§ 3.14 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I rise to move that this Bill be now read a second time.
Your Lordships will be acutely aware, as are the Government, of the sharply increased public concern over the care, protection and upbringing of children which has been generated by recent events. We are therefore glad that two major reviews of the law governing children have recently been completed. As a result the legislative response to current and deeply felt worries can be provided in a wide and carefully 488 considered reform of both the public and private law of children and family services.
The Bill in my view represents the most comprehensive and far reaching reform of child law which has come before Parliament in living memory. It brings together the public and private law concerning the care, protection and upbringing of children and the provision of services to them and their families.
Public child care law is a subject of fundamental importance, with two main aspects: first, the responsibility which Parliament gives the executive, mainly the local authority, to intervene in private family life on behalf of the community in order to help the children; and secondly, the court processes for adjudication in respect of such intervention.
Almost a hundred years ago the Prevention of Cruelty to, and Protection of, Children Act, 1889 put on a statutory basis for the first time a series of offences against children. During the century since then parts of our present framework have been constructed and developed but usually in a rather uncoordinated way. All those provisions of the main Acts which are still extant are reflected in the Bill with the exception of adoption, which is a specialised subject. Necessarily there will be some Acts concerning children, such as legislation relating to employment of children and specialised disablement provisions, with which we deal by reference, but by far the greater part of statute law will be here in a form which is simpler, more accessible to those who work with it and more comprehensible. I am glad that by this Bill we shall be able to repeal in full no fewer than seven post-war Acts, limit others to purely criminal provisions and others largely to adult provisions.
In the report Children In Care, published in 1984, the Social Services Committee in another place said that there should be a thoroughgoing review of the body of statute law, regulations and judicial decisions relating to children. The Government responded with some speed. The result, only 18 months later, was the Review of Child Care Law. This was a detailed report to Ministers and a consultation document on proposals and options for codification and amendment of child care law. It formed the basis for the well-received White Paper The Law on Child Care and Family Services published in January 1987. Throughout the development of our proposals we have consulted widely with legal, social work, child care and other interests.
The concern of recent years about the present legal framework for children has been fuelled by the tragic and, to many, incomprehensible phenomenon of child abuse. Some 100 children, some of them known to local authority social services departments and some actually in their care, die each year at the hands of a parent, step-parent or connected adult. At any one time about 40,000 children in England alone are on child protection registers. We were shocked too by the events in Cleveland, and helped by the very careful and thorough report of Lord Justice Butler-Sloss we must ensure that over-zealous handling of such cases does not recur. But equally the reports on the deaths of Jasmine Beckford, Kimberly Carlile, 489 Tyra Henry and others show the importance of ensuring that children at risk are properly protected. This points to the need to have in place a legal framework that gives effective protection to those who are too young and too vulnerable to defend themselves and is also fair to those most affected, particularly parents and others with parental responsibility. This balance has been shown to be missing from child care law at present. We have also failed to satisfy the European Court of Human Rights that the present law in relation to parental access to children in care is satisfactory. The Bill seeks to correct these and other deficiencies of the present law.
We have adopted certain guiding principles for reform of the public law on children. The prime responsibility for the upbringing of children rests with the parents, but in cases of need the state should be ready to help, especially where doing so lessens the risk of family breakdown. Services to families in need of help should be arranged in voluntary partnership with the parents, and the children enabled to continue their relationship with their families where possible. Parents' legal powers and responsibilities for caring for a child should only be transferred to a local authority following a full court hearing and then only where there has been harm or there is risk of harm to the child. Though the interests of the child are the primary concern, parents should be able to be properly represented and should therefore be full parties in court proceedings in addition to the child. Emergency powers to remove a child should be of short duration and subject to court review. Finally, the legal responsibilities of local authorities caring for a child taken away from home should be clear. The powers and responsibilities of parents in these circumstances should also be clear.
So far as the private law is concerned, Parts I and II of the Bill largely implement the proposals of the Law Commission in its Report on Custody and Guardianship which recommends consolidating and amending the existing law in those fields to form a single rationalised regime which meshes with the Government's proposals in the White Paper to produce a consistent code. I should like to pay tribute at the outset not only to the commission's work in producing such clear and desirable reforms in the private law, but also to its help, and in particular that of Professor Hoggett, in analysing and formulating the Government's proposals for reforming the public law. The Bill demonstrates the very real and practical advantages which can flow from government departments and the Law Commission working closely together. And it is my earnest hope that similar co-operation will continue in other areas of the law.
I have dealt at some length with the background to the Bill. It may be helpful if I now go through it briefly and outline some of its main provisions. In Part I we have the keynote proposition of the existing law. It is that the child's welfare should be the paramount consideration when the courts reach decisions about his upbringing. That principle governs not only the making of orders in private cases, such as divorce, but also the court's decision on 490 whether to place a child in the care of a local authority or under its supervision. Clear as the statement of paramountcy is in Clause 1, there is always a danger that such a broad principle can lead to inconsistent practice and even to courts overlooking relevant matters of detail. Accordingly, subsection (2) follows the Law Commission's recommendation and provides a checklist of specific matters to which the court should have regard.
There is one final provision of Clause 1 that I would mention. That is the prohibition in subsection (4) against courts making any order under the Bill unless that would be better for the child than making no order. There is a danger that a child may be put in local authority care because of inadequate home circumstances but without evidence that the order would improve the situation. And in family proceedings the Law Commission noted a tendency to make orders simply as part of the divorce package. This provision aims to discourage both those practices.
Your Lordships will have noted a change of terminology in the Bill. The fundamental concept in this area of law is no longer to be expressed variously in terms of rights, duties, authority or even powers of parents, but simply as "parental responsibility". The phrase, recommended by the Law Commission, is apt to my mind. It emphasises that the days when a child should be regarded as a possession of his parent—indeed when in the past they had a right to his services and to sue on their loss—are now buried forever. The overwhelming purpose of parenthood is the responsibility for caring for and raising the child to be a properly developed adult both physically and morally.
Clauses 2 to 4 generally modernise and restate the incidence of parental responsibility and aspects of its exercise, I hope in much clearer terms. An important change affecting unmarried fathers is included. The Family Law Reform Act 1987 already makes provision enabling the courts to confer full parental status on such fathers and, as the Government have already announced, it is hoped to bring that part of the 1987 Act into force soon. Clause 4 will allow unmarried fathers to have equal parental responsibility by making a formal agreement with the mother without going to court.
The Bill also reproduces the existing law on the appointment of guardians to replace a parent when she or he dies. The only major changes here are that the appointment will simply need to be in writing whereas now it has to be in a deed or will, and that unless the child is living under a court order with the parent who dies the appointment in future will not take effect until both parents are dead.
Part II introduces four new orders. Anyone familiar with the case law or who has read the supplement to the Law Commission's working paper on custody will know how obscure and misunderstood existing orders are. Accordingly under the Bill the courts will cease to make orders which purport to apportion theoretical parental rights and duties and both parents will continue to have parental responsibility. The new orders can thus focus on settling the arrangements about the person 491 with whom the child is to live by making a "residence order". The court is also to have power to make "contact orders" about allowing the child to visit or have contact with a named person. In addition, if there is a dispute about a particular matter—for example, where the child should go to school, or whether he should undergo a serious operation—the court can make a "specific issue order" settling the matter. And finally, the court will be able to prohibit any particular step being taken in respect of a child without the court's permission—a "prohibited steps order".
Those orders will be available in proceedings seeking one or more of them specifically; in other proceedings affecting the family (most notably, divorce); and in care proceedings. Subject to some restrictions, requiring the permission of the court or parents in some circumstances, it will be possible for anyone to apply for one of these new orders. The aim of the restrictions is largely to protect children and families from unwarranted interference. Together with the wide range of orders, these more flexible rights to apply for orders should reduce the need to invoke wardship.
A major concern with litigation about children is delay. In Part II, the Bill states as a general principle that delay is likely to harm children and goes on to give the courts power in private proceedings to draw up timetables and to give directions about the conduct of proceedings. There are similar provisions in Part IV for care and supervision proceedings.
Part III sets out the principal responsibilities of local authorities to children in their area who are in need and their families, and to children whom they look after. It brings together in one statute the main local authority responsibilities to families with children, including those at present set out separately for disabled children. This should help to focus attention on the role of local authorities in supporting the family. Local authorities will have a new duty to promote the upbringing of children in need by their families so far as this is consistent with their welfare duty to the child himself. There are further requirements in Schedule 2 designed to help children in need to continue to live with their families and generally to prevent the breakdown of family relationships. Partnership with parents based on agreement so far as possible will be the guiding principle.
This will also apply where children are provided with accommodation under voluntary arrangements because, for example, the parents are prevented from providing suitable accommodation or care themselves. The present arrangements for reception into care often carry unwarranted association with parental shortcoming. Provision of accommodation in these circumstances should be seen as a service to the family without any stigma. The Bill makes clear the rights of the parents and the responsibilities of the local authority when this particular service is provided. Parents will no longer have to give notice before withdrawing their children from voluntary arrangements, and authorities will no longer be able to assume parental rights over children by 492 administrative resolution. The authority will have to promote contact between the child and his family, consult the child and the family on decisions and establish a procedure with an independent element for considering representations.
Part IV is a major feature of the Bill. It sets out new grounds on which the court will have to be satisfied before making care and supervision orders in any proceedings. These include the likelihood of the child suffering significant harm in the future. This will make it unnecessary for local authorities to continue to turn to wardship in order to avoid the difficulty that a mere anticipation of future harm is not at present a sufficient ground on which to seek an order.
The effect of a care order is that the local authority has parental responsibility for the child. The authority may only deny reasonable contact with the child in care under a court order or in emergencies for a maximum of seven days. Parents and others will be able to apply for an order for contact whether or not, as at present, contact is refused or terminated. Thus restrictions on access will be capable of challenge.
Rules of court will provide for maintenance of the status quo in respect of legal representation of the child. Moreover, the Bill provides that guardians ad litem should be appointed in all care proceedings, including those arising from family proceedings, except where the court considers this unnecessary to protect the interests of the child. It also provides for rules to be made concerning the way in which the guardian ad litem should assist the court. The Secretary of State will by regulations be able to lay down management arrangements and for joint working between authorities to promote more efficient guardian ad litem panels, which will thereby be distanced from the social services departments with which they deal.
I recognise that there will be concern that legal aid is granted swiftly to parties in care proceedings. This will be the responsibility of the Legal Aid Board, which takes up its functions in April next year. Speed will be achieved by waiving the merits tests for those who are automatically parties to the case, granting legal aid in advance of completion of the means tests and by making other special arrangements.
Part V makes major reforms in emergency protection. Here we seek to strike a balance between the need to protect children from harm in emergencies and the need to allow aggrieved parents to challenge action taken in respect of their children—the need for which was graphically illustrated by what happened in Cleveland. There will be a new emergency protection order limited to a maximum of eight days and extendable only once by up to seven more days. There will be a new opportunity for parents to apply for the order to be discharged after 72 hours if they were not present at the initial hearing.
The holder of the emergency protection order will be under a duty to take only such action as is necessary—which could leave the child where he is—and a duty to return him if his continued removal proves to be unnecessary. And the court will have power to give directions on contact and medical 493 examinations at any time an emergency protection order or interim care order is in force.
Part V also allows an emergency order to he enforced by a constable acting under a warrant, as at present, and it will allow the holder of the order to locate other children on the premises who are thought to be at risk. Police powers to take a child into police protection are to be limited to 72 hours and aligned with the other emergency protection powers, as proposed in the White Paper.
Finally, as recommended in the Jasmine Beckford report, local authorities and other agencies will be required to co-operate in support of a more active investigative responsibility placed on social services departments.
I must say a word about wardship. The Government, in line with the Law Commission's decision to postpone making recommendations about wardship, have not sought in this Bill to reform that area of child law as such, although many of the reforms both in the private and public statute law should substantially reduce the need to invoke the High Court's inherent jurisdiction. There is one exception, however. The conditions in the Bill which must be satisfied before the state, in the guise of the local authority, can intervene in families by seeking emergency protection, care or supervision orders are carefully designed as the minimum circumstances which can justify such action.
Accordingly, the Bill prevents the High Court's inherent jurisdiction, which is not limited by such conditions, being used to confer compulsory powers on local authorities. It is recognised that in practice the High Court would not be likely to exercise its power in cirumstances where a care order would not he justified under the Bill. However, as a matter of principle it is important for the law in a free society expressly to protect the integrity and independence of families save where there is at least likelihood of significant harm to the child from within the family.
The Bill does not prevent the High Court when hearing a wardship application making a care or supervision order under the Bill where the statutory conditions for such an order are satisfied. And what I will say in a moment about the concurrent jurisdiction will mean that complex or weighty care cases which require the expertise of the High Court will benefit from it under the Bill. Further, local authorities may still invoke wardship for other purposes, provided that there is no alternative statutory procedure and there is an apparent likelihood of substantial harm to the child.
Parts VI and VII replace with amendments existing provisions of the Child Care Act 1980 on local authority community homes, the regulation of voluntary homes and responsibilities to children accommodated in those homes. Parts VIII and IX re-enact, also with some amendments, similar provisions for private children's homes in the Children's Homes Act 1982 and those governing private arrangements for fostering children. We also intend by amendment to revise the Nurseries and Child Minders Regulation Act 1948 to regulate day care facilities provided privately for children under five years of age.
494 The Secretary of State's inspection and other supervisory functions and responsibilities are set out in Part X.
I turn now to Part XI. Clause 66 provides for the abolition of care orders as a disposal for juvenile offenders in criminal proceedings. There has been concern for some time that this disposal represents local authority care as a punishment when it should be seen as the best available way of safeguarding and promoting the child's welfare. In its place the Bill provides that the court can add a residence requirement to supervision orders in appropriate serious cases.
Turning generally to jurisdiction and procedure, I have said elsewhere that their reform in family cases must follow on reform of the substantive law. The logic is simple. It is the substantive law which determines the job which the courts have to do and it must be that law which determines matters of jurisdiction and other arrangements within the courts. If I may say so, this Bill goes one better. In reforming the law relating to children it also provides for the redesign of the court arrangements and procedures to meet the needs of children's cases.
First among the changes in those arrangements is Clause 69, which will create a concurrent jurisdiction in all children's proceedings. Thus, for example, in future an application for a care order will be able to be heard in a magistrates' or county court or in the High Court. And to emphasise the civil nature of those proceedings the Bill by amendment will take power to shift jurisdiction to hear care applications from the magistrates' juvenile court to their domestic court, thus finally obliterating any criminal overtones in those cases. Amendments to the Bill to give rights of appeal to the High Court in care and supervision cases will further emphasise their civil nature.
In addition to concurrent jurisdiction, there will he power under the Bill to require certain types of case to start at a specified level and in a particular court at that level. The intention is to require care applications to begin in magistrates' courts, from where some would be transferred to higher courts.
Secondly, every court having jurisdiction under the Bill will have power to transfer proceedings to another such court if this is more appropriate.
Thirdly, the power to transfer cases will be governed by criteria dealing with the complexity, weight or importance of the case. They will also refer to the need for speed in dealing with cases so that, for example, a magistrates' court which for some reason was unable to give an early hearing could transfer the case to a neighbouring magistrates' court or to a county court if that would speed up disposal.
Together these provisions will create a flexible system under which cases, according to their complexity, can he heard at the appropriate level of court. It will also enable all proceedings affecting a child to be heard in the same court and at the same time by magistrates and judges who are experienced in and who have made a special study of family work.
These powers will be exercised initially in relation to local authority care cases and adoption. The 495 powers will, however, be wide enough to rationalise the hearing arrangements for all children's cases under the Bill if that proves desirable.
The proposed arrangements are novel but we intend that cases moving around the system should do so in accordance with consistent and speedy procedures. Among other things we shall arrange for the courts concerned to produce information about cases in the pipeline, especially care cases, and to make this information available to their opposite numbers in courts to which they might transfer those cases. We shall also devise proper administrative arrangements for transferring cases. The Government intend to underpin the system by empowering the Home Secretary to require magistrates' courts to take the steps which I have described.
Other steps are being taken to deal with care cases. We are exploring what can be done to strengthen links between local courts. We are also considering what central co-ordinating machinery is necessary to promote a consistent judicial approach and to monitor administrative effectiveness.
Noble Lords will appreciate that care proceedings in particular involve a wide range of people with different responsibilities and interests. Uncoordinated, such a system is liable to produce delay, prejudice to the child, confusion and waste. The combination of these measures, together with those which I have already mentioned in relation to the administration of guardians ad litem, aim to create an efficient and effective system of jurisdiction.
Looking to the future, the Government are determined that all litigation concerning the family should be arranged to ensure that the best results are achieved with the available resources.
As this Bill indicates, it is not practicable or desirable to throw over existing machinery wholesale. Rather we intend to approach the problem in ordered stages, linking reform of the jurisdiction and procedure with the continuing review and reform of the substantive law.
With this Bill the Government have put in hand a programme of work which will extend step by step to all aspects of family law and business. We are, for example, looking at the matching of judicial resources to cases, the matching of procedure to substantive law, the organisation and function of welfare services and the appropriate balance between formal adjudication and conciliation.
Your Lordships may recall that on 11th July my right honourable and learned friend the Attorney-General said in another place that the Government hoped to make a statement about the family court by the autumn. I hope that what I have said today will be seen as redeeming that pledge. The major improvements which the Bill will achieve in the substantive law, procedure and jurisdiction take us a long way towards achieving the general approach to all family litigation sought by those who have been calling for a family court. The Government will not stop here, however, and the way forward is signalled by this Bill.
496 I hope that the Bill will be seen on all sides of the House as a landmark in children's legislation. It deals with important and difficult issues which require great care and sensitivity. The Bill will, in particular, establish a framework of rights and responsibilities with which to see that children in need receive the care, upbringing and protection they require, and that parents and others with an interest in the child can play a full part in those crucially important decisions. I accordingly commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.44 p.m.
§ Lord Mishcon
My Lords, it is a pleasure to express the gratitude of the House to the noble and learned Lord the Lord Chancellor for a masterly exposition of the Bill. It is also a pleasure to express on behalf of the official Opposition the general approval of what in the history of our legislation may well be termed the children's charter.
In his introduction the noble and learned Lord referred to the background to the Bill. It has a substantial history, which is one of scandalous cases; inter-departmental reports; consultation papers; a report by Mr. Blom-Cooper on poor little Jasmine Beckford; a report by a Lord Justice of Appeal on the Cleveland cases; a government White Paper; and a Law Commission report. Against that substantial background of human cruelties, plus the consideration of them with the greatest of care, we now have the Second Reading of this Bill.
The purpose of the Bill can be summarised as being to consolidate, clarify and reform. There is a great need for that. I should like to quote from the Report of the Inquiry into Child Abuse in Cleveland 1987 presented by Lord Justice Butler-Sloss. At page 216, paragraph 13.31, it states:We were told of the inadequacy of the present child care legislation and its failure to balance the interests of the child and the rights of parents. The shortcoming in the legal framework was seen by the Associations to have an effect on the way in which public opinion reacted to issues related to child abuse".The noble and learned Lord the Lord Chancellor referred to the Law Commission report. At the commencement of its exercise it states:The main principles of the law are reasonably clear and well accepted. The details, however, are complicated, confusing and unclear. The result is undoubtedly unintelligible to ordinary people, including the families involved, and on occasions may prevent them or the courts from finding the best solution for their children".Any attempt—as the Bill undoubtedly is—to reform, consolidate and clarify must be welcomed in your Lordships' House.
There are some fundamental principles in the Bill to which the noble and learned Lord drew attention. First, he rightly spoke in terms of parental responsibilities, quite apart from parental rights, as being one of the fundamental principles which the Bill carries into effect. Secondly, throughout the Bill the overriding principle is expressed as being the wellbeing of the child. Thirdly, in looking after the wellbeing of the child there is a need to ensure that the machinery of the local authorities, our legislation 497 process and our courts is speedy and effective. They are the three principles.
In considering them at Second Reading and throughout the remaining stages of the Bill, when in an endeavour to improve the terms of the Bill we shall enter into great detail, we must remember that we are not just dealing with sexually abused children, but with all children—children who are deprived, children who have been cruelly treated, children who have been abandoned, children who have been neglected, children who are out of control and all too often children who are used as ammunition in the fight that parent so often has against parent.
I make some pleas to the Government and I make them at Second Reading, which should deal with general principles and not detail. My first plea is that the Government should not delay the implementation of this Bill. Its provisions are so badly needed. Clause 78 provides that commencement dates are to be fixed by the Secretary of State and that there will be different dates for different provisions and in relation to different cases. Perhaps when he replies to this debate the noble and learned Lord who sits on the Woolsack will be good enough to indicate when the provisions of the Bill may be brought into effect.
I shall tell him why I especially stress that. It took 10 years before the provisions of the Children Act 1975 were finally implemented, which was a scandalous amount of time. I hope that this Bill will have the energy and, if I may say so, the dynamism of the Lord Chancellor who in a moving speech said how much the provisions are needed. They are needed, and may they be expedited and carried into effect.
My second plea is very necessary. I suppose that it was made all the more necessary when I heard the noble and learned Lord utter the words "available resources". It sends a shudder down the spine of some noble Lords when we hear about resources being made available to local authorities for welfare, general purposes and other matters of great social concern. I also looked with fear and trembling at the commencement of the Bill, where it deals with the financial effects. I read these words:The full annual cost of the Bill will therefore be between £4 million and £11 million of which £4 million will fall to local authorities and between £0 and £7 million to courts administration and legal aid. There may also be one-off training costs for local authority staff training".My second plea to the Government is that of all matters being dealt with in the financial programme they should not stint on children.
I mentioned the question of training. If ever anything should not be stinted on it is on the training of those who are meant to carry out the active part of this Bill. It is so easy for us as legislators to think with some sort of sanctimonious comfort that we have looked after the children. We have passed a measure and have given great consideration to the provisions of the Bill. However, the people who have to carry it out are the people who have to be specialists for this job of all jobs. That has been emphasised and must not be forgotten.
498 I turn at once to the report of Lord Justice Butler-Sloss on the inquiry into child abuse. Perhaps I may read what she said by way of conclusions on training. I quote from page 225 at paragraph 15.2, which states:We regard training as an issue of central importance in ensuring that the special needs of children who have or may have been sexually abused are properly recognised and met".She was talking about sexually abused children. What she said there and in the subsequent paragraph that I read applies to most of the children who come into care and who have problems. The report goes on:It was our overwhelming impression that the training provided nationally is inadequate".She goes on to talk about the lack of training for general practitioners, social workers and nurses and says how essential that training is.
It is very common for the media, as your Lordships know, to criticise social workers. Either they have interfered and done too much or they have not been anywhere near the family or the premises and they have done too little. What they do in this specialist field is psychologically so important that the whole future physical and mental make up of the child depends on the accuracy of their judgment and the speciality of their conduct. If we stint on training resources we are not carrying out what we think we may be carrying out if the Bill goes on the statute book.
Perhaps I may ask some questions before I sit down. As the noble and learned Lord emphasised, Clause 69 is terrifically important because it deals with what he so rightly emphasised was a great improvement in jurisdiction; that is. it allows the Lord Chancellor to specify the courts and the provisions for transferability. Those are terribly important provisions. I did not understand, and I know it was my fault, his allusion to the family court and the compliance with an undertaking of the Attorney-General. I did not find his words very clear—and I repeat it must have been my fault. I did not know whether he was saying, "Look, in this Bill you can see that we have built the foundation for that unified court, the family court, which has been recommended by so many authorities and of course is also recommended in the Butler-Sloss Report". Was he saying that we have built the foundation or that we have built a substitute for the family court? Is the substitute to be the transferability from magistrates' court to county court arid High Court without all the conciliation procedures and without having a unified court dealing with all family problems? Perhaps in his kindness the noble and learned Lord will clarify what he said in that connection.
My next question is in regard to guardians ad litem to which the noble and learned Lord also drew the attention of the House. Clause 36(7) provides that the Secretary of State can establish panels from which the guardians ad litem may be selected. Clause 36(8) states that this is without prejudice to his ability to confer duties on the Official Solicitor. Will the noble and learned Lord please tell the House what he has in mind in that connection?
499 I particularly have in mind that the Lord Chancellor's consultation paper suggested for discussion that an office of child protection should be provided. That is not mentioned in this Bill. From what the noble and learned Lord has spoken about, and from what we see in this Bill relating to the Official Solicitor's duties being conferred on him without prejudice to what is said about the guardians ad litem, are we to understand that the Official Solicitor is to take the place of what was formerly intended to be the office of child protection?
For my next question I turn also to the matter of guardians ad litem. At one time it was mooted—sensibly, if I may humbly say so—that there should be a national administration of guardians ad litem as against a local one. I am not entirely sure whether that is carried out in the Bill. It seems to me that it is not. If it is not—I wonder whether it is sensible—it means that the guardians ad litem will be managed, as I see it, and paid in the area of the local authority and by the local authority which they may have to combat and oppose on occasions. Is it sensible that that should be so, or should there not be national administration?
My final question is this. There will be an increase in cases in which the guardians ad litem will be involved by virtue of Clause 36, to which, again, the noble and learned Lord referred. I am reliably informed that there are already delays in some parts of the country in getting these guardians appointed due to the lack of resources. I have referred to resources previously. Can we be assured that that will not happen after the provisions of the Bill are carried out?
Having said all that, I repeat what I said earlier. The official Opposition welcome this Bill and congratulate the Government on it, though we may have to differ in some respects when we reach other stages of the Bill.
§ 4.3 p.m.
§ Lord Meston
My Lords, we on these Benches are also grateful to the noble and learned Lord for his explanation of this Bill. Your Lordships may have heard it somewhat cynically observed that children cannot be too careful in their choice of parents. We should realise that Parliament cannot be too careful in legislating to protect children from the difficulties which children do absolutely nothing to create.
The Bill is of vital importance, not only for what it sets out but for what it may sweep away. Among other things it will govern the circumstances in which children can be taken from their parents, sometimes irrevocably; the circumstances in which parents can be prevented from seeing their children; and the circumstances in which parents may even lose the right to be consulted about their children.
There is always a difficult balance to strike to ensure that intervention by the courts and by local authorities only occurs in the most serious cases; to ensure that such intervention, when it is necessary, is swift and effective; to ensure that rehabilitation is attempted as soon as possible; and to ensure that any decision to rehabilitate, or not to rehabilitate, a child 500 with his or her parents is an informed and authoritative decision, ratified where necessary by a court.
Reference has been made to the inquiries which have taken place into various tragedies. It is a feature of many of those cases that the statutory powers already existed but were simply not used. It is a sad fact that in some of those cases the social workers were intimidated, misled or simply unable to get at the truth. Indeed, we should not fall into the trap of baiting social workers for their inadequacies. Many of them are extremely good but it is extremely difficult for them. They either do too much or too little and it is difficult for them to get it right. I echo the noble Lord, Lord Mishcon, on the need for training.
Clause 38 provides the very valuable new emergency protection order. It is a great improvement on the existing arrangements for place of safety orders. However, I wonder whether the noble and learned Lord the Lord Chancellor can say who, in practice, will be making these orders and whether the lessons of the Cleveland saga in relation to place of safety orders have been learnt.
I also question the deliberate omission of provision for medical assessment orders. That topic was discussed in the Kimberly Carlile inquiry and others. If there is any doubt as to whether a child should be medically examined surely that doubt should be resolved in favour of the child. There should be a proper power to require medical assessment without always the need to resort to the more drastic emergency protection order. Medical assessment, and indeed developmental assessment, is valuable and useful in these cases, provided of course the child concerned is not exposed to medical examinations ad nauseam by or on behalf of the various competing adults.
We should not lose sight of the fact that we only hear of the sensationalised cases. We only hear of cases when something goes wrong. In the vast majority of cases the courts and the social workers deal with them sensitively and successfully. It is therefore important to look at how the Bill will work in dealing with the ordinary day-to-day cases which do not attract the headlines.
The heart of the Bill—at any rate from a lawyer's point of view—is to be found in Clauses 69, 70 and 71. Clause 69, as we have been told, enables the noble and learned Lord the Lord Chancellor to regulate the courts in which proceedings are to be initiated and then to be continued. It was encouraging to read the discussion paper of July 1988 from the Lord Chancellor's Department indicating that the department was actively considering a rational system of case allocation and control. I hope that the department's present thinking will be revealed to us in greater detail and that it will not be left to amendment at a later stage, because the point of entry into the legal system, and what one might call the quality control of a case thereafter, can be absolutely crucial.
I hope that the Government will do nothing to deprive parents and children of the calibre of the existing judiciary, in particular the judges and 501 registrars in the Family Division, and will do nothing to deprive access to the expertise of lawyers who specialise in that division. Arrangements must be made to ensure that complex and lengthy cases can and will go to the High Court.
Having said that I was encouraged, I should add that I was somewhat discouraged by Clause 69(4), which requires the agreement of the Secretary of State. That tends to suggest that considerations outside the administration of justice will intervene. I should prefer to see in the Bill a provision for consultation with the president of the Family Division.
I also hope that the noble and learned Lord can say what appellate structure is contemplated. He indicated that this would be a matter for later amendment by the Government. I hope that he can lift the veil this afternoon or at least indicate that the amendments will be brought before this House rather than another place.
I turn from the question of the right of appeal to the status of the parties in care proceedings. Both subjects were covered by the Children and Young Persons (Amendment) Act 1986. The status of the parties is now covered by Clause 70 of this Bill. The 1986 Act began as Sir Dennis Walters's Private Member's Bill in another place. At the Government's insistence it was heavily modified, the argument being that all the topics covered by that Bill would be dealt with as part of the Government's overhaul of child care law. This is the promised overhaul, I believe that Parliament is entitled to an assurance that the 1986 Act that was effectively hijacked by the Government will not now be blown up.
I ask that Clause 70 will not diminish the hard-won status of grandparents in care proceedings. In practice grandparents who are willing and able to help are still too often overlooked in these cases. At first sight, one criticism of the Bill before us is that it may make matters too difficult for grandparents and for foster parents to contribute. Foster parents are special people entitled to special consideration.
We have been told that Clause 71 restricts access by local authorities to the wardship jurisdiction. I suggest that the clause is far too restrictive especially if read with Clause 8(4). The premise behind Clause 71 appears to be that with satisfactory grounds for the taking of children into care and satisfactory grounds for releasing them from care the wardship jurisdiction will be unnecessary. If the Government are right about that the use of wardship will diminish naturally and Clause 71 will be unnecessary.
Meanwhile, I suggest that we must not lose the traditional protective role of the High Court and the expertise to which I have already referred. It is not without significance that wardship has developed in recent years to deal with situations that have not been covered by the statutory code. Local authorities have valued the availability of wardship; it is a jurisdiction that is flexible, authoritative and more distant from the local arena. Wardship enables the court to make decisions to control perceived risks to children without having to make findings either because the evidence is not sufficient or because for a court to make express findings on a sensitive topic—possibly 502 alleged sexual abuse—will be hurtful to the adults who need to continue to work together for the benefit of the child concerned.
It seems that in this case the Government are going further than the DHSS Review of Child Care Law in 1985. At page 109 of the review it was not recommended that there should be,any change in the statutory ground for committal to care in wardship. Although we consider that our proposals will greatly reduce the need for local authorities to resort to wardship, we cannot claim to have foreseen every case in which it may be necessary to protect a child".Likewise, the Cleveland report is being ignored in this respect. Paragraph 16.37 states:There is no doubt that the wardship jurisdiction came to the rescue of an otherwise overburdened Juvenile Court. It has proved in Cleveland to be an invaluable procedure to enable extremely difficult, complex and emotive issues to be fully considered and adjudicated upon. Wardship has an ethos which is recognised by those who use and are engaged in the jurisdiction. We see wardship having a role to play in care proceedings in the future".The fact is that the statutory grounds provided by this Bill are not foolproof. And they are not lawyer-proof. I am aware that the lawyers are already busily trying to pick holes in them. Therefore we should not discard the wardship jurisdiction until we are absolutely sure it is not needed. And we cannot be sure.
The financial memorandum to the Bill suggests that savings from wardship may be used for example in employing guardians ad litem. I welcome the move towards the more universal use of them. However, as the noble Lord, Lord Mishcon, has said, guardians ad litem should have true financial independence from local authorities. It is not enough to talk in general terms of distancing them. They should also not have to operate without legal representation. The reality is that there are simply not enough guardians ad litem available, and they are still crippled with insufficient resources.
The same point can be made about the provisions in the Bill stipulating timetables for child care cases. The concept of a timetable is admirable in theory. Children should not be allowed to drift and a week is truly a long time in a child's life. But timetables will be of little practical use if the courts are simply not available; if the guardians do not have the resources; or if it takes months to get an appointment with a child psychiatrist. This is an area in which there can be no real sanctions against a failure to comply with the timetable.
The Bill has many important provisions relating to private law as regards private disputes between parents over custody (it was formerly called custody) of the children. There are a number of minor concerns which I hope will not allow a distortion of the future working of the Bill in the private area. Clause 1 restates the welfare principle and gives a checklist. The first item on that list is the wishes and feelings of the child concerned, considered in the light of his age and understanding. This recognises the view that the voice of the child should not be ignored. We should remember that the voice of the child in these matters is not always reliable arid that there is a contrary view; namely, that children have the right not to decide a dispute between their parents and the right not to have to express a preference between their 503 parents. In practice, children give mixed messages. They are often trying to be desperately loyal to both parents. Some children form an exaggerated loyalty to one parent and an exaggerated hostility to another. Some children say one thing to one adult and a different thing to another, saying what they hope will find favour.
The worry about the prominence given in Clause 1 of the Bill to the wishes of the children is that parents will be advised to go out and ascertain the wishes of the child concerned. The pressure on the child will be increased when he is already distressed enough. It is very often a matter of practice nowadays for parents to come along to their lawyers with tape recordings saying, "This is what my child wants to do. Listen to the tape; can we play it to the judge?". That is very distressing and such circumstances should be avoided if possible.
Clause 7 introduces new terminology. It is hoped that this is rather more than a cosmetic renaming and that the terms used will be less emotive. The wording creates a measure of uncertainty about who is to have responsibility for the general management of the child concerned and uncertainty also for third parties such as headmasters as regards who to look to in medical and other emergencies.
I have one other concern as regards terminology; that is the question of international enforcement. The concept of a residence order does not seem to fit very easily with the convention contained in the Child Custody and Abduction Act 1985. That envisaged rather more than just residence. I hope that we can have an assurance that the Government are considering this aspect and that residence orders will be respected and enforced by foreign courts.
There are a number of other matters perhaps appropriate for discussion at the Committee stage. This is a Bill that will need detailed attention and sufficient time. I join with the noble Lord, Lord Mishcon, in expressing anxiety about the implementation of the Bill. The Children Act 1975 was a disgrace in terms of limping legislation. It took years to come into force and a great deal of uncertainty was caused. I hope that the Government will now think in terms of overall consolidation of other aspects of child legislation omitted from the Bill.
§ 4.20 p.m.
§ Baroness Elliot of Harwood
My Lords, I rise to echo the congratulations of the two previous speakers on the way in which the noble and learned Lord the Lord Chancellor introduced the Bill. It was done in a splendid way and was easy to understand. I speak in this debate simply because I have had long experience of social work myself. I was chairman of the children's committee in Roxburghshire for some 20 years and chairman of the Advisory Council on Child Care for Scotland for another five or six years. I can speak with some authority on the subject before us today.
Admittedly, the area with which I was concerned was small. Our problems were never as difficult as those of the large cities and the great urban areas. 504 However, I learnt one or two things which are of relevance today. When the children's committees were set up in county councils, trained children's officers did not exist. The training of social workers was more or less in its infancy. The revolution in training was largely due to Dame Eileen Younghusband who was on the staff of the London School of Economics. She had been commissioned by the Carnegie United Kingdom Trust to make a report on the importance of the training of people to become children's officers and social workers. I remember at the beginning that county councils appointed anyone they thought would be able to cope because there was nobody else to do the job. There were some strange appointments. However, other universities, inspired by the London School of Economics, set up departments for the training of social workers. That was an enormous help. As chairman of my children's committee, I always refused to appoint anyone in my area who had not been trained, although the training was not very conclusive. However, things gradually advanced. With the far greater problems of today it is obvious that the training of social workers is very inadequate.
The normal training period is two years. Many undergraduates are quite inexperienced and not very old. Two years to deal with these extremely difficult subjects, which are becoming more difficult as we all know from the reports we read every day, is totally inadequate. I very much hope that after the Bill is passed more care and study will be given to the training of social workers and that money will be made available—it always costs money to do these things—so that men or women who are considered qualified for this difficult job will have a much better and more conclusive training in social work.
I should like also to refer to family courts. The noble and learned Lord the Lord Chancellor said that the issue was under close consideration and might be brought up later on. I urge that this be thought of now. In Scotland we have had family courts for five or six years. I hoped very much that as the noble and learned Lord the Lord Chancellor is (what shall I say?) the king of the Scottish Bar as well as everything else, he would be able to persuade the powers that be in England of the importance of the matter.
The courts have been successful in Scotland. It is not as though one is recommending something that has not been tried. Family courts have been in operation in Scotland for several years. The courts are supported by everyone in Scotland today—social workers, sheriffs, the police and so on. They are so obviously the right way to deal with these difficult problems. Instead of children being brought before the courts in a formal manner they sit round a table in a room with all the interested persons present—their parents probably and anyone else who they decide is the right person to be there—and talk informally about these matters. That gives the child a chance to say something without being alarmed by the conditions under which an ordinary court is conducted. It is very valuable. I hope that the noble and learned Lord will use his influence in order to provide these courts in England.
I agreed with what the noble Lord, Lord Mishcon, said about the importance of supporting all this work 505 by additional funds. It would be an economy and at the end of the day would save a good deal of money. A good many people will not have to go to court and be dealt with by solicitors and lawyers. They will already have been understood and dealt with in their own areas. That is extremely important.
I was also delighted to hear that the noble Lords, Lord Mishcon and Lord Meston, are prepared to back the Bill. It is not a party political Bill. It is a Bill which will help in the training of social workers, in the teaching of children and with the dealing of difficult and complicated problems. It is an admirable Bill to which no doubt there will be amendments in Committee. But the principle and the way in which it has been put forward are quite excellent and I hope that everyone will give it support.
§ 4.27 p.m.
§ Lord Simon of Glaisdale
My Lords, I presume to welcome the Bill and to congratulate my noble and learned friend on the Woolsack on his introduction of it. If one could possibly have a cavil, it is that the masterly clarity of that introduction disguises the complexity of many of the provisions of the Bill and invitably tempts one into dealing with Committee points at Second Reading. That being so, I hope your Lordships will forgive me if I deal with just two generalities, the first of which I recognise lies on the periphery of the Bill.
At the outset the Bill says that the paramount consideration in everything the Bill concerns is the welfare of the child. The old phrase was "the first and paramount consideration". That was really a pleonasm, because the "paramount consideration" means that the welfare of the child is more important than all the other considerations taken together, and therefore inevitably more important than any single consideration. I welcome that statement at the outset both as a method of statutory drafting and for its content. It emphasises that the Bill does not deal with a great sphere of our law where the welfare of children is intimately involved. I refer to matrimonial law. In matrimonial law (I think rightly left outside this Bill) there is no question that the welfare of the child is neither the first nor the paramount consideration, and your Lordships' consideration of this Bill may cause you to question whether that is right and whether it should be so.
My noble and learned friend on more than one occasion spoke of the Bill aiming to maintain the integrity of the family or the integrity of family life: he used both phrases. But anybody who heard the debate on home affairs on the humble Address must have been left with the firm impression that much of the evil in our society is due to the fact that we have not given sufficient maintenance and support to the family and to family life.
The other thing I wanted to mention arises out of the Cleveland report and out of the speeches made by the noble Lord, Lord Mishcon, and the noble Baroness who has just sat down. I speak naturally with considerable concern at what happened at Cleveland but also with caution today because some of the matters are sub judice. But there has been one most interesting discussion arising out of the report. 506 Dame Elizabeth Butler-Sloss, after having made the report, put forward the suggestion that it was not necessarily advantageous to anyone to take the perpetrator of child abuse out of the family, out of the community and particularly into prison. All who heard the debate to which I referred last week will, I think, echo that. But it was answered by a sociologist of distinction. She agreed that incarceration was by no means the best treatment but she said that there ought to be prosecution. That is understandable as marking society's reprobation of the conduct concerned.
However, there is an aspect of the family court which might deal with that more satisfactorily. If I may say so with great respect, I shared the view of the noble Lord, Lord Mishcon, that I was not completely clear how far my noble and learned friend was intending to dovetail a system of family court into the various institutions set up under the Bill. Since I put forward the concept of a structure of family court, I have been completely convinced that there are two matters which ought to be part of it. One I do not think is necessarily closely connected with this Bill, and that is that every court of domestic jurisdiction, and certainly every court of matrimonial jurisdiction, should have not only a judicial side but a welfare side and it is only those matters that cannot be dealt with by the welfare side that should have to come for judicial decision.
But there is another aspect. In 1965 the Home Office put forward a White Paper—at least its cover was white: one never knows these days—for consideration called Children and Trouble. That suggested they would best be dealt with in a family council. What was meant there was the extended family, which is known to many systems of judicature and legislature, whereas our system knows only the nuclear family.
I ventured to disagree with that document only in one respect, and that was that the family council was to be presided over by a social worker. I think, on its merits and particularly within the context of this Bill, the family council, or an extended family council, ought to be presided over by a magistrate, with a social worker attending as adviser and consultant. I hope that my noble and learned friend will feel able to say something about how that strikes him because I know that his department has done a great deal of work on the matter of family courts. I have no doubt it will be raised further in the debate because the noble Baroness, Lady Faithfull, is to speak later. Those are the two matters in general which I should like to refer to.
Obviously as your Lordships go through the Bill a great many matters of detail will come up, but I have no hesitation in welcoming the Bill as a whole in the terminology of the noble Lord, Lord Mishcon, for its clarity, for its compendiousness and for the fact that now there is one document to which courts and all others can look for their instruction and information.
§ 4.37 p.m.
§ Lord Campbell of Alloway
My Lords, it is a singular privilege to follow the noble and learned Lord, Lord Simon of Glaisdale, in this debate. He 507 speaks from a wealth of knowledge and experience which I do not possess. At the outset, I should like to thank my noble and learned friend the Lord Chancellor for his clarity of expression in explaining the Bill. I should also wish to associate myself with the noble Lords, Lord Mishcon, and Lord Meston, in their welcome for the general principles of the Bill as a whole. This, as has been truly said by my noble friend Lady Elliot of Harwood, is not a political affair at all. We have to get it right.
As my noble and learned friend the Lord Chancellor truly said, this is in effect but a stage in an evolutionary process of reform in the law affecting children. The main purpose of this stage—this Bill—is to provide a fairer and more effective framework of child care law, with connected purposes. It is those connected purposes on which I should wish to dwell a little because in my view, and I hope it is the view of your Lordships, those connected purposes are the means of implementation of the framework of the Bill as it stands, and we are a little light on those.
The order of reform is cathartic: six enactments repealed and 30 enactments amended. One must accept, as my noble and learned friend the Lord Chancellor accepts, that in this, as in other aspects of the law affecting children, Parliament has ill-served the interests of children. It took 55 years for the maximum sentence for cruelty by a parent to his own child to be increased from two years to 10. That happened a couple of months ago.
As matters stand today, according to the will of Parliament, a child living three miles from school is entitled to free transport, but living less than three miles from school he has no such entitlement and can walk the best part of six miles to school.
Coming to matters concerned with the Bill, and concerned with the child's upbringing, parental status and children at risk, which are all within the scope of the Bill, the judiciary has always softened the rough edges of statute law by wardship and by resort to its inherent jurisdiction.
The provisions of Clause 71 which curtail the judiciary's jurisdiction—I think that the noble Lord, Lord Mishcon, referred to its traditional protective role, and if he did, how I agree with him—and its traditional protective role at this early stage (the first stage of the evolutionary process) warrant critical examination. The noble Lord, Lord Meston, also took the point. I take the point, and, thanks to the noble Lord, Lord Meston, I have no need to quote passages from Lord Justice Butler-Sloss's report which I have in my papers. We are at one on this matter. Clause 71 demands critical examination by all sides of your Lordships' House.
As regards the Bill's practical implementation, within the scope of the "connected purposes" amendments concerned with principle will be tabled: first, to make general provision for the keeping and placing of children in secure accommodation under the authority of the court by introducing a new clause to such effect under Part II and by deleting Clause 21 in Part III, which is concerned exclusively with children looked after by a local authority; in other 508 words, to bring the matter out of the particular in Part III and put it into the general protection of children under Part II. That is a matter which will warrant your Lordships' examination. The purpose of tabling the amendment is to seek to obtain your Lordships' opinion on a matter of principle.
In a slightly different context, provision could also be made for a hospital to inform the local authority of any child kept as a patient for more than, say, two or three months.
Secondly, an amendment will be tabled to include in Clause 36, by the insertion of subsection (9)(i), a provision to ensure that the role of the Official Solicitor in High Court proceedings shall not in any way be affected by the appointment of a guardian ad litem, albeit with legal qualifications, in any inferior court. I raise that point because, according to my information, there is concern that the Bill as drafted might to some degree reduce the status and functions of the Official Solicitor in that regard.
The third matter relates to Clause 69 to which certainly the noble Lord, Lord Meston, referred and, I think, also the noble Lord, Lord Mishcon. An amendment will be tabled to ensure that the rules of court, made by my noble and learned friend the Lord Chancellor, as to which classes of cases shall be tried by which court shall assuredly not be subject to the veto of the executive; that is, the Secretary of State. I shall table an amendment to delete Clause 69(4). I know of no precedent where the executive has held the veto over the judiciary in such a context.
Furthermore, an amendment will be tabled to ensure that the rules of court shall be made by regulations so that, in accordance with Clause 76(2), they shall be laid before Parliament and subject to negative resolution. I listened with attention to what my noble and learned friend the Lord Chancellor said, but there is nothing in Clause 69 to ensure that the regulations, the rules of court or whatever, afford any person interested the right to apply to the specified court for transfer to another court. That could no doubt be a matter of insurance, but I suggest, with the greatest of respect to my noble and learned friend, that that is an entitlement of importance which should be covered by express statutory provision: the right of any person interested to apply to the specified court, for some reason or other, for transfer to another court.
There is a further difficult question. It is a matter for your Lordships. I do not know whether it comes within the intendment of the Bill. If it does, it might come under Clause 51(2). It is a problem with which all your Lordships are familiar: an unmarried mother, often a child herself, with her child goes into a voluntary home. After they have entered the voluntary home, they go out of it into bed and breakfast accommodation. There is then no supervision. The girl may sometimes be 13 or 14 or a little older. Your Lordships all know what goes on and how undesirable it is not only for the child mother but for the child mother's child.
I wondered whether something could be devised—I have been unable to devise it—to protect, deal with, or in some way control that situation in the interests of both children.
509 The hope is that an amendment will be tabled by my noble friend Lady Faithfull and other noble Lords—the noble Lords, Lord Mishcon, and Lord Meston, have spoken about the point and my noble friend Lady Elliot with her great experience also spoke about it—in respect of the absolute need under "connected purposes" in the Bill's implementation to ensure a specific allocation and control of funds for the requisite recruitment, training and protection of the pay structures of social workers. These are the forces on the ground, the infantry in the campaign for the care and protection of children without whose good offices no practical advance may be made or held.
I wish to say this: in the wake of Cleveland ought we not to pay a generous tribute to the sense of dedication of social workers? is it not essential to their morale and status and indeed to the practical implementation of the Bill that Cleveland should be seen only as serving the greater purpose of focusing public attention upon urgent and important problems of nationwide incidence, problems buried in a maze of accumulated legal dust and layer upon layer of unbelievable complexity?
In conclusion, if it took a distinguished lawyer of the calibre of Lord Justice Butler-Sloss, with her wealth of specialist expertise, to set us on the road to reform, assuredly the resolution of the questions before us does not lie within the province of any lawyer, however eminent, and certainly not within his exclusive province.
No doubt our debates on the Bill will afford yet another opportunity to demonstrate that your Lordships' House as presently constituted can render signal service and not only to another place; an order of service which no elected Chamber could conceivably perform.
§ 4.52 p.m.
§ Baroness David
My Lords, I feel rather nervous speaking after five lawyers. However, I shall add my voice to the general welcome given to the Bill. We have waited a long time for it, but 1 should like to congratulate the noble and learned Lord the Lord Chancellor and the Department of Health on the consultations they have held and on the fact that they have listened to what has been said to them and made some changes as a result.
That is in very sharp contrast to the Education Bill with which I was dealing earlier in the year, where there was hardly any consultation at all. Most certainly, those dealing with the education service in this country would not listen to the comments in response to what consultation there was. The result was that the Bill had a long and stormy passage. Therefore I trust that we shall study the Bill in a co-operative and constructive way and that we can make it an even better Bill than it is at the moment.
It is good to have child care law simplified and consolidated. There may be room for even more consolidation later. It is good to have it unequivocally stated that the child's welfare should be the court's paramount consideration. It would be even better if the Bill supported the view of the Cleveland inquiry that:the child is a person not an object of concern",510 by giving the child, where possible, a greater say in what happens to him or her and by emphasising the rights of the child. This could be done by placing courts (in Clause 1) and the local authorities (in Clause 18) under a duty to ensure that, where they are satisfied that the child has sufficient understanding to make an informed decision about the issue in question, he shall be entitled to determine it, unless the court or the local authority considers that his welfare would be seriously prejudiced if he did so. I hope that an amendment on those lines will be favourably considered.
I wish to raise only two points. One concerns the abolition of the absolute right of all children in care proceedings to be represented by a solicitor. The White Paper promised party status to children, parents and the local authorities. It would appear that the representation of children has been traded for financial reasons for the representation of parents.
It is good that guardians ad litem will almost certainly be appointed to safeguard the interests of the child. Since their introduction four years ago they have improved the standards of decision-making. However, in preparing the case for court, guardians ad litem work in conjunction with the child's solicitor. The duty of the guardian is to give paramount consideration to the best interests of the child, while the duty of the solicitor is to represent the child's wishes and feelings. This partnership has been one of the healthiest and most positive developments in our child care law. It could be at risk.
Incidentally, I was very glad to hear what the noble and learned Lord said about the appointment of the panels of the guardians. I think that would be an improvement. It seems that under the Bill a solicitor would be appointed only where there is no guardian ad litem if the child wishes to be legally represented and is of sufficient understanding or where it appears to the court that it would be in the child's best interests for him to be represented. This will mean that in many cases the guardians ad litem will go unrepresented, putting them at a disadvantage with regard to the other parties. The Government recognised that guardians would need lawyers when they withdrew their proposals to make guardians do their own advocacy when they were consulting on the 1984 rules.
There seems an underlying assumption that where adults agree (that is, the family and the local authorities) children may not need independent representation. The reports of the deaths of Maria Colwell and Jasmine Beckford tell us that when adults agree children can be at their most vulnerable. It is not possible to predict when it will be "in the child's best interests"—that is quoting from Clause 36(4)—for a solicitor to be appointed. The only sure way of safeguarding children is to make the appointment automatic.
The second point I wish to raise is about children and young people leaving care. The 1984 House of Commons Social Services Committee's inquiry into child care—the Short Report, it was called—recommended not only that the law on children in 511 care should be reviewed and consolidated but also that local authorities should be placed under a duty to prepare young people for leaving care and to support those leaving care, to quote from the report,in the manner of a good parent".Clause 20 of the Bill, however, only requires local authorities to prepare young people for leaving care and to advise and befriend those who have left care. It otherwise merely simplifies the present rather complicated powers to assist in more practical ways and introduces a new power to make this assistance in the form of a loan.
That follows the White Paper proposal and the recommendations of the interdepartmental review but it is disappointing. One can only guess that the Government's rejection of the Select Committee's proposal was because of resource implications, and resource implications were mentioned by my noble friend Lord Mishcon and other noble Lords.
Each year approximately 8,000 young people leave care. The majority have no suitable family home to return to and therefore have to live independently. The situation facing them has been exacerbated by recent social security legislation which is based on the premise that young people under 25 should continue to be dependent on their parents. In April there were changes to the means tested benefits system and in September restrictions of income support for people under 18 years of age. Many authorities are beginning to identify the potential cumulative effect of these changes and the fact that these will have a significant effect not only upon policies relating to young people in care but especially also upon procedures and practices surrounding discharge from care and care in the community in respect of young adults. There are particular concerns about the eligibility of young people under 18 for community care grants.
There are likely to be considerable difficulties with these young people finding suitable accommodation. Incidentally, there should surely be many more hostels where those without homes to go to can find reasonable lodgings. Some authorities already have leaving care schemes, for example Calderdale which has a maximum grant of £650, the amount being dependent on the length of time the young person has spent in care and what his circumstances are. Other authorities simply abandon young people on their eighteenth birthday and they may well end up on the street. We all know what that can lead to. It can lead to all kinds of temptations which we would surely all want to avoid.
If, as the Select Committee recommended, local authorities were placed under a duty to assist young peoplein the manner of a good parent",they would have a considerable degree of discretion, as do other parents.
According to Clause 20(6), assistance may be given:in kind or, in exceptional circumstances, in cash.That assistance is very unlikely to be given in the present strapped financial circumstances in which 512 local authorities find themselves. If there were a positive duty, it would safeguard the young person against unreasonable neglect and mean that all authorities would have to maintain some kind of leaving budget. I myself think it would be infinitely better if that obligation fell on social security rather than on local authorities. I do not know whether it is possible to bring that into the Bill, but I think that it is the lack of social security help which leads to so many difficulties. But, failing that, I hope that local authorities may perhaps be put under a duty to make some provision to help these people.
Since I wrote my speech over the weekend I have heard that Barnardo's has produced a paper which very much emphasises this same theme of leaving care. Unfortunately, I have not had the time, as I received the paper just before lunch, to read it. But I thought that the introduction was extremely interesting.
I wish to quote the following words:The thing is society places itself in a position where it takes the role of parent. Now most parents don't stop at 18. Society does".Those words came from a young man, aged 20, called Mark who was speaking at Barnardo's annual conference. Those words emphasise very much the point I wish to make which is that young people may be left in a very vulnerable situation when suddenly their care comes to an end and they are abandoned without families to go to. I hope very much that we can do something about that issue when we come to consider the Bill in Committee. Money spent wisely in this way, whether by local authorities or by the Department of Social Security, would save a great deal of money in the future.
§ 5.3 p.m.
§ Baroness Faithfull
My Lords, as has been said by all noble Lords who have spoken, we are deeply grateful to the noble and learned Lord the Lord Chancellor for his very clear summary of the Bill. That was very helpful to us all.
As the noble Baroness, Lady David, said, there was a meeting of voluntary and statutory child care organisations this morning. At that meeting 18 bodies were represented and all supported the Bill. As the noble Baroness, Lady David, further stated, those organisations were grateful for the consultations which have taken place with them and which have led to this Bill. The Children Bill is indicative of insight, sensitivity and sound good sense. It strikes a balance between prevention work and protection work. However, I think it is important to note that it also contains clauses on the promotion of good child care in this country as a whole.
We are grateful to Lord Justice Butler-Sloss, who so ably carried out the Cleveland inquiry. We are also grateful for the inquiries into the deaths of Jasmine Beckford, Kimberly Carlile and Tyra Henry. I mention that because I think it is right to get in proportion the fact that we are not just talking about sexual abuse cases. We are talking about all children who suffer from sexual abuse, cruelty in all its forms and poor child care. We wish to pay tribute to the work of our Ministers, the Law Commission, civil servants and the inspectorate for their input into this Bill.
513 At first I was concerned that the title of the Bill was the Children Bill. I thought that it could have been entitled the Children and Family Bill. However, on reflection it is, as has been said by the noble Lord, Lord Mishcon, a children's charter. It reflects the concept that the well-being of the child is paramount. At the same time, the Bill safeguards the rights of parents and promotes and supports their responsibilities. Those two concepts are inextricably interwoven and one is dependent on the other. The Bill goes some way not only in dealing with the incidence of cruelty and abuse but, as I said earlier, actively promoting the well-being of children. I shall come to that later.
Part III of the Bill has particular importance in that it provides services likely to assist parents to keep their children at home. It assists parents who must go out to work. Unlike other EC countries, our country has as yet no policy for the social and educational care of children under five. I know that the noble Lord, Lord Seebohm, will be speaking particularly on this matter, because I happened to read the outstanding speech he made last week in which that issue was incorporated. I hope that we may hear the contents of that speech here again in your Lordships' House.
The Department of Health and the Department of Education and Science are beginning to acknowledge the importance of the years nought to five. To that extent both Ministries have given money towards the setting up of a research unit at the National Children's Bureau to look into the needs of children under five. But there are some very worrying situations here. For example, the Ministries do not seem to be working in concert with one another.
I believe it was last week that The Times printed an article which stated that the Home Office was to undertake responsibility for children under five of working mothers. I must be careful here because I have not checked this with the Home Office. Unfortunately, as the article was written in the newspaper, the thing that came across as being of greatest importance was the fact that mothers should be able to work for the sake of businesses and commercial enterprises. At the end of the article, just as a little aside, it was stated that the children had better be cared for.
I think that it should be the other way round. The emphasis should be on how children can best be cared for, and how this will then enable mothers to go out to work without their children being hurt emotionally in any way. I hope that when we talk about the promotion of a better structure in our society we shall take that into account. I hope also that the Ministries will be able to work together on that matter.
We are in some difficulty here because we would like that matter to be included in the Bill. As I think has been mentioned by one noble Lord, many of us feel that the nursery and childminders legislation should be repealed and something better put in its place in this Bill. However, I feel that that matter will need very careful consideration, perhaps by a committee set up to look into the needs of children under five, so that in this country for the first time 514 there will be a policy with regard to the care of children under five.
Other countries within the EC have policies, and their policies are good ones. We could learn from them. While I am on this issue I wish to mention one last point. The noble Lord, Lord Seebohm, will be speaking on this matter. My point is that if we are seeking women in order to swell our workforce—I believe that is one of the intentions of the Home Office—we must realise that children need unhurried time and sensitivity in their pace of life. That must be taken into account when considering mothers working and running their homes.
I wish to speak on Part IV of the Bill on the question of a multidisciplinary assessment. It was pointed out in the Cleveland report that there was no co-operation between the various different people playing a part in the child's life. That was one of the leading points made by Lord Justice Butler-Sloss. It is said by many people that it is good practice to hold a case conference before action is taken on a child in any particular instance. That case conference should concern the teacher, the health visitor, the doctor if possible, a paediatrician, the police, the probation service, and so on. It is good practice.
In local authority social services departments throughout the country case conferences are held, but that was not done in Cleveland. Therefore, although it is general practice I believe that it has to be written into the Bill that before a case is taken to court there should be a multidisciplinary assessment. I also believe that the local authority solicitor should be present at such case conferences, and the guardian ad litem.
Furthermore, although the Department of Health has sent out very good circulars to all those concerned, such circulars go to different departments which have different management structures. For instance, I imagine that the circulars go to the general practitioners' committee for general practitioners, and to the department of education for education welfare officers; I imagine that they go to the social services department, and so on. While the information is sent out in circulars it goes to different people who are subject to different management structures. Therefore I believe that very serious consideration should be given to including a clause in the Bill making a multidisciplinary assessment obligatory. I put that to your Lordships' House.
Other noble Lords have mentioned the value of the guardian ad litem system. I hope that in the appointment of guardians ad litem we shall consider older people who have had experience of social work, people who have training and people who will not want to be social workers in social services departments. We do not want the guardians ad litem to cream off the social workers, because where would we be then? I think that we should consider guardians ad litem as people of maturity, experience and training.
Other noble Lords have spoken about the structure of the guardian ad litem system. At the moment it is almost a home industry, if I may put it that way. A number of guardians ad (item work from their homes; they do not work from an office or with a 515 number of other people with whom they can discuss matters. I believe, as I think other noble Lords believe, that the guardian ad litem service needs to be organised into panels or offices of some kind, perhaps under a chief adviser or co-ordinator. Such a policy would give a consistency of service throughout the country which does not exist at the moment.
I should like to make a further point, which I believe has been mentioned by the noble Baroness, Lady David. Can we be given an assurance by the noble and learned Lord the Lord Chancellor that a child will not be removed from his or her home unless there is no other way of safeguarding the well-being of that child and that the order which is proposed by the court is the most effective means available for safeguarding the child's welfare?
In that connection perhaps I may ask the noble and learned Lord whether he does not agree that wherever possible and practicable a child should not be separated from the mother. I believe that if a child is very unhappy or has been poorly treated or abused, perhaps by the father, the boyfriend or the man she is living with, to remove the child from the mother is a second abuse. I have felt all along that we ought to work as far as possible not to separate children and mothers unless the mother is implicated or she cannot cope with the situation.
I have to say that I realise, looking back, how extraordinarily fortunate I was when I worked in Oxford to have four units of empty accommodation available. It was possible to go to a mother or a family, making no allegation against the man who was the alleged abuser because that would have been quite unjust, and to suggest that while the matter was under consideration the man might wish to leave the matrimonial home. However, if the tenancy of the house is in the man's name why should he leave the house, particularly as he may say that he wants to plead not guilty? Nevertheless, in the cases in which I interviewed the men they generally left home at once—I do not know what I did to them—and the mother was left in the home with the children. I was also very fortunate in that the local children's hospital had two units of accommodation in the form of empty flats. If we were concerned about a mother's mental health or that she might be worried we were able to offer her accommodation.
This Bill does not seem to emphasise the need to keep mothers and children together where possible and practicable. One of the difficulties is the question of tenancy. If the tenancy is in the man's name there is no reason why he should leave, though I have to say in fairness that many men do.
I turn now to the question of the training of social workers, and I know that I shall get hot under the collar about it. I believe that the subject has been mentioned by almost every Member in your Lordships' House who has spoken. I am bound to say, as I have said before, that up to 1970 social workers received a general social work training of two years. Training in law, the noble and learned Lord the Lord Chancellor will be glad to hear, at that time was very good. We usually had a law lecture each year for two years and had to write an essay. 516 That was quite something. Social workers then worked in the field under supervision and later went on to do a further year's training, either in mental health or child care or working with the elderly and disabled. Ultimately it was a long training but with practical work in between.
Training is not like that these days. It is not up to those standards. Tributes have been paid, particularly by the noble Lord, Lord Campbell of Alloway, to the work of social workers. It is amazing that they can do what they do with so little training. In the interests of society, in the interests of children and in the interests of this Bill I believe that it behoves this country to see that social workers are adequately trained.
I should make one last point. When one discusses a case with colleagues and one knows that one is less well trained—I do not know whether that is what happened in Cleveland—one tends to give way to them because one has the feeling that they know more. However, if one has had good training one feels on an equal footing with one's colleagues. On many occasions I have been called out at night with the mental health doctor and have been able to argue with him simply because I was fortunate enough to have had good training. It is only if one has had such training that one is on an equal footing with one's colleagues.
I implore Her Majesty's Government to look into the whole question of training, which I know they are doing. Personally, I am not quite sure that the Treasury is willing to provide money for training but I believe that it will be a great loss if it is not done.
Perhaps I may finish by asking the noble and learned Lord some questions of which I have not given notice. The first of them has already been asked by other noble Lords; namely, when will the Bill be brought into force and when will it be brought in in its entirety? I ask that question with great diffidence because I am frightened that if I say why I want the money the Treasury will reply, "We shall bring in this part of the Bill and that part, but not this part of it". Over the past three or four years, or perhaps even longer, services to vulnerable children in this country have diminished. Children's homes have closed, local authorities do not send children to voluntary organisations, which can give superb service, and the children ultimately arrive in youth custody centres.
In our city of London there are parents who have asked for their children to be taken into care because they are unable to manage them, but the local authority has had to refuse because the facilities are not available. The facilities for vulnerable children have been run down and we shall have to build them up again. I dare to say that that will require resources. Will they have to come from the local authorities with their present budgets or will extra money be made available to build up those resources?
There is much else to say. I merely point out that even in the Financial Times it is recommended that money should be spent both on resources and on training social workers. Other noble Lords will follow me, but I make one plea in particular: that this very good Bill should not be spoilt because it cannot be properly administered.
§ 5.23 p.m.
§ Lord Seebohm
My Lords, I remember the noble and learned Lord the Lord Chancellor saying on 24th November that this Bill,will he a major overhaul of child care law to provide a fairer and more effective framework".—[Official Report, 24/11/88; col. 104.]It certainly is. I think that it is a very good Bill. It is a great pleasure too to take part in a debate in which there is neither undertone nor overtone of party politics. Nevertheless, as a layman I must also say that I find the Bill very complex. It has to be read in conjunction with previous legislation. I hope that before long there will be a consolidating Bill to make life easier for those who have the task of implementing it in their daily social work and also for those who are responsible for training. I need not mention again the problem of training, so clearly adumbrated by the noble Lord, Lord Mishcon. The remarks of the noble Baroness, Lady Faithful, were also most pertinent.
I do not propose to discuss the legal details of the Bill. Other people more competent than I have already done so or certainly will do so. There is however one aspect of the Bill which I find unsatisfactory. My concern has long been for services to the under fives. Part III of the Bill places a general duty on every local authority,to safeguard and promote the welfare of children within their area who are in need; and, so far as is consistent with that duty, to promote the upbringing of such children by their families".In defining those in need the Bill states:For the purposes of this Part a child shall be taken to be in need if—That is fine. It would have my full support if I thought it possible to discover and identify more than a modest proportion of those who are in need. In my view—and it is the view of many others—these services are needed by the great majority of children who, at various stages in their early life, should have access to day nurseries, play groups and, later, preschool education. Where needed, they should also have access to guidance services and so on.
- (a) he is unlikely to achieve or maintain . . . a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
- (b) his health or development is likely to be significantly impaired . . . without the provision for him of such services; or
- (c) he is disabled".
Twenty years ago the Committee of Local Authority Personal Social Services, which I had the honour to chair, pointed out the grave deficiencies of those services, saying:The need for day care does not arise from the fact that the parents are working. Of those who do not go out to work there are many mothers with their children who are, or feel, socially isolated, and others, particularly mothers with large families, who need respite from the constant care of several infants. The children involved often lack space to play freely and safely and they need opportunities for mixing which may be denied in overcrowded or isolated households. For play is life to young people and the means by which they learn".One may say that that was 20 years ago and that things are better now. I must therefore draw attention to what Gillian Pugh, a research worker with the National Children's Bureau, writes in her excellent book Services for Under Fives, published just a year ago:There is no statutory obligation on local authorities to provide pre-school services, and as a result services over the country have 518 developed in a haphazard and unco-ordinated way and are often in short supply . . . The Plowden Report of 1967"—which appeared only three or four months before the Seebohm committee sat—accepted for the first time the principle of nursery education on demand, recommending that it should not start uitil the age of three and should be part time".I thought at the time that that was a fairly modest requirement.
In the 1972 White Paper entitled Education: A Framework for Expansion, the report was accepted. The White Paper recommended the provision of nursery education for 50 per cent. of three year-olds and 90 per cent of four year-olds. That vision was shortlived. The 1980 Education Act removed from local authorities any obligation to provide nursery education and emphasised the discretionary nature of the service. The 1981 Education Act imposed a statutory requirement on local authorities to provide that service but only for children assessed as having special needs. That is the case too under Part III of the Bill. In 1986 the patchy nature of the provision was most marked. Gillian Pugh has pointed out that whereas Hounslow provides nursery education for 66 per cent. of its children of three and four years of age, in 18 other local authorities only one in 10 obtain places.
My point is that most children need day provision but do not get it. So we are still looking at cures and not causes. I am sure that the legal framework we are considering today is a great step forward. However, to continue to limit day care to those in need as defined in the Bill ignores the well researched recommendations of two government approved committees 20 years ago and more recent authoritative reports, which show sad lack of progress. I believe that further legislation or alteration to the Bill is urgent. It may require a Bill leading to another Education Act. I do not know. However, I believe that something has to be done.
I remember only too well 21 years ago sitting round a table with my committee and talking to four or five highly qualified psychiatric doctors who told us that the age from birth to five years was the character forming period which affects children throughout the whole of their lives. The point I wish to stress today is that we do not know which children are in need. I believe that they are all in need.
§ 5.30 p.m.
§ Baroness Strange
My Lords, we must all welcome this Bill which is long overdue, doing away with seven outdated statutes, clarifying and simplifying new ones, which must surely be a benefit to us all. Not only does the Law Society welcome the Bill, but it is anxious, as are we all, that it should be implemented as soon as possible. Only yesterday I heard of an innocent baby dying after being physically maltreated in her own home. Cases such as these fill us with such horror and revulsion that we feel they must never be allowed to recur. On the other hand, we do not wish to cause unnecessary disturbance and distress both to children and their parents, as happened in Cleveland when some children were taken into care who should not have been. There is a very fine line between these two extremes along which 519 this Bill is seeking to tiptoe. In the felicitous phraseology of the noble Lord, Lord Mishcon, the Bill is indeed a children's charter.
Having already stated how important I believe the system of the family courts to be, such as we have in Scotland with our children's hearing, I am sorry that there is not a direct provision for them in this Bill, although I believe that Clause 69 goes some way towards this system with increased powers to my noble and learned friend the Lord Chancellor to specify which particular courts are to have jurisdiction, and with the removal of criminal connotations. That is a very worthwhile step in the right direction and, with other noble Lords, I welcome the noble and learned Lord on the Woolsack's broad hint that it is only a step in a progression.
I do not go so far as Ruskin who thought that,The first duty of a state is to see that every child born therein shall be well housed, clothed, fed and educated till it reach years of discretion".The first duty of a state must surely be to defend its borders, its laws, its institutions and its people from all enemies, both physical and spiritual. Without that defence there would be no state. Having said that, I would agree with Ruskin that the care of our children must be a prime priority.
Within each child is the person he will one day become. Inside each of us is the child we once were. All of us who had happy, secure and loving childhoods have much for which we can thank our parents and all those who brought us up. If we can continue to give the same love and security to our own children and help others in our land to do so also, we shall be building for ourselves a strong, good and powerful nation for the future.
§ 5.34 p.m.
§ Lady Kinloss
My Lords, I should like to congratulate the Government on the rapidity with which they have produced the Bill so soon after the Butler-Sloss report. Perhaps I may also say how pleased I am that the noble and learned Lord the Lord Chancellor has introduced it.
Broadly, I welcome the Bill very much in that it codifies and extends child-care legislation. It provides an acceptable framework for it which I trust will prove durable for many years to come. I welcome the general statement of principles at the beginning of the Bill and in particular the opportunity now provided for unmarried fathers to acquire parental responsibility.
I note that the press has estimated that 40,000 children are currently registered as suffering or potentially suffering abuse in this country. It is particularly welcome that every local authority is to be required to open and maintain a register of disabled children within its area. It will be important to see, when this comes into operation, how many more children will be thus registered.
It seems to me that the Bill strikes a good balance between children's and parents' interests, and the rights and duties of parents, and, above all, provides that the child's welfare is to be regarded as paramount.
520 I welcome the provisions for emergency protection orders and that parents should have proper rights for making representations to the court, and for having reasonable access to their children.
In spite of my general welcome, there are several issues which cause me anxiety which in due course I look forward to hearing the noble and learned Lord set at rest. In Part III parental duties for those children being looked after by local authorities are not defined. Again, in the same part, solicitors for children can be appointed only by a court. That appears to me to deny the right of children to legal representation as of their own right.
I much regret that there is no mention in the Bill of family courts. This rather surprises me, because in Scotland—with its fundamentally different legal system—such courts have been a success for the past 20 years or so. Perhaps I may ask the noble and learned Lord why it has not been thought fit to learn from Scottish practice and to apply the knowledge gained there to England and Wales. Like the noble Lord, Lord Mishcon, perhaps I may also ask the noble and learned Lord to explain what he said. I apologise if I misunderstood him, but I thought he said that there was no call for them yet.
There are two further matters on which I feel anxiety. Resource implications are under consideration by the Government. Many of the encouraging features of the Bill can be introduced successfully only if local authorities have sufficient resources. Local social services departments have found all too often in the recent past that Government have expected them to make far-reaching changes without providing additional resources. Pressure on these departments from childcare duties has meant that additional resources have had to be deployed at the expense of the curtailment of services to other client groups. Again, the Bill's provision can be successfully implemented only if good quality systematic training is provided to all those who will be responsible for carrying it out. Without such training the Bill, with all its good intentions, will be nothing but a dead duck.
Social workers in field, residential and day centres will need specific training over and above their basic qualifications and preparation. I say this after consultation with the Chairman of the National Training Committee for the Association of Directors of Social Services who is the director of social services in the county of North Yorkshire where I live. The director of the sub-committee for children and families—a sub-committee of the Association of Directors of Social Services—feels that specific and specialised training could be difficult for social workers if they are to carry on with their day to day work. Perhaps exta staff will be needed, thus leading to extra financial strain.
I return to Part III with particular reference to Clauses 15 and 16. There is evidence that certain local authorities have closed down their day care facilities. I understand that they have done so because it is a fairly easy way to save money, in particular if the local authority has been rate-capped. I do not think that that was intentional on the part of the Government, and it seems to me that this aspect of the matter needs to be looked at most carefully again.
521 It appears that certain local authorities have interpreted the Education Act 1988 somewhat over literally for children with special needs. I refer in particular to those children who may be deaf or blind. Those children are being sent to schools where there are suitable classes for them but because of their individual home backgrounds they receive little or no support from their parent or parents. In such cases boarding schools for their specific needs might seem far more appropriate, but again that is expensive for local authorities.
Clause 16 appears to enable local authorities to have some loopholes. It should be a duty on local authorities to look after the children in their authorities. Some local authorities would like clarification of what "in need" means and how a local authority will be expected to determine those in need. What about children in bed and breakfast accommodation? They are surely a case of "special need". Moreover, Clause 22(3), dealing with complaint procedures, gives cause for concern to those who have profoundly handicapped children in their care.
Perhaps those two points, and many others, are more suitable for discussion in Committee. I shall mention only one further point. Schedule 2, paragraph 13, seeks to promote contact between a child and his or her family when a child is being fostered or is in a residential establishment. It empowers local authorities to make payments to parents to cover travel costs and so on in order to visit the child. I should be glad to know whether "residential establishments" are held to include hospitals. Many local hospitals are being closed with the result that the children are more likely to be in regional units and so some distance from the parental home. Thus some parents could find the cost of visiting children in hospital prohibitive. I hope that that point may also be considered with sympathy.
§ 5.40 p.m.
§ Lord Irvine of Lairg
My Lords, this important Bill merits the balanced response it has received from these Benches and elsewhere in the House. We welcome much in it that is good but deprecate what concerns us as possibly bad. My party's concern for child care is long established. A Labour government were responsible for the Children Act 1948 which provided that local authorities' decisions concerning children in their care had to be taken so as to foster the welfare of the child. In 1969 the Family Law Reform Act extended the ancient, highly valued jurisdiction of the High Court in wardship cases. It enabled the High Court in proper cases to commit a child to local authority care. In the same year there was the Children and Young Persons Act. Approved schools were abolished and community homes established for children in care.
The next Labour government brought forward the Children Act 1975 containing many beneficial reforms. It prevented the wrongful removal of children from foster care by unfeeling parents and others through the introduction of custodianship. There was also the humanitarian change that children could be freed for adoption before placement with a new family; this avoided the 522 anguish of a child's removal from a new home because an adoption application failed.
It is from this background that we are ready to welcome generously what is beneficial in the Bill. That does not require us to be silent about the provisions of the Bill which we are concerned will devalue the quality of hearings affecting the welfare of children. Let me list some of the principal benefits of the Bill, observing that these will either involve no money or that the cost will be met by savings elsewhere. It is right for example that the prize of custody, with the attendant right to control the child's life, should go and that it should be replaced by the new residence and contact order. However, too much should not be looked for from a change of name. The unreasonable divorced parent will continue to be unreasonable and the reasonable, reasonable, whatever the change of name.
The improved rights of parents to have regular access to their children in local authority care are welcome; they cost nothing. We welcome the enhanced rights of fathers of illegitimate children. We observe that those rights likewise will cost no money. Where new money will have to be expended, often it is not central government that will foot the Bill. The provisions of Part III are an elaborate exercise in passing responsibility away from central government. A broad range of facilities for needy children are to be made available by local authorities, but with no help from central government. Local authorities are required to,facilitate the provision [of the services] by others".So, although represented as progressive reform by central government, this is a comprehensive exercise in passing down responsibility to others and to voluntary bodies in particular.
The provisions of the Bill which cause great concern, however, are those whose purpose is to save money at the expense of the quality of proceedings that affect children's lives. Broadly, in the compulsory care field, the present position is that a local authority can invoke the ancient wardship jurisdiction of the High Court in difficult cases. Parents' access to this beneficial jurisdiction has been restricted by three decisions of your Lordships' House in its judicial capacity—restrictions which called down criticism from the European Court of Human Rights and resulted in substantial damages against the Government. One solution which should be considered is to put down amendments to throw open the High Court both to local authorities and parents in wardship proceedings.
Your Lordships will recall the growing alarm—many have referred to it—last summer following the removal into care of large numbers of children in Cleveland. It has to be remembered that it was the High Court in its wardship jurisdiction that brought swift, objective and expert investigation to bear on this problem. It ensured the immediate return of children to their parents when that was the proper course. So it was to this ancient and strong jurisdiction that the pleas of the parents were addressed after they had been rejected both by the local authority and the magistrates.
It is to the credit of Cleveland that it submitted to this jurisdiction. If it had not, the parents could not 523 as of right have had the merits of their cases considered by the High Court. The general effect of these three decisions is that the High Court must decline jurisdiction unless the local authority consents. It is for consideration whether the proper remedy is to liberate the High Court from these restraints so that it can deal with these cases either at the instance of parents or of the local authority.
What the Bill does by Clause 71 is to restrict, and, I fear, in practice to abolish access by local authorities to the wardship jurisdiction of the High Court. If that is right, equality is created not by granting equal access to the High Court's wardship jurisdiction but by denying access to it. I have not ignored Clause 71(4). In Committee we intend to open up the clause to critical analysis to demonstrate that in practice it will have no real content and so, in substance, the High Court's jurisdiction will be ousted in care cases.
Some candour is to be found in the explanatory memorandum to the Bill which states that,There will be savings from the transfer of most local authority wardship applications to care proceedings in lower courts".My concern is that for the word "most" we should read "all" or "practically all". One asks therefore: why is the High Court's wardship jurisdiction effectively being sidelined? It is always revealing to trace ideas back to their source. The source is not the Law Commission, not the Government White Paper, and especially not the report of the Cleveland committee chaired by Lord Justice Butler-Sloss which was emphatic, as the noble Lord, Lord Meston, reminded us, that wardship should continue to play a role in care proceedings. The report also made the point, as I have, that parents should have the right to initiate wardship proceedings.
The source is as obvious as it is depressing. The Treasury thinks that money can be saved. Ministers have made no secret of the fact that any extra costs resulting from the Bill will be offset by savings achieved in the use of the High Court's wardship jurisdiction. Is that not a false economy? It cannot be said too often that we all have one childhood only. Today's abused children can too easily become tomorrow's abusing parents.
I believe I heard the noble and learned Lord the Lord Chancellor say that under the new dispensation, appropriate complex cases will continue to benefit from the High Court's wardship proceedings. That is an undertaking that we shall be concerned to clarify in Committee. We wish to understand fully what the noble and learned Lord anticipates will be secured in practice. Allied to this restriction, if not ouster, of the wardship jurisdiction of the High Court, are the new procedures to which other noble Lords have called attention for determining where care cases are to be decided.
I fear that the thumbprints of the Treasury are all too visible upon Clause 69. This provides that the noble and learned Lord the Lord Chancellor may, by rules of court, require particular cases to begin only in the county court or only in the magistrate's court. What is more, even the noble and learned Lord does 524 not have a free hand. He must secure the agreement of the Secretary of State before making any such rules. That is provided in Clause 69(4) to which the noble Lords, Lord Meston and Lord Campbell of Alloway, have already drawn attention.
I was heartened to hear the noble Lord, Lord Campbell, indicate that an amendment will be tabled to the effect that the rules will not be subject to the veto of the Secretary of State. So far as I am aware, he rightly described it as being unprecedented. It is as unprecedented as it is unexplained, and I shall be interested to know the reason for the veto. I am sure that I should he able to tell from the Bill, but I am unable to identify who is the Secretary of State whose agreement must be secured before the rules of court may be made. Is it one Secretary of State—perhaps the Secretary of State for Social Services—or more than one Secretary of State? Information will be welcome on that issue.
We fear that the ultimate decision on where these critical cases concerning children are decided will be made not by Parliament, not by the judges regulating their procedures as they think best in the interests of children, not even by the noble and learned Lord the Lord Chancellor, but by the Secretary of State, whoever he may be.
I predict that hereafter the vast majority of such cases will be directed to the magistrates' court, some to the county court and scarcely any at all to the High Court. We shall look with great care at the amendments tabled to the Bill which I believe I heard the noble and learned Lord say he envisages being brought forward in this context.
I hasten to add that we on these Benches, like noble Lords elsewhere in the House have the greatest respect for the voluntary work of the magistracy and for the system of lay justice, particularly in the criminal field. However, care cases are very different. They are often lengthy and rightly so. Perhaps the noble Baroness, Lady Faithfull, will permit me to borrow her graphic expression, and I do so not only in the context to which she referred in her notable speech. Children need "unhurried time".
Care cases frequently occupy three or four continuous days of court time. There is often complex and conflicting paediatric and psychiatric evidence. It must be tested by cross-examination and carefully evaluated. That is no luxury: it is done in order to secure the right future for the child. The decision may involve the permanent severance of any connection with the child's parents. It can result in the child being grafted on to a new family, taking a new name as an adopted child. The judges of the Family Division command the confidence and respect of all parties—losers as well as winners. I repeat that that is not to say that the magistrates would not give themselves conscientiously to such cases—of course they would. However, they would be the first to acknowledge how acutely difficult such cases are, and the special expertise and evaluation of expert evidence for which they call. But also—and this is so important a point when public confidence is uniquely in issue—magistrates do not generally give their reasons in such cases. They can be compelled to do so if an appeal is desired. Meanwhile, the decision 525 applies without reasons; although when they emerge the decision may be seen not to be tenable. How can the parties have confidence in the decision, or know whether they should appeal, without first knowing the reasons?
The High Court's decisions are meticulously reasoned. They are of the quality required by the crucial importance of such cases. It may be said that the High Court is a Rolls-Royce system, but I say that in crisis that is what our children deserve. The costs are recouped overwhelmingly in better citizens. In Committee we shall be looking with the greatest care to discover what is the real role which is intended to remain for the High Court in care cases.
§ 5.55 p.m.
§ Baroness Macleod of Borve
My Lords, in my view the Bill has been touched with the wisdom of Solomon. We have heard from my noble and learned friend the Lord Chancellor, with his perspicacity and powers of prognosis, what we are to expect from the Bill. I listened with tremendous interest during the 31 minutes that he took to explain this vital Bill. It is a milestone in child care and there has been a need for it to be brought before the country for a long time. It changes a great deal but it does not change the fundamental care that we have, should have and hope to have for all our children. It states that the child is paramount and that the child's wishes are also paramount. That is vital.
Many words of wisdom have been spoken in this House this afternoon. I shall not try to emulate them because the night is getting on and your Lordships have other business to deal with. I shall merely comment on some of the ideas which have been put forward. With my knowledge as a mother, a grandmother, a magistrate, and so forth, I believe that it is one of the best Bills that has come before this House during the 17 years of my membership.
I used to sit in the juvenile court and I am pleased to see that in future such cases will be heard by the domestic court, in which I also sat. I am pleased to see that the fathers of the children will be taken into consideration, whether or not they are married to the mother. So often the court makes an order that the father shall support the child. Whether he does so does not often fall within the jurisdiction of the court. The fathers leave the court having been told that they must pay for the child but they consider that they have little access and rarely see the child again. I believe that to be fundamentally wrong because the father is as much a parent of the child as is the mother. Therefore I welcome Clause 4.
The noble Lord, Lord Meston, asked about the emergency protection order, and I should also like to query that. I believe that those who make the emergency protection order, and the time taken to serve it, are vitally important matters for the child. Therefore, perhaps my noble and learned friend could furnish me with an answer to that. As one noble Lord rightly said, the domestic panels will need more training than they already have, though in my experience they are nearly always made up of married people and also of parents. I believe that they should always be made up of parents.
526 The noble and wise Lord, Lord Seebohm, talked to us about the under-fives, who are also one of my priorities. I am very glad that the Government have taken up that matter. In emphasising this point the noble Lord, Lord Irvine, seemed to think, I hope wrongly—and I am almost certain that he is wrong—that money will come into it more than the care of the child. I am sorry that he is not here, but he emphasised and re-emphasised tha.: money was to be very much at the forefront of the Government's thinking.
As regards the under-fives, the noble Lord, Lord Seebohm, put the case very much better than I could. However, unmarried mothers of children under five live a particularly difficult, stressful and unhappy life. My noble friend Lady Faithfull reiterated that in her brilliant speech. Mothers of young children are with them all day and all night. Those children are not always good; they have tempers, and so on. Tempers in the family become very strained and sometimes there is friction. As we know only too well, the stepfather or perhaps the boyfriend of the mother becomes jealous and fed up with the child and there is then trouble in the home.
I believe that the guardian ad litem is a very important post. As my noble friend Lady Faithfull said, they should be independent people. As I am chairman of the National Association of Widows I feel very strongly that some widowed mothers might be very good guardians ad litem, but independence of the local authority is one of the most important factors.
In all those matters and in the implementation of the Bill, time, as other noble Lords have said, is of the essence; not only time in bringing the Bill forward and implementing it but also time in courts; time, as other noble Lords have said, where the parent or parents are worried about what will happen to their child. I wish that I was still chairman of my domestic court because on its behalf I should have liked to say that the magistracy, if it is to be the first court to hear the cases of problems within the home, will sit well into the night to solve the problems of small children and their future. I say that although I do not now sit in the domestic courts.
This Bill is vitally important for future generations. I believe that it is the most important Bill to which I have had the privilege of listening in your Lordships' House, and I certainly wish it well.
§ 6.4 p.m.
§ Lord Banks
My Lords, I begin my remarks by agreeing with the noble Baroness, Lady Macleod of Borve, when she says that this is an important Bill. I believe that the House will agree that we have had a useful debate this afternoon in which we have heard a variety of points of considerable interest which will no doubt influence the future development of the Bill as it goes through the House. The Bill has been generally welcomed. My noble friend Lord Meston made it very clear that we, on these Benches, fully support it even if we have a reservation or two about some of the many propositions contained in it.
This is a very comprehensive measure replacing seven Acts of Parliament in a single regime of law. On 527 these Benches we have one major regret about it; that is, that we have not yet arrived at a situation where there is established a family court. We are not quite clear whether the provisions contained in the Bill, that is, the new flexibility with regard to the particular court in which a case is started concerning arrangements for transfer between different courts, is in lieu of a family court or whether it is preparing the ground for it. I am encouraged to believe from what the noble and learned Lord the Lord Chancellor said this afternoon that it is the latter but at present we do not know and we shall be looking very closely at that matter.
The Bill secures a balance between parents' responsibilities, children's rights and social workers' duties. The report of Lord Justice Butler-Sloss has undoubtedly been influential in determining the provisions of the Bill even though it has not been accepted entirely, as is evidenced by the fact that there is no office of child protection in the Bill. However there are many things in the Bill which seek to do that which the report suggested might be done by that office.
I should like briefly to mention four points which have been touched on by other speakers but on which I believe it is worth spending extra time. Clause 20 puts a duty on local authorities to prepare young people who have been in care for independence. It is not clear whether that would include housing. I very much hope that it does. However, the principal point which I should like to make is broader than that. It seems that the responsibility for income support is moving from social security to the personal social services; that is, income support for those people who have been in care.
As the noble Baroness, Lady David, mentioned, it is rather interesting that Barnardo's has today issued a statement in which it says that young people leaving local authority care are finding it difficult to survive under the new social security regulations. At the same time as there is that feeling on the social security side, there is the special provision on the personal social services side and there seems to be a shift from one to the other. I agree with the noble Baroness, Lady David, that that shift is not altogether desirable and it would be better to keep the financial provisions under one hat, as it were, and to keep the other provisions separate from that.
The second point I should like to make is in connection with guardians ad litem. At the beginning of our debate this afternoon, the noble Lord, Lord Mishcon, stressed the importance of the independence of the guardian ad litem. The Law Society and the National Childrens Bureau have issued statements making that same point. There seem to be worries that this is an area which should be looked at. Perhaps the noble and learned Lord the Lord Chancellor might say something about that in his reply.
The noble Baroness, Lady Faithfull, and the noble Lord, Lord Seebohm, referred to the under-fives. The Bill merely gives a power to local authorities to deal with this matter—a general provision for those children under five. It is not a duty so they do not 528 have to do anything and I am inclined to fear—perhaps I am taking a slightly more pessimistic view of this aspect than the noble Baroness, Lady Macleod of Borve—that nothing much is likely to change for the under-fives; that is, those who are not marked out as being in need although as I believe the noble Lord, Lord Seebohm, said, all children under five are in a type of need.
My fourth point is that made by my noble friend Lord Meston, and by others, on the doubt which exists about whether children are to retain full party status in the proceedings resulting from this Bill. Perhaps that point can be made clear beyond doubt.
In conclusion, I return to the point concerning resources mentioned by my noble friend Lord Meston, the noble Lords, Lord Mishcon and Lord Campbell of Alloway, and others. They stressed the fact that this is basic to the success of the Bill. Between £4 million and £11 million is stated as the likely cost of the provisions in this Bill. Compared with the £150 billion that we spend each year that seems to be a very modest amount. The question is whether it is too modest. New duties are being put on local authorities and they have to take preventive measures. We are all agreed that there is a need for training, particularly training in co-operation between different services. There are many new orders and it is possible that when the Bill becomes law there could be at the outset a rush in the demand for these new orders. The question is whether the lower courts can cope with such a rush. Some of them have great difficulty in coping with the present burden and if they are to cope with a larger burden they will need resources.
I believe that it is the case that in some areas the Law Society will only deal with legal aid matters on the telephone if they are really urgent. They have to be left if they are not of immediate urgency. Delays may result in the long run.
The provision of resources will determine when the Bill is implemented. I believe that it is true that some sections of the Child Care Act 1975 were not implemented before they were repealed. Clearly, we do not want a repetition of that situation. Therefore, what I am saying—it has been said by others but it needs to be said again and again—is that in the long run resources will determine whether the Bill is the success which we believe it deserves to be.
§ 6.14 p.m.
§ Lord Ennals
My Lords, this has been a debate of high quality, and happily entirely on non-party lines. That augers well for the remaining stages of this important Bill. It is a great relief to me that we are not arguing across the House, but that all of us are arguing in the interests of children.
We have a unique opportunity to carry out a much-needed reform of child care law. Of course, many people throughout the country will say, "And about time too". In fact, I thought that the noble Baroness, Lady Strange, virtually said that. However, it must be done well in law, in practice, in resources and in training. If we carry through what looks like a good law but do not put the resources behind it, we shall not be forgiven. We cannot carry 529 out the terms of a Bill like this, or a law as it will become, unless we are prepared to back it up with the resources and training that are clearly needed. It will be a long time before we have another opportunity for a fundamental change in our law and we must get it right now.
I had the privilege and was fortunate enough to be a Member of the House of Commons Select Committee during 1982 and 1983 when all the evidence was taken on which the report was produced after the 1983 election. It came out on 24th March 1984, but the conclusions were based on the evidence taken when I was on the committee. Although time has passed, the timing of this Bill is apposite. In my view, it is essential that we should have the considered views of some of the most recent reports—I have in mind the Cleveland report and the admirable presentation of that report by Lord Justice Butler-Sloss. We are grateful to her for that report as well as to those who produced the reports on Jasmine Beckford, Kimberly Carlile and Tyra Henry. Indeed, we are also grateful for the reports of the Law Commission, the Lord Chancellor's Office, the White Paper in January 1987 and, as I said, the Select Committee itself which, after all, set in hand this overall review of child care law.
Doubts and some concern have been expressed that the Bill does not implement the recommendations on family courts. I agree with that concern. I recognise that there are a number of clauses which acknowledge the need for changes in the structure of courts and the combining of family and child care legislation. However, in common with the noble Lord, Lord Banks, and others who have spoken. I am not clear whether we have been provided with a substitute for family courts or are paving the way for some later legislation. I hope that this can be tidied up not only in the information which I hope the noble and learned Lord the Lord Chancellor will give us but by the debates that will take place during later stages of the Bill.
One of the most powerful conclusions that I reached when serving on the Select Committee and I visited Scotland was the benefit which came, as the noble Baroness, Lady Elliot, said, from the atmosphere of the family courts. That is something from which we in England can learn. If we cannot learn it now, then I do not understand why we cannot do so. I hope that the noble and learned Lord the Lord Chancellor will make clear that point when he replies to the debate.
It is in my view a happy coincidence that this Second Reading debate comes just a few days before the 40th anniversary of the United Nations Declaration of Human Rights which lays down the basic principles that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state, and that no one including children shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Of course, it was only a few days ago that some of us attended the launching of the United Nations draft convention on the rights of the child. I am certain that people in other parts of the world will watch the progress of this Bill for what they may be able to learn from it.
530 The Department of Health has reported that nearly 40,000 children and teenagers are on the child protection register in England alone. The National Society for the Prevention of Cruelty to Children, which helped over 50,000 children in 1986 and 1987, has reported that more than one-third of these children were under five years of age. It revealed a 21 per cent. increase in registrations of sexual abuse, and a 25 per cent. increase in physical abuse and severe injuries. We see the size of the problem.
To put the matter further into context, the majority who are in care—I do not believe this will be doubted by many of your Lordships—are not there so much because of their behaviour or characteristics but because of circumstances beyond their control. The reason may be parental neglect, ill-treatment or abuse; it may be that parents are unable to cope with the care of their children, or the problem may be parental illness. The children may be orphaned or abandoned; or there may be unsatisfactory home conditions. In many cases, the blame is not simply on the parents but on a society that still permits such unsatisfactory social conditions to exist.
We hope that this Bill will not only deal with the situation in terms of law, but that the provisions made for local authorities may improve some of the conditions in which our children live. The care system is designed primarily to provide protection for children against adult society rather than the protection of society against children.
Speakers in today's debate have reflected the general acceptance that this legislation is crucially important. Most speakers have welcomed the provisions contained in the Bill. There has been a general welcome for the principle that the child's welfare must be paramount and that the wishes and feelings of the child must be taken fully into account. There has been a welcome, particularly for the wider parental rights to appeal and to have contact with children. In my view, the Bill strikes a reasonable balance between the child's rights and those of the parents. There has been a welcome for the greater responsibilities given to local authorities in Part III of the Bill to safeguard and promote the welfare of children and to give support to the families.
Like most noble Lords who have spoken on this subject, I have the gravest doubts as to whether the funds allocated in the financial memorandum are anything like adequate to meet the demands. I am not simply looking at those demands that will be made upon the social service departments. If they are to do the job the funds have to be there. I am also looking at the question as regards the courts. By the praise of the Bill we must be wary that we are not misleading the public because we cannot fulfil our tasks unless the funds are there.
There has been a welcome for many other aspects of the Bill including the new eight-day emergency protection order contained in Clause 38 instead of the much-criticised place of safety order. There is also welcome for the parental right to challenge such orders after 72 hours plus the new rights of access during the crucial period of separation. There are also the new grounds for making care orders in 531 Clause 28 and these proposals are also to be welcomed. There is emphasis on the risk of removal of children from the mother. That was a point made very strongly by the noble Baroness, Lady Faithfull, in what I believed was a quite admirable speech. We owe her a very great debt of gratitude not just for that speech, but for her record of service in this field and the work that she has done on this Bill. I believe that her efforts will help to make it a better Bill by the time it has passed through all the stages in your Lordships' House.
I also welcome the provision for unmarried couples to make a formal agreement for joint parental responsibility of the child. In addition I welcome the reform of the law on private fostering. As so many other noble Lords have said I include the greater use of the guardian ad litem system. It is encouraging that a training framework for panel members is also mentioned. Although subject to regulation, I trust that children will continue to be parties to proceedings. As my noble friend Lady David said, we would welcome an explicit statement of the duties of guardians ad litem and in particular upon the guardians' ability to instruct a solicitor.
The debate has shown that not only is there a welcome for the Bill, but that we are going to have a very energetic and detailed Committee stage. In the process of this debate, many important proposals have been made. In the meeting today to which the noble Baroness, Lady Faithfull, referred, there are so many voluntary organisations to which we are extremely grateful for the service that they give. I am not going to run through the list of the organisations for fear of missing out any one of them. They have done a remarkable job. It shows that we are going to have a hard time and there is no harm in that.
I am sure that there will be a debate on the family courts. I support some of the points made by the noble Baroness in her speech, and I do so en passant because she dealt with them so well. I refer to the need for a multi-discipline assessment process, and for this to be in the Bill. I cannot emphasise more strongly than she did the importance of the training of social workers and the present inadequacy of their training for a task which is so responsible. I join with others in paying tribute to the social workers who often work under very severe conditions.
The Gillick case recognised the right of young people to make decisions about their lives if they are mature enough to understand the implications of the decisions. As my noble friend Lady David said, I hope that we shall carefully explore the proposals that courts and local authorities be placed under a duty to ensure that where they are satisfied that the child has sufficient understanding to make an informed decision about the issue in question, in certain conditions they shall be entitled to determine it. Young people should have a share in the responsibility for their own welfare.
I understand that the Government propose to ban corporal punishment by regulation in child care institutions. We must be certain that this power covers not only child care placements but also those in private mental homes, foster care institutions and 532 others. This a a matter that should not be left without attention. Part II deals with children in families and other proceedings and it carries through most important proposals from the Law Commission. Though there is much to welcome, we shall want to explore the children's right directly to participate in the decisions in ways that will recognise and strengthen the rights of children. We need to strengthen in a variety of ways the role of local authorities in protecting the rights of children in care and for those who are leaving care who may be particularly vulnerable.
Clause 20 places a duty upon local authorities to prepare young people in care for independence and to offer assistance after they have left. That is also going to cost money. The clause is unspecific as regards the duty upon local authorities to assist with housing. In addition, while I am strongly in favour of not imposing social work support on young people after they have left care, a more gradual process of reaching independence is required. One of the matters that we discussed in some depth in the Select Committee with the young representatives of those who have had the experience of being in care was the importance of preparing the way for independence for such young people.
I have taken only three minutes so far which is very encouraging for the rest of my very long presentation. I am much concerned by what seems to be a denial to children in care proceedings to have their own legal representation. I hope that this is a point with which we shall be able to deal at the Committee stage.
I ask what has happened to the child assessment order which was referred to by the noble Lord, Lord Meston. It was recommended in the Kimberly Carlile report. I share also the concern of the children's legal centre about voluntary and private homes being able to lock up children. We must consider in what way this matter can be dealt with in the legislation. I also ask what has happened to the report by 16 organisations which formed the group called Law Reform of Children Day Care. The group submitted a series of detailed proposals which we shall need to consider in Committee. What about the White Paper on Child Care and Family Services which proposed to amend the Nurseries and Child-Minders Regulation Act 1948?
I have touched on, though rapidly, just a few of the issues which we shall want to explore in the later stages of the Bill. Together with comments made by noble Lords, there is enough to show that we shall have a busy time in Committee. We want to send the Bill to another place greatly improved, recognising the qualities which it has within it. I believe that there are qualities in this House which can ensure that we send to another place a Bill even more worthy of the acclaim that it has received during the course of today's debate.
§ 6.31 p.m.
§ The Lord Chancellor
My Lords, I am extremely grateful to all noble Lords who have spoken during the debate. On this occasion I think I can claim unanimity in welcoming the Bill in principle, although I recognise the problems raised in 533 connection with it by a number of noble Lords. I shall try to emulate the wonderful presentation in three minutes of the noble Lord, Lord Ennals. I doubt whether I shall be able to cover as many points as he did in that time. Your Lordships will appreciate, I am sure, that a number of the matters are most suitably dealt with in Committee. It would be wearisome for me to try to deal with all those matters now. However, there are some leading matters with which I should like to deal briefly.
First, an important issue was raised by the noble Baroness, Lady David. As your Lordships will know, she had no reason for feeling any difficulty about speaking after five lawyers because issues concerning children are issues for us all. In what she said she showed a special knowledge of a number of the areas. She asked whether children's views should always be heard and generally prevail. On the other hand, the noble Lord, Lord Meston, was inclined to think that that might cause difficulty. Those of us who have had experience of dealing with these cases know that children may be expressing, in answer to questions, not their own view but the last view expressed to them by the parent to whom they feel greater loyalty at that moment. It is a fact that a child may feel torn by considerations of that kind. In a sense both of these views are clearly right, but they are right in the particular circumstances in which they are expressed.
In the Bill we have tried to deal with this delicate matter in an appropriate way. We have stated the general principle about the paramount consideration being the child's welfare. Everyone agrees that that is correct. Then we put, in the forefront of the particular circumstances, in Clause 1(2)(a),the ascertainable wishes and feelings of the child concerned".That, in a sense, is the point of the noble Baroness, Lady David. She said that the court should have regard in particular to the child's wishes. We also have to try to deal with the point of the noble Lord, Lord Meston. That we have done by the portion in brackets:(considered in the light of his age and understanding)".It may be that other matters have to be considered as well. This is an attempt to give a lead, so far as one can do in the words of legislation, in dealing with this difficult problem, recognising the child as a person with wishes and feelings that may be ascertainable, but recognising also that these may be influenced by the circumstances in which the child is placed, his youth and his level of understanding.
We can look at this matter in Committee to see whether the way it is put in the Bill is the best way or whether it can be improved. I shall be extremely willing to hear proposals for improvement of the Bill in any respect. That would only be right in accordance with the spirit which has been manifested in the debate. I agreed with the noble Lord, Lord Ennals, when he said that it was a debate of the highest possible standard. It is my wish to take advantage of all the help your Lordships can give to improve the Bill still further.
While I am on the subject of the child and the child's views, I should like to make it clear that it is intended that the rules of court which would appropriately deal with that matter will contain a 534 provision for maintaining the status quo in respect of legal representation of the child. Therefore the Private Member's measure in that respect will not be lost.
Reference was made to the position of grandparents. At present, grandparents participate by virtue of the 1986 Act, to which the noble Lord, Lord Meston referred, without the necessity of obtaining any order. In future, grandparents and foster parents as well as any person who would lose rights and who wishes to obtain an order will be able to apply to the court. I have already said that the child will be a party. Clause 36 deals with the position of guardians ad litem. Their position will be strengthened by the provisions for the Secretary of State for Health to deal with arrangements for the management of panels, giving them some independence from the local authority.
The crux of the detail under Clause 7 is that the various orders are more concrete and deal with more particular matters than the present orders; for example, the varieties of custody to which we have been accustomed. I am not aware of any difficulty in international respects in this connection. However, the noble Lord having raised the point, I shall look at it further.
The noble and learned Lord, Lord Simon of Glaisdale, spoke with special authority, having regard to his greater experience in these matters. All noble Lords who spoke have relevant experience, which is one of the great values in our discussions here. The noble and learned Lord suggested that the paramountcy principle should apply in matrimonial proceedings. In so far as this Bill deals with children affected by matrimonial proceedings, the paramountcy principle will apply. I rather think that the noble and learned Lord was wondering whether the paramountcy principle should not have effect in respect of all the orders that we make in relation to a divorce; and whether this principle should not have some effect in, as it were, trying to keep the family together instead of allowing a divorce to take place in the circumstances envisaged in the present law. That is a large and difficult subject. As was acknowledged, it lies outside, or is at least peripheral, to, the concerns with which the Bill seeks to deal. I venture to think that that is perhaps a matter for another occasion.
§ The Lord Chancellor
As the noble and learned Lord, Lord Elwyn-Jones, says, perhaps—indeed certainly—for another Bill, if and when sufficient agreement is reached on these difficult matters.
The noble Lords, Lord Mishcon and Lord Meston, and my noble friend Lady Faithfull, asked that the Bill's provisions should be implemented without delay. As your Lordships will appreciate, I am keen that the Bill's provisions should be implemented as soon as possible. These reforms are necessary. Of course the first step is to get parliamentary approval for the Bill. It is certainly our intention so far as possible to implement the whole B.11 as a package; but I cannot guarantee that now. There are circumstances which we cannot completely foresee. A good deal of preparation is required in the making of 535 the necessary arrangements before the Bill can come into effect. I would think that from 12 to 18 months from Royal Assent would probably be necessary for that purpose. However, your Lordships may take it that I would certainly like to see the Bill, if and when it becomes law, brought into effect as soon as possible.
Many of your Lordships have raised questions about resources and I think it is right to say that the responsibility for providing or seeing to the provision of the necessary resources is one which lies upon those who are elected to the other place. The Estimates for the public service are laid before them and therefore it is their responsibility to provide the necessary resources. When your Lordships pass this Bill, probably the last thing in the formal proceedings before the Bill is passed will be the incorporation into it of the privilege amendment; so matters of resources are finally matters for which others have responsibility.
This Bill has been preceded by a great deal of consultation and we believe that the estimates of extra expenditure and savings attributable to the Bill are realistically stated. Obviously there is always an element of uncertainty in these matters, when changes in responsibilities and practice as major as those proposed in this Bill come into effect.
§ Lord Mishcon
My Lords, I wonder whether the noble and learned Lord, in view of the great concern in all parts of your Lordships' House about the question of resources, would agree to put his very powerful weight in Cabinet and elsewhere on the priority which this House give to expenditure on the provisions of this Bill.
§ The Lord Chancellor
My Lords, I have to say that I am committed to this Bill and desire to see it carried into effect; that may be an adequate answer to the noble Lord.
I turn now briefly to the question of guardians ad litem and the possible interrelation between them and the Official Solicitor: this was a point raised by the noble Lord, Lord Mishcon. My department and I, as the Lord Chancellor put out a consultation document Improving the Arrangements for Care Proceedings following the Cleveland report, where a child protection office was mentioned. I am not intending to proceed with that, as matters stand at present, in the light of the consultation. However, I believe that some of the principles that were discussed there can be given effect in other ways by building on existing arrangements, including the guardians ad litem system. The proposals we are making are intended to strengthen that system and to make it more effective and more co-ordinated. Clause36(8) merely acknowledges that the Official Solicitor could still be appointed in High Court proceedings instead of a guardian ad litem. There is no prejudice to the existing powers in that respect.
I believe that the regulations contemplated in the Bill providing for collaborative arrangements for jointly managing panels between authorities will have the effect of giving the guardians ad litem more independence from the local authorities in question, 536 and it would not be necessary to go to the length of a national organisation. I hope we have got the necessary result without doing that. The total number of guardians ad litem may be less than one would like and the expenditure provisions make an assumption that some additional guardians ad litem will be required.
A number of your Lordships raised questions about the training of social workers. This is obviously an important area, and I would certainly like to say from my own personal point of view that I appreciate the difficulties in which social workers can be placed. I have participated in one of the inquiries that took place in Scotland following the sad death of a child. That and other experiences gave me some insight into the difficulties they face, and I do not think that anyone who knows anything about it would be other than sympathetic towards social workers and their difficulties, recognising that social workers, like most of the rest of us, are fallible and may make mistakes; and that their mistakes, like those of others, can have very sad and costly results. Having said all that, we must recognise the difficulties under which they work and acknowledge that they cope with those difficulties generally remarkably well.
However, against that it has to be said that the need for training must be emphasised. The Government accept the need to improve training for social workers and other social services staff. We believe this requires a balanced programme. One million pounds of additional funding in the current financial year has been provided to the Central Council for Education and Training in Social Work. From 1988—89 and from 1989—90 high priority will be given to improving practice placements, with a minimum of two years' training for postgraduate students. These and other initiatives, particularly the training support programme, I believe demonstrate the Government's intention to make very significant improvements to training. In his response to the Butler-Sloss inquiry report, the Minister for Health announced a further grant of £7 million in support of provision of £10 million for the training support progamme, for improvements to training for staff working in the field of child care, with an intitial concentration on child sex abuse.
We intend to work with the Central Council for Education and Training in Social Work on a framework for qualifying and post-qualifying training. We prefer an approach which aims to make the best use of the existing resources deployed on post-qualifying training which identifies and gives priority to the gaps which most urgently need to be addressed.
A number of your Lordships—I think perhaps particularly those who are concerned with the procedures in courts of law—raised the question of the wardship jurisdiction. As I said at the outset, we consider that the Law Commission was right not to seek to propose any reform at this stage of the law relating to wardship. But I want to emphasise that one of the changes we have made in this Bill is that the High Court and the county court are now available to hear child care cases. Until now, child care cases were dealt with by the magistrates' courts.
537 I have also mentioned that the intention is that the child care cases in the magistrates' courts should be dealt with by the domestic panel. That means that the expertise of the Family Division and the registrars of the Family Division will be available to deal with child care cases. That is the correct way for these courts to become involved. What has happened in the past, as I understand it, is that because only the magistrates were competent to deal with child care cases, those people—and local authorities in particular—who sought to get into the High Court had to do so not by seeking a child care order directly but by invoking the wardship jurisdiction. It seems much better and more direct to provide proper procedures for dealing with child care applications, and that is what we have done. I mentioned that it is proposed by amendment to introduce an appeal provision. The idea will be to match the case, its complexity, difficulty, and so on, to the particular expertise and level of the court to which the case goes.
This brings me to say just a word or two about the family court and about Scotland, because of course your Lordships will not be surprised to learn that I have a considerable appreciation of the arrangements made in Scotland. This illustrates the difficulty of understanding precisely what those who use the phrase "family court" mean by it. Those who say that we have a family court in Scotland are referring, I think, to the arrangements for the children's panel, a children's hearing in which orders for care are made.
One of the fundamentals of that structure is that the jurisdiction to make an order arises only on the basis of particular grounds. There must be a basis for making the order. That basis will of course have a content of fact. If all the parties concerned admit the facts, then the panel may immediately consider making an order. It does so in an informal atmosphere. The issues on the merits have by that time been resolved and the basis of the panel's jurisdiction has been established. However, if any party to the proceedings disputes that basis, the matter is dealt with in the sheriff's court as a matter of contested fact in the same way—speaking generally and subject to special rules— as any other contested matter would be dealt with before the sheriff. That is not precisely what everyone in England means when they speak of a family court. Different arrangements are envisaged.
An arrangement such as that I have just described could be operated under the Bill's provisions, but one of the consequences of such an arrangement is that the tribunal deciding what to do about making an order is not involved in the detail of the contest on the facts. Some people here have told me that they feel that that would be a rather sad loss and there is something to be said for the court which looks into the facts and decides contested issues being the same as the one which decides what to do. There are important problems to be addressed. I have tried to say here not that we have a substitute for the family court or that we are laying foundations for it, setting those alternatives against one another, as the noble Lord, Lord Mishcon, was inclined to do; but in the Bill we are trying to develop, on the basis of structures that we know, a suitable mechanism to deal, in the first instance, with child care cases.
538 The simpler cases will be dealt with by the magistrates. There is provision for parts of cases to be dealt with in different ways from other parts so that flexibility of the kind that I have described could be involved. The next level of court (the county court) is available to deal with more complex cases. Finally, at the summit, there is the High Court with the Family Division judges with their expertise I also indicated that in my view there was scope for the county court judges who would deal with such cases to be judges who have made a special study of those matters.
In the Bill we have provided the framework for effective arrangements, particularly as experience and practice develop, and with flexible rules of court being capable of improvement in the light of experience.
The noble Lords, Lord Irvine of Lairg and Lord Campbell of Alloway, were somewhat disturbed to think that the Lord Chancellor should be at the mercy of a Secretary of State in relation to the making of rules. The Secretary of State for the Home Office is responsible for the magistrates' courts in this country. Therefore, arrangements in connection with the magistrates' courts would normally be made by the Secretary of State for the Home Office. The Lord Chancellor is responsible for the county courts and the High Court. There is therefore a boundary which is the reason for that provision. We may be able to make that plainer. The constitutional convention is that the Secretary of State is referred to, and the Secretary of State who makes the order depends upon all the circumstances. I believe that to be the proper formulation.
When I said what I did about the family court in my opening remarks, I was saying that we have delivered, in the way that I have explained, a considerable improvement in the arrangements for dealing with child care cases, capable of being extended to all cases involving children. I believe this meets many, not all, of the objectives which those who have supported the family courts campaign have set for themselves. I should like to join the noble Lord, Lord Ennals, in paying tribute to my noble friend Lady Faithfull for all the work that she has done in that connection. She has been kind enough of course to discuss many of the ideas with me. I hope that I have benefited from the discussions. I hope that perhaps the Bill has also benefited from them.
There are one or two other matters which may be slightly more detailed. My noble friend Lady Faithfull asked about the social and educational care of children and the position with regard to joint assessment. That is intended to be provided for by paragraph 3 of Schedule 2. My noble friend may have something else in mind, but that provision seemed to me possibly to cover what she mentioned.
The provisions in Part III to which. I referred, place an emphasis on trying to keep the child within the family. Of course where there is a problem in the family, that may present particular difficulties, but the emphasis remains. I should also like to remind your Lordships of the passage in Clause 1(4) to which I referred, which provides that there should be no order unless making the order would benefit the child. An order to remove a child from the mother 539 could not be made unless it was shown to be of benefit to the child.
My noble friend Lady Faithfull told us that when she made inquiries of the father, he normally left the house. Her inquiries were obviously extremely effective and social workers of that calibre are much in demand.
The under-fives have been referred to. Clause 16 relates to that matter. In particular I wish to mention the situation with regard to the Home Office taking the lead which was contained in the press report to which my noble friend referred. It is always difficult to know precisely what is in issue, but as far as I can make out, that press report is a reference to a ministerial group on women's issues chaired by a Home Office Minister out of concern for equal opportunities, which is part of Home Office responsibility. There is in no way a change of responsibility for the under-fives. The Department of Health and the Department of Education and Science retain their responsibilities for the under-fives. That was merely an illustration of the type of inter-departmental co-operation that all your Lordships would welcome and which is always our aim.
The Government share the view expressed by the noble Lord, Lord Seebohm, about the importance of services for the under-fives. We have set out for the first time in Clause 16 a general duty on local authorities in that connection. We shall be tabling some amendments to modernise the 1948 Act which deals with the registration of private and voluntary facilities. Together, they will amount to a modern statement of the statutory provisions.
Those were the main matters of principle dealt with. I must refer to Clause 23 in connection with what the noble Lord, Lord Banks, said about Clauses 20 and 23. Clause 20 has to do with after care or leaving care when people are being prepared for leaving the care of the local authority. The noble Lord, Lord Banks, inquired whether Clause 20 would cover housing. The answer is, I think, that it is directed to the social service committee but the housing authority is among those who are expected to co-operate in that matter under Clause 23. I believe that the problem is addressed in the Bill.
The final matter I should like to mention is one of some detail but it is important; namely, the medical assessment orders to which the noble Lord, Lord Meston, referred. A proposal for a medical assessment order was put forward in the report on the Kimberly Carlile case. We have always been anxious that separate orders for dealing with children about whom there is concern might be confusing and could result in potentially serious misjudgments by the local authority—or even by the court—as to which was the appropriate order in particular cases. In a real emergency, going for the softer option which would not provide immediate protection for the child could be very serious for the child. If one thought that there was a serious problem and one went for the lesser order, it might be found that by the time the order was enforced it was too late to prevent major harm.
540 Lord Justice Butler-Sloss in her report on the Cleveland inquiry was also concerned about the risk of confusion. I think it must be taken into account. There are cases where persuading the parents to agree that the child should be examined is a problem. If this cannot be negotiated, and if the local authority considers that, as a result, there is an emergency, it could apply for an emergency protection order and ask the court for a direction on a medical examination under Clause 37(4). Thus, in that way, one would have the best of both situations. If a medical assesment were needed it could be provided that way and if as a result some protection were required it would be given. I believe that we have dealt with that matter in the Bill. Obviously I shall be very interested to examine the matter further when we discuss the Bill in Committee.
I have taken a little longer than Lord Ennals' three minutes, I fear, but I have tried to deal with the main matters raised by your Lordships in the debate this evening. I am extremely grateful for all the remarks and for the interest your Lordships have taken, as well as the commendation which noble Lords have given to the Bill. Therefore, with some confidence I move that the Bill he read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.