Children (Scotland) Bill

HL Deb 05 July 1995 vol 565 cc1200-36

7.59 p.m.

Consideration of amendments on Report resumed.

Clause 56 [Child protection orders]:

The Earl of Mar and Kellie moved Amendment No. 75:

Page 41, line 20, at end insert: (" () is engaged in conduct which has caused or is likely to cause significant harm to himself; or").

The noble Earl said: My Lords, the amendment hopes to extend child protection orders to include children who seem to be engaging in self harm. At present a child protection order is available for a child being harmed or likely to be harmed by someone else. However, I am concerned that there is no protective provision for a child who is harming himself or who is likely to do so. For example, he might be acting suicidally, glue sniffing to excess, taking drugs or persistently playing "chicken" on roads or railway lines. I hope that the Minister can assure me that such a child situation has been considered. I beg to move.

The Earl of Lindsay

My Lords, I recognise the intention behind the noble Earl's amendment and sympathise with it. However, I would suggest to the noble Earl that it is not necessary. The ground set out in Clause 56(1) (a) (ii) provides for a child protection order to be granted where there are reasonable grounds to believe that the child will suffer significant harm if he is not removed to and kept in a place of safety. The harm in such circumstances need not be inflicted by another party; it may be self-harm. With that assurance, I hope the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie

My Lords, I am extremely grateful to the Minister for his response. I am reassured and, therefore, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 76:

Page 41, line 43, leave out ("regulations made under section 61") and insert ("rules made by virtue of section 88").

The noble Earl said: My Lords, the amendment allows rules of court rather than the Secretary of State to impose additional requirements on matters to be covered in applications for a child protection order. Such an arrangement is far more appropriate. I beg to move.

On Question, amendment agreed to.

[Amendment No. 77 not moved.]

The Earl of Lindsay moved Amendment No. 78:

Page 42, line 21, leave out subsection (6).

The noble Earl said: My Lords, I spoke to the above amendment when moving Amendment No. 74. I beg to move.

On Question, amendment agreed to.

Clause 58 [Initial hearing of case of child subject to child protection order]:

[Amendments Nos. 79 and 80 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 81:

Page 44, line 4, after ("order") insert ("and any direction given under section 57 of this Act (whether with or without variation of the order or, as the case may be, the direction)").

The noble and learned Lord said: My Lords, in moving the above amendment I should like to speak also to Amendments Nos. 82, 83, 84, 86 and 88. The amendments make three worthwhile changes to the child protection provisions set out in the Bill. They empower a children's hearing to vary or continue conditions attached to a child protection order when the child's case comes before it on the second working day.

Secondly, where a child has been detained in a place of safety under a child protection order but the principal reporter decides that it is not appropriate in the circumstances to bring grounds for referral before the eighth working day hearing, there is no provision for the child protection order to cease to have effect before that hearing. It would clearly not be in the child's interests for him to be kept away from home where no further action was to be taken on his case. I beg to move.

On Question, amendment agreed to.

Clause 59 [Duration, recall or variation of child protection order]:

Lord Fraser of Carmyllie moved Amendments Nos. 82 to 84:

Page 44, line 25, leave out (; or") and insert ("a child protection order;").

Page 44, line 26, at end insert ("such an order: or (c) subject to any term or condition contained in such an order or a direction given under section 57 of this Act").

Page 44, line 27, leave out ("a child protection order").

On Question, amendments agreed to.

[Amendment No. 85 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 86:

Page 44, line 32, after ("satisfied") insert ("or that the term, condition or direction is no longer appropriate").

The noble and learned Lord said: My Lords, I spoke to the above amendment when moving Amendment No. 81. I beg to move.

On Question, amendment agreed to.

[Amendment No. 87 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 88:

Page 45, line 3, after ("below;") insert: ("() on the person who implemented the order receiving notice from the Principal Reporter that he has decided not to refer the case of a child who is subject to the order to a children's hearing arranged in accordance with section 63(2) of this Act; () on the Principal Reporter giving notice in accordance with subsection (3) above in relation to the order that he considers that the conditions for the making of it are no longer satisfied;").

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 89 and 90:

Page 45, line 15, leave out from ("rules") to ("; or").

Page 45, line 38, leave out subsection (11).

On Question, amendments agreed to.

Clause 60 [Emergency protection of children where child protection order not available]:

The Earl of Mar and Kellie moved Amendment No. 91:

Page 47, line 30, at end insert: ("(9) Subsection (10) below shall apply in relation to a local authority area for which no district court has been established under the District Courts (Scotland) Act 1975 or in which such a court has ceased to exist.

(10) In relation to an area to which this subsection applies the Secretary of State may, if he is satisfied that—

1. (a) there is no sheriff habitually resident in that area, or there is a likelihood that the sheriff who is so resident will be frequently absent from the area; and
2. (b) there is a possibility of delays in travelling to the area by sea or air by scheduled services,

by order provide that this section shall take effect subject to the following variations—

1. (i) an authorisation under subsection (1) and (2) may be granted only by an honorary sheriff serving in that area;
2. (ii) an authorisation shall lapse under subsection (4) (b) (i) when seventy-two hours have expired since it was given; and
3. (iii) the Scottish Courts Administration shall provide such training as the Secretary of State thinks fit for honorary sheriffs serving in that area.").

The noble Earl said: My Lords, the tabling of the above amendment stems from concern about the operation of applications for child protection orders in remote areas. The amendment was given some consideration in another place but was not conclusively discussed. The circumstance with which the amendment deals is the fact that there is no district court in the island councils' areas. Justices of the peace in the area have no experience of sitting on the Bench.

It would seem to be better if an honorary sheriff received training to deal with child protection order applications. That would be operable in the event of a sheriff not being available. By way of example, perhaps I should point out that the sheriff for Orkney and Shetland lives in Shetland, but bad flying conditions could easily prevent him reaching the islands in a reasonably short time. I beg to move.

The Earl of Lindsay

My Lords, the amendment would introduce special procedures to be followed in emergency protection cases where there is no district court in the area. I can quickly reassure the noble Earl that honorary sheriffs are already empowered to grant child protection orders. With that assurance, I hope that the noble Earl will be prepared to withdraw his amendment.

The Earl of Mar and Kellie

My Lords, I am certainly reassured. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 92:

After Clause 61, insert the following new clause:

("Children arrested by the police

Review of case of child arrested by police

.—(1) Where the Principal Reporter has been informed by a constable, in accordance with section 296(3) of the Criminal Procedure (Scotland) Act 1975, that charges are not to be proceeded with against a child who has been detained in a place of safety in accordance with that section, the Principal Reporter shall, unless he considers that compulsory measures of supervision are not required in relation to the child, arrange a children's hearing to which he shall refer the case.

(2) A children's hearing arranged under subsection (1) above shall begin not later than the third day after the Principal Reporter received the information mentioned in that subsection.

(3) Where the Principal Reporter considers that a child of whose detention he has been informed does not require compulsory measures of supervision, he shall direct that the child shall no longer be kept in the place of safety.

(4) Subject to subsection (3) above, a child who has been detained in a place of safety may continue to be kept at that place until the commencement of a children's hearing arranged under subsection (1) above.

(5) Subject to subsection (6) below, a children's hearing arranged under subsection (1) above may—

1. (a) if they are satisfied that the conditions mentioned in subsection (2) of section 64 of this Act are satisfied, grant a warrant to keep the child in a place of safety; and
2. (b) direct the Principal Reporter to arrange a children's hearing for the purposes of section 63(1) of this Act,

and subsections (3) to (8) of the said section 63 shall apply to a warrant granted under this subsection as they apply to a warrant granted under subsection (1) of the said section 64.

(6) A child shall not be kept in a place of safety in accordance with a warrant granted under subsection (5) above where the Principal Reporter, having regard to the welfare of the child, considers that, whether as a result of a change in the circumstances of the case or of further information relating to the case having been received by the Principal Reporter—

1. (a) the conditions mentioned in section 64(2) of this Act are no longer satisfied in relation to the child; or
2. (b) the child is not in need of compulsory measures of supervision,

and where he does so consider he shall give notice to that effect to the person who is keeping the child in that place in accordance with the warrant.").

The noble Earl said: My Lords, in moving the above amendment, I should like to speak also to Amendments Nos. 228, 229 and 242. Under the Social Work (Scotland) Act 1968, where a child has been detained in accordance with Section 296(3) of the Criminal Procedure (Scotland) Act 1975, the reporter is obliged to bring the child's case before a children's hearing on the first lawful day. The amendments reintroduce a similar worthwhile provision in the Bill and, therefore, ensure that children who have been arrested do not remain longer than is necessary in a place of safety.

I should also add that it may be appropriate to make further minor changes on Third Reading in relation to children who on being referred to a children's hearing—whether or not after arrest—are already subject to a supervision requirement. I beg to move.

On Question, amendment agreed to.

Clause 64 [Warrant to keep child where children's hearing unable to dispose of case]:

The Earl of Lindsay moved Amendment No. 93:

Page 49, line 36, at beginning insert ("Without prejudice to any other power enjoyed by them under this Part of this Act and").

The noble Earl said: My Lords, I have great sympathy with Amendments Nos. 100 and 101 which are tabled in the name of the noble Lord, Lord Macaulay of Bragar, and which relate to this group of amendments, headed by Amendment No. 93 on the groupings list. However, the government amendments introduce a number of small but important improvements to the provisions which apply to children being kept in places of safety. Therefore, I believe that the government amendments essentially secure the same purposes as those which the noble Lord is seeking to achieve. In the circumstances, I hope that the noble Lord will not move his amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 94:

Page 49, line 37, leave out from ("under") to end of line 39 and insert ("this Part").

On Question, amendment agreed to.

[Amendment No. 95 not moved.]

The Earl of Mar and Kellie moved Amendment No. 96:

Page 50, line 7, leave out ("keep the child in a place of safety") and insert ("find the child, remove him to a place of safety and keep him there").

The noble Earl said: My Lords, Amendments Nos. 96 and 97 would certainly be more explicit than the present wording as regards what is required when dealing with warrants. I beg to move.

Lord Fraser of Carmyllie

My Lords, I certainly recognise the purpose behind these two amendments. In prompting the noble Earl in a discreet fashion, I wanted to indicate to him that I would wish to consider the possibility of bringing forward a government amendment which would meet just his intentions but at the same time maintain a consistency with other similar provisions in the Bill. With that assurance I hope that the noble Earl will now withdraw the amendments.

The Earl of Mar and Kellie

My Lords, I am greatly reassured by what the noble and learned Lord said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 97 not moved.]

The Earl of Lindsay moved Amendments Nos. 98 and 99:

Page 50, line 10, at end insert:

("(3A) A warrant under subsection (1) above may contain such conditions as appear to the children's hearing to be necessary or expedient, and without prejudice to that generality may—

1. (a) subject to section 87 of this Act require the child to submit to any medical or other examination or treatment; and
2. (b) regulate the contact with the child of any specified person or class of persons.").

Page 50, line 14, after ("force") insert (", whether with or without variation of any condition imposed by virtue of subsection (3A) above,").

On Question, amendments agreed to.

[Amendment No. 100 not moved.]

Clause 64 [Warrant to keep child where children's hearing unable to dispose of case]:

[Amendment No. 101 not moved.]

The Earl of Lindsay moved Amendments Nos. 102 and 103:

Page 50, line 16, leave out from ("hearing") to ("are") in line 19.

Page 50, line 21, leave out from ("the") to (", the") in line 22 and insert ("disposal of his case").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 93. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 104 to 106 not moved.]

The Earl of Lindsay moved Amendments Nos. 107 and 108:

Page 50, line 35, leave out subsection (8).

After Clause 64, insert the following new clause:

Warrant for further detention of child

(".—(1) Where a child is being kept in a place of safety by virtue of a warrant granted under section 64 of this Act or under this subsection, the Principal Reporter at any time prior to the expiry of that warrant may apply to the sheriff for a warrant to keep the child in that place after the warrant granted under the said section 64 or, as the case may be, this subsection has expired.

(2) A warrant under subsection (1) above shall only be granted on cause shown and—

1. (a) shall specify the date on which it will expire; and
2. (b) may contain any such requirement or condition as may be contained in a warrant granted under the said section 64.

(3) Where the sheriff grants a warrant under subsection (1) above, he may also make an order under this subsection in such terms as are mentioned in subsection (5) or (6) of the said section 64; and any order under this subsection shall cease to have effect when the warrant expires.

(4) An application under subsection (1) above may be made at the same time as, or during the hearing of, an application which the Principal Reporter has been directed by a children's hearing to make under section 63(6) or (8) of this Act.").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 93. I beg to move.

On Question, amendments agreed to.

Clause 65 [Application to sheriff to establish grounds of referral]:

Lord Fraser of Carmyllie moved Amendments Nos. 109 to 112:

Page 51, line 6, after ("shall") insert ("—

1. (a) have the right to attend the hearing of an application; and
2. (b)")

Page 51, line 7, leave out ("the hearing of an application") and insert ("such hearing").

Page 51, line 12, leave out from beginning to ("is") in line 13 and insert ("Without prejudice to subsection (4) (a) above, the sheriff may dispense with the obligation imposed by subsection (4) (b) above where he").

Page 51, line 21, leave out ("attendance") and insert ("obligation to attend").

The noble and learned Lord said: My Lords, I have already spoken to Amendments Nos. 109, 110, 111 and 112 in speaking to Amendment No. 51. I beg to move.

On Question, amendments agreed to.

8.15 p.m.

The Earl of Lindsay moved Amendments Nos. 113 and 114:

Page 52, line 2, leave out ("is satisfied") and insert ("finds").

Page 52, line 15, at end insert:

("() An order issued under subsection (10) above may, if the sheriff is satisfied that either of the criteria mentioned in section 67(10) of this Act is fulfilled, provide that the child shall be liable to be placed and kept in secure accommodation within a residential establishment at such times as the person in charge of the establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary.").

On Question, amendments agreed to.

Clause 66 [Continuation or disposal of referral by children's hearing]:

The Earl of Lindsay moved Amendments Nos. 115 to 118:

Page 52, line 24, after ("section 65") insert ("or section 82").

Page 53, line 27, at end insert:

("(8A) A warrant under subsection (4) or (7) above may contain such conditions as appear to the children's hearing to be necessary or expedient, and without prejudice to that generality may—

1. (a) subject to section 87 of this Act require the child to submit to any medical or other examination or treatment;
2. (b) regulate the contact with the child of any specified person or class of persons.").

Page 53, line 29, after ("section") insert ("or is to attend, or reside at, any place in accordance with a requirement made under subsection (3) above").

Page 53, line 31, at end insert:

("(9A) Where a child is to reside in a residential establishment by virtue of a requirement made or warrant granted under this section, the children's hearing may, if satisfied that either of the criteria mentioned in section 67(10) of this Act is fulfilled, order that while the requirement or warrant remains in effect he shall be liable to be placed in secure accommodation within that establishment at such times as the person in charge of the establishment, with the agreement of the chief social worker of the relevant local authority, considers necessary.").

The noble Earl said: My Lords, I spoke to Amendment No. 113 when moving Amendment No. 49 and I spoke to Amendments Nos. 114 and 116 to 118 when moving Amendment No. 93. I spoke to Amendment No. 115 when moving Amendment No. 49. I beg to move.

On Question, amendments agreed to.

Clause 67 [Disposal of referral by children's hearing: supervision requirements, including residence in secure accommodation]:

The Earl of Lindsay moved Amendments Nos. 119 to 121:

Page 54, line 9, at beginning insert ("subject to section 87 of this Act,").

Page 54, line 15, after ("the") insert ("supervision").

Page 54, line 15, leave out ("named person") and insert ("person specified in the requirement under this subsection").

The noble Earl said: My Lords, I spoke to Amendments Nos. 119 to 121 when moving Amendment No. 49. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 122:

Page 54, line 39, leave out subsection (11).

The noble Earl said: My Lords, I spoke to Amendment No. 122 when moving Amendment No. 20. I beg to move.

On Question, amendment agreed to.

Clause 68 [Duties of local authority with respect to supervision requirements]:

The Earl of Lindsay moved Amendment No. 123:

Page 54, line 41, leave out from ("shall") to end of line 42 and insert (", as respects a child subject to a supervision requirement, give effect to the requirement.").

The noble Earl said: My Lords, Amendment No.123 makes it clear that the obligation on a local authority to give effect to a supervision requirement is as respects a child subject to that requirement. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 124:

Page 55, line 10, leave out from ("child") to end of line 13.

On Question, amendment agreed to.

Clause 69 [Transfer of child subject to supervision requirement in case of necessity]:

The Earl of Lindsay moved Amendment No. 125:

Page 55, line 25, leave out subsection (3).

The noble Earl said: My Lords, I spoke to Amendments Nos. 124 and 125 when moving Amendment No. 20. I beg to move.

On Question, amendments agreed to.

Clause 70 [Duration and review of supervision requirement]:

The Earl of Lindsay moved Amendment No. 126:

Page 56, line 2, at end insert:

("(4A) Where the relevant local authority are aware that an application has been made and is pending, or is about to be made, under section 12 of the said Act of 1978 for an adoption order in respect of a child who is subject to a supervision requirement, they shall forthwith refer his case to the Principal Reporter.").

The noble Earl said: My Lords, this group of amendments includes Amendments Nos. 129, 134, 135, 138, 174, 178 and 179. They represent a useful addition to the legislation governing both adoption and supervision of children who have been before a children's hearing. Social work practitioners in the field of child care may see from time to time differences of opinion arise between the local authority and the children's hearing as to the arrangements which should be made for the future of the child. The local authority, for example, may be considering a permanent placement by pursuing the possibility of adoption while the hearing may consider that, with further assistance, the child could be reunited with his original family.

Clearly it is desirable that all parties involved should have a clear and unambiguous understanding of what is best for the child. However, in the event of disagreement the welfare of the child would be best served through speedy resolution. These amendments address this situation. It may be that the circumstances which these amendments address will arise only occasionally, but they represent important safeguards for children and as such I hope that your Lordships will welcome them. I beg to move.

The Earl of Balfour

My Lords, I wish to refer to Amendment No. 138. When we come to reprint the Bill at the end of these procedures could I suggest the wording: Under Section 12 or 18 of the said Act of 1978". Section 12 should, I think, come before Section 18 and not after it; otherwise, I am perfectly happy with these amendments. I refer to what is really a small printing correction.

The Earl of Lindsay

My Lords, that is a suggestion that we shall certainly want to look at. I am grateful to my noble friend.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 127 and 128:

Page 56, line 3, leave out subsection (5).

Page 56, line 16, at end insert ("and to the relevant local authority").

The noble Earl said: My Lords, both Amendments Nos. 127 and 128 were spoken to when moving Amendment No. 20. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 129:

Page 56, line 20, at end insert ("or (4A)").

The noble Earl said: My Lords, I have just spoken to Amendment No. 129 when moving Amendment No. 126. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 130:

Page 56, line 32, at end insert: ("(aa) where they are satisfied that in order to complete the review of the supervision requirement it is necessary to have a further investigation of the child's case, continue the review to a subsequent hearing;").

The noble Earl said: My Lords, Amendments Nos. 130 and 132 are minor amendments which would introduce flexibility into Clause 70 to ensure that it works effectively. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 131:

Page 56, line 34, leave out from ("requirement") to end of line 35.

The noble Earl said: My Lords, this is a minor but important amendment. Amendment No. 166 defines a supervision requirement as including any condition contained in such a requirement or related to it. This makes it clear that any variation of the terms of a supervision requirement will also embrace the variation of any conditions attached to that requirement. Amendment No. 131 which I am moving and Amendments Nos. 133 and 155 are consequential to Amendment No. 166. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 132:

Page 56, line 39, at end insert:

("(9A) Subsections (3) to (9) of section 66 of this Act shall apply to a continuation under paragraph (aa) of subsection (8) above of a review of a supervision requirement as they apply to the continuation of a case under subsection (1) (a) of that section.").

The noble Earl said: I spoke to this with Amendment No. 130. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 133 to 135:

Page 56, line 40, leave out ("or condition").

Page 57, line 5, after ("(4) (c)") insert ("or (4A)").

Page 57, line 9, after ("adoption") insert ("or the application, or prospective application, under section 12 of that Act").

The noble Earl said: My Lords, I spoke to Amendment No. 133 when moving Amendment No. 131. I spoke to Amendments Nos. 134 and 135 when moving Amendment No. 126. I beg to move the amendments en bloc.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 136:

Page 57, line 9, leave out ("make") and insert ("require to come to a decision").

The noble Earl said: My Lords, Amendments Nos. 136, 137 and 139 are essentially of a technical nature. They require the court to consider the report before making a decision on an application and not merely therefore when making a determination following an application. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 137 to 139:

Page 57, line 10, leave out ("a determination").

Page 57, line 13, after ("18") insert ("or 12").

Page 57, line 15, leave out ("making a determination") and insert ("coming to a decision").

The noble Earl said: My Lords, I spoke to Amendments Nos. 137 and 139 when moving the previous amendment. I spoke to Amendment No. 138 when moving Amendment No. 126. I beg to move the amendments en bloc.

On Question, amendments agreed to.

Clause 72 [Powers of Secretary of State with respect to secure accommodation]:

The Earl of Lindsay moved Amendment No. 140:

Page 58, line 25, leave out ("the parents of") and insert ("any person with parental responsibilities in relation to").

The noble Earl said: My Lords, the amendment is a sensible and necessary improvement to the drafting of subsection (6) (c). I beg to move.

On Question, amendment agreed to.

Clause 73 [Exclusion orders]:

The Earl of Lindsay moved Amendment No. 141:

Page 59, line 2, leave out ("and sections 74 to 77") and insert (", sections 74 to 76 and section 88(2A) (f)").

The noble Earl said: My Lords, I spoke to the amendment when moving Amendment No. 74. I beg to move.

On Question, amendment agreed to.

[Amendment No. 142 not moved.]

The Earl of Lindsay moved Amendments Nos. 143 and 144:

Page 59, line 9, leave out from ("served") to ("of") in line 10 and insert ("in accordance with rules making such provision as is mentioned in section 88(2A) (d)").

Page 59, line 19, leave out ("77(2) (c)") and insert ("88(2A) (e)").

The noble Earl said: My Lords, I spoke to Amendments Nos. 143 and 144 when moving Amendment No. 74. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 145:

Page 59, line 20, leave out from ("subsection") to ("within") in line 22.

The noble and learned Lord said: My Lords, in moving Amendment No. 145 I shall speak also to Amendment No. 147. The amendments effect a necessary technical rationalisation of the provisions in relation to interim exclusion orders. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 146:

Page 59, line 23, leave out (77(2) (c)") and insert ("88(2A) (e)").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 74. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 147:

Page 59, line 29, leave out ("before finally determining") and insert ("at any point prior to the final determination of").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 148:

Page 59, line 32, at end insert:

("(7A) Where—

1. (a) an application is made under subsection (1) above; and
2. (b) the sheriff considers that the conditions for making a child protection order under section 56 of this Act are satisfied,

he may make an order under that section as if the application had been duly made by the local authority under that rather than under this section.").

The noble and learned Lord said: My Lords, this amendment provides useful flexibility for the sheriff when he is considering an application for an exclusion order. As presently drafted, the Bill provides power for the sheriff to refuse the application, make the order or make an interim order.

In most cases the local authority, in full knowledge of all the appropriate family circumstances, can be expected to apply for the appropriate order. However, it is conceivable that circumstances might change. New information might come to light or other factors come into play which would make a child protection order rather than an exclusion order the better option. The aim is simply to ensure that the sheriff should have at his disposal an express statutory power to be satisfied that the order that he makes will be appropriate for the protection of the child. If he should be in any doubt about an exclusion order providing that protection he will have that power to make a child protection order and the child could be suitably removed to a place of safety. I beg to move.

On Question, amendment agreed to.

Clause 75 [Powers of arrest etc. in relation to exclusion order]:

Lord Fraser of Carmyllie moved Amendment No. 149:

Page 62, line 3, after ("arrest") insert ("is served").

The noble and learned Lord said: My Lords, this amendment to Clause 75 is a necessary clarification. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 150:

Page 63, line 13, at end insert ("above").

The noble and learned Lord said: My Lords, this amendment ensures that the reference to subsection (6) which is contained in subsection (13) (a) (i) relates to subsection (6) of Clause 75. I beg to move.

On Question, amendment agreed to.

Clause 76 [Duration, variation and recall of exclusion order]:

Lord Macaulay of Bragar moved Amendment No. 151:

Page 64, line 9, at end insert ("provided that the Sheriff may, on cause shown, extend an exclusion order for a further period or periods, with no such period to exceed six months.").

The noble Lord said: My Lords, this amendment concerns the extension of exclusion orders beyond the six-month limit within the Bill in Clause 76(1).

I am not sure whether the amendment is necessary, but it has been put down for clarification. In Clause 76(3) a power is given to the sheriff to vary or recall an exclusion order. I am not sure whether that power allows him to extend the exclusion order.

Having created a bit of a fuss about exclusion orders in the early stages of the Bill, I would be the last person to suggest that anybody should be excluded from his or her own home unnecessarily. However, the problem is that if the authorities do not get on with a prosecution, if there is to be a prosecution, then in the interests of the child and perhaps the community it may be necessary to keep the person concerned away from that particular area.

The effect of the amendment is to some extent to erode civil liberties, but in the field we are dealing with, namely child abuse, it is important that there should be some continuity in dealing with the offender and the allegedly abused child. As indicated in the Committee stage of the Bill, the Government have, to their credit, gone a long way to balance the interests of the allegedly abused child and the alleged abuser. I would not like it to be thought that from this side of your Lordships' House we are suggesting that people should be excluded from their homes unnecessarily. That is why the determining words in the amendment are "on cause shown". One would hope that we can rely on sheriffs to make sure that it will not be as a result of incompetence on the part of the authorities but on the basis of real cause shown to the sheriff that extension of the exclusion order is allowed.

I move the amendment with some reluctance. The Minister said during the Committee stage that if the authorities cannot deal with these matters within six months then, unless the person is in custody, there is something wrong with the process of justice. This is an enabling amendment to take account of extraordinary circumstances. As I said, the determining phrase is "on cause shown". I hope that the courts will interpret that as real cause to show that the exclusion order should be continued for a period, with an upper time limit of six months. I beg to move.

8.30 p.m.

Lord Fraser of Carmyllie

My Lords, the noble Lord has indicated clearly his concerns. They are proper ones. We wish to ensure that children who might be subject to abuse are protected for as long as is necessary. As he remarked, I indicated during the Committee stage that I have my concerns about introducing open-ended exclusion orders. It would be quite inappropriate for public intervention of this type to continue without any focus. Indeed, such intervention might ultimately exacerbate the problems being faced by a family.

Our exclusion provisions are accordingly focused on assisting the non-abusing parent to make the first positive step in stopping that abuse. The exclusion order provision therefore allows public intervention from a very early stage and for a period of some six months thereafter.

I believe that a period of six months should give adequate time for the non-abusing parent to receive the necessary counselling and support to resolve the situation by her own hand.

Where the "named person", as he or she is described, continues to be a threat, the remaining parent or partner could apply for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 where the named person was the spouse or cohabitant. I realise that it is a difficult area. However, on balance I believe that the six month period is both reasonable and adequate. I hope that the noble Lord will be satisfied.

Lord Macaulay of Bragar

My Lords, I am grateful to the Minister for that explanation. I agree entirely with him that six months is quite enough for the child or children involved, and for the parents. That is why the words "on cause shown", subject to the jurisdiction of the court, were put into the amendment. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Balfour moved Amendment No. 152:

Page 64, line 26, leave out ("man") and insert ("husband").

The noble Earl said: My Lords, I hope that your Lordships agree that persons who are living together as though they were "husband and wife" is better than "man and wife". I beg to move.

Lord Fraser of Carmyllie

My Lords, such is the power of my noble friend's argument that I accept the amendment.

On Question, amendment agreed to.

Clause 77 [Exclusion orders: supplementary provisions]:

The Earl of Lindsay moved Amendments Nos. 153 and 154:

Page 64, line 27, leave out subsections (1) and (2).

Page 64, line 47, leave out subsection (4).

The noble Earl said: My Lords, I spoke to Amendments Nos. 153, 154, 156 and 157 when moving Amendment No. 74. I beg to move.

On Question, amendments agreed to.

Clause 82 [Application for review of establishment of grounds of referral]:

The Earl of Lindsay moved Amendment No. 155:

Page 68, line 10, leave out from ("requirement") to second ("of') in line 11.

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 131. I beg to move.

On Question, amendment agreed to.

Clause 84 [Further provision as respects parental responsibilities orders]:

The Earl of Lindsay moved Amendments Nos. 156 and 157:

Page 69, line 45, leave out ("under this Part").

Page 70, line 10, leave out ("act of sederunt") and insert ("such rules").

On Question, amendments agreed to.

Clause 85 [Parental contact]:

Lord Fraser of Carmyllie moved Amendment No. 158:

Page 70, line 41, leave out ("named person") and insert ("person specified in the order").

The noble and learned Lord said: My Lords, the amendment represents an important clarification. The reference in Clause 85(3) to a named person could be confused with the named person defined in the terms of exclusion orders. The intention is that the sheriff should have power when making a parental responsibilities order in favour of a local authority to decide upon what contact the child should have with various individuals. Any such person would be specified in the order and the amendment removes any risk of confusion. I beg to move.

On Question, amendment agreed to.

Clause 87 [Consent of child to certain procedures]:

The Earl of Lindsay moved moved Amendment No. 159:

Page 71, line 24, leave out from ("of') to end and insert ("—

1. (a) section 64(3A) (a), section (Warrant for further detention of child) (2) or section 66(8A) (a) of this Act, in a warrant; or
2. (b) section 67(5) (a) of this Act, in a supervision requirement, requires").

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 93. I beg to move.

On Question, amendment agreed to.

Clause 88 [Procedural rules in relation to certain applications etc.]:

The Earl of Lindsay moved Amendment No. 160:

Page 71, line 35, at end insert:

("(2A) Without prejudice to the generality of the said section 32, rules may make provision as to—

1. (a) the functions of a person appointed by the sheriff under section 40(1) of this Act and any right of that person to information relating to the proceedings;
2. (b) the circumstances in which any person who has been given notice in accordance with such rules of an application for a child assessment order, or any other person specified in the rules, may apply to the court to have that order varied or discharged;
3. (c) the persons to whom notice of the making of a child protection order shall be given by the applicant for that order, and without prejudice to that generality may in making such provision require such notice to be given to either or both of the child and any relevant person in relation to that child;
4. (d) the persons to whom notice of an application for an exclusion order or, under section 76(3) of this Act, for the recall or variation of such an order or of anything done under section 74(2) of this Act shall be given;
5. (e) the period within which a hearing shall be held under subsection (5) of section 73 of this Act after the granting of an order under subsection (4) of that section;
1215
6. (f) the service of any exclusion order on the named person and the appropriate person within such period as may he specified in the rules.").

On Question, amendment agreed to.

Clause 89 [Legal aid in respect of certain proceedings]:

Lord Fraser of Carmyllie moved Amendments Nos. 161 to 163:

Page 73, line 45, leave out ("to the Court of Session").

Page 74, line 11, leave out ("granted") and insert ("made available").

Page 74, line 38, leave out ("spouse or").

The noble and learned Lord said: My Lords, these three amendments apply to the revised Section 29 of the Legal Aid (Scotland) Act 1986 which is incorporated in Clause 89. I beg to move.

On Question, amendments agreed to.

Clause 90 [Interpretation of Part II]:

The Earl of Lindsay moved Amendments Nos. 164 to 166:

Page 74, line 44, at end insert: (""chief social work officer" means an officer appointed under section 3 of the Social Work (Scotland) Act 1968;").

Page 75, line 39, at end insert: (""relevant local authority", in relation to a child who is subject to a warrant granted under this Part of this Act or to a supervision requirement, means the local authority for whose area the children's panel from which the Children's Hearing which imposed the supervision requirement was formed;").

Page 76, line 18, after ("Act") insert (", and includes any condition contained in such a requirement or related to it").

The noble Earl said: My Lords, I spoke to Amendment No. 164 when moving Amendment No. 93, Amendment No. 165 when moving Amendment No. 20, and Amendment No. 166 when moving Amendment No. 131. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 167:

Page 76, line 18, after ("Act;") insert (""voluntary organisation" means a body (other than a public or local authority) whose activities are not carried on for profit;").

The noble Earl said: My Lords, this is a self-explanatory amendment which adds a necessary definition of voluntary organisation to the Bill. I beg to move.

On Question, amendment agreed to.

Clause 92 [Welfare of child paramount consideration]:

Lord Macaulay of Bragar moved Amendment No. 168:

Page 78, line 34, at end insert: ("() In reaching any decision relating to the adoption of a child, a court or an adoption agency shall determine the matter without unreasonable delay.").

The noble Lord said: My Lords, this amendment relates to the procedure for the adoption of children. At first flush it may appear an unnecessary admonition, if I may so put it, to those involved (whether it be the court or adoption agency) to get a move on. The amendment provides: In reaching any decision relating to the adoption of a child, a court or an adoption agency shall determine the matter without unreasonable delay".

I do not know how to describe that provision; it may be rhetoric. However, the amendment sends a warning to people dealing with adoptions to get on with them. I am advised by some people involved in the adoption business (if I may so phrase it) that even unopposed adoptions have taken four months to be ratified in the courts. There is no excuse or justification for that length of time to be taken in what is an extremely sensitive area. It is sensitive for the adoptive parents; it is sensitive for the child if the child is old enough to understand what is going on.

I hope that the Government will consider the amendment not as a piece of punitive legislation against the courts or adoption agencies, but to give people the right to come to court to ask why the adoption is not taking place as rapidly as it should, in particular where it is unopposed. The situation is entirely different where there is opposition.

The amendment provides a general warning to those involved in these sensitive matters to get on with them, so that people do not go through an unnecessary period of suffering in the broad sense of the word. I beg to move.

Baroness Seear

My Lords, as a miserable Sassenach, I hesitate greatly to intervene; and I do not claim to have any direct knowledge of the subject. The term "unreasonable delay" is extremely elastic. It could mean almost anything. However, I well recall that a close friend of mine who was concerned with adoptions found that it was often wise to monitor what was happening for quite a time before the adoption was confirmed. What on the face of it may look an extremely suitable adoption, in fact not infrequently turns out not to be so. It is only when the child has been in the home, sometimes for quite a long time, that it is safe to conclude that that adoption is suitable.

"Unreasonable delay" is, I agree, such a vague term that it could be interpreted in any way. But I should be extremely unhappy if adoptions were hurried in any way. On certain occasions it is extremely important that there should be time to see what is happening.

The Earl of Lindsay

My Lords, I have considerable sympathy with the aims underlying the noble Lord's amendment, as indeed I do with the comments made by the noble Baroness.

What I can say to the noble Lord—it is not for the first time—is that the amendment is unnecessary. The matter has been raised before. I remain of the view that the Bill adequately protects the interests of children for whom adoption might be under consideration.

Clause 92 inserts a new Section 6 into the Adoption (Scotland) Act 1978. The new section already makes quite clear that, in reaching any decision relating to the adoption of a child, the court or adoption agency must regard the need to safeguard and promote the welfare of the child throughout his lifetime as the paramount consideration.

There can be no denying that this is a serious requirement and it will require courts and adoption agencies to discharge their duties in an effective and efficient way. Clearly, any unreasonable delay would not be in the interests of the child and the court or the adoption agency would be failing to meet the standards set down.

I am sure that this is the kind of matter which would be better addressed in terms of specific guidance or court rules, if necessary, but it is not something which is required on the face of the Bill. With the assurance that we shall bring forward guidance, if it should prove to be necessary, I hope that the noble Lord will agree to withdraw his amendment.

Lord Macaulay of Bragar

My Lords, I was interested in the contribution of the noble Baroness, Lady Seear, who described herself as "a miserable Sassenach". I have called Sassenachs a few things but I have never called them miserable. I remember that an Englishman bought me a drink one night! Seriously, the noble Baroness raised an important point that the amendment should not be seen to be a hammer to rush the adoption procedure. I would not like it to be seen to have that objective and that is why I said at the beginning that we all know that it is a sensitive area of human relationships. I quite agree with what the noble Baroness said.

I listened with interest to what the Minister said. As always, I accept his assurances and look forward to seeing the rules in due course. On that basis, and with my thanks to the Minister for his clear explanation of how the Government approach the legislation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 97 [Inquiries into matters affecting children]:

The Earl of Mar and Kellie moved Amendment No. 169:

Page 80, line 43, at end insert: ("() A child or parent of a child may request a local authority to hold an inquiry into their functions in relation to that child, in terms of subsection (1) above, and if the local authority refuse to hold such an inquiry, they shall give written reasons for such a refusal.").

The noble Earl said: My Lords, the amendment would give parents and children the specific right to ask for an inquiry into their case. I wish to ascertain from the noble Earl what the Government propose to put into guidance about that. In particular, I wonder whether such inquiries will be easy to request. Will the local authorities be required to justify a refusal? Who will pay for the inquiry? Alternatively, will it automatically have to be paid for by the person requesting it? An inquiry may be helpful, but it seems strange to limit it to those who can afford to pay for it. I hope that I have misunderstood the provisions of the Bill in that respect. I beg to move.

The Earl of Balfour

My Lords, before my noble friend replies I wish to make a short appeal. I have often been interested in hearing the replies given by my noble friends on the Front Bench to the noble Lord, Lord Macaulay, that something will be put into the guidelines, regulations or whatever comes after the Bill is enacted. I make the appeal that there should not be too great a delay after the Bill comes into force before the regulations appear.

The Earl of Lindsay

My Lords, first I can reassure the noble Earl, Lord Mar and Kellie, on some of the points he raised. There may be some details which I cannot cover tonight, but I shall be able to write to him about them.

Local authorities should always, in the spirit of the Citizen's Charter, clearly explain their decisions when called upon to do so. This is an important part of their accountability. In addition, all authorities now have in place formal complaints machinery. In cases of maladministration, individuals can have recourse to the local authorities ombudsman. I do not think, therefore, that we need in the Bill a prescription on the local authority to intimate a negative decision in a particular way, which would be one of the consequences of the amendment as drafted.

I can also reassure my noble friend Lord Balfour that it is our intention to minimise any delay or time-lag between the Bill coming into force and regulations which are required for it. With those assurances to both noble Earls, I hope that the amendment can be withdrawn.

The Earl of Mar and Kellie

My Lords, I thank the noble Earl for his answer and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Clause 98 [Panel for curators ad litem, reporting officers and safeguarders]:

[Amendment No. 170 not moved.]

The Earl of Lindsay moved Amendment No. 171:

Page 81, line 29, at end insert:

("(1A) Regulations under subsection (1) above may provide, without prejudice to the generality of that subsection—

1. (a) for the appointment, qualifications and training of persons who may be appointed to that panel; and
2. (b) for the management and organisation of persons available for appointment from that panel.").

The noble Earl said: My Lords, this is a technical and consequential amendment. I beg to move.

On Question, amendment agreed to.

Clause 102 [Extent, short title, minor and consequential amendments, repeals and commencement]:

The Earl of Lindsay moved Amendment No. 172:

Page 82, line 20, at end insert:

("() The transitional provisions and savings contained in Schedule (Transitional Provisions and Savings) to this Act shall have effect but are without prejudice to sections 16 and 17 of the Interpretation Act 1978 (effect of repeals).").

The noble Earl said: My Lords, this amendment to Clause 102 introduces transitional provisions. They are set out in detail in the new schedule. I should also mention in relation to Clause 102 that some minor adjustments might be appropriate at Third Reading in relation to the Bill's extent. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Amendments of the Adoption (Scotland) Act 1978]:

The Earl of Lindsay moved Amendment No. 173:

Page 86, line 9, at end insert:

("Section 8 (direction where adoption society inactive or defunct) shall cease to have effect.").

The noble Earl said: My Lords, Amendment No. 173 simply seeks to delete a provision which is no longer required. The addition to Schedule 4 of Section 8 at page 118, line 33, merely notes the repeal. It is covered in Amendment No. 244. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 174:

Page 86, line 32, leave out from ("which,") to end of line 34 and insert ("if no application has been made for an adoption order in relation to the child, application for an order under section 18(1) shall require to be made in relation to him.".").

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 126. I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 175:

Page 87, leave out line 13 and insert: ("(a) in subsection (1), the words "Subject to section 53(1) of the Children Act 1975 (which provides for the making of a custody order instead of an adoption order in certain cases)" shall cease to have effect; and").

The noble Lord said: My Lords, this amendment is grouped with Amendment No. 176 and it refers to the deletion of Section 53(1) of the Children Act 1975. I am advised that the amendment might be acceptable to the Government. It is technical and is a tidying-up process which follows on Amendment No. 168. Perhaps the matter could be considered to see whether the amendment is technically correct. I beg to move.

The Earl of Lindsay

My Lords, Amendments Nos. 175 and 176 seek to delete references to Section 53(1) of the Children Act 1975 from Sections 14 and 15 of the Adoption (Scotland) Act 1978. I agree that for practical purposes the Section 53 provisions, which allow a court to consider custody rather than adoption, are in effect spent because of the improvements brought about through the Bill.

Clause 93 of the Bill makes clear that an adoption agency should consider alternatives to adoption and should not proceed with adoption if a better option is available. Similarly, paragraph 15 of Schedule 2 amends Section 24 of the Adoption (Scotland) Act to the effect that a court must not make an adoption order unless it considers that this would be better for the child than if it did not make the order. Clause 11 of the Bill provides scope for various orders and arrangements.

I am sure that the provisions in the Bill and in the Adoption (Scotland) Act 1978, as amended by the Bill, cover all the necessary ground as regards alternative orders. It may be, therefore, that Section 53 of the 1975 Act could be repealed. The noble Lord's amendments, however, only delete other references to it. I should like to consider whether it would be possible to bring forward a minor amendment to meet the noble Lord's wishes. With the assurance that I will consider the matter further, I hope that the noble Lord will agree to withdraw his amendment, which would only achieve part of his desired aim.

Lord Macaulay of Bragar

My Lords, I am glad that the amendments have highlighted the issue and am grateful to the Minister for his explanation and for taking on board the revision of the legislation. Under those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 176 not moved.]

The Earl of Lindsay moved Amendment No. 177:

Page 88, line 10, leave out ("he would not be granted") and insert ("it is likely that he would be refused").

The noble Earl said: My Lords, this amendment makes a modification to the way in which the court should consider the position of a father who is not married to the mother of a child when an application has been made for a freeing order. Essentially, it provides a sensible degree of flexibility. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 178 and 179:

Page 90, line 1, leave out from beginning to ("placing") in line 4.

Page 90, line 16, leave out ("(4) (c) (ii) or") and insert ("(4) (c)").

The noble Earl said: My Lords, I spoke to Amendments Nos. 178 and 179 when moving Amendment No. 126. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 180:

Page 91, line 18, at end insert:

("In section 28 (restriction on removal of child from care and possession of applicant for adoption order etc.)—

1. (a) in subsection (4), for the words from ", in terms of" to the end substitute "under or by virtue of Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995"; and
2. (b) in subsection (5), the words "or of a voluntary organisation" and "or the organisation" shall cease to have effect.")

The noble Earl said: My Lords, with the approval of the House, I should also like to speak to Amendment No. 245. These are essentially consequential amendments which follow from other changes being brought about by the Bill. On that basis, I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 181 and 182:

Page 91, line 24, after ("words '"') insert ("vesting in him the parental").

Page 91, line 25, after ("substitute "") insert ("transferring to him the parental")

The noble Earl said: My Lords, Amendments Nos. 181 and 182 are designed to make consequential amendments to Section 49 of the 1978 Act. The section deals with the adoption of children abroad but the changes are essentially about terminology. Rather than retaining an inappropriate reference to parental rights and duties being vested in someone, the amendment substitutes the new terminology of transferring to the person the parental responsibilities and parental rights in relation to the child.

Amendment No. 184 follows on changes brought about by the Bill. Sections 32 to 37 of the 1978 Act deal with protected children and have been repealed by the Bill. Therefore the reference to them in Section 59 is no longer relevant and the amendment seeks to remove it. I beg to move.

On Question, amendments agreed to.

Lord Macaulay of Bragar moved Amendment No. 183:

Page 92, line 19, after ("in") insert ("drawing up, in").

The noble Lord said: My Lords, on the face of it, this is a fairly minor amendment in connection with the regulations that the Secretary of State can make in relation to adoptions. I believe that there was a mistake either in the formulation of the amendment or in the printing of it; it does not make sense as it stands. The words are, "drawing up, in". The wording already contains "in". I believe that it should refer to "drawing up, and" making alterations to, or revoking or replacing an adoption allowances scheme. The general theme is that there is a difference in making alterations to a scheme and drawing them up. The broad import of this amendment is that if the words "drawing up" are used, it means that there is scope for consultation. In other words, the scheme is not imposed upon the people involved. I understood that this amendment was not unfavourably regarded by the Government. I beg to move.

The Earl of Lindsay

My Lords, however much the noble Lord doubts his own draftsmanship, the Government like it. We will accept this amendment.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 184:

Page 92, line 40, at end insert:

(". In section 59(4) (disapplication of provisions regarding rules), for the words ", 11 and 32 to 37" substitute "and 11".").

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 181. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 185 to 195:

Page 92, line 43, leave out ("65(1)") and insert ("(65)").

Page 92, line 44, after ("(a)") insert ("in subsection (1)— (i)")

Page 92, line 44, leave out from ("order"") to end of line 47 and insert (", in each of paragraphs (b) and (c), for the words "and 30 to 32" substitute "30 and 31";").

Page 92, line 48, leave out ("(b)") and insert ("(ii)").

Page 93, line 1, leave out ("(c") and insert ("(iii)").

Page 93, line 1, leave out ("sub-paragraph") and insert ("paragraph").

Page 93, line 2, at end insert ("(iv) in the definition of "local authority", the words ", 35(1)" shall cease to have effect;").

Page 93, line 3, leave out ("(d)") and insert ("(v)").

Page 93, line 14, leave out ("(e)") and insert ("(vi)").

Page 93, line 18, leave out ("(f)") and insert ("(vii)").

Page 93, line 20, at end insert (";

1. (b) in subsection (3), for the words "44 of the Social Work (Scotland) Act 1968" substitute "67 of the Children (Scotland) Act 1995"; and
2. (c) after subsection (5) add—

"(6) Any reference in this Act to a child being in, received into or kept in, care (whether or not such care is expressed as being the care of a local authority and except where the context otherwise requires) shall be taken to be a reference to his being looked after by a local authority and shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995; and any reference to the authority in whose care a child is, shall be construed accordingly.".").

The noble Earl said: My Lords, in moving these amendments, I shall also speak to Amendments Nos. 246 and 247. All of them deal with amendments to Section 65 of the Adoption (Scotland) Act 1978. Many of these amendments to the Bill are simply numerical changes which are consequent on the restructuring of paragraph 26.

The substantive changes to which I should draw the attention of the House relate to the deletion of a reference to Section 32 of the 1978 Act which is contained within the definition of adoption order. Section 32 provided the meaning of a protected child and the section is to be repealed by the Bill, along with other provisions relating to protected children. Similarly, the reference to Section 35(1), which also comes within the group of provisions to be repealed, also requires to be deleted.

The amendment to subsection (3) is a self-explanatory update of a reference to the making of the supervision requirement which would previously have been made under the 1968 Act and will in future be made under Clause 67 of the Bill.

The new subsection (6) ensures that the Adoption (Scotland) Act 1978 is adapted in accordance with the terminology and underlying philosophy of the Children (Scotland) Bill. I suggest that these amendments and the associated repeals in Schedule 4 are all helpful and sensible in adapting the 1978 Act. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 196:

After Schedule 2, insert the following new schedule:

("SCHEDULE

TRANSITIONAL PROVISIONS AND SAVINGS

1. Where, immediately before the day appointed for the coming into force of section 24 of this Act, a child is by virtue of section 15 of the 1968 Act (duty of local authority to provide for orphans, deserted children etc.) in the care of a local authority, the child shall on and after that day be treated as if he had been provided with accommodation under (and within the meaning of) subsection (1) of the said section 24.

2. Sections 28 and 29 of this Act shall apply in respect of a person who, at the time when he ceased to be of school age (as defined in section 31 of the Education (Scotland) Act 1980) or at any subsequent time, was—

1. (a) in the care of a local authority by virtue of the said section 15 or of section 16 of the 1968 Act (assumption of parental rights and powers); or
2. (b) subject to a supervision requirement (within the meaning of section 44(1) of the 1968 Act),

as they apply in respect of a person who at such time was looked after (within the meaning of Part II of this Act) by a local authority.

3. Where the parental rights in respect of a child have, by a resolution under the said section 16 or under section 16A of the 1968 Act (duty of local authority in cases of necessity to assume parental rights and powers vested in a voluntary organisation), vested in a local authority and immediately before the day appointed for the coining into force of section 83 of this Act those rights remain so vested, the resolution shall on and after that day have effect as if it were a parental responsibilities order transferring the appropriate parental rights and responsibilities (as defined in subsection (3) of the said section 83) relating to the child to the authority; and any access order made under section 17B of the 1968 Act in relation to the child (with any order made under section 17C of that Act as respects the access order) being (in either case) an order which immediately before that day remains undischarged, shall on and after that day have effect as if it were an order made under section 85(3) of this Act as respects the child.

4. Where the parental rights in respect of a child have, by a resolution under the said section 16, vested in a voluntary organisation (as defined in section 90 of this Act) and immediately before the day mentioned in paragraph 3 above those rights remain so vested, the resolution shall, notwithstanding the repeal by this Act of the said section 16, continue to have effect until one of the following occurs—

1. (a) the child attains the age of eighteen years;
2. (b) the resolution is rescinded by the local authority because it appears to them that their doing so would promote the child's welfare;
3. (c) the period of six months commencing with that day expires;
4. (d) an order is made by virtue of section 11(2) (b), or under section 83(1), of this Act in relation to the child;
5. (e) an order is made under section 12 (adoption order) or 18 (order freeing for adoption) of the Adoption (Scotland) Act 1978 in relation to the child.

5. Where the circumstance by virtue of which a resolution under the said section 16 ceases to have effect is that mentioned in sub-paragraph (c) of paragraph 4 above, the appropriate parental rights and responsibilities (defined as mentioned in paragraph 3 above) in relation to the child shall transfer forthwith to the local authority in whose area he resides; and for the purposes of sections 83(6) and 84 to 86 of this Act the transfer shall be deemed effected by a parental responsibilities order applied for by that authority.

6. While a resolution continues to have effect by virtue of paragraph 4 above, sections 17(3A) and (6) to (10), 17A, 17B, 17D, 17E and 20(3) of the 1968 Act (together with the code of practice last published under subsection (5) of the said section 17E) shall continue to have effect in relation to the child in question notwithstanding the repeal by this Act of those sections.

7. Where an order made under—

1. (a) section 10 (power of court in actions of divorce etc. to commit care of child to local authority) or 12 (power of court to provide for supervision of child) of the Matrimonial Proceedings (Children) Act 1958;
2. (b) section 11 of the Guardianship Act 1973 (orders relating to care and custody of children); or
3. (c) section 26 of the Adoption (Scotland) Act 1978 (provision for supervision or care where adoption order refused),

committed the care of the child to, or as the case may be placed the child under the supervision of, a local authority and immediately before the repeal by this Act of the section in question (the "relevant repeal") that order remained undischarged, the order shall continue to have effect notwithstanding the relevant repeal until one of the following occurs—

1. (i) the period of six months commencing with the date of the relevant repeal expires;
2. (ii) the Court of Session direct, or the sheriff directs, that the order be discharged; or
3. (iii) there is an event in consequence of which, but for the provisions (apart from this paragraph) of this Act, the order would have fallen to be discharged.

8.—(1) Where relevant proceedings in relation to a child have been commenced and on the relevant date have not been concluded, the provisions of Part III of the 1968 Act shall continue to apply to those proceedings until the proceedings are concluded, notwithstanding the repeal of any of those provisions by this Act.

(2) For the purposes of this paragraph, "relevant proceedings" means any proceedings at a children's hearing under Part III of the 1968 Act, any application to the sheriff under that Part for a warrant or under section 42(2) (c) of that Act to establish any ground of referral, and any appeal under section 49 or 50 of that Act; and a reference to the commencement, or to the conclusion, of such proceedings shall be construed in accordance with sub-paragraph (3) or, as the case may be, (4) below.

(3) Relevant proceedings are commenced when one of the following occurs—

1. (a) a children's hearing is arranged under section 37(4) or section 39(3) of the 1968 Act;
2. (b) an application under section 42(2) (c) of that Act is lodged;
3. (c) an appeal to the sheriff under section 49 of that Act is lodged;
4. (d) an application under section 50(2) of that Act is made.

(4) Relevant proceedings are concluded when one of the following occurs—

1. (a) the sheriff discharges the referral under section 42(5) of the 1968 Act;
2. (b) a children's hearing discharge the referral under section 43(2) of that Act;
3. (c) the period of three weeks after a children's hearing make a supervision requirement under section 44 of that Act or on remission to them under section 49(5) of that Act, expires provided that no appeal has been lodged within that period against that decision under section 49 of that Act;
4. (d) subject, as respects a decision under section 49(5) (b) of that Act, to head (c) above, the period of twenty eight days after the sheriff has disposed of an appeal under section 49(4), (5) or (6) of that Act expires provided that no application has been made within that period to him to state a case under section 50(2) of that Act;
5. (e) the period of twenty eight days after the sheriff has disposed of a case remitted to him under section 50(3) expires provided that no further application under the said section 50(2) has been made.

9. Where a child has been taken to a place of safety, or is being detained in such a place, in accordance with section 37(2) of the 1968 Act before the relevant date, and the first lawful day for the purposes of subsection (4) of that section is on or after that date, the child's case shall be proceeded with as if that day had been before the relevant date.

10.—(1) Where on the relevant date a child is subject to a supervision requirement imposed under section 44 of the 1968 Act, he shall be treated as if the requirement had been imposed under section 67 of this Act; and in calculating any period of time for the purposes of section 70 of this Act, that requirement shall be deemed to have been imposed on the day on which the requirement was imposed under the said section 44 or, as the case may be, was last reviewed or varied under the said Act of 1968.

(2) Where any relevant proceedings are concluded as mentioned in paragraph 8(3) (c) above, a supervision requirement imposed under section 44 of the 1968 Act shall have effect as if it were made under section 67 of this Act.

(3) Where before the relevant date, or in any relevant proceedings, the sheriff has in relation to a supervision requirement made an order under section 49(6) of the 1968 Act, that order shall have effect in relation to the supervision requirement deemed to have been made under section 67 of this Act as it would have had effect in relation to the supervision requirement made under section 44 of the 1968 Act.

11. In this Schedule— the 1968 Act" means the Social Work (Scotland) Act 1968; the relevant date" means the date on which the repeal of Part III of the 1968 Act by this Act takes effect; and relevant proceedings" shall be construed in accordance with paragraph 8(2) above.").

The noble Earl said: My Lords, this is a schedule of transition provisions and savings which covers the six circumstances where statutory mechanisms are needed to ensure that children will receive the full protection afforded by the Bill. I beg to move.

On Question, amendment agreed to.

Schedule 3 [Minor and Consequential Amendments]:

The Earl of Lindsay moved Amendments Nos. 197 to 199:

Page 95, line 44, after ("(interpretation)") insert: ("—

1. (a) the first paragraph shall cease to have effect; and
2. (b)") .

Page 96, line 1, after ("(interpretation)") insert: ("—(a)").

Page 96, line 6, at end insert:

• ("(b) for the definition of "Place of Safety", substitute ""place of safety" has the meaning given by section 90(1) of the Children (Scotland) Act 1995;";
• (c) for the definition of "Residential establishment" substitute ""residential establishment" has the meaning given by the said section 90(1);".").

The noble Earl said: My Lords, these amendments are interrelated. They make necessary amendments to the definitions in the Children and Young Persons (Scotland) Act 1937 as a result of the changes introduced by the Bill. I should mention that, although we have a considerable number of consequential amendments to consider today, I anticipate that I may have to bring further purely consequential amendments forward at Third Reading. It may be that these will not all be confined to Schedule 3 but may be for insertion in the main text of the Bill. This will be because some sections of Acts which require consequential amendments may be beneficially moved into the Bill itself. I beg to move Amendments Nos. 197 to 199 en bloc.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 200:

Page 98, line 5, leave out ("Parts II and III") and insert ("Part II").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 202 to 204 and 207 to 213. They simply delete unnecessary references to Part III of the Bill. Many of these are consequential drafting changes to the Bill. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 201:

Page 98, line 7, leave out ("section 3") and insert ("section 4").

The noble and learned Lord said: My Lords, this amendment simply corrects a reference to Section 3 of the Social Work (Scotland) Act 1968 which should have been to Section 4. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 202 to 204:

Page 98, line 8, leave out ("or III").

Page 98, line 12, leave out ("Parts II and III") and insert ("Part II").

Page 98, line 18, leave out ("Parts II and III") and insert ("Part II").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 200. I beg to move them en bloc.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 205 and 206:

Page 98, line 18, leave out second ("and").

Page 98, line 20, at end insert ("; and () for subsection (3) substitute— (3) Without prejudice to the generality of subsection (2) above, regulations under this section may make such provision as is mentioned in subsection (4) of this section as regards—

1. (a) the boarding out of persons other than children by local authorities and voluntary organisations, whether under any enactment or otherwise; and
2. (b) the placing of children under paragraph (a), or the making of arrangements in respect of children under paragraph (c), of section 25(1) of the Children (Scotland) Act 1995, by local authorities.

(4) The provision referred to in subsection (3) of this section is—

1. (a) for the recording—
   1. (i) by local authorities and voluntary organisations, of information relating to those with whom persons are so boarded out, or who are willing to have persons so boarded out with them; and
   2. (ii) by local authorities, of information relating to those with whom children are so placed or with whom such arrangements are made or who are willing to have children so placed with them or to enter into such arrangements;
2. (b) for securing that—
   1. (i) persons are not so boarded out in any household unless it is for the time being approved by such local authority or voluntary organisation as may be prescribed by the regulations; and
   2. (ii) children are not so placed or, in accordance with such arrangements, provided with accommodation, in any household unless it is for the time being approved by the local authority placing the child or as the case may be making the arrangements;
3. (c) for securing that, where possible, the person with whom a child is so placed or with whom such arrangements are made is either of the same religious persuasion as the child or gives an undertaking that the child shall be brought up in that persuasion;
4. (d) for securing
   1. (i) that a person who is, and the place in which he is, so boarded out by a local authority or voluntary organisation is supervised and inspected by that authority or organisation; and
   2. (ii) that a child who is, and the place in which he is, so placed or, in accordance with such arrangements, provided with accommodation, by a local authority is supervised and inspected by that authority,

and that he shall be removed from the place in question if his welfare appears to require it.

(5) In subsections (3) and (4) of this section, "child" has the same meaning as in Chapters 2 and 3 of Part II of the Children (Scotland) Act 1995.").

The noble Earl said: My Lords, Amendment No. 206 appears to be a lengthy amendment. However, it is simply a consequential amendment arising from the fact that we have taken children's services out of the 1968 Act and put them into the Bill. On that basis, I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 207 to 213:

Page 98, line 28, leave out ("6(1)") and insert ("6").

Page 98, line 30, at beginning insert ("in subsection (1)— (i)")

Page 98, line 30, leave out ("or III").

Page 98, line 31, leave out from ("1995";") to ("in") in line 32 and insert ("(ii)").

Page 98, line 32, at end insert: ("(iii) in paragraph (c), after the word "person" insert ", other than a child,"; and (iv) after paragraph (c) add— (cc) any place where a child is for the time being accommodated under paragraph (a) of, or by virtue of paragraph (c) of, section 25(1) of the Children (Scotland) Act 1995."; and (b) in subsection (2), after the words "1984" insert "or Part II of the Children (Scotland) Act 1995".").

Page 99, line 2, leave out ("or III").

Page 99, line 8, leave out ("or III").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 200. I beg to move them en bloc.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 214 to 220:

Page 99, line 15, at end insert: ("() In section 28 (burial or cremation)—

1. (a) in subsection (1), after the word "from," insert "or was a child being looked after by,"; and
2. (b) after subsection (2) add—

(3) In subsection (1) of this section, the reference to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act I995.".").

Page 99, line 15, at end insert: ("() In section 29 (power of local authority to defray expenses of parents etc. visiting persons accommodated by a local authority or attending certain funerals)— (a) in subsection (1) —(i) for the words from "a person" to "respect" substitute— —

1. (a) a person, other than a child, in the care of the authority or receiving assistance from the authority; or
2. (b) a child who is being looked after by the authority, in respect";
   1. (ii) after the words "visiting the person" insert "or child"; and
   2. (iii) for the words "the person", where they occur for the second time, substitute "him".
3. (b) in subsection (2), for the words from "a person" to "for" substitute—

—

1. (a) a person, other than a child, who had been in the care of the authority or receiving assistance from the authority; or
1228
2. (b) a child who had been looked after by the authority, for"; and
3. (c) after subsection (2), add—

(3) In subsections (1) and (2) above, references to a child looked after by a local authority shall be construed as is mentioned in subsection (3) of section 28 of this Act.".").

Page 99, line 19, at end insert: ("() In section 68 (visiting of persons in establishments)—

1. (a) in subsection (2), for the words "in the care or under the supervision of the authority under Part II or Part III of this Act" substitute "being looked after by the authority"; and
2. (b) after subsection (3) add—

(4) In subsection (2) of this section, the reference to children being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.".").

Page 99, line 21, after ("etc.)") insert: (a) in subsection (1)—

1. (i) for the words "has been received into care under Part II of this Act" substitute "is being looked after by a local authority"; and
2. (ii) in paragraph (a), for the words "his father and mother" substitute "any natural person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him"; and

(b)") .

Page 99, leave out lines 22 to 28 and insert: ("(2) This Part of this Act applies to any supervision requirement which, under paragraph (a) of section 67(3) of the Children (Scotland) Act 1995, requires the child concerned to reside in a place or places other than his own home.".").

Page 99, line 30, leave out from ("words") to end of line 31 and insert: (""in their care or under their supervision" substitute "looked after by them".").

Page 99, line 31, at end insert: ("() In section 79 (recipients of contributions)—

1. (a) in subsection (1), for the words "in the care or under the supervision of substitute "looked after by"; and
2. (b) in subsection (2), for the words "having the care or supervision of substitute "looking after".

() In section 80 (enforcement of duty to make contributions)—

1. (a) in subsection (1), for the words from "received" to "requirement" substitute "looked after by a local authority";
2. (b) in subsection (4), for paragraphs (a) and (b) substitute "throughout the period during which he is looked after by a local authority";
3. (c) in subsection (5), for the words "is the maintainable child's father or mother" substitute ", being a natural person, has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the maintainable child"; and
4. (d) in subsection (7), for the words "having the care or supervision of substitute "looking after".

() In section 82(1) (recovery of arrears of contributions), for the words "having the care or supervision of substitute "looking after". () In section 83(2) (variation of trusts where person in whose care a child has been residing is for the time being residing in England, Wales or Northern Ireland), for the words "having the care or supervision of substitute "looking after". () After section 83 insert—

"References in this Part of this Act to child being looked after.

83A. In this Part of this Act, references to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.".

() In section 86 (adjustments between local authorities as regards certain expenditure)—

1. (a) in subsection (1)—
1. (i) in paragraph (a), after the word "Act" insert ", or under section 24 of the Children (Scotland) Act 1995,"; and
2. (ii) in paragraph (b), for the words from "of services" to "Act", where it occurs for the second time, substitute ", or under or by virtue of Part II of the said Act of 1995, of services and facilities for a person ordinarily so resident (including, in the case of a child, any expenses incurred after he has ceased to be a child, and, in the event of another local authority taking over, under section 24(4) of that Act, the provision of accommodation for him,"; and
2. (b) in subsection (3), after the words "1989" insert "or provided with accommodation under paragraph (a) of, or by virtue of paragraph (c) of, section 25(1) of the Children (Scotland) Act 1995".

() In section 87 (charges which may be made for services and accommodation), in each of subsections (1) and (1A), after the words "1984" there shall be inserted "or under or by virtue of Part II of the Children (Scotland) Act 1995".

() Section 88 (duty of parents to notify change of address) shall cease to have effect.

() In section 90(1) (power to make regulations, orders or rules), the words ("(other than orders under section 52 and 58 and Part V of this Act)") shall cease to have effect.").

The noble Earl said: My Lords, the main thread running through this group of amendments is the change in terminology that we require to make in the 1968 Act to reflect the fact that under the Bill children will no longer be taken into the care of a local authority but will be looked after by the local authority. I beg to move the amendments en bloc.

On Question, amendments agreed to.

9 p.m.

The Earl of Lindsay moved Amendment No. 221:

Page 99, line 32, leave out from ("interpretation)") to end of line 35 and insert:

1. ("(a) the definition of "children's panel" and of "children's hearing" shall cease to have effect;
2. (b) the definition of "compulsory measures of care" shall cease to have effect;
3. (c) in the definition of "establishment" after the word "Act," insert "or of Part II of the Children (Scotland) Act 1995,";
4. (d) the definition of "guardian" shall cease to have effect;
5. (e) for the definition of "parent" substitute—
   • ""parent" means either parent or both parents, except that where the child was born out of wedlock and the parents have not subsequently married each other it means the natural mother but not the natural father;";
6. (f) the definition of "place of safety" shall cease to have effect;
7. (g) in the definition of "prescribed"—
   1. (i) in paragraph (a), for the words "sections 3 and 36" substitute "section 3"; and
   2. (ii) paragraph (b) shall cease to have effect;
8. (h) in the definition of "residential establishment", after the word "Act" insert "or of Part II of the Children (Scotland) Act 1995";
9. (i) the definition of "school age" shall cease to have effect; and
10. (j) in the definition of "supervision requirement", for the words "section 44(1) of this Act" substitute "section 67(1) of the Children (Scotland) Act 1995".

The noble Earl said: My Lords, this amendment amends the interpretation section of the 1968 Act in light of changes in the Bill. I beg to move.

On Question, amendment agreed to.

[Amendment No. 222 not moved.]

The Earl of Lindsay moved Amendments Nos. 223 to 225:

Page 99, line 37, after ("Wales)") insert: ("— (a) in subsection (1),").

Page 99, line 37, after ("(1A)'"') insert (", "section 58" and "Part V"").

Page 99, line 38, at end insert ("; and (b) subsections (2) and (3) shall cease to have effect.

() In Schedule 2 (general adaptations of Part IV of Children and Young Persons (Scotland) Act 1937), for paragraph 1 substitute—

"1. Any reference to a child or to a young person shall be construed as a reference to a child as defined in section 90(2) (b) of the Children (Scotland) Act 1995.".").

The noble Earl said: My Lords, with the leave of the House, I shall move Amendments Nos. 223 to 225 en bloc. In doing so, I shall speak also to Amendments Nos. 230, 238, 239 and 240, which are in respect of Schedules 3 and 4. They make a number of relevant consequential changes in respect of the extension of provisions of the 1968 Act to England, Wales, Northern Ireland and the Channel Islands. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 226:

Page 100, line 10, at beginning insert: (—(1) The Sheriff Courts (Scotland) Act 1971 shall be amended in accordance with this paragraph. (2) In section 32(1) (power of Court of Session to regulate civil procedure in the sheriff court), after paragraph (i) insert— (j) permitting a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the sheriff for the purposes of any enactment which makes provision (however expressed) for the sheriff to have regard to those views. (3)").

The noble and learned Lord said: My Lords, in moving Amendment No. 226, I shall speak also to Amendments Nos. 227 and 235.

The procedure for the court to take the views of the child concerned in the proceedings under Part I of this Bill has been discussed at a previous stage of the Bill. In another place amendments were proposed to set out such a mechanism on the face of the Bill. We thought it better that it should be left to the rules of court which would be more flexible and be able to take into account the many different types of case that may arise.

We have looked at the Bill carefully to ensure that the courts have all the necessary powers. Again, I am grateful to the noble and learned Lord, Lord Hope, for his helpful suggestion which will allow the courts to avoid significant practical difficulties. It would be very clumsy if, after the court had appointed a person—for example, a curator ad litem—to obtain the views of the child, the person could not report direct to the court but had to be represented by a solicitor or advocate. The amendment makes clear that any person appointed to convey the views of the child to the court can do so in person, even if he is not an advocate or solicitor. It is an amendment against interest. I beg to move.

Lord Macaulay of Bragar

My Lords, perhaps I may make a passing comment on Amendments Nos. 226 and 235. When we were discussing the question of the people now known as solicitor advocates, there were rules set out regarding the training and the code of conduct which they had to undergo before they were allowed to represent anyone in the court.

As the amendment stands, it means that anyone—and I mean anyone—can come in and purport to represent the views of the child. It seems to me, in the way it is drafted, that a granny, an uncle or anybody, could come in and express the views of the child. When we are dealing in this area, it is important that the views of the child are given to the court on some sort of structured basis. I wonder whether Amendments Nos. 226 and 235 are perhaps rather widely framed and whether there should be some inbuilt protection for the child as to who can represent the child.

I know that this is a difficult area but it seems to be a bit too wide in that anyone can come in and purport to represent the views of the child. I should like to hear what the Minister says in that regard.

Lord Fraser of Carmyllie

My Lords, if what the noble Lord understood was what the clause in fact does, I would readily recognise his anxieties. We are looking at a circumstance where the court will have appointed someone to determine the views of the child. In those circumstances, as the noble Lord can probably recall from his own experience in court, it would be desirable for that person to tell the court directly what those views are rather than having to convey them to the court through the medium of a solicitor or advocate.

That is all that the amendment seeks to achieve. It was a point that the Lord President of the Court of Session indicated would be a change of practical value. I hope that the noble Lord, Lord Macaulay, is reassured that the amendment is not as wide as he thought.

Lord Macaulay of Bragar

My Lords, perhaps I may say that my contribution was not a special pleading on behalf of advocates and solicitors.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 227:

Page 100, line 10, leave out ("of the Sheriff Courts (Scotland) Act 1971").

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 228 and 229:

Page 102, line 26, leave out from ("(3),") to ("; and") in line 28 and insert ("the words from "and the child" to the end shall cease to have effect").

Page 102, leave out lines 29 to 34 and insert: ("(b) subsection (4) shall cease to have effect.").

The noble Earl said: My Lords, with the leave of the House, I shall move Amendments Nos. 228 and 229 en bloc. They were spoken to with Amendment No. 92. I beg to move.

On Question, amendments agreed to.

[Amendment No. 230 not moved.]

The Earl of Lindsay moved Amendment No. 231:

Page 106, line 41, leave out from ("1983,") to ("shall") in line 43 and insert ("paragraphs 4 to 6 and 8 (which amend provisions of the Social Work (Scotland) Act 1968 repealed by this Act)").

The noble Earl said: My Lords, in moving Amendment No. 231, I shall speak also to Amendment No. 248. They are consequential or technical amendments which previously remove from the Health and Social Services and Social Security Adjudication Act 1983 references to provisions of the Social Work (Scotland) Act 1968 which have been removed by the Bill. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 232 and 233:

Page 107, line 2, at beginning insert: ("—(1) The Mental Health (Scotland) Act 1984 shall be amended in accordance with this paragraph. (2) In section 10(1) (application of provisions relating to certain patients suffering from mental disorder)—

1. (a) in paragraph (a), sub-paragraph (i), and the word "or" immediately following that sub-paragraph, shall cease to have effect; and
2. (b) after paragraph (a) insert—

"(aa) a child or young person in relation to whom parental rights and responsibilities have been transferred to a local authority by virtue of section 83(1) of the Children (Scotland) Act 1995;". (3) In section 54 (local authority to be deemed nearest relative of certain children and young persons), for paragraph (a) substitute— (a) the parental rights and responsibilities in relation to a patient who is a child or young person have been transferred to a local authority by virtue of section 83(1) of the Children (Scotland) Act 1995;". (4)").

Page 107, line 2, leave out ("of the Mental Health (Scotland) Act 1984").

The noble Earl said: My Lords, with the leave of the House, I shall move Amendments Nos. 232 and 233 en bloc. They are consequential amendments necessary because of the repeal of Sections 16 and 17 of the Social Work (Scotland) Act 1968 and to provide for a new reference in the Mental Health (Scotland) Act 1984 drawing on Clause 83 of the Bill which provides a "parental responsibilities order". I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 234:

Page 109, line 29, leave out ("of') and insert ("or").

The noble and learned Lord said: My Lords, in moving Amendment No. 2341 shall speak also to Amendment No. 236. These are simple technical amendments. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 235:

Page 111, line 24, at end insert:

("Court of Session Act 1988 (c. 36)

. In Section 5 of the Court of Session Act 1988 (power to regulate procedure etc. by act of sederunt), after paragraph (e) insert— (ee) to permit a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the Court for the purposes of any enactment which makes provision (however expressed) for the Court to have regard to those views;".").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 226 I spoke also to Amendment No. 235. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 236:

Page 115, line 23, at end insert:

("Civil Evidence (Family Mediation) (Scotland) Act 1995 (c.6)

. In section 2 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 (which provides for exceptions to the general inadmissibility of evidence concerning family mediation), in paragraph (d) (ii)— (a) for the words "Part III of the Social Work (Scotland) Act 1968" substitute "Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995"; and (b) after the word "hearing" insert— , before a sheriff or before a justice of the peace; (iia) on any appeal arising from such proceedings as are mentioned in sub-paragraph (ii) above".").

On Question, amendment agreed to.

Schedule 4 [Repeals]:

Lord Fraser of Carmyllie moved Amendment No. 237:

Page 116, line 41, column 3, at beginning insert ("Section 5(2C).").

The noble and learned Lord said: My Lords, in moving Amendment No. 237 I shall speak also to Amendment No. 250. As Clause 11 in effect confers jurisdiction upon the sheriff court to make orders under that clause the existing provision for applications to the sheriff court for parental rights is unnecessary and may be repealed by these amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 238 to 240:

Page 117, line 19, column 3, at end insert: ("In section 90(1), the words "(other than orders under sections 52 and 58 and Part V of this Act)". In section 94(1), the definition of "children's panel" and of "children's hearing"; the definitions of "compulsory measures of care", "guardian" and "place of safety"; in the definition of "prescribed", paragraph (b); and the definition of "school age".") .

Page 117, line 20, column 3, leave out ("97(1)") and insert ("97, in subsection (1)").

Page 117, line 22, column 3, at end insert (", "section 58" and "part V"; and subsections (2) and (3)").

The noble Earl said: My Lords, I spoke to Amendments Nos. 238, 239 and 240 when moving Amendment No. 223. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 241:

Page 117, line 40, column 3, leave out ("168(a)") and insert ("168(c)").

The noble and learned Lord said: My Lords, in moving Amendment No. 241, perhaps I may speak also to Amendment No. 243. The amendments correct references to the Criminal Procedure (Scotland) Act 1975 in Schedule 4 to the Bill. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 242:

Page 117, line 46, at end insert: ("In section 296, in subsection (3), the words from "and the child" to the end; and subsection (4).") .

The noble Earl said: My Lords, I spoke to Amendment No. 242 when moving Amendment No. 92. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 243:

Page 117, line 48, column 3, leave out ("364(a)") and insert ("364(c)").

The noble and learned Lord said: My Lords, I spoke to this amendment when moving Amendment No. 241. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 244 and 245:

Page 118, line 33, column 3, at end insert ("Section 8.").

Page 118, line 43, column 3, at end insert (" In section 28(5), the words "or of a voluntary organisation" and "or the organisation".").

The noble Earl said: My Lords, I spoke to Amendment No. 244 when moving Amendment No. 173 and I spoke to Amendment No. 245 when moving Amendment No. 180. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 246 to 248:

Page 118, line 49, column 3, leave out from ("65(1),") to end of line 52.

Page 118, line 55, column 3, at end insert ("; and in the definition of "local authority", the words ", 35(1)".").

Page 119, line 6, column 3, leave out ("4,5,7") and insert ("4 to 6").

The noble Earl said: My Lords, I spoke to Amendments Nos. 246 and 247 when moving Amendment No. 185 and I spoke to Amendment No. 248 when moving Amendment No. 231. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 249:

Page 119, line 11, column 3, at beginning insert:

("In section 10(1) (a), sub-paragraph (i); and the word "or"

immediately following that sub-paragraph.").

The noble and learned Lord said: My Lords, this is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 250:

Page 119, line 31, column 3, at end insert ("In Schedule I, paragraph 3.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 237 I spoke to Amendment No. 250. I beg to move.

On Question, amendment agreed to.

House adjourned at eleven minutes past nine o'clock.