Children (Scotland) Bill

HL Deb 09 May 1995 vol 564 cc13-23

3.18 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)

My Lords, I beg to move that this Bill be now read a second time.

The Children (Scotland) Bill which your Lordships are considering today is a major milestone in Scottish children's legislation. It builds on the principles and fulfils the undertakings set out in our White Paper Scotland's Children. The Bill defines the responsibilities and rights of parents. It promotes the welfare of children. It improves the protection of children. It brings adoption law up to date.

The Bill which is now before your Lordships is the result of a great deal of preparation, and welcome extensive public debate in Scotland. Its origins are in the child care law review which reported in October 1990. Since then there have been a number of important reviews and reports which have contributed to our proposals, notably the reports of the Orkney and Fife child care inquiries.

Before I turn to the detailed provisions of the Bill, I would like to say a word about the procedure which is being followed in this Bill. We have already made substantial use of the new procedures for legislation set out in our White Paper Scotland in the Union. The purpose of those procedures is to enable Scottish legislation to be dealt with in a distinctly Scottish fashion. Part of that legislative process took place in Scotland itself. The Second Reading of this Bill took place in the Scottish Grand Committee sitting in Edinburgh. This was followed by three sessions of evidence-taking by the Special Standing Committee which considered the Bill in another place. Evidence was heard by that committee in both Edinburgh and Glasgow. A wide range of interests gave evidence, from directors of social work to young people who had been in care. As the Scottish Office Minister with responsibility for home affairs and social work, I too gave evidence to the committee. We, and I believe the Special Standing Committee, found this a most useful and informative step in the process.

We made it clear that we would take careful note of the points raised both in the evidence-taking and during the Committee discussions in another place. For their part, the Opposition made it clear that they would not treat this Bill in a party political way—I am very grateful for that. The co-operative and practical approach has been extremely fruitful. The substantial number of government amendments which were brought forward at Report in another place is a clear illustration of our willingness to respond to the useful points made in Committee.

Following our general consideration today of the principles underlying the Bill, it will be referred to a Committee of the Whole House, off the Floor. As is known, it is an experimental procedure which was recommended by the group which considered the Sittings of the House and which was endorsed by the House in a debate a year ago. Perhaps I may remind your Lordships that any noble Lords—not only those who are Scottish—who wish to do so may attend the proceedings of the Committee. I am confident that that procedure will continue to allow the co-operative approach we have enjoyed up until now. I am grateful for that and for the constructive contribution made by the all-party parliamentary group on children under the chairmanship of the noble Lady, Lady Saltoun.

I would now like to turn to the detailed provisions of the Bill. The Bill is in three main parts. The first deals with parents, children and guardians. The second deals with the promotion of the welfare of children by public authorities. The third part contains amendments to the law on the adoption of children.

The provisions in Part I are drawn from the Scottish Law Commission's report on family law which was published in 1992. We are grateful to the Scottish Law Commission for all the detailed work and consultation which it carried out, much of which is reflected in this part of the Bill.

The first three clauses of the Bill set out the main responsibilities and rights of parents for the upbringing of their children. This is a clear and important statement of their statutory responsibilities, first, for safeguarding and promoting the child's health, development and welfare; secondly, for providing appropriate direction and guidance; thirdly, for maintaining personal relations and contact with the child in cases where the parent is not living with the child; and, finally, for acting as the child's legal representative.

The statement also extends to the rights which are required to enable parents to fulfil their responsibilities. Those responsibilities and rights underpin our central belief contained in the Bill, which is that children are best looked after by their parents. Importantly, it is those provisions (coupled with those in Clause 11 which deals with court orders) which will lead us into a new climate where the emphasis will be on both parents—not just one—playing an active part in raising their children.

At present a father who is not married to the child's mother does not have rights in relation to the child. This recognises that in a number of such cases the father has no interest in the child—and is usually absent. No change is made to that general position. However, under the terms of Clause 4 we will make it easier for an unmarried father who does take an interest in the raising of his child to acquire both parental responsibilities and rights by agreement with the child's mother.

Clauses 11 to 14 set out the duties and powers of the courts in relation to children. These represent a fundamental change in existing law. They replace the concepts of "custody" and "access", which in the past have too often proved to be divisive and damaging to the child and his or her upbringing. Instead the courts will be allowed to make residence and contact orders, which are properly focused on the child and which should be more readily adjustable to the circumstances of individual cases and to the problems that might confront an individual child.

I would now like to turn to Part II of the Bill. This part contains the public law provisions concerning children. It both introduces new provisions and provides a substantial restatement, with amendment, of existing areas of child care law. Local authorities, courts and children's hearings will be required to have regard to the welfare of the child as the paramount consideration in any decisions which they make, subject, of course, to the need to take account of any risk of serious harm to others. They will also be required to take the child's views into account when reaching those decisions. That will relate also to the needs of children with disabilities. I am referring not only to children who themselves have disabilities but to those who are affected by disabilities within their families. Their needs are addressed in Clause 21, which imposes a responsibility and duty on local authorities. The new provision is designed to minimise the effect of the disability on the child and to give that child the opportunity to live a life which is as normal as possible.

Local authorities will be given special duties and powers in relation to children who have been in local authority care. We know all too well that such children need good support after they leave care if they are not to become homeless or encounter a wide range of other problems—and too often descend into criminality. Local authorities will have a duty to assist all young people who were in their care at the time of leaving school up to and including the age of 18. This is an extension of their present duty. Local authorities will additionally have the power to provide assistance to young people up to the age of 21 who were in care at the time of leaving school if they consider this necessary.

Chapter 2 and part of Chapter 3 of Part II of the Bill deal with the distinctive children's hearing system in Scotland. The children's hearings retain their central place in the provisions for child welfare and juvenile justice in Scotland. This part of the Bill is substantially a restatement of the 1968 Act and remains firmly based on the principles in Lord Kilbrandon's report that children who offend and children who are offended against may be equally in need of help. However, we are introducing a number of important changes which will strengthen the hearings and clarify their powers.

One of the main forms of action open to a children's hearing is to make a supervision requirement in respect of a child. New provisions in the Bill will clarify the effect of a supervision requirement and allow the hearings to specify important matters such as the responsibility for determining parental contact with children, giving authority for a child's medical examination and disclosing a child's whereabouts.

Chapter 3 of Part II of the Bill is principally about the protection of children, and here we are introducing important changes following very largely on the recommendations made by Lord Clyde after his extensive Orkney inquiry. What is presently called a place of safety order will be given a new name: the child protection order. The procedure for obtaining such an order will be changed to introduce new safeguards for parents and children.

Particularly important is the introduction of a new direct appeal to the sheriff, available to both parents and the child in situations where a child has been removed from home to a place of safety. In addition to that important change and the improved arrangements for the child protection order, two new orders will be introduced.

The first is a child assessment order which will enable an authority to obtain access to a child where it is concerned about the child's welfare. That may make unnecessary the removal of the child from home under a child protection order by providing a statutory right of access for purposes of that assessment.

The second new order is the exclusion order which would allow a sheriff on the application of a local authority to make an order to exclude a suspected abuser from the family home as an alternative to removing the child from that home. That is an important new power which has been widely welcomed in Scotland. Notwithstanding that, the provision has been the subject of substantial evidence and debate. The key point at issue has been whether such an exclusion order should be available on an emergency basis; that is, should it be possible to exclude a suspected abuser without giving the person to be excluded intimation and the opportunity of being heard by a sheriff before the exclusion order is granted. In the light of the evidence and discussions in another place, the Government have made it clear that the Bill will be amended in order to make possible exclusion on that basis. The necessary amendments will be brought forward in Committee.

In addition, we will bring forward amendments to make it possible for new evidence, which may be relevant to a case being considered by a children's hearing, to be brought forward without the need for resort to the nobile officium of the Court of Session. Those with any familiarity with recent cases in Scotland will appreciate that that amendment flows from a recent case in Ayrshire involving a number of children.

Further amendments will be brought forward to introduce provisions arising from the Carers (Recognition and Services) Bill, and a number of other points. Finally, Part III of the Bill and Schedule 2 deal with amendments to the Adoption (Scotland) Act 1978. It follows on from the review of adoption law in Scotland. One of the most significant outcomes of the review was, I am glad to say, the widespread confidence expressed in the existing legislative framework for adoption.

Notwithstanding that, the key changes to adoption law we propose are: an obligation on adoption agencies to consider all the options for the long-term care of the child; a simpler procedure for step-parent adoption; a requirement to seek the views of the children's hearing when considering a freeing order or an adoption placement; and a requirement to draw up timetables for adoption proceedings. Those will all improve existing adoption procedures in the interests of the child.

I should emphasise that Part III does not deal with inter-country adoption. Legislation on that aspect of adoption, which has grown increasingly important in recent years for a number of good reasons, needs to be framed on a UK basis.

The Bill is a coherent and ambitious statement of children's law in Scotland based on clear principles designed to benefit the children of Scotland and their families. Your Lordships' approval of the principles upon which it is based is eagerly sought, and your Lordships' later detailed scrutiny of the provisions is awaited with interest. I commend the Bill to the House.

Moved, That the Bill be now read a second time.— (Lord Fraser of Carmyllie.)

3.35 p.m.

Lord Macaulay of Bragar

My Lords, I thank the Minister for his clear exposition of the details of this important Bill. I wish to place on record from this side of your Lordships' House the appreciation of those involved in the welfare of children in Scotland for the care and concern which the Minister has shown for a considerable period of time and ultimately—perhaps through political pressure—for bringing this important Bill before the House. We are happy to co-operate in taking the Bill off the Floor of the House. Were it perhaps a year from now, we might have been hearing it in Edinburgh in an assembly different from your Lordships' House, but that is another matter.

The Bill represents a long-awaited step in legislation affecting children in Scotland and the relationship of the parents and, where they are involved, local authorities in Scotland. It is 26 years since the previous piece of significant legislation affecting children in Scotland was before a Parliament and the measure is long overdue.

The Bill carries with it all-party support, but that does not mean that it is a perfect Bill. When enacted it will govern, in so far as is possible within the realms of human relationships, the multifarious problems arising out of relationships among children, parents and local authorities, wherever the latter are involved.

The Bill has come from another place, where it was subjected to considerable scrutiny on all sides in the hope that, emerging from the work done on the Bill, there would be a statutory framework regulating the relationships involving the family and the community which would serve the individuals concerned and the community in a constructive manner. The expectation is that that will help to eliminate some of the problems which arise from those relationships.

It is no doubt unfortunate that this legislation lags five years behind the equivalent English and Welsh legislation. But, on the other hand, perhaps the lessons learnt from the operation of the Children Bill south of the Border will make the legislation for Scotland better than it might otherwise have been once it has gone through the parliamentary procedure. No doubt those issues will be considered in Committee.

It is proper that due credit be given not just to the organisations which have been involved in the demand for legislation but to those which have made constructive suggestions throughout the Bill's passage in another place, and which have no doubt supplied Members of your Lordships' House who are known to have an interest in the subject with a considerable amount of valuable information and comment. Perhaps I may say in passing that I am extremely disappointed at the response to the Second Reading debate from Scottish Members of your Lordships' House or even Members south of the Border with a Scottish interest.

The formation of an all-party parliamentary group to press for and progress the legislation is in itself an indication of the universal recognition of the many problems arising in this complicated field of human relationships. Recognition of the work of those organisations has already been recorded elsewhere and I do not intend to repeat it. I would put on record that I am sure that all sides of your Lordships' House are grateful for the information and suggestions which we have received, with all of which we shall not necessarily agree, but they have assisted many Members to make a reasoned and considered judgment of the issues involved in the Bill, and they will of course be of value during the more important Committee stage. Continued representation throughout the passage of the Bill will be more than welcome, because every area of expertise has its place in our considerations of the Bill.

One of the many problems involved in a piece of legislation such as this is the striking of a balance between the philosophical approach to family relationships, the definition of those relationships and the practical application of the perceived consequences of the relationships within society. The Minister said in passing, as a broad proposition, that children are best looked after by their parents. Of course, that is true, but as regards today's society and the area towards which the Bill is directed, perhaps the use of the word "parents" is the exception rather than the rule. I am not satisfied that even with the best will in the world the Bill strikes that difficult—indeed, many may say, impossible—balance between the philosophy of family life and the practicality of enforcing it. I cannot for the life of me see how we can enforce family life upon either parents or children.

I make no criticism in saying that one of the problems of the Bill is that it has no teeth. Clauses 1 and 2 deal with parental rights and responsibilities, access to children and so forth. They are very fine and philosophical in content but they cannot, and can never be, enforced.

We live in a country of broken marriages, divorces and child victims of those marriages, established single-parent families, with one child or more involved, and the so-designated "absent parent". All of those issues are dealt with in the Bill. Arising out of that is the involvement of the local authorities and their obligations to the children who, through no fault of their own, are caught up in what can only be described as a mess of human relationships, with the consequent financial and other problems involving, as it appears, considerable public expenditure.

The question raised by the Bill is: how do we go about regulating those situations in the best interests of the individuals involved, child and parent, and the local authorities which in many cases will carry the financial burdens imposed upon them in many clauses and supplemented by the powers given to the Secretary of State to become involved in imposing burdens by regulations?

The guesswork as regards the financial consequences of the Bill is £4 million. I do not know how anyone can work out the financial consequences of a Bill such as this. There are approximately 22,500 homeless people in Scotland. Where is the accommodation to come from? Is it to be newly-built accommodation? How will it be provided? Who will pay for it?

It will be interesting to know what lessons have been learnt from the Children Act since it came into force in England. Has it worked out as anticipated? Have the local authorities been able to meet the obligations imposed upon them in the Bill? Perhaps in Committee the Minister will tell us what the position is south of the Border. He will be able to give us real and not imagined figures.

During the passage of the Bill many issues will require close scrutiny. Not least will be the stated duties of the absent parent. In many cases the very fact of absence will reflect that parent's non-concern for the welfare of his or her child—in many cases children—who has been left with the other parent to be brought up. Care must be taken to ensure that any statutory provision takes into account that, once a parent has absented himself or herself from the family, in the broad sense of the word, a new family relationship may have been created by the deserted partner into which the intrusion of the absent parent, perhaps after a considerable period during which he has provided no support to the child or children whom he has deserted, would be of no value whatever to the deserted partner or to the children. I am of the view—and perhaps I express a personal view—that the Bill cannot and must not be seen as a statutory passport to the parent who has taken the easy way out and deserted the partner, who is given the task of bringing up the family alone, to return to the family network.

For the purposes of our consideration of the Bill, it would be interesting to know whether the Child Support Agency has statistics showing how many people in Scotland have been identified or categorised as absent parents, the average length of stay from the family home and the lack of support for the child or children involved.

Your Lordships will be pleased to hear that I do not intend to go through the Bill clause by clause or line by line. That is not the purpose of a Second Reading debate.

In another place the Government were put on notice as to the issues which concern Members in all parties. We look forward to an informed and constructive debate on the many issues raised. Although I have not counted, I understand that there have been up to 70 matters in relation to which the Government have indicated that they wish to consider their position. As a result of the speed with which the Bill was brought before Parliament, that is perfectly reasonable and I make no criticism whatever. However, in those circumstances it is difficult to have a Second Reading debate.

Indeed, today the noble and learned Lord the Minister spoke of amendment after amendment. When I read my copy of the Bill I do not know whether it is the Bill which we shall be discussing in Committee. Therefore, to some extent we are talking in a legislative vacuum. Nonetheless, the Second Reading is now before the House and your Lordships will have to put up with the situation. We must do our best.

Not least of the questions that will be asked is that relating to the exclusion orders which are dealt with in Clause 70. It is the exclusion of an alleged offender or a child abuser, to put it in the broad sense. It is difficult to make any observations on the application of the clause because I understand that in another place the Minister said that the Government were still thinking about it—and quite properly too. Similarly, in relation to the appointment of "safeguarded" for children who are involved in proceedings, the situation is not yet clear. There may be many other areas in the Bill upon which the Government are having second thoughts. It is to be hoped that, by the time the Bill reaches the Committee stage, the issues raised in another place in respect of which the Government gave undertakings to consider the position will be clarified by government amendments, as the noble and learned Lord has indicated.

Perhaps it would be sensible to suggest that we do not discuss the Bill at all until we see those amendments, but I believe that that would be silly. The Bill should not be designated for the benefit of parents, married, absent or otherwise. The prime concern is the welfare of the children, present and future, and those in the care of local authorities who must be helped after their release from that care. Perhaps rather than imposing an absolute duty to give help, advice and assistance to persons who have left local authority care, it might be proper to provide that every child leaving such care should be advised of the availability of help, advice and assistance. They would then know that at any time until the age of, say, 21 they could go back to the local authority.

The provisions relating to exclusion orders and interim exclusion orders will be of great concern. They pose problems not only to the person excluded but to the child or children involved and to the family as a whole. The Bill is unclear as to whether a sheriff, having heard all the evidence relating to an exclusion order but not being satisfied that the finality of an exclusion order is appropriate, can still make an interim order based on the evidence that he has heard presented by the local authority. The difficulty in interpreting this part of the Bill arises out of the definition of an exclusion order in Clause 70(8). That appears to exclude an exclusion order as covering an interim order. Many of your Lordships may consider that that sounds like gobbledegook. However, I am sure that the noble and learned Lord the Minister will take the point on board. Perhaps the Government will look at that matter as it is of some practical importance, in particular where the safety of the child may be in balance.

That part of the Bill is one of great difficulty and has potential for causing considerable harm to many of the individuals involved in the matter: for example, what will be the employment prospects of the alleged abuser when he has been excluded without proof of guilt of anything; what of his standing in the community, in particular in a small community; and if the alleged abuser is found to be innocent at the end of it all, from where and whom does he get recompense for the damage done? We all recognise abuse, sexual or otherwise, for the evil that it is, but that problem must be approached with great care. Not least in the catalogue of problems is at what point the views of the child or children, as the case may be, are to be taken into consideration and how their evidence is to be taken and evaluated.

I noticed in a newspaper report today that the Minister has taken active steps to train people in taking evidence from young children. I believe that the Minister and the noble and learned Lord the Lord Advocate are working together to draw up a set of rules in relation to the questioning of young children, which is very welcome. To some extent, that may answer the questions that I posed.

I wonder also how important are the views of the child. There was an unfortunate report in a newspaper on Monday which told of a tragic case of a 14 year-old boy who was faced with that very predicament—to choose between his mother or father. We all know that one of the great problems in abuse cases is the guilt complex which is thrust upon the child because the child feels guilty, whatever happens: if the father goes to prison, the child feels guilty; if the household is broken up, the child feels guilty. Very often the other members of the family begin to niggle the child, or the mother may abandon him. Those are very grave problems. If the newspaper report is correct, in the case to which I have referred the young man took the absolute solution and hanged himself. That really shows the difficulties in that very complex area of human relationships.

Before Committee stage I should like to raise one matter in relation to exclusion orders and interim exclusion orders. They can be applied for only by the local authority. Should there be a role for the reporter in those proceedings? In other words, there could be a joint application by the local authority and/or the reporter. There is an obvious danger in casting the net too widely in relation to applications for exclusion orders because inevitably there will be a multiplicity of applications from a variety of persons or groups asking for exclusion orders for a variety of reasons —genuine, evil or otherwise. Therefore, I suggest that it would be better for any such concern to be channelled through the local authority and/or the reporter service.

Perhaps I may raise two further matters in conclusion. The first is as regards the situation of children attending independent and grant-maintained schools. I have no doubt that the Government have been alerted to that matter. If the Title of the Bill—the Children (Scotland) Bill—has any meaning whatever and if we are taking account of what the United Nations and the Scottish Royal Commission have said, no child in any school or establishment should be treated in any way differently from a child in any other establishment.

As I read the provisions of this Bill, there is an indication that independent and grant-maintained schools will be free from any investigative process at the instance of any inspecting authority to ensure that the rights and welfare of children attending such schools and establishments are being properly regulated and protected. The rights of children in Scotland should be the same, wherever they are. When a parent signs a child into a particular school, giving full parental authority to that establishment to treat the child as though the school were the parent and to administer corporal punishment to that child, that is surely a prima facie failure to recognise the rights and views of the child which are central to this Bill. The wishes of the parents are neither here nor there. Throughout, the Bill refers to the views of the child. How are the views of the children in those establishments to be ascertained if nobody can get into them to see what on earth is going on? I am sure that your Lordships will be familiar, either through experience or by reading of it, with what happens in certain schools.

If I have misread that part of the Bill, I shall he delighted to be told so. But I seek an assurance that no children's rights, in the light of the provisions in the current conventions, are being or are likely to be abused in any school in Scotland.

Secondly, there is the question of chastisement of children. That matter was raised in another place and did not find favour with the Government. The Scottish Law Commission has recommended that no implements should be used for the chastisement of any child. That did not find favour with the Government. It may well be that it will find favour in your Lordships' House. But the matter must be taken one stage further because, although I do not have the report before me, I believe that reference is made in one report to an educative slap. There is no such thing.

The Minister and the noble and learned Lord the Lord Advocate will know from their experience of the Crown Office that some of the most tragic cases of which we know are those where an angry parent, a frustrated parent, a father who cannot cope with a crying child, has picked up the child and has either shaken it to death or given it a slap across the head which has caused the brain to he damaged. Therefore, we are looking for a system through which to educate parents. Physical violence towards a child cannot be regulated and if we had a perfect society no child would ever be assaulted. It would be unrealistic to say that that is what will happen, but we should start an educational process, just as we have in relation to motoring accidents and drink-driving, to educate young parents in particular that any form of violence towards young children is liable to have fatal results.

Many other important issues will arise in the course of the Committee stage. As was said in another place, this side of your Lordships' House will do all in its power to put this Bill on the statute book because it recognises the principles enshrined in it. We shall do nothing to halt the progress of the Bill. However, that assurance does not mean that there will not be debates on the issues involved in this wide-ranging piece of legislation. Indeed, there may be occasions on which the opinion of the House will be sought. I hope that any amendments brought forward will be treated by the Government as being constructive and not in any sense destructive. We all wish to do our best for Scotland's children and in particular the deprived and under-privileged children who are the victims of today's society.

No Act of Parliament will ever solve those problems. We can only do our best. I look forward to the further stages of this Bill which, when enacted, it is hoped, will give children in Scotland and the community a better protection within the law and a better opportunity of a reasonable life than can be foreseen at present.