§ 4.54 p.m.
§ Second Reading debate resumed.
§ The Earl of Mar and Kellie
My Lords, we have before us today the much heralded and welcome Children (Scotland) Bill, with which, due to effective lobbying, I feel that we have been living for the past six months. The Bill is the first comprehensive look at the Social Work (Scotland) Act 1968 which dominated the lives of my fellow social work students 26 years ago.
The Bill begins by making general statements about the position of children and their parents, upgrading a child's status and giving some guidance about how children should be brought up and parenting conducted even after estrangement. The Bill goes on to look at what happens when effective parenting and family life break down. The much admired children's panel system is overhauled in the light of practical experience and the reorganisation of local government. I am always surprised that, although the system earns so many accolades, it has not been implemented anywhere else in the world.
The vast majority of families who are assisted by the social work departments are helped on a voluntary basis. From the children's panel the Bill moves on to the local authority's duties as discharged by the social work and education authorities. The Bill places a duty on the social work department to prepare, publish and review its plans for child care services. That is set in the context of a new emphasis on the welfare of the child as the primary focus, with a proviso that the protection of the public allows for the use of secure accommodation.
The child's right to give an opinion about its future care is enshrined in the Bill. That increase in the child's right to consent to the care package must be limited to prevent the child from determining how it will be brought up. The child's background must be determined by its parents.
New assessment procedures are to be put into place for children with disabilities and those children affected by the disability of their carers. I am concerned that the "children in need" category may be too narrowly defined and open to misinterpretation. I believe that it should be extended and described as a general welfare duty to supply services to all children in the area. That will prevent a minimalist approach to child care services.
38 There are proposals to extend the aftercare of children brought up at some time in care. That is okay but I should prefer to see the local authority's duty to those young adults extended beyond 21 and up to 25. I believe that it would be more beneficial if the social work departments were able to keep open the cases of children formerly in care, so that they would, if needed, know who had been their social worker, rather than try to reopen the case with the intake and assessment team when difficulties have arisen.
Within the care system there is a popular belief that getting out of care and away from social workers is a priority. Unfortunately, that subcultural thought contributes to the disturbingly high incidence of homelessness among ex-care people. I strongly urge that those cases should be retained as open but perhaps dormant cases until age 25. That would mirror the continuing interest taken by parents in their children as they progress through adolescence and early adulthood and on to their own parenthood.
There is also new provision for the inspection of private schools—I understand by the advice given by some lobbyists about the way that some of those schools may be conducted in a somewhat above-the-law style. It is not good enough to allow parents to hand over their children on an in loco parentis basis to people who may treat the children in a manner which may be traditional but may also be illegal. A licensing and inspection system would resolve those difficulties.
The Bill goes on to sharpen the measures for child protection, creating in its wake child assessment orders and child protection orders. That development of the current place of safety order hinges on the new exclusion order which enables the alleged abuser, rather than the child, to be removed from the home. That is a difficult legal rights situation. I am sure that the lawyers among us will be able to help us understand the dilemmas, as indeed they already have done.
I should like the exclusion orders to be on a 60:40 basis, as I recognise that there is a risk of false accusation. That has to be set against the appropriateness of such a measure where the allegation is true. There is also concern that there is no emergency provision for temporary exclusion if a sheriff cannot be contacted. That would result in the child's temporary removal from home for a couple of days after being abused. The provision is better than the status quo but is perhaps not ideal. Reports from abused children suggest that any removal from home is a double insult. It would be helpful if an exclusion allowance could be provided to the excluded person under Section 12.
The Bill moves on to deal with the final breakdown of family life. The local authority will be able to apply for a parental responsibility order. That is new terminology for the assumption of parental rights by the local authority. That measure has the merit of allowing continuing parental contact and perhaps even home placement. It deals with parental inadequacy rather than child behaviour.
Should the parental situation deteriorate totally, then adoption becomes a distinct possibility. The Bill allows adoption agencies to make available an adoption allowance to the adopters of older children who may not otherwise be acceptable for adoption. Recognising that 39 adoptions now are not usually of babies, that provision makes good sense. Unfortunately, there does not seem to be a clear path to adoption from the children's panel. I hope that that can be remedied for it is procedurally difficult at present.
Finally, I return to the first clauses and the general guidance that the Bill gives to parents. I welcome any attempt to give guidance to parents as I believe that many of today's parents have lost confidence in their own ideas regarding the style and shape of family life. The ever-widening knowledge of different lifestyles which invades the home through all forms of media has knocked away traditional values and left uncertainty. Also, it would be helpful, for example, if the Bill confirmed that open-hand smacking is OK but that the use of closed hands or instruments such as sticks is not.
I presume that Clause 5 means that all baby-sitters will have to be 16 or over. If so, it will have a profound effect on teenage pocket money.
I welcome the Bill and hope that its reach can be extended. It will certainly improve the child's lot in Scotland.
§ 5.2 p.m.
§ Lord Hope of Craighead
My Lords, I cannot conceal from your Lordships the pleasure which I feel in being able to contribute in a small way to this debate. My introduction to your Lordships' House came just too late for me to play any part in the debates on the Criminal Justice (Scotland) Bill. That is something which I regret. But I am fortunate in that I am the holder of two judicial offices, not one. I can change the colour of my robe according to the subject matter, rather like a chameleon. In criminal matters my eyes and ears are those of the Lord Justice General; in civil matters, especially those which affect the work of the Court of Session, my eyes and ears are those of the Lord President. It is a matter of particular pleasure to me that this Bill is dealing almost entirely with matters which affect my responsibilities as Lord President.
That is significant for one specific reason; it underlines one aspect of what has been achieved in the past 25 years as a result of the enactment of the Social Work (Scotland) Act 1968, which Part II of this measure will largely replace. As the noble and learned Lord the Minister reminded us earlier, the provisions relating to children are not restricted to children who have been the victims of abuse; they extend also to children who have committed an offence. We should not forget that that was one of the primary objects of the legislation which this measure is intended to strengthen.
The effect of those provisions was to remove almost entirely from the criminal law the activities of the juvenile offender. I can speak with experience as to the effect of those measures. I sit four days each month as chairman of a criminal appeal court in Scotland. We hear cases coming from every kind of court of criminal jurisdiction in Scotland, dealing with many matters. But, as I look back over my years as Lord Justice General, I can recall hardly any case which involved the position of a child offender. It is true that the procurator fiscal can prosecute in the 40 criminal court if he regards it as necessary in the public interest. But for practical purposes the system which was set up replaced the criminal jurisdiction. For that, Scotland owes much to the inspiration and humanity of Lord Kilbrandon, who was the architect of the measure.
This important Bill has been the result of the work of many hands. From my perspective I pay tribute to two bodies which contributed so much to what we find in the Bill. The first is the work of the Scottish Law Commission which, as your Lordships were told, provided the basis for what we see in Part I. That was set out in a report in May 1992 and the measures contained in the clauses are largely those set out in the draft Bill appended to the report. The other tribute I wish to pay, through the Minister, is to the Social Work Services Group, which played an active role in Scotland and whose work has been reflected by much of what we see in later provisions in the Bill. I hope that it will continue to play a part in its implementation.
The work of the Scottish Law Commission in the field of family law has been outstanding since the date it was set up. It is no exaggeration to say that it has virtually transformed the structure and substance of family law in Scotland. Indeed, much of the language which was current only 30 years ago has been altered with a view to creating a better understanding of what the aims are of the various principles upon which family law is based. That we see in the provisions in Part I of the Bill, where Scottish lawyers will have to learn new words for familiar concepts. It is right that they should do so because it will help lawyers, and indeed judges, to understand the purpose of those concepts.
With the work which has been done by the Scottish Law Commission and the measures which have been enacted as a result of its reports, Scotland can look forward into the next century with confidence that it has a system of family law in keeping with the needs of modern society. No doubt there will be some who will say that that work is incomplete, and with that I am bound to say I would agree, for this reason. In this field one can never stand still; there will always be work to do. But the achievements are positive. I am delighted to see that the report has been implemented with comparative speed and that it has been possible to bring it forward before your Lordships in the form of Part I of the Bill.
In relation to the Social Work Services Group—I pay this compliment through the Minister, if I may—as the Minister hinted earlier today, in recent years Scotland has had to contend with a number of difficult cases. My own court sometimes had to deal with those cases in the exercise of the extraordinary power which the court in Scotland has to deal with situations for which legislation has not provided. I am not convinced that that is a satisfactory way to deal with these difficult matters, and for that reason we have a responsibility, so far as possible, to fill those gaps.
The cases which have caused concern have resulted in personal tragedy for many people who are particularly vulnerable. The clock cannot be turned back in these cases. One regrets that, but it is a fact of life. But what we can and must do is to learn from the mistakes and by all means possible strive to avoid anything like that happening in the future. So far as legislation is concerned, 41 that means giving sufficient powers to deal with these matters and giving the flexibility as well which will enable the court to meet the situation of the case.
Scotland is fortunate in one respect in particular—its legal system. I use the words "legal system" in the broadest sense to include social workers, mediators, civil servants and other agents who all work together in this field. Distances are short, informal contacts at all levels are frequent and there are few informal barriers to overcome. I find that visitors from other jurisdictions are surprised by the ease with which we can communicate with each other and are impressed by the high degree of mutual trust which exists. That is a strength on which we can build in looking to the future. The work which has been done, with the encouragement of the Minister, has been very important in curing some of the difficulties that have been created for us in the past. I have tried where I can to give this work my support, and I hope very much that it will continue.
This is not the time to comment in detail on the Bill and I do not wish to detain your Lordships for much longer. There are, however, two matters which I should mention. The first is the provision about taking the views of children, to which the noble Lord, Lord Macaulay, referred earlier. The second is the provision about appeals. There is nothing new about taking the views of children so far as the court is concerned. Judges have attempted to do this in various ways in the past, frequently at second hand by means of reports and sometimes by interview, but views have varied as to the way in which this should be done and indeed have varied as to the effectiveness of the exercise. I see this clause as placing a responsibility on me to see that, by rule-making and, if necessary, by practice note, I can give the direction which is needed to unify practice so that we eliminate trial and error in this important field. But the request I make of the noble and learned Lord is that I may be offered the opportunity of consulting on this issue, because I would rather that we knew precisely where we were going before the measure leaves this House in case amendments are required to be made to the clause.
So far as appeals are concerned, there is a provision which will introduce an option of appeal to the sheriff principal. There will then be a choice of appeal direct to the Court of Session or, alternatively, to the sheriff principal. But if there is a decision of the sheriff principal with which either party is dissatisfied there will be the option of an appeal further to the Court of Session. I can see advantages and disadvantages in that system. I shall not trouble your Lordships with those just now but I am concerned at the risk that this may simply create an extra rung in the ladder of appeal, which would involve expense and delay. I can assure your Lordships that, in this field above all, both I and my officials work hard to try to eliminate precisely those features which can cause such damage in cases arising from family law.
42 With those brief remarks I offer my warm support for the principles of the Bill. There is much to be discussed but I entirely support the principles which have brought it before the House.
§ 5.14 p.m.
§ Baroness Carnegy of Lour
My Lords, it is customary for the speaker following the maiden speaker to pay tribute to the maiden speaker's speech. For me it is a real and genuine privilege to have the job of congratulating the noble and learned Lord. I have a sense that today the mountain has come to Mahomet. We make the laws in this House. The head of the legal system in Scotland has come to us and has made a speech which has reminded us of that exciting new development.
The noble and learned Lord, Lord Hope of Craighead, is a most distinguished lawyer and a most distinguished Scot. He learnt some of the tricks of the trade when he did his national service in the Seaforth Highlanders. He has been an advocate in Scotland. He became an advocate 30 years ago. He has been Dean of the Faculty of Advocates and he has been the editor of and a contributor to a number of key and not particularly slim volumes about Scots law. Now, as he has reminded us, he is Lord Justice-General of Scotland and Lord President of the Court of Session. It is a real privilege to have him among us. We have been fascinated by his speech and we look forward to those speeches which are to come.
§ Baroness Carnegy of Lour
My Lords, flying south yesterday afternoon after the VE service at St. Giles' Cathedral in Edinburgh and travelling by Underground from Heathrow to Westminster, it was striking how friendly and amiable and communicative we passengers seemed to be. The offering of seats and of help with heavy suitcases and the agreeable chat between strangers were clearly in tune with the spirit that had been growing all weekend. It seemed to me during that journey that the VE Day happenings, whatever else they had done, had reminded us of certain things that matter to us all, and we found it a heartwarming experience. To an extent this Bill seems to be heartwarming in the same kind of way. The speeches so far in the debate have borne that out.
The Bill is about something which we can all agree matters to every one of us in Scotland. It is about our children and how they are brought up and cared for in a changing world and amid changing patterns of family life. It is not just because we are all concerned about children that the Bill has been welcomed in Scotland. It is also because, as noble Lords have indicated, its contents have been the subject of particularly widespread consultation and careful, unhurried preparation. The noble and learned Lord the Minister made sure that there was very thorough consultation and preparation.
It has also had the benefit of the new procedures for consideration by another place. Discussion in the Scottish Grand Committee in Edinburgh attracted a good deal of public attention. The involvement of experts in the subject in the very thorough proceedings during the Special Standing Committee enabled Scottish MPs to make contact, during the passage of the Bill, with their 43 constituents and others. That has contributed to extremely positive and very good improvements being made to it. The process has been facilitated by the sensitivity with which my noble and learned friend Lord Fraser of Carmyllie and Ministers in another place have treated the Bill.
It is encouraging that the Law Society of Scotland welcomes the Bill. It has written that it is a substantial contribution to the rationalisation, improvement and reform of the law relating to children in Scotland. Likewise, the Convention of Scottish Local Authorities, the consortium of organisations working for children in Scotland and Family Mediation Scotland, which also have much experience in these matters, all express general approval of the Bill. Of course, all these bodies have some detailed concerns and we shall doubtless be considering a number of them. The overall welcome is very encouraging indeed.
There is one general point I wish to make about the detailed views so far sent to me. Both the consortium and CoSLA have written mainly, although not exclusively, about concerns they have as regards Part II of the Bill and the public law provisions relating to the role of local authorities, children's hearings and the like, in promoting children's welfare. I hope that will not mean that our discussions in Committee concentrate so much on Part II that we do not look carefully at the private law provisions in Part I regarding the rights and responsibilities of parents who are separated or divorced, and the way they relate to their children and to one another in the interests of those children.
I believe that the noble Lord, Lord Macaulay, said that in this context parents are irrelevant. We must get Part I of the Bill right because a child's home life and his or her relationship with the parents, including the absent parent, is, as we all know, absolutely critical to the development of a child's personality, welfare and life chances. Many of the problems which of necessity have to be dealt with by the provisions in the rest of the Bill would not in fact occur at all if children's home lives and parental relationships had gone better.
There are a number of points, particularly in relation to Part I of the Bill, which concern Family Mediation Scotland. I hope that we shall look carefully at them in Committee. As I know from working with Family Mediation Scotland on the Private Member's Bill which I steered through this House—now the Civil Evidence (Family Mediation) (Scotland) Act and, I am happy to say, received Royal Assent last week—that organisation has a great deal of hands-on experience in children's law matters. It feels that the Bill would be improved if it did more than it does to put responsibility on divorced parents to consult and co-operate with one another in the best interests of their children.
Perhaps the parent with whom the child lives should be required, as far as possible, to enable that child to have good relations with the other parent. I regard that as an important point and I hope that we shall look at it. Family Mediation Scotland is also concerned that where, in Clause 11, court orders are provided for in relation to parental rights and responsibilities, guardianship and the like, and the court is required to have regard, so far as is 44 practicable, to the views of the child, there may need to be a statutory mechanism for finding out what the child's views are. It is a skilled and sensitive job. As has been said, talking children who may be torn between the views of warring parents, and who have divided loyalties and much emotional distress, is not an easy task. I am told that at present the system does not work very well. It is not something which most lawyers are well placed to do. It would be good if a better way can be found. It would be good if training were undertaken. There was discussion in another place on that point and I hope that we are going to continue that discussion.
Another point has been taken into consideration in the Lord Chancellor's recently published White Paper for England and Wales. It is the question of whether greater use should be made than at present of family mediation and the supply of information to parents who want to divorce. Family Mediation Scotland welcomes the power of the court provided in Clause 12(2) to delay matrimonial cases in order to ascertain as fully as possible the best interests of the child and how these might be met. Perhaps my noble friend who is to reply can tell the House whether the Government see the Lord Chancellor's thinking in this respect as the course to follow in Scotland and whether the Government would welcome an amendment to this Bill including a referral to mediation and an information session. My noble friend may or may not be able to answer that question, but I hope that at least he will say that it is going to be looked at, because it is of great interest to many people.
Noble Lords have already mentioned the general concern of the Convention of Scottish Local Authorities and the Law Society of Scotland about the financing of the provisions of the Bill and the timetable for its implementation, given the changeover to the new local authorities on 1st April next year. We shall doubtless want to look at these and other points. I follow the noble and learned Lord the Lord President of the Court of Session in his excellent speech. I welcome this Bill most warmly and I hope your Lordships will give it a fair wind.
§ 5.27 p.m.
§ Lady Saltoun of Abernethy
My Lords, before I say anything about the Bill and its contents I would like to put on my hat as joint convenor, with Mr. Norman Godman, Member of Parliament for Greenock and Port Glasgow, of the Scottish all-party parliamentary group for children. Wearing that hat, I thank the noble and learned Lord, Lord Fraser of Carmyllie, for having produced this Bill. I thank him both for the tribute he paid to us and for the way he met us and listened to our concerns. I believe that the Bill is very dear to his heart, as it is to ours, but we all know what fierce competition there is between ministries for parliamentary time, of which there is never enough to go round. He is to be congratulated on having fought and won the battle for this Bill. I suspect that it was quite a hard fight.
I pay tribute also to the valuable help the group received from the consortium for children and Children in Scotland in particular both in organising evidence, which not only the group heard but also the Committee in another place, and in drafting amendments. As a result, considerable improvements have been made to the Bill. However, I 45 believe that there is still room for further improvements. The views I shall be putting forward about one or two things are my own personal views. I am not speaking for other members of the group whom I leave to speak for themselves.
The group is still concerned that the Bill, unlike the Children Bill 1989, does not open with a statement to the effect that the interests of the child shall be paramount—what it calls the "overarching principle". This was much discussed in another place and I believe that the Minister was of the opinion that the principle was stated while it was applicable. I do not know that the statement of principle at the beginning of the English Bill made it a better Act at the end of the day. I believe that that Act has shortcomings because of provisions which were left out which perhaps should have been in it or because parts of it are being disregarded. No amount of "overarching principles" stated at the beginning of a Bill will make up for deficiencies in that Bill. Besides, in family life, there is a balance to be maintained between the interests of the parents and the interests of the children, and if the interests of the parents are unduly subordinated to the apparent interests of the children, the children's interests may suffer in the long run.
In Clause 25(1), like other members of the group, I should like to see the age ceiling up to which a local authority must advise, guide or assist a young person who has been in its care raised to 21. I should also like to see the permission in subsection (2) of the clause extended to a ceiling of 25 years of age. I do not believe that to do that would be nearly as expensive in the long run as the Government fear. Both the Association of Directors of Social Work and the Child Care Law Review report disagree with the cost given by the Minister in another place, but one must also set against the cost the savings in trying to deal with young people who have got into difficulties and turned to crime, prostitution, drugs, etc. These savings are not easily quantifiable but are real nevertheless.
More importantly, I think there is a real moral duty here. No decent parents kick their children out of the family home at 18 and then have nothing more to do with them. If you take children from their homes into your care you have surely a duty to make sure that that care is as near as possible to that which they would have received from good parents in a good home. I wonder sometimes whether local authorities should be running homes or whether it is best done privately. I am sure there are very good local authority homes, but I am sure also, from some of the evidence I have heard, that there are also rather bad ones. I have always heard that Barnardo's homes were very good indeed.
Moving on to Clause 34, I keep wondering why the Orkney children had to be sent to the mainland. Presumably the social work department did not have any refuges, safe houses or foster parents available on the islands. I should like to see "may" in subsection (1) (a) changed to "shall". Perhaps, however, there was some other reason for sending the children so far away.
I am sorry that the Minister, Lord James Douglas-Hamilton, was so adamant at Committee stage in another place that it would not be possible to appoint a curator ad litem in the case of an emergency protection 46 order under Clause 53. I cannot help thinking that there may have been some misunderstanding between him and Mrs. Ewing, the Member of Parliament for Moray, who was not suggesting that the order should be in any way delayed but simply that as soon as the order had been made a curator ad litem should be appointed so that he could start discussions with the child before the children's hearing. Perhaps if that had been done in the case of the Orkney and the Ayrshire children, and had the curators been any use, the outcome might have been different.
I listened with interest and sympathy to Mr. George Robertson moving New Clause 1 at Report stage in another place last week; I read also with great interest the Minister's reasons for not accepting the new clause. That was the clause which made it illegal to chastise a child with an implement. I wondered whether it would not be possible to come to some accommodation which would at any rate outlaw the use of hard objects as implements of chastisement. It has always seemed to me that if you hit a child with an object which cannot itself feel pain and which, being an extension of your arm, by the simple law of dynamics, enables you to hit a good deal harder than you could have done with your hand, you cannot gauge the pain you are inflicting in the same way you can if you do it with your bare hand. I said this to one of my daughters last week. She said no, as far as she was concerned the new clause would not be acceptable. She said, "If I were cooking in the kitchen and I had a wooden spoon in my hand, and one of my children tried to poke a pencil into an electric socket, I wouldn't have time to think about putting the spoon down first, I should just have to stop it as quickly as possible by hitting him, probably over the hand with the spoon. His life could be at stake." So there you have the practical view of a young mother. Having heard that view, I rest content with the present situation. The noble Lord, Lord Macaulay of Bragar, spoke about the necessity of educating parents. He has a very good point.
I know that many members of the Scottish all-party children group would like to see the provisions in the Bill for the exclusion of alleged abusers under Clause 70 extended so as to apply also to emergency protection orders, and that the Government are considering this. Where violence is the problem and a child may be at risk of his life or in danger of grave injury, I would support this, but subject to the discretion of the sheriff, as set out in Clause 70.
Where violence is involved, it is likely that the mother and others in the family may have been subjected to the same treatment. It is probable also that it is quite clear who the abuser is and that all except the abuser will be happy to see him removed. But where it is a case of suspected sexual abuse, it is very much more difficult. For example, the alleged abuser may be the mother's live-in lover, her "bidey-in", and she may well regard an abused daughter as her rival. You have to consider the child's quality of life if he or she remains in the home.
There may be situations where the alleged abuser is not only the breadwinner but earns his living by working largely from home, possibly with a computer and video link. This is an increasing trend and should perhaps be taken into account when considering exclusion orders. Where a chap occupies a tied house because, for example, 47 he is the caretaker of premises and the insurance on those premises depends on an authorised person's presence on them he could not only lose his job for being absent, but if a break-in or a fire occurred the insurance could refuse to pay. I wonder whether the owner would have any remedy.
Where sexual abuse is involved, it has probably been going on for some time. I wonder whether emergency procedures should be involved in these cases. There may be other considerations to be taken into account, and it is a very difficult area in any case. I just do not want us to go overboard for exclusion without thinking very carefully what we are doing and without adequate safeguards.
I hope and trust that the Government will disregard the suggestion from the Law Society of Scotland that persons other than the local authority, such as siblings, grandparents or the child himself, should be able to apply for an exclusion order. Like the noble Lord, Lord Macaulay of Bragar, I can envisage all kinds of malicious applications, such as from a girl who did not like her stepfather and wanted rid of him.
Moving finally to Chapter 4,I am not quite convinced that "relevant persons" includes other relatives of the child such as grandparents, uncles and aunts, and cousins. The concept of totally cutting a child off from his family is a terrible one and should be avoided wherever possible. I am convinced that many psychological problems arise from rootlessness and not belonging to anyone. Every possible effort should always be made to keep a child in the family by which I mean the wider family where it exists and where it is possible, and just not the nuclear family, which, I am sorry to say, is what the word "family" seems to mean to so many people nowadays.
§ 5.38 p.m.
The Earl of Balfour
My Lords, this has been an interesting debate, and I should like to begin by making a small appeal. Your Lordships will note that today's Order Paper states:Bills marked § have been set down before the expiry of the recommended minimum interval between stages".I hope that the Bill does not go into Committee too soon. Given that six new clauses have been added and Clause 29 has been rewritten, I shall need time to study the Bill between the conclusion of Report stage in another place and its detailed consideration in this House. With that number of clauses, all one's sequences have been thrown out.
While I accept the principles of the Bill, which are clearly intended to protect children's welfare and nurture—the drafting emphasises that the child's welfare is of paramount consideration—this is not an easy Bill to follow or to understand fully because there are so many cross-references between one clause and another.
Although I agree that the mother should be primarily responsible for her child, there does not seem to be the "whom failing provision" in Part I for a grandparent, uncle or aunt to fulfil that gap. I feel that few young married persons would have the foresight to appoint a guardian in the event of their death.
48 In Chapter 1 of Part II, it is the local authority that is mainly responsible for dealing with problem children. I make a further appeal, that when the Bill comes into force DSS staff co-operate with local authority staff and elected councillors better than they have in the past. Perhaps I may give an example. A clerk to a district court is not given the necessary information by the DSS of the whereabouts of a person who has failed to pay a fine to that court. The panel of a children's hearing must be given every assistance from DSS or local authority staff and not have to drag the necessary information out of the officials. After all, panel members usually have another job to do.
I was sorry to read that Section 25 of the Social Work (Scotland) Act 1968, which empowers a local authority to provide assistance for apprenticeships, is being repealed. When I was in my 20s, I knew a number of people who had been assisted in that way.
Children's hearings take place only when a child, or someone connected with that child, is accused of some misbehaviour. As newspapers today seem to thrive on sleaze, regardless of the damage caused, I am concerned that under Clause 39 a press reporter is permitted to attend a hearing. Witnesses must be able to speak freely and be truthful under oath.
Clause 53, as an example, states:In this section the expression 'sheriff does not include an honorary sheriff.I must admit that I do not know the difference, but it makes me wonder about other clauses when an honorary sheriff will or will not do.
There are a number of clauses in Part II where I feel that the principal reporter should be involved but has not been included.
Chapter 4 of Part II deals with parental responsibility orders. We there come across a new person—a reporting officer. Is there to be a link between the reporting officer and the principal reporter. I hope there will be better co-operation between those different authorities than I had the impression was the case in the past.
Part III deals with amendments to the Adoption (Scotland) Act 1978, at which I have not had time to look. I have asked a number of technical questions. I do not expect my noble friend the Minister to answer them tonight, but I shall raise them in Committee. I hope that by the time the Bill leaves its Committee stage the many doubts that have been expressed today will have been cleared up.
§ 5.45 p.m.
§ Baroness David
My Lords, I hope that, as a mere Englishwoman, my speaking on a Scottish Bill and jumping into the gap will be forgiven. My reason for doing so is my great interest in what was the Children Bill in which I played an active part. This Bill in many ways follows the Children Act, and I shall have an interest in this Bill too.
My noble friend Lord Macaulay supported the Bill, as indeed I do, but said that it was not perfect. It is to point out one of the ways in which it is not perfect that I wish to make my brief intervention.
49 In his elegant maiden speech, the noble and learned Lord, Lord Hope of Craighead, praised the work of the Scottish Law Commission—outstanding, he said it was. The Scottish Law Commission Report on Family Law proposed strict limits on physical punishment of children: that it should become an offence to hit a child with a belt, stick or other implement or in a way which could cause injury or significant pain or discomfort. But the Government did not include this proposal in the Bill when it was introduced in the other place and have opposed attempts to add it to the Bill. This provision has the strong support of the Consortium of Voluntary Organisations in Scotland and indeed throughout the UK.
In addition, when the United Nations Committee on the Rights of the Child examined the UK report on implementation of the UN Convention on the Rights of the Child in January this year, it expressed its particular concern over,the national legal provisions dealing with reasonable chastisement within the family".I should like to quote another sentence:The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner".My noble friend enlarged upon that, and I agree with all he said.
The committee went on to propose legal reform against physical punishment. Here we have the Children (Scotland) Bill. Its passage is the first opportunity that the Government have had to respond to these formal comments and recommendations from the international body responsible for monitoring compliance with the UN Convention on the Rights of the Child. Surely the Scottish Law Commission proposal, which has such strong support among children's organisations, should be added to the Bill.
§ 5.48 p.m.
§ Baroness Faithfull
My Lords, I hope that your Lordships will forgive me for jumping in as number two in the gap. It is somewhat presumptuous of me to do so because I have never worked in Scotland, although I am half a Scot. On the other hand, I have attended many panels by invitation and I am friendly with many social workers in Scotland. They have kindly invited me to the conference of the Association of Directors of Social Services in Dundee in a fortnight's time.
I wonder whether I may ask questions rather than make statements in case I am wrong and might not have understood the Bill. First, like the noble Baroness, Lady David, I took part in the passing of what is now the Children Act 1989 for England. I moved an amendment that children should be allowed to be cared for by the local authority if they had been in care until the age of 21. Believe it or not, I lost the amendment and on the grounds of cost. It has been proved that in England and Wales the introduction of the clause would have been cost-effective. Research has shown that many of the children who were not cared for by the local authority until the age of 21 became homeless and took to drugs. At the end of the day the provision would have been cost-effective.
50 I congratulate the Minister on introducing the clause and I hope that it is agreed to by your Lordships. However, its provisions will be costly, and I hope that the resources are available, in particular for housing. Perhaps the Minister will say whether the resources to pay for them will be available.
My second point relates to a Bill that is passing through your Lordships' House in relation to England and Wales; that is, the Family Homes and Domestic Violence Bill. If its provisions are introduced, they will help greatly as regards exclusions. Is it likely that they will be introduced, because they will be more satisfactory than the exclusion part of this Bill relating to Scotland? I have not sat in Committee on the Bill, as has the noble Baroness, Lady David, but I have been a social worker. One of the most difficult things in the world is to know what to do when a child is alleged to have been physically or sexually abused. If one leaves the child at home and there is then further trouble, one gets into trouble. If one moves the child, one is introducing a second suffering. It is bad enough to have been abused but it is even worse to be removed from one's home and family and made to feel the guilty person. As the Minister said, that is exactly what happens with children.
I and my staff were so upset by such events that we persuaded the housing department to make available an empty flat. In such cases, and if the man would not move out of the home, we were able to offer to the mother and children a flat in which they could live while the case was being discussed. Often when the man was not guilty he agreed to move out and to live with his mother or a relative. I am a little worried about the exclusion provision.
Thirdly, I turn to the views of the children. That point was raised by the noble and learned Lord, Lord Hope. It is very difficult for social workers and the police to know whether to listen to the child and to believe him, to listen to the mother and to believe her or to listen to the father and to believe him. I am not sure whether we have properly worked out the issues relating to the views of the child, the mother and the father. I support the noble and learned Lord, but rather deferentially.
Although I do not understand the law of Scotland, I wish that England and Wales could have had the panel system. Many years ago I talked about that to Lord Kilbrandon who said that he was sorry that we had not adopted it. I am sure that the noble and learned Lord the Lord Chancellor will agree that in England and Wales there is too big a gap between the allegation being made and the case coming to court. Will that be minimised in Scotland? Social workers who deal with the child cannot question him and cannot give him psychological or psychiatric treatment for fear of interfering with the statement that he may make in court. Will that gap be shortened in Scotland? It is too long in England and Wales.
My next point relates to the training of social workers. The Clyde Report stated that social workers were not adequately trained. In this House two weeks ago I tabled a Motion proposing that the training of social workers should be at university level and for three years. Since the passing of the Children Act 1989, it has become evident that social workers are entitled to, and should have, longer 51 and better training. Has that been considered in relation to Scotland? I am sure that social workers in England and Wales will agree that there are not enough of them to carry out the work of the Children Act as it should be carried out. It is a heavy responsibility.
I turn now to resources, which I hardly like to mention. No Act of Parliament can be successful unless adequate resources are available. Have the provisions of the Bill been costed? Do we know exactly what the extra cost will be, including that for extra staff? Will adequate resources be made available to carry out the provisions of this extremely good Bill?
Finally, as regards adoption, perhaps I may inform your Lordships that in England and Wales a charitable organisation has set up an international adoption society. I wish to make it clear that there is considerable difficulty as regards the adoption of children from overseas, and in England and Wales we have started a society called Adoption International.
I ask your Lordships to forgive me for raising these issues when I know so little about what is happening in Scotland.
§ 5.58 p.m.
The Earl of Lindsay
My Lords, perhaps I may begin by declaring an interest in that I have no fewer than five children living in Scotland. Unlike most interests declared at this stage, it is far from profitable. Indeed, it is highly costly.
We have had a wide-ranging and useful debate on what is generally agreed to be a major step in legislation relating to children in Scotland. It will set a clear legal framework for the future. It is in that context that I congratulate the noble and learned Lord, Lord Hope of Craighead, on his most thoughtful and constructive maiden speech. As Lord President of the Court of Session, he has brought to the debate wide-ranging experience, wisdom and insight. We are grateful to him for his contribution to our consideration of this important area of law. The House will look forward to his further contributions on this Bill and on other related matters.
As my noble and learned friend the Minister of State pointed out, the Bill is the culmination of a wide range of work. It draws on comprehensive reviews and inquiries into particular issues. A number of noble Lords have drawn attention to some of the precedents that lie behind the Bill. In particular, the noble and learned Lord, Lord Hope, drew attention to the Scottish Law Commission and the Social Work Services Group. They are two bodies which have made a great contribution.
The Bill takes the opportunity to recast substantial parts of the legislation affecting children in order to bring it up to date both in form and substance. An undertaking on this scale inevitably raises complex questions. Today's debate illustrates that, in particular when "gap" speakers such as my noble friend Lady Faithfull can spring up with about 20 complex and technical questions. I shall have to write to her about some of them.
The Bill is founded on principles derived from the UN Convention on the Rights of a Child; namely, the principles that each child has the right to be treated as an 52 individual and to express views on his or her care; that each child has the right to protection from all forms of abuse, neglect or exploitation; that parents should normally be responsible for the upbringing of their children; that every effort should be made to preserve the child's family home, which is one of the underlying principles of Part I of the Bill, which my noble friend Lady Carnegy rightly emphasised; and finally, that any intervention by a public authority in the life of a child should be properly justified and should be supported by services from all relevant agencies working in collaboration.
In scope the Bill goes rather beyond the provision of the Children Act 1989 for England and Wales. I thought that the noble Lord, Lord Macaulay, was unnecessarily cynical about the delay that there has been between 1989 and the bringing forward of this Bill. As my noble friend Lady Carnegy pointed out, that time has been put to good use and very positive improvements have been made in the text of the Bill. The sensitivity that has been introduced generally makes the Bill better than it might have been had it been rushed out earlier.
The Bill will provide Scotland with its own children Act based on Scottish law and Scottish needs. The Bill has already been the subject of close scrutiny in another place and the Government have brought forward substantial amendments in response to that. Further issues have been raised today and I should like to respond to them. Before doing so, perhaps I may say that the Government welcome the continuing co-operative approach taken in relation to this legislation. We look forward to the discussions which will take place in Committee and on Report. I hope that further improvements will be made to the Bill before it becomes law. On the point which the noble Lord, Lord Macaulay, made, I assure all noble Lords that amendments proposed to the Bill will be handled constructively and objectively on their merits.
The noble Lord, Lord Macaulay, claims that Clauses 1 and 2 are without teeth. However, I must draw the noble Lord's attention to Clause 1(3) and Clause 2(4), which give title to sue in respect of both responsibilities and rights. In other words, those clauses allow either a child or a parent as appropriate to sue against the breach of a parental responsibility or infringement of a parental right.
The noble Lord, Lord Macaulay, stressed the view that the Bill should not allow a parent who has deserted the family to return and seek parental responsibilities and rights. Clause 3 makes it clear that a father who is unmarried to the child's mother will not have responsibilities and rights but an interested and caring father can obtain such rights and responsibilities by drawing up an agreement with the mother of the child. Otherwise, such a father can obtain those responsibilities and rights only on application to the court for an order under Clause 11. I should emphasise to the noble Lord, Lord Macaulay, that in such circumstances, the court will grant an order only if it is in the child's best interests to do so. Therefore, if the father has shown no previous interest in the child, it is hardly likely that the court will grant such an order without having before it considerable evidence that it would benefit the child so to do. This Bill certainly 53 does not provide what the noble Lord claimed that it may provide; namely, a statutory passport for a parent who has taken the easy way out.
The noble Earl, Lord Mar and Kellie, sought confirmation that under Clause 5 all baby-sitters should be aged 16 years or over. I confirm that that is the case. Clause 5(1) assumes that a person given temporary care of a child will be aged 16 years or over.
My noble friend Lady Carnegy was concerned with the responsibilities of parents who are separated and that they should consult each other. That has also been an anxiety expressed by Family Mediation Scotland. On Report in another place, Clause 6(1) was amended so that, in reaching a major decision concerning a parental responsibility or right, a parent should consult not only the child concerned but also the other parent. Thus, even after separation or divorce, we hope that both parents will continue to consult each other on matters affecting the child.
My noble friend Lord Balfour suggested that a provision is needed to allow a grandparent or aunt or uncle to share parental responsibilities or rights with the child's mother. Indeed, other noble Lords have also drawn attention to the status and role of relations other than the parents. Clause 11(3) allows for such persons to apply to the courts for parental responsibilities and rights. In considering that, the court will treat the child's welfare as its paramount consideration. However, as noble Lords will recognise, that is a formal step and there is nothing to prevent the child's mother relying on the assistance of other relations as happens on a day-to-day basis in many families.
The noble and learned Lord, Lord Hope—and this was echoed by the noble Baroness, Lady Faithfull—mentioned the challenges and difficulties involved in seeking the views of children and the way in which the rules of court might handle that. I understand the views expressed in relation to the formulation of detailed rules of court for taking the views of children. I hope that the Bill will provide an admirable framework for that to be done and that it will assist in consulting widely and on an informed basis as to the details of the necessary rules of court. On that issue, as on many others, we shall listen carefully to the views expressed today and at later stages of the Bill.
My noble friend Lady Carnegy stressed the benefits of mediation. I should point out to my noble friend that the Government have considered carefully whether it is necessary to have a reference to mediation in the Bill. I understand that the present arrangement whereby the courts can refer cases involving children to mediation under rules of court is working successfully. If it is necessary to extend that provision, that may be done also through the rules of court.
Noble Lords will be aware that in formulating rules of court, extensive consultation is undertaken with relevant interests wherever possible. However, I should stress to my noble friend that we shall watch developments south of the Border, especially in relation to proposals made by my noble and learned friend the Lord Chancellor. We shall consider whether any fresh legislation is required for Scotland in the light of those developments.
54 The noble Lady, Lady Saltoun, also drew attention to some of those issues and I hope that some of the remarks which I have made will reassure her. In Scotland, courts can and do refer divorcing couples to mediation. Moreover, there are provisions in Clause 12 which require a court to postpone granting a decree in a divorce case until it is satisfied that satisfactory arrangements have been made for the children. While I shall look sympathetically at any suggestions to encourage further mediation, the Government are not convinced that the time is right for any steps which would involve, for example, centrally-funded mediation.
My noble friend Lady Faithfull drew attention to the Family Homes and Domestic Violence Bill. That Bill contains exclusion provisions for England and Wales only and relates to the Children Act 1989. The Children (Scotland) Bill contains provisions which are parallel to those provisions but which take account of the different body of law which exists in Scotland.
The noble Baroness, Lady David, the noble Lord, Lord Macaulay, and others have drawn attention to the difficult area of physical punishment for children. As many noble Lords will know, that issue was debated widely in another place and I predict confidently that it will be debated at the various stages of the Bill in this House. The view expressed then by the Government is that both the statutory law and common law as it stands already offers sufficient protection from assault by parents, teachers or others who have charge of children. We believe that that continues to be the case but we acknowledge that that area of activity commands considerable interest, and we shall no doubt discuss the finer points of that.
Many speakers referred to the problem and challenge of resources as they see it. However, I should stress that many of the proposals outlined in the Bill can be implemented with relatively little extra cost, but sufficient resources will be made available to fund new procedures and statutory requirements.
The noble Lord, Lord Macaulay, asked how the resources needed for the young homeless have been calculated. Figures included in the Explanatory and Financial Memorandum to the Bill were derived from calculations set out in the Child Care Law Review and brought up to date to take account of inflation. The £4.5 million provision made reflects the cost of providing advice, guidance and assistance from the social work authority. It does not cover other forms of assistance which may be available such as housing benefit and support from the Department of Social Security; nor do the costs cover all homeless young people. The provision covers only those who were in the care of the local authority at the time of leaving school.
The importance of ensuring good aftercare for young people who were previously looked after by local authorities is self-evident. Local authorities will have made a considerable investment in such young people; residential care is not cheap. Effective aftercare makes obvious sense not only for the benefit of young persons but also to protect the investment of local authorities. The revised aftercare provisions in the Bill set out in Clause 25 are a significant improvement on existing legislation. They contain a new duty to assist 18 year-olds who were previously looked after by local authorities. A new power 55 is also proposed which will allow local authorities to provide further assistance until a young person reaches the age of 21. The noble Lord, Lord Macaulay, felt that we might instead place greater emphasis on the provision of advice on the services available. However, I draw his attention to Clause 17(2) where the duty to prepare children who are leaving care is spelt out specifically.
The noble Earl, Lord Mar and Kellie, the noble Lady, Lady Saltoun, my noble friend Lady Faithfull and other speakers focused on the age at which such local authority duties might cease. Certainly during the discussions in another place it was suggested that local authorities should have a duty to provide aftercare for young people up to the age of 21; indeed, some speakers suggested that that age limit should be increased to 25.
I have to tell the House that such extensions would not be helpful on two counts. First, they would make major resource demands on local authorities; and, secondly, while it is extremely difficult to quantify them, resources are finite. I take the point made by the noble Lady, Lady Saltoun, and by my noble friend Lady Faithfull that costs may not be as great as has been assumed and that the cost generated by those who are not looked after properly might also be taken into account. However, we want to see services improved for those who most need them and not simply spread resources more widely. We are firmly of the view, therefore, that the duty and the resources should be concentrated on the most vulnerable youngsters; for example, 16 and 17 year-olds. We do not want to dilute that focus.
It is also worth recognising that we have proposed a new power under Clause 22 to allow local authorities to accommodate young persons up to the age 21 where that would safeguard or promote their welfare. That new provision, along with the enhanced aftercare powers, should ensure that local authorities have a sufficient range of services and powers to safeguard the welfare of vulnerable children and young persons. I should stress to the House, and specifically to my noble friend Lady Faithfull, that the Government have thought through the need for resources very carefully. We are certain that such resources are in place.
My noble friend Lord Balfour asked about the repeal of Section 25 of the Social Work (Scotland) Act 1968. He was concerned about the repeal of that section because it empowers the local authority to provide assistance for apprenticeships. I can assure him that local authorities will still have the necessary powers to assist as regards the financial costs of education and training under Clause 26 of the Bill.
The noble Lady, Lady Saltoun, drew our attention to the Orkney children and their removal from the islands. Indeed, it has been asked fairly widely why in February 1991 those nine children had to be taken away from their home in South Ronaldsay. As she will know, the Orkney case was the subject of a very thorough public inquiry under the chairmanship of Lord Clyde. The decision to remove the children and how it was done was made by the social work authority, Orkney Islands Council. Its decision to remove the nine children from Orkney 56 reflected the number of children involved and the number of children's home and foster home places available in Orkney.
One of the recommendations made by Lord Clyde dealt with the need for Orkney to recruit more foster carers. The island's council has taken action on that recommendation. Removing a child from his or her home is a traumatic experience. It is clearly important not to remove a child to a completely different environment if it can be avoided. The expansion of foster places in Orkney is in part to reduce the need for children looked after by the local authority to be removed to the mainland.
The noble and learned Lord, Lord Hope, raised the question of appeals and expressed concern about the provisions for them in Clause 47. He wondered whether there might not be too many rungs in the ladder of provisions for appeals. In the light of the noble and learned Lord's comments, we shall certainly want to look again at the provisions in Committee. We are grateful to him for drawing our attention to the matter.
A number of speakers dwelt on the issue of exclusion orders. Such orders will no doubt be widely, deeply and thoroughly discussed in Committee and on Report. Suffice it for me to say at this stage, the Second Reading of the Bill, that the decision to introduce an exclusion order is very much in keeping with the broad thrust of the legislation, which focuses on the needs of children. The order provides for an abuser to be excluded from the family home on application by a local authority. It will thus allow the child to remain in familiar surroundings with supportive members of the family rather than be moved to foster or residential care away from home. That principle has been widely supported. As the noble Lord, Lord Macaulay, knows, we shall be bringing forward government amendments to the clause. However, I can assure him at this stage that there is a right of appeal and the right to be heard by the person who is the subject of an exclusion order and that that right can be promptly exercised. But I believe that the other details that have been raised on the matter will be more successfully dealt with during our discussions on the clause in Committee.
The noble Lady, Lady Saltoun, asked whether other relations could apply for an exclusion order. Under the provisions of the Bill, only a local authority can apply for an exclusion order, but a spouse can also apply for such an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
The noble Earl, Lord Mar and Kellie, felt that the definition of the words "in need" had been drawn too narrowly. Certainly the definition set out in Clause 84 is one that we believe quite properly targets the provision of services to those children most in need of assistance. However, in another place my honourable friend agreed to reconsider the definition of "in need" to make it reflect the positive promotion of a child's welfare. We still have the matter under consideration. No doubt it will be raised again in Committee.
My noble friend Lady Faithfull very properly drew attention to the needs and resources as regards training. We envisage that it will be necessary carefully to draw up an implementation plan for the Bill. Training has been mentioned on several occasions. We acknowledge that it has great importance. It will clearly be important to 57 sheriffs, children's panel members, reporters, social workers and other professional staff. We have already begun to identify the needs that will have to be met and have allocated £100,000 towards meeting them in the current financial year. We anticipate that those resources will be used to contribute to the preparation of training materials and training events for social work staff and children's panel members. It will be necessary to work out in detail the further training needs that will have to be addressed. But significant resources are already allocated to training for staff working in children's services, in voluntary organisations and in local authorities.
The noble Lady, Lady Saltoun, quite correctly doubted the wisdom of an overarching principle. The matter was thoroughly debated in another place both in Committee and on Report. The Government have given careful consideration to the issues involved. It is necessary to take a hard look at what such a principle could possibly achieve without confusing the principles already laid out in different parts of the Bill.
Many detailed points have been made and questions lodged. If I have been unable to cover some of them in the time available to me this evening, I shall deal with them in writing. But I should like to conclude by saying that recommendations for improvements have formed and will continue to form an important part of the Bill. However, the Bill also builds on the successes of childcare with a greater emphasis on supporting families and the practice of keeping children in their families and communities wherever possible, while recognising that, for some, residential care may be the right choice. It builds on the strengths of the children's hearing system and the confidence in Scottish adoption law. It builds on the growing appreciation that we need to listen to children more and take their views into account. As my right honourable friend the Secretary of State said when 58 introducing this Bill, it is based on the view that we must do things with, and not to, families. I commend the Bill to the House.
§ Lord Macaulay of Bragar
My Lords, before the noble Earl sits down, may I ask him to make every effort, as I am sure he will, to ensure that the government amendments which have all the hallmarks of being a multiplicity of amendments, are available to the Members of your Lordships' House well in advance of the dates for the Committee stage? The Minister will be well aware that a considerable number of amendments were introduced in another place, I believe either the night or the weekend before the matter came before the other place. As it happened, they were all government amendments which were purely technical. But the amendments which will be discussed here will be of some substance and it will not be good enough if they are made available to Members of this House a couple of days before the dates for the Committee stage of the Bill. I know that the Minister will make every effort in this regard, I merely put down a marker that, if a substantial number of amendments which require considerable consultation on the part of Members of your Lordships' House are tabled, that may affect the date of the Committee stage of the Bill.
The Earl of Lindsay
My Lords, I can certainly reassure the noble Lord as regards the timing with which the Government will lodge amendments. I also stress to all noble Lords who might otherwise be misled that many of the government amendments that were brought forward in another place were not technical amendments rushed in at the last minute. They were tabled in response to views that were expressed in another place. Those amendments, as I say, were produced in response to the views being expressed in the other Chamber.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-two minutes past six o'clock.