COMMONS AMENDMENT (Hansard, 22 July 1991)

§ The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I should like to speak also to Amendments Nos. 14, 98 and 101.
My noble friend Lord Renton referred to the Notes on Commons Amendments in which we have produced the same list of groupings as appears on the usual groupings list that he will be able to pick up in the Princes Chamber. We shall discuss the amendments in their groupings, as we do with any Bill. It is normally found to be for the convenience of the House if we discuss the amendments in groups.

§ Lord Renton
My Lords—

§ Lord Henley
My Lords, before my noble friend intervenes perhaps I may explain the purpose of the group of amendments.
The amendments fix a common age of 12 from which a child may seek an assessment on his absent parent in Scotland. Without such an amendment, the provisions of the Age of Legal Capacity (Scotland) Bill currently before your Lordships' House would remove the existing civil law rights of boys aged 14 to 16 and girls aged 12 to 16 with regard to applications for aliment under this Bill. The amendments align the Child Support Bill and the Age of Legal Capacity (Scotland) Bill and preserve existing rights. There is a further new provision which allows an application for maintenance made by a qualifying child in Scotland to be treated as an application on behalf of that child's siblings who are also children of the absent parent and are in the care of the same person as the applicant. That avoids the necessity of requiring independent applications from all the children within the family. I commend the amendments to the House.

§ Lord Renton
My Lords, I have not had time to mark the Bill while looking through the notes and comments. Several points arise. Not being a Scottish lawyer but only a rusty old English lawyer, it would be helpful for me to know the significance of Amendment No. 3, which asks us to omit "tutors" and "curators" from those whom the Secretary of State shall not prescribe as a category under the provision in Clause 3(3). Perhaps my noble friend will explain that point.
The next point about which it occurred to me to ask is this: I have a grandson aged 12 who lives in Scotland. Under Amendment No. 14, we find: A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the Secretary of State for a maintenance assessment to be made with respect to him if, 505 no one else has done so. I hope to think that my grandson would be intelligent and would find out what provision had been made, and, if no provision had been made, would find out who the Secretary of State was; what his address was; how to apply to him; and with what reasons the Secretary of State should be presented. On the face of it, and subject to further explanation, that is a rather heavy burden to place upon a child of 12, or even 13, 14 or 15.
This is a point of substance which was discussed in passing at earlier stages of the Bill in our House. It was suggested that the provision needed to be made but that it would not be used very often. It was said that unle5.s the provision existed, a child may be deprived. I understand that. However, at the same time it would be he 1pful if my noble friend will tell us how the child, upon whom the opportunity and responsibility for his own welfare is placed, is to motivate the power given in Commons Amendment No. 14.

§ Lord Mishcon
My Lords, I should hate to give the impression to the House or, indeed, the country at large that Members of your Lordships' House are not equally caring about children aged 12 or over in England and Wales.

§ Lord Renton
My Lords, the amendment refers to Scotland.

§ Lord Mishcon
My Lords, I can well remember asking—and I believe it was echoed by noble Lords on the Benches behind me—why the provision applied only to Scotland. If it was a good right which was used. I asked why it should not be available in England and Wales. If it was not used at all, we asked why there was need for it at all.
I believe that the noble and learned Lord replied, with all the authority which he carries with him in regard to the law of Scotland, that that was a tradition in Scottish law and that it had been part of Scottish law in relation to family and matrimonial proceedings that a child could apply for himself. It seemed wrong to deprive a Scottish child of a right embedded in Scottish law. However, it was said that it was infrequently used.
Therefore, I do not understand it to be a matter of setting up a new procedure. I paraphrase my recollection of what the noble and learned Lord said. He said that not only was the provision rarely used, but he felt that it was not compatible with English law and procedure as we know it. He did not believe it right that the provision should apply in English law and le considered it to be unnecessary. That is my recollection.

§ Lord Henley
My Lords, my noble friend says he is rusty in the law. I am even rustier. However, I never show as brightly as he did. I can also say that I am as ignorant of Scottish law as my noble friend, and on this occasion I must rely on those who advise me.
As the noble Lord, Lord Mishcon, implied, the time for discussing whether such changes are necessary in English law has now passed. We are now considering Commons amendments. It is important to consider the matter fully in relation to Scottish law.
506 My noble friend asked two questions about the amendments. He asked why, in Amendment No. 3, the reference to "tutors" and "curators" has been removed. I assure my noble friend that those terms will become obsolete when the Age of Legal Capacity (Scotland) Bill, which is to have its Third Reading today, becomes law. In any event, the terms are covered by existing references to parents and guardians. There are consequential amendments.
My noble friend asked also about Amendment No. 14. He said that that placed a heavy burden on a 12 year-old. It merely replicates an existing provision which, as the noble Lord, Lord Mishcon, said, was used infrequently. We expect this clause to be used infrequently. Children will be able to obtain help and advice through the usual sources—welfare agencies and so on. Children's rights and the availability of help and advice will be well publicised.
I hope that my remarks will reassure my noble friend that there is nothing sinister in the grouping of these four amendments. I shall continue to follow the suggested list of groupings which follows my Notes on Commons Amendments.