§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Peter Morrison.]1.35 am
§ Mr. Leo Abse (Pontypool)
It is a cardinal principle of British justice that every person should have the right to a fair trial. No one should be deprived of the right to answer allegations made against him or suffer a penalty without having his case heard. Yet this is precisely what happens to parents in child care cases.
More than 17,000 children are in care in England and Wales because the court has decided that their parents were ill treating or neglecting them or neglecting another child in the household. In most of these cases the parents have effectively been denied the opportunity of stating their side of the case.
400 Allegations of child abuse can be more damaging to character than criminal charges. Yet in our legal system they can and do go unrefuted, and the end result can be devastating: a family unit fractured and a child sentenced to grow up in an impersonal institution.
Why do parents have no right to be heard? It is simply because they are not parties to the legal proceedings in the magistrates' court. Under section 1 of the Children and Young Persons Act 1969, if the local authority proposes to take a child into care, it must bring that child before the juvenile court. In care proceedings, legal aid is available only to a person brought before a juvenile court under section 1 of the Children and Young Persons Act 1969. In other words, legal aid is available only to the child, not to the parents.
Because the parents are not parties, their rights are strictly limited. They have no right to choose a solicitor who is to act for the child under legal aid. He can refuse to take instructions from them, and must do so if he feels that there is a possible conflict between the parents' interests and the child's. Although the magistrates have power to allow them to cross-examine witnesses, the parents have no right to do so. They have a limited right to give evidence and to call witnesses to answer allegations against them, but this right is more apparent than real.
Few, if any, parents involved in care proceedings would have the confidence, the skill in advocacy or the knowledge of evidence and court procedure to pit themselves against the combined resources of the local authority legal department and the social services department, and few have the means to pay a solicitor to do it for them.
If a man is said to have stolen a can of beans from a supermarket, he may obtain legal aid and a solicitor to defend him in the court. If a local authority decides to take a child away from a mother, accusing her, rightly or wrongly, of neglect or claiming some inadequacy on her part rendering her unfit to retain her parental rights, she can obtain no legal aid to give her representation in the court.
These cases go to the heart of family life. They often require the judgment of Solomon. Yet these decisions are taken too often with a mother being seen but not heard, a mother often inarticulate, deserted, desperately poor and harassed, not the most intelligent and under severe stress. The decision to put a child in care can mean the break-up of families for ever and substitute institutional for parental care. All the panoply available to a local authority may be utilised to take away a child from a mother. Solicitors may present to the court evidence from doctors, social workers and neighbours, but the parent has no right with aid to help her to put her side of the case.
Worse, the pressures on local authorities to put children into care are increasing enormously. Everyone wants to be certain that no child is left at serious risk in a home, and the most severe criticism falls upon any social service department that has erred. One tragic case, such as the Lucy Gates case this week, means inevitably that every social worker fears to err in favour of a parent, and will, if the local authority has a scintilla of doubt, move to take the child into care.
But the very pressures and the criticisms now falling on social work departments make it more essential than ever that the parents' side of the case is heard. Decisions taken amidst the clamour of an aroused public opinion — perhaps justifiably aroused — or opinion caused or 401 precipitated by indignant judges, however justifiable the indignation may be, increase inevitably the likelihood that a grave mistake may be made. There has never been a time, given the existing aroused public opinion, when a mother has been given the right to legal representation to plead her case to keep her child.
I doubt very much whether the Minister will gainsay much of what I have said. It has been said in another place very eloquently. It has been said in clear terms by the Lord Chancellor's advisory board on legal aid. It has been said by lawyers and by social work organisations. It has been recited in strong editorials in The Times. I suspect that all the Minister will say is that the price of justice is too high and that even partially to activate sections 64 and 65 of the Children Act 1975 so that separate representation of the parent, and hence legal aid, came into effect would cost too much.
Let me say first, to prevent the Minister from tilting at windmills, that although in every other respect I adopt the vigorous arguments of The Times editorial of 17 November, it is a fallacy to suggest that legal representation of the 4,500 to 5,000 parents that I have in mind as likely to apply for legal aid would be paid for by a possible drop by 2 per cent. in the children taken into care. I do not base my arguments on cost, which is so evidently an ill-founded base. I do so on other grounds, to which I hope that the Minister will direct his mind.
If we examine even the work within the Minister's own Department, with which he will be familiar, we can see clearly the consequences that arise once a solicitor—or legal aid in some form or other — is provided. The evidence contained in the report of the Royal Commission on legal services, and in the supplementary benefit appeals and their outcome, shows that an attendance by an appellant without representation results in 26 per cent. favourable decisions. If the appellant has legal representation, the favourable decisions amount to 37 per cent. Or, again, there is the evidence available from national insurance local tribunals.
The Minister may be familiar with a paper by Professor Kathleen Bell showing what occurred when a man was represented or not represented. From a sample examination of national insurance local tribunals in Scotland, it was clear that non-represented cases had a success rate of 16 per cent. whereas there was a 39 per cent. success rate once legal representation was obtained.
Those of us who have the privilege to be lawyers are only too familiar with the figures which have repeatedly been given concerning the consequences for those who have been awarded legal aid and those who have not. It has been said in some studies that defendants who are legally represented and who plead not guilty to criminal charges are twice as likely to be acquitted. Most people are aware that 40 per cent. of applications by lawyers before a High Court judge are successful whereas 13 per cent. are successful when the Official Solicitor passively provides the paperwork. It is inevitable, even on the question of costs, where there are about 4,500 cases, that if there were partial activation of the relevant sections of the Children Act a substantial percentage of cases would be likely to be successful.
In considering the question of a child in care, we have to bear in mind the cumulative costs involved. That child may be in care for up to 16 years. Each child in care costs £50 a week. It is clear that, out of the sum of, perhaps, £1 million that may be required for legal aid, a substantial 402 deduction would have to be made to take into account the money which would be saved in the event of successful applications.
I do not rest my case on cost alone, although it is an important factor. It is my judgment that, at a time when public opinion is as inflamed as it is now, when there is a greater sensitivity to cases of child abuse and neglect, when there are demands for special inquiries and so much clamour against social work departments, decisions are being taken in magistrates' courts in an environment which must impinge upon the judgment and concern of magistrates. This must mean that proceedings are brought in cases where, perhaps, there are issues of doubt. I am deeply concerned, as so many' representative bodies are, that no attempt is being made to activate the relevant sections of the Act to provide legal aid.
It is a long time since I went to my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan) when he was Home Secretary and pleaded with him to set up an advisory committee dealing with adoption and other relevant problems. My right hon. Friend answered my plea, and for two years I sat upon that committee, the recommendations of which formed the foundation of the Children Act. The years go by. One needs stamina for these issues. The Children Act was placed upon the statute book, but it is disappointing that so many of its sections are not activated.
No greater dismay has been caused than that brought about by the non-activation of that part of the Act which would help the hapless woman who finds herself faced with the possibility of having her child torn away from her and who has no one to speak for her. I hope that the Minister will be able to say something which will give reassurance to all those who feel anxiety about the present position.
§ The Under-Secretary of State for Health and Social Security (Sir George Young)
I am particularly grateful to the hon. Member for Pontypool (Mr. Abse) for bringing this subject to the attention of the House. Care proceedings—which can lead to the removal of a child from his parents — are of immense importance to the people concerned and it is right that the law should seek to give proper regard to the interests of all concerned. The hon. Gentleman made a forceful and impassioned speech. The recent leader and correspondence in The Times have focused attention on the question of legal aid for parents in care proceedings. I welcome this debate as it allows me to spell out the Government's position in this matter and to correct some misconceptions about the savings which might occur if parents are given legal aid.
I should like to make it quite clear from the start that there is no disagreement on the principle which is at stake. As the hon. Gentleman implied, I do not seek to gainsay the forceful case that he made about the principle of legal representation for those involved. The Government fully recognise the justice of the case for granting parents legal aid in care proceedings. We have every intention, when more money becomes available, of giving this cause high priority against other competing demands on legal aid expenditure. There should be no doubt about our position on this.
The legislation to provide legal aid for parents already exists in section 64 of the Children Act 1975, which has been only partially implemented. That section, if fully 403 implemented, would provide that in care or related proceedings the court should consider whether there is a conflict of interest between the child and his parent or guardian. If so, it may make an order—a separation order—that the parent or guardian shall not represent the child in the proceedings. The court would have discretion to appoint a guardian ad litem to represent the child if it considered that this would be in the child's interests. When a separation order had been made, the parents would become eligible for legal aid, subject to the usual requirements.
At present, the only part of section 64 which is in force relates to proceedings arising from an unopposed application for the discharge of a care or supervision order—which would deal with the Maria Colwell case. Thus, in the great majority of care proceedings parents are not at present eligible for legal aid.
Neither we nor the previous Administration have been able fully to implement section 64 and so give parents legal aid—because of the costs involved. A working party drawn from my Department, the Welsh Office and the local authority associations has recently presented a report on the likely costs of bringing in the remaining unimplemented sections of the Children Act 1975. A copy of the report is in the Library and copies are available to hon. Members from the Vote Office. The report shows that the cost of implementing section 64 would be about £850,000 a year for local authorities, £280,000 for the probation service and between £800,000 and £870,000 for the legal aid fund. These figures are at November 1979 prices.
It has been widely suggested in the last few weeks that full implementation of section 64 would lead to a drop in the number of children placed in care and that there would be a saving of over £2 million a year in the costs of keeping children in care. In other words, it has been suggested that separate representation and legal aid for parents in care proceedings could be provided at no additional cost to public funds. From the hon. Gentleman's remarks, I think that he distanced himself a little from that proposition.
I believe that the figure of £2 million derives from a booklet published by the Family Rights Group entitled "Lost in Court—the Case for Legal Aid for Parents in Care Proceedings". I only wish that the estimates it put forward were true. In my view, its figures are a gross overestimate. Let me explain why.
In the year ended 31 March 1979, some 40,000 children came into the care of local authorities in England and Wales. But the great majority of these children were either placed voluntarily in care under the Children Act 1948 or were subject to care orders because they had committed an offence. The number of proceedings each year in which parents might be granted legal aid if section 64 were implemented would be only between 4,000 and 5,000.
We can only speculate on the effect which legal aid for parents might have on the outcome of care proceedings. The Family Rights Group seems to think that there might be a reduction of 2 per cent. in children made subject to care orders if parents were granted legal aid. Two per cent. of 5,000 is only 100, so that we might perhaps see 100 fewer children coming into care each year if section 64 were fully implemented.
Thus, on the Family Rights Group's own figures the savings would only be about £300,000 a year for local 404 authorities. Even this is likely to be an overestimate as local authorities would probably still feel it necessary to work with a family which was giving them so much concern that they had instituted care proceedings. So, I do not accept that providing legal aid for parents in care proceedings could be achieved at no public cost.
For the immediate future, I think it is clear that there will be very real problems in finding resources to bring in legal aid for parents. However, during the coming months my Department will be having talks with the local authority associations to see whether agreement can be reached about bringing into force further sections of the Children Act 1975. In the first instance, my priority will be to try to bring in provisions which have no costs, or only very limited costs, as soon as possible.
The hon. Gentleman mentioned fostering and adoption. A few weeks ago I announced that next year we would implement those sections of the Children Act dealing with fostering and adoption that could be implemented at no cost. I cannot claim that section 64 falls within either of these categories, but I hope that we shall also be able to explore with the associations and other interested parties where our priorities should lie for bringing in those sections which would have costs, as and when resources become available. I very much regret that I cannot be more encouraging than that.
The hon. Gentleman referred to the success rates when a person was legally represented. I am not sure whether the cases that he mentioned are directly comparable to the cases that we have before us. In these cases the parents are not defendants—they have not been accused of anything—whereas the cases that he quoted were of people who had been accused of something and were being defended. In care proceedings the parent is not being accused of anything. The parent does not stand before the court accused of any offence.
§ Mr. Richard Alexander (Newark)
Does my hon. Friend agree that, if a child is taken into care as a result of an allegation of neglect by a parent, that is thereby something of what the parent is accused, and because he is accused of something he is entitled to be represented, if it is possible, through the legal aid fund?
§ Sir George Young
My hon. Friend is right, and I shall come to that.
I adhere to what I said earlier, that there is not a direct parallel, because in care proceedings what is being decided is what is right for the child, whereas in the cases referred to by the hon. Gentleman the person concerned was accused of an offence. The hon. Gentleman was trying to compare legal aid for that person with legal aid for the parent who is not a party in the care proceedings. I do not think that one can compare the success rate in those proceedings with the success rate, as the hon. Gentleman referred to it, in care proceedings where the parent is accused of an offence.
§ Mr. Abse
I quoted some cases relating to criminal offences. I cited cases within the hon. Gentleman's Department of people who were not accused of a criminal offence making applications under appeals. The woman who is accused of neglect or of child abuse is surely in a similar situation to someone who has been accused of an offence.
§ Sir George Young
The two cases are not directly comparable, as I hope the hon. Gentleman, with his legal 405 experience, will agree. The woman who is accused has certain rights, even under the existing procedure, to make representations to the court and to defend herself.
What one has to do is to try to ensure that the care proceedings work as effectively as possible within the existing arrangements and constraints. The second thing that we have to do is to encourage local authorities to develop measures to support children and their families and so reduce the necessity to seek to have care orders made.
On the first point, I should like to see that children are properly represented in care proceedings and to ensure that those who are appointed to carry out this task are made aware of where their true responsibilities lie. There have, unfortunately, been cases where a solicitor appointed under the legal aid provisions to represent the child has seen his role in the proceedings as representing also the child's parents and has put their views to the court rather than the child's. In a few cases this has had tragic results. I welcome recent guidance from the Law Society on the solicitor's role in care proceedings. This makes it clear that solicitors should not take their instructions from parents, whose interests are often in direct conflict with those of the child.
Where a solicitor who has been appointed under, the legal aid provisions to represent a child decides that he should not take his instructions from the parents, there is nothing to prevent the parents from employing their own solicitor, but they must be prepared to pay for this themselves. Parents can obtain legal advice under the green form scheme, but they cannot be legally represented under this scheme.
Here, I turn to the intervention by my hon. Friend the Member for Newark (Mr. Alexander). Of course, parents normally participate in care proceedings. They, or their solicitor, if they employ one, can meet any allegations made against them by calling or giving evidence. That includes the right to cross-examine other people's witnesses on any matter relevant to the allegations. Where the court is able to make a separation order prohibiting the parents from acting on behalf of their child, parents also have the right to make representations to the court at the conclusion of the evidence on. behalf of the child and the local authority. They now have that right in unopposed proceedings for the discharge of care or supervision orders but do not have the right in other cases at present.
We are considering, in conjunction with the Home Office, whether the court rules should be amended to give them that right, in which case parents would be able to put their views to the court in the same way as if section 64 were fully implemented. They would not, of course, be able to qualify for legal aid in their own right, but in cases where there was no conflict of interest the solicitor acting for the child could also act for the parents. I hope that that meets some of the criticisms put forward by my hon. Friend the Member for Newark and by the hon. Member for Pontypool.
§ Mr. Frank Haynes (Ashfield)
I served as a magistrate for many years, particularly in the juvenile court. I think that the Minister will agree that there is much unfairness in the matter that we are discussing. My hon. Friend the Member for Pontypool (Mr. Abse) put forward a good case for the Minister to answer. The cost would be a drop in the ocean. During the election, campaign the Conservative Party spoke about there being much unfairness in the 406 nation. If the Government agreed to the suggestions of my hon. Friend, they would put a little fairness into the arena, On behalf of my hon. Friend, I beg the Government to move in that direction and to find this minimal amount of money and put a little fairness into the system.
§ Sir George Young
I would not dissent from the view that the hon. Member for Ashfield (Mr. Haynes) has expressed. I said earlier that this was a high priority for the Government the moment more resources become available. However, at present the legal aid fund is overspent. I have to remind the hon. Gentleman that in six years his Government failed to implement this section of the Children Act 1975. I hope that this Administration will be able to implement it, and I have no disagreement with hon. Members on either side of the House about the principles that are at stake and the issue of equity. But, in fairness, we should ensure that parents have the right to legal aid in proceedings of this sort.
The Law Society has also dealt with the question of how the solicitor for the child should get his instructions when a child is too young to give them or to express a view. It has suggested in its circular that solicitors might seek guidance on the social work aspects of a case from social workers or other people with suitable child care qualifications who are independent of the local authority or who could advise the solicitor on those aspects of the case which he may feel he is not qualified by his training to decide. I agree that such advice for solicitors can be useful in the light of our present inability to implement the remainder of section 64. However, I regard this as a second-best, interim arrangement, pending full implementation of section 64 and the appointment of guardians ad litem by the court in appropriate cases.
Reverting to a point that I made earlier, I recognise that decisions about removing a child from an unsatisfactory home in his own best interests are difficult, whether in care proceedings or in criminal proceedings. Removal from home is undoubtedly sometimes the right decision, but it is the decision of last resort. I am keen to encourage measures to support children and their families in their own homes. There are many steps that can be taken to help children and their families to overcome their problems without taking a child into care, by giving appropriate professional help and support.
I have a particular interest in intermediate treatment for children who have offended or are at risk of beginning a delinquent career, and I wish to encourage this positive way of tackling the problems of juvenile crime. Indeed, I am pleased to be able to note some good news on juvenile delinquency statistics in the criminal statistics for 1979 that were laid before Parliament last week. The rate of offending per 100,000 in the age group fell by about 8 per cent. between 1978 and 1979 for boys between 10 and 16 years of age and by slightly less for girls. The number of sentences to detention centres and borstal also fell by 5 per cent.—the first sign of a halt in the steady rise in the number of custodial sentences for juveniles. The number of care orders in criminal proceedings continued to decline, but the number of supervision orders for 14-to 16-year-olds increased. One swallow does not make a summer, but these statistics indicate that our community-based measures, including intermediate treatment, are having some effect in reducing the need to remove children from home.
407 As far as younger children are concerned, voluntary and statutory bodies have done much to develop schemes to help families under stress and to prevent children from coming into care. I believe that those schemes, such as Homestart in Leicester, and the work of the NSPCC special units can do much to provide justice for parents and for children, and they can do that now. For the longer term, the hon. Gentleman can be assured that his points 408 about the justice of providing legal aid for parents in care proceedings are well taken and that we shall bring section 64 of the 1975 Act fully into force when we have the resources to do so.
§ The Question having been proposed after Ten o'clock on Wednesday evening and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at five minutes past Two o'clock.