to the remand of juveniles to adult prisons and remand centres. While the Government are committed to ending juvenile remands in custody eventually, they have not yet committed themselves to a timetable for doing so. They have said that they will end such remands when sufficient local authority secure accommodation is available but have not announced a specific timetable for bringing that about.

In February the Home Office issued a consultation paper on the subject entitled The Remand of Alleged Juvenile Offenders. It proposed to restrict custodial remands in the short term on the lines of these amendments; to establish between 30 and 35 more secure places (that is, beds and not establishments) for juveniles in local authority homes over the next four years; and to review the position—not necessarily to end juvenile remands in custody—in four years' time.

What is the scope of the problem with which we are faced? As I understand it, in the 12 months to the end of June 1990, 1,300 boys aged 15 and 16 were remanded to prisons and remand centres. The remanding in custody of girls under 17 ended in 1979, so we are not faced with that problem. The number of juveniles on remand in penal establishments at any one time is much smaller than 1,300. On 30th April 1990, 65 untried and 19 convicted but not yet sentenced boys under the age of 17 were in prisons and remand centres in England and Wales. With numbers of that size surely it should be possible to plan a strategy to end such remands completely much more rapidly than is currently envisaged.

I do not believe that I need to emphasise the difficulties which have arisen and the disturbing aspects of the number of juveniles who continue to be held in penal establishments. The Chief Inspector of Prisons has done that with great force.

At present central government are meeting the revenue costs of keeping juveniles in prison. The London Boroughs Association has contacted me on this matter. It believes that the Government should reimburse local authorities for at least part—and it suggests 75 per cent.—of the revenue costs provided for any 15 or 16 year-old boy who is to be remanded to local authority accommodation as a result of these clauses. If that is not done, I gather that the costs will be very burdensome for local authorities.

Lord Harris of Greenwich

As I understand the situation, the Home Office estimate is that in terms of the amount of secure accommodation available we are talking about another 30 to 35 places. The London Boroughs Association says that that is an underestimate because there is already a serious shortage in London.

Perhaps I may refer the noble Earl to a Written Answer which I received from the noble Baroness, Lady Hooper, on 20th December last year. It is important to remember the figure of 30 to 35 extra places. On 1st January 1980 there were 329 secure places in England. On 1st January of last year there were 294 secure places. I am sure that the noble Earl will accept that that is a fall of 35 places. If those figures are correct, as I am sure they are, we are being told by the Government that it will take three or four years to get back to the situation which we were in 10 or 11 years ago. That is not a very impressive record.

If we consider the boroughs which have cut back on their provision of secure places, we find one interesting example: the London Borough of Wandsworth. That is a borough we are constantly told we should look to and respect for its remarkable record of local authority administration. In January 1980 it had 28 secure places; now it has none. In other words, very nearly the whole of the extra resources that the Government will have to find in regard to secure accommodation is explicable by the cut-back in the London Borough of Wandsworth. That is indeed a remarkable record.

Perhaps I may add a further point. Those of us who visit prisons regularly are depressed on each occasion by the substantial number of children we see in remand accommodation. It is obvious that if we do not have adequate secure accommodation available, as far as local authorities are concerned children will continue to go to prison. That is inevitable given that the Government have not agreed any clear timetable for getting them out of prison.

All I say to the noble Earl is that we expect the Government to discuss the matter realistically with the local authority associations, bearing in mind that some of the local authorities which will be required to provide the additional accommodation are already capped The difficulties in that regard will be formidable indeed.

Baroness Faithfull

Perhaps I may reinforce what has already been said by many noble Lords. I received a huge document from the Association of Directors of Social Services covering the whole of England and Wales. The Association of Directors of Social Services is in deep trouble. On the one hand it supports the Government in not wanting to send children to prison on remand; on the other, as the noble Lord, Lord Harris, of Greenwich, mentioned, it simply does not have the money to set up the secure accommodation required. If that is to be done, the funds will need to be ring-fenced.

I turn to my second point. In the halcyon days gone by I had a splendid remand home run by extremely good people. A number of those children were so treated in that remand home that when they came before the courts they were not sent to a penal institution because they had been so helped on a welfare basis in the remand home. It is a real dilemma for the Association of Directors of Social Services. It does not want children to go to prison; yet it does not have the money to set up secure accommodation throughout the country.

Baroness Seear

I believe that this is the best place—though perhaps not totally appropriate—to raise an issue in regard to young offenders since this clause discusses issues concerning them. The issue involves the rehabilitation of the young offender. I understand that the matter was raised in another place and the Minister said that he was giving the matter attention. However, it seems appropriate that it should also be considered in this Chamber.

Under the Rehabilitation of Offenders Act, offences of a less serious kind are regarded as spent after a period of 10 years. The offender does not have to admit to any offence in any sphere in which he finds himself, but most importantly, in applying for jobs. People specifically concerned with the question of the young offender suggest that, since so many offences are committed between the ages of 15 and 22 and after that very often young people settle down and offending becomes a thing of the past, it would be extremely helpful if, to the Rehabilitation of Offenders Act, could be added a clause to allow for the offence to be spent in a shorter period of years—perhaps three or four. It would then be more possible for the young offender to obtain employment.

Hideous examples exist of the experience of young offenders when they have completed a period in prison. In one case a young man applied for 89 jobs; he secured none and went back into crime. The ability to have an offence spent, and therefore greatly to enhance the opportunity of getting a job, would surely be a very valuable way of cutting down on the continuation of offences among young persons. I very much hope that the Minister will give this matter very careful consideration.

11.15 p.m.

Lord Elton

I wish to say a few words in support of my noble friend Lady Faithfull. The concept of sending juveniles and children to prison is entirely abhorrent. I hope that my noble friend recognises the enthusiasm with which we support the amendment and with which we press him to ensure that it will be used on every possible occasion until no juvenile is ever sent to prison.

Earl Ferrers

I recognise the concern which my noble friend has referred to. We do not want to see children and young people going to prison. We shall have gradually to find ways of avoiding that. The noble Baroness, Lady Seear, referred to young offenders. The point that she made is very real. The example that she gave is a very graphic one. She spoke of a person who has his conviction not spent then tries to find a job but cannot, as a result of which he goes back into crime. We shall certainly take these matters into account. All Members of the Committee are concerned about that situation and about what we are trying to do about secure accommodation.

The noble Lord, Lord Richard, and a number of other Members of the Committee, asked about that provision. The proposals that we have put forward have important resource implications. Work on the resources will be an important part of what has to be done as we take these proposals forward. Officials have already had discussions with the local authority associations. Prison remands can only be abolished when enough secure accommodation is available. There will be a need for new building, which takes time to plan and complete. We intend later to review what has been achieved and what more needs to be done. There are now about 300 places in secure accommodation which are used mainly for difficult and disturbed juveniles in care. The consultation paper estimates a need for between 30 to 35 extra places by 1995.

The noble Lord, Lord Harris, referred to a Written Answer which he received from my noble friend Lady Hooper about a decline in the number of places. Part of the answer lies in Amendment No. 94C, which introduces the second new clause. For the first time it puts a duty on local authorities to provide enough secure accommodation. The costs are funded 100 per cent. by central government. That will provide a solid basis for building up the number of places to meet the demand. I realise that it will not be done overnight. In the general course of events these provisions are not created as quickly as one would wish. I can assure the Committee that it is the intention of the Government to do the best they can to provide sufficient secure accommodation in order to keep the persons in question out of the prison system.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 94C: After Clause 49, insert the following new clause:

Provision by local authorities of secure accommodation

("—(1) It shall be the duty of every local authority to secure that they are in a position to comply with any security requirement which may be imposed on them under—

1. (a) section 23(4) of the 1969 Act (remands and committals to local authority accommodation); or
2. (b) section 37(3) of the 1980 Act (committal of young person to Crown Court for sentence).

(2) A local authority may discharge their duty under subsection (1) above either by providing secure accommodation themselves or by making arrangements with other local authorities for the provision by them of such accommodation.

(3) The Secretary of State may by regulations make provision as to the co-operation required of local authorities in the provision of secure accommodation.

(4) The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In this section expressions used in section 23 of the 1969 Act have the same meanings as in that section.").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 94D: After Clause 49, insert the following new clause:

Transitory provisions pending provision of secure accommodation

("—(1) In relation to any time before such day as the Secretary of State may by order made by statutory instrument appoint, section 23 of the 1969 Act as substituted by section (Remands and committals to local authority accommodation) (1) above shall have effect with the following modifications.

(2) In subsection (1), immediately before the words "the remand" there shall be inserted the words "then, unless he is declared by the court, after consultation with a probation officer or a social worker of a local authority social services department, to be a person to whom subsection (5) below applies".

(3) For subsections (4) and (5) there shall be substituted the following subsections—

"(4) Where a court declares a person to be one to whom subsection (5) below applies, it shall remand him—

1. (a) to a remand centre, if it has been notified that such a centre is available for the reception from the court of such persons; and
2. (b) to a prison, if it has not been so notified.

(5) This subsection applies to a young person who is male and has attained the age of fifteen, but only if—

1. (a) he is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or
2. (b) he has a recent history of absconding while remanded to local authority accommodation, and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded,

and (in either case) the court is of opinion that only remanding him to a remand centre or prison would be adequate to protect the public from serious harm from him."

(4) In subsection (6)—

1. (a) for the words "imposes a security requirement in respect of a young person" there shall be substituted the words "declares a person to be one to whom subsection (5) above applies"; and
2. (b) for the words "subsection (5) above" there shall be substituted the words "that subsection".

(5) In subsections (7) and (9), the words "without imposing a security requirement" shall be omitted.

(6) After subsection (9) there shall he inserted the following subsection— (9A) Where a person is remanded to local authority accommodation, a relevant court may, on the application of the designated authority, declare him to be a person to whom subsection (5) above applies; and on its doing so, he shall cease to be remanded to local authority accommodation and subsection (4) above shall apply.

(7) In subsection (12), the definition of "secure accommodation" shall he omitted.").

On Question, amendment agreed to.

Lord Reay

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-one minutes past eleven o'clock.