§ 3.3 p.m.
§ Report received.
§ Clause 2 [Parental responsibility for children]:
Lord Simon of Glaisdale moved Amendment No. 1:
Page 2, line 30, at end insert ("and the judgments in In Re Thoth,  Ch.D. 476, are abrogated for all purposes relevant to this Act.").
§ The noble and learned Lord said: My Lords, the amendment refers to a case which I mentioned in Committee during the debate on the Motion that Clause 1 should stand part. I had previously drawn it to the attention of my noble and learned friend on the Woolsack. The anxiety was that the judgments in the case mentioned might derogate from the sense of the word "paramount"—that the interests of the child should be paramount in all proceedings relating to the child—as it is ordinarily understood and in the sense that I was convinced your Lordships intended.
§ I should say that when I subsequently raised the matter in Committee my noble and learned friend said that it was a somewhat remarkable decision. However, since then a case has arisen in which the decision was discussed on an appeal to your Lordships' House. It was not overruled, it was not approved, but it was discussed. It was a highly involved case, with a report running to over 60 pages.
§ In those circumstances my noble and learned friend on the Woolsack was good enough to see me this morning and we both felt that, subject to the approval of your Lordships, it was an unsuitable issue to be debated without prior discussion before your Lordships in legislative session. Again subject to your Lordships' approval it was also felt that it would he preferable if I did not press the amendment to the Question but that I should ask leave to withdraw it in order to give my noble and learned friend and myself the opportunity to discuss the point of law involved.
§ Should I succeed in convincing my noble and learned friend that some such formula as that proposed is needed to get rid completely of any mischief caused by that case, I shall move an amendment on Third Reading which can be taken quite shortly. On the other hand, my noble and learned friend may convince me that there is no further occasion to trouble your Lordships with the matter. Naturally, I suppose that my noble and learned friend would welcome the advice, assistance 1319 and presence of any noble Lords who might wish to discuss the issue in law. But in the meantime I can do no more than formally beg leave to move the amendment. I beg to move.
§ Lord Mishcon
My Lords, I am sure that none of your Lordships will wish to differ in any way from the manner in which the amendment has been presented so far by the noble and learned Lord, Lord Simon of Glaisdale. He was kind enough to have an informal word with me about the amendment and suggested, very properly, that those of us who are concerned with the matter should read the judgments referred to. I have taken the trouble to do so, but I shall not weary your Lordships any more in that regard save to say that in the judgment of the court in that very matter the rule stated by Lord Justice Fitzgibbon in In re O'Hara was quoted. It is only one sentence which perhaps I may read to the House before I sit down. It seems to me to be a rule which may well find acceptance so far as concerns the noble and learned Lord the Lord Chancellor. It states:Where a parent is of blameless life, and is able and willing to provide for the child's material and moral necessities, … the Court is, in my opinion judicially bound to act on what is equally a law of nature and of society, and to hold (in the words of Lord Esher) that 'the best place for a child is with its parent' ".I propose to say no more but to wait until Third Reading to see whether any possible objection can be made to such a worthy dictum (as I see it) by Lord Esher.
§ The Lord Chancellor
My Lords, as my noble and learned friend Lord Simon of Glaisdale has said, this is a fairly technical matter. We may be able to resolve it by a more private discussion than is possible here, so I welcome his kindness in giving us an opportunity for further discussion. On that basis, I hope that he will feel able to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Acquisition of parental responsibility by father]:
Lord Banks moved Amendment No. 2:
Page 3, line 38, at end insert ("and the attention of both parties has been drawn to the power of the court under subsection (4) below to bring to an end such an order.").
§ The noble Lord said: My Lords, in Committee I moved an amendment which sought to ensure that each party to the parental responsibility agreement had been advised to take legal advice. I withdrew the amendment after the noble and learned Lord the Lord Chancellor gave the assurance that the prescribed form of agreement could, inter alia, contain a warning about the legal significance of the form; that it was meant to have legal consequences and that, if anyone was in doubt, they should seek legal advice before signing.
§ The amendment deals with a separate but related point. It seeks to ensure that unmarried mothers are aware, at the time of signing the parental responsibility agreement giving rights to the father of 1320 their child or children, that. if it should prove desirable at some later date, they could apply to the court to have the agreement nullified. The point at which they sign may be the only opportunity to ensure that both parties are aware of their rights in that respect. It would provide some reassurance to the mother to know that. if the father's behaviour should cease to merit full parental responsibility, there exists a remedy.
§ In addition, the father may be encouraged to take his responsibilities more seriously if he is aware that full parental responsibility could be taken away from him upon application by another person having parental responsibility for the child, or with the leave of the court, or by the child himself.
§ The aim of the amendment could be achieved, as in the case of the earlier amendment, by the inclusion of the information relating to the rights of the parties applying for the agreement to be brought to an end upon the prescribed form itself. I wonder whether the noble and learned Lord the Lord Chancellor is prepared to give such an assurance. I beg to move.
§ Lord Elwyn-Jones
My Lords, my noble friends and I should like to support the amendment. It is important because the point at which the relevant parties sign the agreement may provide the only opportunity to ensure that both parties are aware of their rights in that respect. I understand that the noble and learned Lord feels that he may embody what is required in some relevant order. We may perhaps await his decision upon that matter before coming to a conclusion.
§ The Lord Chancellor
My Lords, the noble Lord, Lord Banks, referred to the earlier amendment. Obviously an important aspect of the legal advice would be that it is focused on the amendment. There is nothing in the amendment to say who is to impart the information and no duty is imposed upon anyone to do so, As has been said, when responding to the earlier amendment in Committee I said that, if it were thought desirable, the form which the Lord Chancellor would prescribe could contain a warning about the legal significance of the agreement and that anyone in doubt should seek legal advice. The form could also make it clear that the agreement was revocable by the courts if that were thought desirable.
When designing forms, there is a limit to what can be put in. If we were to give legal advice on all aspects of the form on the form itself it would become complicated. Therefore I had a look to see what has been done by those who have experience of these matters. A precedent for such warnings can be found in the form upon which a parent agrees to an adoption, a form which I am sure everyone agrees is an important form. At its head, in capital letters, is printed:If you are in any doubt about your legal rights you should obtain legal advice before signing this form".If your Lordships felt that something similar would help to meet this point, I shall ensure that such a warning appears on any form prescribed under the clause. To give effect to the amendment as it stands would not be wise. I hope that in the light of that explanation the noble Lord, Lord Banks, may feel able to withdraw it.
§ 3.15 p.m.
§ Lord Banks
My Lords, I am grateful to the noble and learned Lord for that answer. I understand his point about the fact that there must be a limit to the amount that is put on the form. One could add bits ad infinitum. He has accepted that this is an important point and indicated how it might be shown on the form. I very much hope that that will be done. In view of what he has said, I beg leave to withdraw the amendment.
§ Amendment by leave, withdrawn.
Lord Mottistone moved Amendment No. 3:
After Clause 4, insert the following new clause:
§ ("Local authority support Jar children and, families.
§ The noble Lord said: My Lords, with the leave of the House, I should like to speak also to Amendments Nos. 65 and 69. In Committee, after listening to the debates on Amendments Nos. 58 and 60 (cols. 1290 to 1296 of 20th December) I came to the conclusion that Amendments Nos. 138 to 143, which removed several paragraphs from Schedule 2 into the main part of the Bill, were too sweeping.
§ It seemed to me upon reflection that we needed to take out of the relevant paragraphs of Schedule 2 the essential parts which I believe need to be part of the general principles contained in Part I. Hence, I am taking two of them, which I shall explain in a minute, and putting them after Clause 4 so that they are contained firmly in Part I.
§ That action will safeguard them, and make them be seen to be safeguarded, from possible alterations under Clause 15(4). After carefully studying paragraphs 1, 3, 4, 5, 6 and 7 of Schedule 2, which I have been advised by the NSPCC could usefully go en bloc into Part I, I decided that the essential—I emphasise essential—principles were contained in the first sub-paragraph of paragraphs 1 and 4 of Schedule 2. Those are the provisions which I seek to cut out in Amendments Nos. 65 and 69.
§ Paragraphs 3, 5, 6 and 7 are more in the nature of consequential action so as to give effect to those general principles. In addition I felt that, in the light of experience, those latter paragraphs could be amended to good purpose by regulation, whereas no one would wish to amend the other two paragraphs. I want to put those paragraphs into Part I because they are fundamental. The fact that they may not be amended because no one in their right senses would not want to do so does not mean to say that they are not of considerable substance and should not be among the general principles of the Bill. Further, sub-paragraph (I) of paragraphs 1 and 4 of Schedule 2 could be taken without replacement from those paragraphs without destroying their sense. I have sought to take those two sub-paragraphs and create a new clause after Clause 4.
§ I wrote to the NSPCC and received its agreement. I also sent a copy of my letter to my noble and learned friend on the Woolsack. He replied and said that he 1322 was not convinced that it would be appropriate to place those two sub-paragraphs in Clause 15. I did not intend to do that. As it was Christmas time, my noble and learned friend may have read my letter a little quickly and perhaps did not see the full message. He went on to say that he would be happy to listen to what I had to say, and 1 have now said it. 1 hope that the principle of the amendment will be acceptable to the House and to my noble and learned friend. I beg to move.
§ Lady Kinloss
My Lords, I support these amendments. As has been made clear by the noble Lord, Lord Mottistone, they are to ensure two very important duties for the local authorities: first, to identify, and, secondly, to take steps to prevent, children suffering neglect or abuse. These are in the primary legislation and are not to be subject to alteration by the Secretary of State. Awareness of the problems of child abuse is very high arid a matter of major public concern. The vast majority of people want to see local authorities doing all they can to prevent child abuse.
At Committee stage the fact that duties under this Act could be repealed by the Secretary of State was called a constitutional outrage. I hope that the noble and learned Lord the Lord Chancellor took notice of those words.
§ Lord Henderson of Brompton
My Lords, I wish to support the amendments, partly for the reasons already stated but also because it seems to me that they are in accordance with the principle of the drafting of the Bill. The noble Lord, Lord Mottistone, is in effect laying a duty on local authorities at the outset of Part I of the Bill in rather the same way as Clause 15 at the outset of Part Ill lays a general duty on every local authority to provide services for children in need. I wonder whether the noble and learned Lord might consider that the amendment is in line with the admirable drafting practice used in Clause 15 at the beginning of Part III.
§ Baroness Elliot of Harwood
My Lords, I also wish to support the amendments. In my experience much can be avoided if only the facts are found out before the trouble begins, before the assaults or the sexual attacks are made. That often does not happen and we only know after the worst has occurred. If we could organise local authority care and support for the children and families in that way, we would save tremendous problems and trouble and be very successful.
§ Lord Elwyn-Jones
My Lords, I support the view that it is desirable that since local authorities have an important role in the Bill in regard to the protection and care of children their duties should be clearly stated, as they are in the amendment. The provision there is that:Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area".It does not seem an unreasonable requirement that they should take reasonable steps to achieve that purpose.
1323 In regard to the second part of the amendment, the extent of concern about the abuse of children is very great and marked. It is right that there should be that concern. Some appalling cases have come before the courts, showing how watchful we must all be, particularly the local authorities, which may have a special responsibility for children within their area. Accordingly, I hope that the noble and learned Lord the Lord Chancellor will think it right to accept the amendment.
§ Baroness David
My Lords, I too support the amendments. It seems to me important to have the duty mentioned early in the Bill that:Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering neglect or physical or sexual abuse".That provision is central to the whole Bill and it is very important to have it stated early in the Bill and not in the schedule that local authorities have the duty to provide services. I know that the noble and learned Lord the Lord Chancellor will say that schedules carry weight. Even so I think that for this to be inserted earlier in the Bill would be a positive step. I very much wish to support the amendment.
§ Lord Simon of Glaisdale
My Lords, the amendment has a valuable spin-off. The noble Lord, Lord Mottistone, referred to Clause 15(4), which allows the Minister to amend the schedule as enacted by Parliament. My noble friend Lady Kinloss reminded your Lordships that that was described in Committee as a constitutional outrage. I can well understand the noble Lord, Lord Mottistone, seeking to remove from the draft of such a provision powers and duties which he considers of fundamental importance. There is an amendment down later to leave out Clause 15(4). I do not know how far the noble Lord, Lord Mottistone, will get on this amendment but he always has a fallback position by voting in due course in favour of leaving out Clause 15(4).
§ The Lord Chancellor
My Lords, I spoke about this matter to some extent in Committee, as did other noble Lords who have spoken today. I do not in any way minimise the importance of these duties, which are described in the amendment in the same words as are used in the Bill. So to the extent to which the words have been commended, I take them as being commended in the Bill as stated.
The only question is where these duties should be in the Bill. Part III of the Bill deals with the matter; Part I does not deal with the duties of the local authority. When I answered my noble friend Lord Mottistone, who made a reference to Clause 15, I assumed that if these words were to go into the main part of the Bill they should properly find a place in Clause 15 or its neighbourhood. Part III deals with the duties of local authorities and these words are of that character. So in order to have a consistent structure in the Bill one would wish to have them there.
However that is not the main issue. The main issue is whether these provisions need to or should go into 1324 the principal part of the Bill, the main provisions, or should stay where we have suggested they should be, namely in the schedule. The scheme of Part III of the Bill provides in the main Clause 15 for a general duty on local authorities, with the provisions which support it and the specific duties in the schedule. In other words, everything in the schedule is an amplification of what is in Clause 15. I should have thought that that was a proper balance, with Clause 15 as the principal clause to which these are elaborations and subsidiary.
Schedule 2 sets out a non-exhaustive list of powers and duties which fulfil the general duty. It is important to see those functions as part of the whole picture of local authority services. What we have tried to do is to say that Clause 15 describes the whole range in general terms and Schedule 2 elaborates on that with a non-exhaustive list which does not fully exhaust the scope of the duties under Clause 15 but details them.
I agree with the importance of these provisions. That is why they are in the legislation. But I consider that they are better placed where we have placed them. Prevention of child abuse is an essential part of the duty to safeguard and promote the welfare of children. But it is by no means the whole of that duty. The whole of that duty involves what is put upon local authorities by Clause 15. Taking some part of it, however important, and putting it, as it were, alongside the general duty is, I believe, apt to cause confusion rather than clarity.
Identification of children in need is an important part of the procedure for identifying the children to whom the general duty of Clause 15 should apply. I do not want to anticipate what will be raised in connection with Clause 15(4). My noble and learned friend Lord Simon of Glaisdale referred to that. That obviously has an impact on these provisions. If this amendment were accepted, these particular provisions would be taken outside the range of Clause 15(4), if it stays in the Bill. Perhaps we can discuss that later.
There are a number of ways in which the operation of Clause 15(4) can be altered. It could be restricted in scope in the main legislation, or it could be subject to different procedure than that which applies to it at present. I am willing to listen to what is said about that. But I believe that it does not accord with the very clear way in which the Bill is drafted to set alongside the general duty of Clause 15 a duty which, on any view of it, is only part of that general duty. It is much better to have the general duty described and then the parts of it all put together, as we have done.
§ 3.30 p.m.
§ Lord Mishcon
My Lords, I hope that the noble and learned Lord will think again about this matter. I, and I am sure other noble Lords, appreciate that his argument is most certainly one which has its origin in tidiness of mind. Does he not think that the heart of the Bill, and possibly the main reason for the Bill, is the subject matter of this very amendment? It is public concern about local authority care of children. Part I of the Bill is headed "General Principles". Clause 1 is headed "Welfare of the 1325 child". Clause 2 is headed "Parental responsibility for children".
Bearing in mind that Part I will be seen by the public as the whole basis of the policy of the Bill, would it not be appropriate for the public to see at the very commencement that local authorities are asked and have a mandatory duty to, in the words of the amendment,take reasonable steps to identify the extent to which there are children in need within their area …take reasonablesteps…to prevent children …suffering neglect, or physical or sexual abuse'"?There is nothing between us in this argument so far as I can see. It is purely a question of whether the logic of placement, which is undoubtedly with the noble and learned Lord, is a sufficient answer to the heart of the amendment, which is that at the very commencement of this Bill a local authority's duty should be laid down absolutely clearly. It is in that hope that 1 rise to ask the noble and learned Lord to think again about this and let the heart rule the head.
§ The Lord Chancellor
My Lords, if one is looking for clarity, it is wise to have the head fairly generally in charge. That is what we have sought to do. If the noble Lord's argument were to be adopted, it would be important to state the general duty. It would be very odd to place little bits, however important, of the general duty into Part I and then have the general duty itself stated in Clause 15, where it has to lie.
We want a system which people can understand. One of the difficulties of legislation is that if one legislates for particular situations, the provisions for those particular situations may be very good. But the statute book as a whole becomes confused and therefore confusing. It is important that we should deal with all the issues which have been raised. Those issues concern the heart. The heart, as it were, considers what the issues are. But when it comes to setting them out in a clear way and in a way that people can read and understand, the logical relationships of the various parts are important. If that is not followed, the legislation becomes confusing.
Having given this the best consideration that I can, I conclude that what the draftsman has done carefully here in putting local authorities' duties—they do not constitute the whole of child care; it would be wrong to think that they did—into Part III and putting everything ancillary to that into Part Ill and its supporting schedules is correct. However, that does not decide whether a particular provision should appear in the schedule or in the main part. That is a separate point. I am now speaking only in further amplification of what I said earlier, in answer to what the noble Lord, Lord Mishcon, said.
§ Baroness Faithfull
My Lords, as an ex-chief officer and a director of social services, I absolutely agree with my noble and learned friend on the Woolsack. City councillors, I am afraid, will not read the whole Bill. They will just consult it to find out what the duty of local authorities is. If this provision remains in its suggested place, a number of them will not see it because they will only look up the relevant part of the Bill. That may be a bad argument, but it is a realistic one.
§ Lord Mottistone
My Lords, it may be a realistic argument, but I am not convinced by it. My experience of social services departments is that their duties are much wider these days than perhaps they were formerly. That applies to their gazing at legislation and other matters.
The unfortunate part about the arguments we have just heard is the reference to Clause 15. I do not believe that Clause 15 is a part of this argument. I am extremely grateful to those noble Lords who spoke in support of me. However, the key to the point was picked up by the noble Lord, Lord Mishcon, who got it absolutely right. I am not concerned about the reference to Clause 15, but I am concerned to get the provision into Part I.
My noble friend said that if the provision were put into Part I it may not be read by local authorities. They should in any case know it by heart. That is not the point. I shall further develop the point made by the noble Lord, Lord Mishcon. He discussed the clause headings. Clause 1 is headed "Welfare of the child". Clause 2 is headed "Parental responsibility for children". Clause 3 is headed "Meaning of `parental responsibility' ". Clause 4 is headed:Acquisition of parental responsibility by father".Clause 5 is headed "Appointment of guardians". Clause 6 is headed "Welfare reports".
I want to add a further heading in that group. The best place for it is after Clause 4. I should like to add the title: "Local authority support for children and families". I believe it is fundamental that it should be seen as part of the general principles that local authority support for children and families is a key factor of the Bill. The fact that there is a later part of the Bill which deals with local authorities is to my mind quite irrelevant when one is inserting into the Bill the most important elements.
First of all one must insert provisions relating to children themselves. Clause 1 should concern the welfare of the child. One then puts in a further provision relating to parents. Not to have in the clauses composing Part I any mention of local authorities at all, with only a tiny little clause striking at the heart of what local authorities have to do, is unbalancing the Bill. The local authority contribution to the whole exercise is vitally important. It is not so much unbalancing to put the provision in the Bill, it is unbalancing for there to be no mention of the local authority in the fundamental principles set out at the beginning of the Bill.
I implore my noble and learned friend to look at the matter, without bothering about Clause 15. I should say in passing that I think that subsection (4)—which I am sorry to learn some eminent noble Lords want to remove—has an important purpose in relation to many other parts of Schedule 2. But it does not have a purpose in relation to the subparagraphs which I have picked out to provide the fundamental reference to the local authority in the general principles of the Bill.
I am rather torn. I do not like to lead the House to a Division without being sure what will happen because I do not want to lose the provision altogether. That is what tends to happen. However. I am strongly tempted to do just that although I hate 1327 to do so against the wish of my noble and learned friend, for whom I have such great respect. However, I see no other way of making the point that Clause 15 has nothing to do with the case. The noble Lord, Lord Mishcon, is the only noble Lord who has got it plumb right.
§ Lord Mishcon
My Lords, with the permission of the House, before the noble Lord sits down I should like to say that this is the only time since I came to the House of Lords that the noble Lord, Lord Mottistone, has said such kind words. I thank him.
I should like to plead with him not to divide the House on this issue. Unfortunately there will be many noble Lords who have not listened to this discussion who will walk into the Chamber and vote. The result will be expressed as the vote of the House. I believe that the heart of the House—and I have used that metaphor before—is with the noble Lord. I hope that the noble and learned Lord will consider what has been said, as he always does. There is always time at Third Reading.
§ Lord Mottistone
My Lords, is my noble and learned friend not going to respond at all? Can he not give me some encouragement? Notwithstanding the argument of the noble Lord, Lord Mishcon, I should like it to be accepted that the provision has a place in this part of the Bill. I should be very grateful if my noble and learned friend would say that he would think about the matter.
§ The Lord Chancellor
My Lords, I am always anxious to do what I can to assist my noble friend to avoid temptation. I shall certainly consider what he has said. However, I have to make it very plain that I do not think it at all likely that I shall come forward with anything on the lines that he has proposed. If reference ought to be made in Part I to local authorities' place in the scheme—and I should have to consider very carefully whether that is the case—I should want to do so by means of a more general provision, leading into Part III. Something of that kind may be possible. If such consideration on my part assists my noble friend, I hope that he will be able to withdraw the amendment.
§ Lord Mottistone
My Lords, I am grateful to my noble and learned friend for his closing remarks. I hope that that is what he will do. The exact wording is unimportant, providing it has the right effect, of course. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Appointment of guardians]:
§ 3.45 p.m.
§ Lord Simon of Glaisdale
My Lords, before the noble Lord moves the next amendment, perhaps it may be convenient if I draw the attention of the House to the Marshalled List. In the fly sheet of amendments for 30th January my noble and learned friend on the Woolsack had a number of amendments to Clause 5, on page 4, preceding the amendment which the noble Lord, Lord Mishcon,is 1328 about to move. They seemed to me to be quite innocuous drafting amendments and uncontroversial. I wondered whether they had been left off the Marshalled List by mistake or whether my noble and learned friend had withdrawn them for some reason. If necessary they can always be moved at Third Reading.
§ The Lord Chancellor
My Lords, I am not clear what my noble and learned friend is referring to. As far as I know the Marshalled List is in order. I have no reason to suppose that it is not. Since my noble and learned friend has raised the matter I shall inquire into it. Perhaps in the meantime the noble Lord, Lord Mishcon, can proceed on the basis that the Marshalled List is in order.
Lord Mishcon moved Amendment No. 4:
Page 5, line 2, at end insert—
("( ) Where a child has a parent outside the United Kingdom any appointment of a guardian under this section shall be "additional" and not "exclusive".").
§ The noble Lord said: My Lords, the amendment is intended to deal with a pathetic situation with which all civilised countries are increasingly confronted, not least our own. That is the admission into the country of refugee children whose parents for one reason or another have to remain abroad. The amendment has its origin in the fact that the British Refugee Council has asked some noble Lords to support the amendment, which it regards as most important.
§ This century has seen a number of refugee children seeking to enter countries such as ours. Ours has a very fine tradition, not only in previous centuries but also in this century when children whose parents were unable to escape from Nazi Europe were rescued from the holocaust. In modern times to my certain knowledge the Home Office has lent a very sympathetic ear to the cries for help from children, and their parents, from South East Asia and in very recent times from Iran.
§ The purpose of the amendment is to ensure that, where a guardian is appointed for any child who is admitted to the country as a refugee, the appointment of an additional guardian will not be limited to those cases in which the parent unfortunately dies abroad but will also be considered while the parent is living. It would be quite wrong for an exclusive guardian to be appointed for a child with its parents abroad, in defeat of the blood tie. By its very term, an exclusive guardian excludes the natural parent. That is why a provision is sought in the Bill to ensure that where a refugee child has a parent living outside the United Kingdom any guardian appointed under the provision would be an additional guardian and not an exclusive one. I beg to move.
§ The Lord Chancellor
My Lords, until the noble Lord explained the amendment I had some difficulty in understanding what was intended. There may well be circumstances in which more than one guardian should he appointed. I take it from what the noble Lord has said that he is anxious to ensure that the guardian appointed under Clause 5 will not take over from the parent. I think that that is the effect of the guardian appointment anyway. I had rather assumed 1329 that he wanted to operate, as it were, on an existing appointment of a guardian and provide that the result of a new appointment would not be to revoke the old appointment. So the matter is perhaps not very easy. I do not believe that the appointment of a guardian will supersede, as it were, the parents' rights, and if that is what the amendment deals with I very much doubt whether it is necessary, but perhaps we can look at this somewhat further. At the moment, I cannot see that the problem that the noble Lord has addressed is one which this particular amendment is required to deal with.
§ Lord Mishcon
My Lords, 1 am much obliged to the noble and learned Lord to whom 1 owe an apology. I ought to explain to him that, as is known to some people who have been approached by the British Refugee Council, this amendment and the council's concern came very late and that is why I had no opportunity even to explain the amendment to the noble and learned Lord's department, as I would normally have tried to do.
The purpose for which I sought the amendment is precisely as the noble and learned Lord now sees: it is to see that there is no exclusive guardian appointed in respect of any such child, but only, as I understand it, an additional guardian to the father or the other parent who is abroad. The noble and learned Lord has said that he would be kind enough to see whether this is a provision which should or should not be in the Bill, and whether it is covered by any other provisions of the Bill or our general law. In those circumstances, I am most grateful to him and I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 [ Welfare reports]:
The Lord Chancellor moved Amendment No. 5:
Page 5, line 20, leave out ("an officer of the authority") and insert ("—
§ The noble and learned Lord said: My Lords, I move this amendment in response to points that were made by my noble friend Lord Mottistone in Committee. The amendment is intended to clarify that the local authority need not use one of its officers to report to the court but may arrange for any other person or body that the authority considers appropriate, other than a probation officer, to do so on its behalf. The court itself has a right to appoint whom it wishes, but this is an attempt to meet the point that was made by the noble Lord. It also takes account of the comment in that connection that was made by my noble friend Lady Faithfull, that the local authority should be in charge of the arrangements so far as this responsibility is concerned, and we have sought to ensure that. I beg to move.
§ Lord Mottistone
My Lords, I should like to thank my noble and learned friend for this amendment. That completely meets what I sought to put before the Committee in Amendment No. 20. I put down 1330 Amendment No. 6 in case he did not respond with alacrity. Under the circumstances, Amendment No. 5 completely takes care of the situation and I shall not move Amendment No. 6 when we come to it.
§ On Question, amendment agreed to.
§ The Lord Chancellor
My Lords, before I call Amendment No. 6, perhaps I should deal with the point raised by my noble and learned friend Lord Simon of Glaisdale. Questions were raised about the drafting of Clause 5. Amendments were put down in the Lord Chancellor's name, but they were withdrawn because some further doubts were raised about the matter. That explains why what my noble and learned friend saw earlier is not on the Marshalled List as printed. We are not putting forward these amendments. I am grateful to my noble and learned friend for drawing this matter to our attention; but I think that it need not trouble us further at this stage.
§ [Amendment No. 6 not moved.]
§ Clause 9 [Power of court to make section 7 orders]:
Lord Kilmarnock moved Amendment No. 7:
Page 7, leave out lines 5 and 6 and insert—
("(1) In any family proceedings, the court must investigate the need to make a section 7 order.
(2) The court may make an order").
The noble Lord said: My Lords, the aim of the amendment is to place a duty upon the court to investigate the need for a Section 7 order in all family proceedings. Under Clause 9 of the Bill as written, the court would need to consider the need for a Section 7 order only if
a question arises with respect to the welfare of any child".
§ The problem is that neither the court nor the parents themselves are always in a position to predict when such an issue might arise and this could have serious implications later if no order exits. This has particular relevance in two important areas: those of homelessness and abduction. I shall take them in that order and address first the question of homelessness and rehousing.
§ Divorce or separation frequently result in homelessness among families. Under the homelessness provisions of the Housing Act, local authorities have a duty to house those considered to be in priority need. That is the qualification. Families with children are among those considered to be in priority need. However, it is common practice for the local authorities to require a custody order or at least some proof that an application for custody has been made before accepting a family as in priority need. Many parents are not aware of this and may not therefore apply for the order to be made, as they can do under Clause 9(1)(a) of the Bill as drafted. Although under Clause 9 the court has the power to make an order even if an application has not been made, there is a general assumption in Clause 1(4) that no order will be made unless the court considers that making an order would be better than not making one at all. Thus where the need for an order is not immediately apparent, the courts are likely to be inclined not to make an order. The general 1331 presumption is against making a custody order. The family could subsequently apply for an order, but this would entail further delay possibly resulting in prolonged homelessness for the family.
§ Likewise, in divorce, where agreement cannot be reached between the parties on the disposal of the matrimonial home and the court has to make an order, custody of the children is an important factor in assisting the court to reach a decision. If there is no order and the court is unclear about with whom the children are to reside, this could prejudice the chances of a court ordering the transfer of the home to the parent with the children. Thus the absence of a residence order will significantly increase the uncertainty faced by families with children at the point of relationship breakdown and is likely to lead to increased homelessness among these families.
§ That is the point which relates to the question of homelessness; but I now want to turn to the no less, and as some people would perhaps consider, even more important question of abduction. The advisers at the National Council For One Parent Families receive many inquiries from lone parents anxious that their partner or spouse may abduct the child. Although it is an offence for a parent or any other person connected with a child to take or send a child under the age of 16 out of the United Kingdom without the consent of each parent, guardian or person with custody, it is not always easy to prevent an abduction. The police must be satisfied that an offence has been attempted or be shown evidence of a court order. If there is a court order granting custody to one parent, it is much easier to implement port-stop procedures. In that respect, special representation has been made to me by the Organisation for Abducted Children which points out that when a child is removed from this country without the consent of both parents or guardians, the procedure for returning them is often long and laborious. That process can be speeded up if the wronged parent can demonstrate to a foreign court, and often to a foreign police force, that he or she has a British custody or access order.
§ Under the Lord Chancellor's current interpretations of the Hague and European conventions, a child who has not been returned within a year can expect to remain in the country to which he or she has been abducted, and parents who retrieve their children within that time are considered lucky. Application for a custody order after abduction has taken place will only prolong and complicate the retrieval process.
§ It is also much easier for an abductor to resort to the defences available under the Child Abduction Act 1984 where there is no custody order. For example, one defence for the abductor under the Act is for him to claim that the other person whose consent is required has unreasonably refused consent. However, if the child in question is the subject of a custody order made by a court in the United Kingdom, that defence clearly cannot apply. In some ways the position of a child abducted within the United Kingdom is even more worrying, because in the absence of a court order proceedings will have to be initiated which are of little use if the whereabouts 1332 of the child are unknown. If, on the other hand, there is a custody order, it is simply a matter of enforcing the existing order. If there is nothing to stop one parent removing a child within the United Kingdom, this may result in an increased incidence in child abduction and create greater insecurity for both the parent and the child.
This has been covered to some extent in Committee when an amendment was tabled which would have placed a duty on the court to make an order in any family proceedings in which an issue arises in respect of the welfare of a child. The noble and learned Lord objected to that amendment on these grounds at col. 1226 of Hansard on 19th December last year, when he stated that,
The Government would wish to discourage parties from going to court…and to encourage parents who separate to make responsible arrangements between themselves without necessarily involving a court order".
He also made reference to a report from the Law Commission in which it is argued, that,
Where a child has a good relationship with both parents the law should seek to disturb them as little as possible.".,
However, in another recent report the Law Commission recommended that,
The interest of the law in the protection of children should be asserted and safeguarded by imposing upon the court a duty to investigate"—
that is the wording in the amendment—
and consider whether it is necessary to exercise any of its powers in order to safeguard or promote the welfare of the children".
That is precisely what the proposed amendment aims to achieve. Although I would be the first to agree that parents should be encouraged to reach amicable agreements between themselves and that the law should seek to promote good relations between children and both their parents, in our view, the primary objective of the law should be to safeguard the interests of the children. This is in keeping with the general principle laid out in Clause 1 of the Bill. This affirms that,
When a court determines any question with respect to the upbringing of a child … the child's welfare shall be the court's paramount consideration".
Clearly any increased threat of either homelessness or abduction would undermine rather than safeguard the welfare of the child.
§ I believe that I have spoken at sufficient length to set out the reasons behind this amendment. I beg to move.
§ Lord Meston
My Lords, I wish to speak only briefly in support of this amendment in so far as it concerns the question of child abduction. I entirely agree with what the noble Lord has said about the willingness of the police in this country, and the courts in other countries, to act more speedily if there is a piece of paper conveying custody rights of some sort or another upon the party who is seeking to enforce those rights. But I was particularly shocked to hear him suggest that there may be some unwritten rule that the Lord Chancellor's Department somehow gives up if a child has not been retrieved after a year. I have never heard that said before. I certainly hope that there is no such unwritten rule. I hope that the noble and learned Lord will take the opportunity to deny that suggestion.
§ The Lord Chancellor
My Lords, perhaps I should deal with that matter first. I have spent some time trying to persuade authorities in other countries to speed up the processes for bringing children back from a parent, in a case where a child has been taken or abducted, in order to make sure that the system works properly. I have pointed out—and this may be the origin of the matter—that if a child has stayed, say, a year in a new environment, the child may have put down roots in that environment, made friends and so on in such a way that the court would regard it in the best interests of the child to stay where he was. Therefore it is of great importance if one is trying to take a child back to get on with the matter quickly before the rooting has taken place. That may be the origin of the suggestion that there is such a rule. I certainly do not think of it as a rule; I think of it as a very strong encouragement to get on with the matter, because where a country has a rule that the paramount consideration is to be the welfare of the child, one has to take account of these factors.
On this amendment, I can see that there may be some cases in which it is desirable to have a Section 7 order. However, I believe that these cases can be identified. I do not believe that it is right to put a duty on the court to do something in every possible case just because there is a minority of cases in which it would be desirable for the court to do something. Therefore my first answer to this general amendment is that it would result in unwarranted intrusions and disruption of family life.
Take, for example, applications to vary maintenance orders. In many cases they are made some years after a divorce or separation, during which time the children will often have settled down to living happily with one parent. In such cases it would be wholly unjustified to subject the family to an investigation. Doing so would risk opening up old wounds and destabilising the family, thus putting the children's welfare at risk.
Secondly, and equally worrying, the amendment might discourage parents seeking a court order or help when it was needed. Foremost in my mind are domestic violence cases. It would be greatly to the detriment of children if, when faced with a violent partner, a mother was discouraged from seeking an order to protect both her and the children because of the prospect of then having her care for the children fully investigated.
Finally, there is the question of targeting resources. It could not be in the interests of children generally if the resources of the courts, and more particularly welfare officers, were taken up by investigating the needs of children in every family proceeding whether or not there was any reason to do so. That could result only in diverting resources from cases where the need was real.
The Bill enables courts in all family proceedings to make Section 7 orders of their own motion where a need appears. Therefore the court is likely to be able to distinguish between cases such as that to which the noble Lord has referred and others. It has the power in such cases where it thinks it necessary of its own motion, without waiting for any application from the parties, to make an order where the need for one appears. Further, in divorce cases, where the whole of 1334 a family's life and structure is being rearranged, Section 41 of the Matrimonial Causes Act 1973, as amended by paragraph 21 of Schedule 8 to the Bill, requires the court to consider exercising its powers under the Bill. That is therefore an appropriate provision for a divorce situation. In an extreme case the court may withhold the decree absolute if it needs to give further consideration to the arrangements for the children and there are exceptional circumstances making it in the child's interests. That, in the Government's view, is sufficient. To go further would, as I have explained, be likely to harm the interests of children generally.
Accordingly, while I quite see that there may be some cases where a Section 7 order would be helpful, to make it a general obligation would, If think, be wrong. The court has power to identify these special cases and to act accordingly. I hope that the noble Lord will feel able to withdraw the amendment in the light of that explanation.
§ Lord Kilmarnock
My Lords, I am most grateful to the noble and learned Lord for his reply. On the question of the European conventions, of course I accept what he has said. I take the point that a court might well regard it in the best interests of the child to remain on foreign soil after a certain time. However, he also said that this is a strong ground to encourage people to get on with the matter quickly. That takes me back to my initial difficulty. In the absence of an order, it may be extremely difficult to do so. Therefore while I fully accept what he says about this position on this matter, I am not sure that it entirely helps the problem that I am addressing.
I would regard the main argument of the noble and learned Lord—that it is in the power of the courts already to identify such cases without placing a general requirement on them to issue orders in all cases—as entirely sufficient if it were certain that they would be able to identify cases in which abduction was likely to take place. I am particularly addressing the question of abduction because, on balance, of the two problems, this is the more important. After all, it is irrevocable if someone has been removed from this country and action cannot be taken in time.
I am not entirely clear from the remarks of the noble and learned Lord. I fully understand that the court is currently enabled to make a Section 7 order if it considers that it is necessary to do so in any case. I find it hard to understand how a case can be identified in advance in which an abduction is likely to take place. I am wondering whether the noble and learned Lord can give me any comfort on that point or suggest any way in which the identification of potential abductions could be more thoroughly covered, possibly in some different formula to the one that I am proposing.
§ The Lord Chancellor
My Lords, I do not think it is easy to devise a formula for that purpose; but I believe that the court will be able to distinguish cases to some extent by the risk of abduction. It is difficult to try to give examples because they are apt to be taken out of context. However, I would expect a court to be fairly astute in watching that aspect. No one can be sure in advance because to be successful 1335 an abduction has to be in the nature of a surprise. In that sense the noble Lord's amendment does not help either unless a Section 7 order is to be made in every case. Usually the abductor will not be parading his proposal in advance and therefore on investigation it would not be easy to tell either.
I believe that the court is sensitive to cases where the risk of abduction is likely to be high and would certainly give special consideration to those. The alternative appears to be a thorough investigation in every case having the consequences which I mentioned and with very doubtful results because, as I have said, an abductor will normally expect to keep his proposals as close to his chest as he can until he carries them out.
§ Lord Kilmarnock
My Lords, with the leave of the House, I should like to read very carefully what the noble and learned Lord has said. 1 was also expecting some concrete examples in which the vigilance of the court has been eluded, which did not reach me in time. Therefore the most sensible thing for me to do is to read the evidence when I receive it and possibly come back on Third Reading. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.15 p.m.
Lord Mishcon moved Amendment No. 8:
Page 7, line 20, at end insert—
("(3A) Rules of court shall provide for procedures to enable a child to make an application to join or initiate proceedings.").
§ The noble Lord said: My Lords, in my respectful submission, this is an extremely. important amendment. It goes almost to the heart of the Bill in the sense that it makes it abundantly clear that rules of court should provide for procedures enabling a child to make any application either to join or to initiate proceedings. It is bringing the child right up against the powers that can make orders affecting his own life and the way in which the child should continue to exist.
§ I hope your Lordships will permit me to indicate what happens elsewhere in other jurisdictions. In many ways we are in advance of other jurisdictions in regard to children and their welfare. In some ways we are behind. Other jurisdictions have different ways of allowing children to have their voice in their own destinies. In Ontaria, Canada, the Office of the Official Guardian investigates the arrangements for all children whenever a decree of divorce is sought and there are children of the marriage. In New Zealand the court must appoint a lawyer to represent the interests of children in all proceedings for custody, access and guardianship. In the United States, a number of states—including Washington, California, Colorado, Hawaii, Montana, North Dakota and Wyoming—have legislation actually making the child a party to proceedings concerning his custody. In Holland, Spain and Denmark children from the age of 12 have to be listened to and have their views on their custody and access taken into account.1336
§ Those are examples of what happens elsewhere. When one is dealing with legislation which affects the whole destiny of children we should be very careful to see that the rules of court provide procedures to enable a child to make an application to join or initiate proceedings where that child is vitally affected. We may not have the opportunity again for many years.
It is a fact that in a certain measure the Bill deals with this matter; but in my submission, and in the view of the Children's Legal Centre, the Bill does not go far enough. For example, we know that a Section 7 order is a contact order, a prohibited steps order, a residence order or a specific issue order. In relation to Section 7 orders the Bill enables children to apply to the court for leave to make an application. That is covered under Clause 9(2). But Clause 9(7) limits that to children who have sufficient understanding to make the proposed application. Clause 69(1) specifies that,
Rules of court may make provision as to the persons entitled to participate in proceedings under this Act, whether as parties to the proceedings or by being given the opportunity to make representations to the court hearing the proceedings.
That does not go far enough, because what we really want is for the child to be able to initiate and join any family proceeding which may affect her or his welfare. The Bill and the rules should provide for effective procedures so that children can be informed of their entitlement to apply to the court whether in family or related proceedings. I immediately remember, as some of your Lordships may, that when we moved an amendment on somewhat similar lines at Committee stage the noble and learned Lord the Lord Chancellor gave a reply which we wanted to consider very carefully. He said then that the aim of our amendment was likely to be met by rules to be made under Clause 69 combined with the prominence given by the Bill in Clause 1 to the child's wishes and feelings.
§ I quoted Clause 70 before, and your Lordships may remember that that referred to "persons". Although we may know as a matter of law that "persons" includes children there is no clear guidance there that children are also involved.
§ I also quoted from Clause 9, which deals purely with a Section 7 order. It is in connection with other issues, such as custody and access orders, that we believe that the views of children and young people should be taken into account. I say that Clause 69 is merely permissive and not mandatory.
I should like to emphasise what was said in Committee by my noble friend Lady David. I quote from col. 1233 of Hansard of 19th December 1988. She stated:
Although there is already provision for children to be made parties in a number of family proceedings, this provision is little known and little used".
§ In dealing with this legislation we wish the voice of the child to be heard. That does not mean to say that his voice will be agreed to by the court as being best for his welfare. However, the voice of the child should be heard and that is the purpose of the amendment. I beg to move.1337
§ The Lord Chancellor
My Lords, the effect of the amendment is to require rules of court to provide a procedure by which a child may apply to be joined as a party to proceedings or apply to start proceedings. There is already power to provide a procedure to enable a child to exercise his rights under Clause 9 to start proceedings by applying for an order. Further, in so far as he will be entitled to be a party to proceedings under Clause 9, again there is already power to provide for the procedure to be followed. I can assure the House, in so far as any assurance is needed, that we shall make whatever procedural arrangements are necessary to allow the child to exercise those rights.
As regards the child's substantive right to apply for a Section 7 order, it is already conferred by Clause 9, subject to the leave of the court. Leave is expressly adverted to in subsection (7) and, as this amendment does nothing to alter the leave requirement, I assume that that is thought satisfactory. But, in that event, nothing more is needed in the Bill to give the child a right to apply for a Section 7 order, which includes access and consent orders.
As regards a right to be joined as a party to proceedings relating to Section 7 orders, the superior courts already have power to join a child, and the powers under Clause 69 will be exercised to allow the court to join a child as a party to such proceedings in magistrates' courts. Any lingering suspicion that this will not be done where the child is of sufficient understanding to participate is misplaced. The guarantee against it lies in the fact that a child of sufficient understanding may apply for an order. Therefore, it is obvious that it would be a duplication of proceedings not to allow him to join in proceedings already raised in which that could be done.
The net effect is that what the noble Lord seeks to achieve in the amendment has already been achieved in the Bill. Therefore, all that is added is an extra provision which adds nothing to the powers already conferred under the Bill. In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Henderson of Brompton
My Lords, I should like to ask the noble and learned Lord a question before he sits down. Is a duty laid upon any person, the local authority or the court, to acquaint the child with his rights in that respect? If not, how is a child to know of his rights?
§ The Lord Chancellor
My Lords, the court has a duty to ascertain the wishes of the child in accordance with the provisions of the main clause (No. 1). The child's position will then be obvious. Clause 1(2) requires the court to have regard in particular to:the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)".In addition, the provisions in Clause 9 make clear the fact that a child can apply to be joined or to initiate proceedings himself. One way in which a child will come to know of his rights if proceedings are already in operation, will be as the court investigates his wishes.
As regards the initiation of proceedings when no proceedings are taking place, it is more difficult to see 1338 that any specific person could have a duty in that respect. It must depend on the circumstances of the child. It is not easy to see how one can impose an effective duty which would apply in the case of every child and every possible circumstance in order to achieve that. In such circumstances we must rely on as clear a system as we can devise and those advising the child will have an opportunity of directing his attention to his rights.
§ Baroness David
My Lords, the noble a nd learned Lord has given almost the same answer as he gave last time. It is not satisfactory because Clause 69 is unlikely to have the same effect as the proposed amendment. The amendment is more likely to enable children to participate in family proceedings. It deals particularly with children rather than persons and emphasises the frequently overlooked question of the child's status. It is intended to draw the child's status to the attention of the court and would appear in the section of the Bill dealing with Section 7 orders. It is in respect of such orders—currently, custody and access orders—that the Children's Legal Centre most frequently hears from children and young people that their wishes and feelings have not been taken into account. The wording of Clause 69 is merely permissive and therefore I ask the noble and learned Lord to think again about the matter.
§ The Lord Chancellor
My Lords, I accept the criticism—if it is a criticism—that the answer which I have given today is much the same as the answer I gave before. It is the answer. Clause 9(7) is the most important provision indicating the basis on which leave to apply for a Section 7 order will be granted. It is the main area of the noble Baroness's concern and the child's position is in the forefront of that provision.
Clause 69 was referred to by the noble Lord, Lord Mishcon. However, I have tended to put the main weight of my argument upon Clause 9, particularly subsection (7). It is an area of interest arid the fact that we pass from it today does not mean that it will not be considered as the Bill continues its passage both in this House and in another place.
§ 4.30 p.m.
§ Lord Mishcon
My Lords, there was no criticism of the noble and learned Lord that he had adhered in sheer consistency to the reply which he gave at the Committee stage. It is not a criticism of the noble and learned Lord but it could be a criticism of the argument now before the House. I endeavoured when moving the amendment to deal with the noble and learned Lord's Committee stage arguments, and to say why they were not satisfactory and therefore why this amendment is necessary.
The amendment is necessary because, first, it makes it mandatory and not permissive that the rules of court should provide a procedure. The noble Lord, Lord Henderson, asked: how is the child to know? One wants the procedural rules to make it apparent how a child should know. It is perfectly true that the noble and learned Lord did not rely upon Clause 69; it was I who referred to Clause 69. I think that he may have referred to the clause at Commit tee stage. 1339 Within it one merely finds the legally inclusive term, "person". To the public it does not necessarily indicate that a child is included.
It is perfectly correct that under Clause 9(7) the court has to be satisfied that the child has sufficient understanding to make any proposed application. I am trying to make it apparent that the child can apply for leave and how the child can apply, and the rules of court must so provide. The noble and learned Lord is always very forthcoming when he talks in terms of what one has in mind that the rules of court should provide. With the noble and learned Lord's jurisdiction over those matters one is perfectly content except to say that any essential provision should be enshrined in a Bill and not—and I say this with the deepest possible respect—in an indication of the noble and learned Lord's mind as to how rules should subsequently provide.
So, because one feels that one owes a duty to children whose destiny is being pronounced by procedures laid down in the Bill, I feel that we have to obtain the decision of the House on the rules of court providing what is specified in the amendment.
§ Baroness Faithfull
My Lords, before the noble Lord sits down may I ask a question for clarification? The amendment reads:Rules of court shall provide for procedures to enable a child to make an application".An application to whom? Is this to be an application direct to the court? Or is the application to be made through the social services department and then to the court? They are two different procedures. Sadly, some social services departments are so short staffed that any child wanting to make his application through the social services will find the social services department closed. I should therefore like to know whether the application can go direct to the court, in which case I think the child will find it very difficult to know what the rules are.
§ Lord Mishcon
My Lords, the wording of the amendment certainly does not provide that the child has to go through any social services department whatever. It would be by way of a direct application. It would happen, one imagines, after legal advice had been received and after somebody from whom that legal advice was sought had looked at the rules of court which we are trying to make mandatory. It would be perfectly clear to that adviser what the child's rights were and the procedure that ought to be adopted. I am most grateful to the noble Baroness for raising the question.
§ The Lord Chancellor
My Lords, I wonder, with the leave of the House, whether I could make it absolutely plain that what I am saying is that the structure of the Bill is such that rules of court will have to be made. I cannot foresee any situation in which the right to apply to grant leave could be frustrated and Clause 9(7) makes it clear that the child has a right to apply for leave. Accordingly, I am saying that the procedure for that purpose is a necessary consequence of what we have in the Bill at the moment. But I am not, of course, able to add anything further.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down, and crying for the patience of the House and for leave to rise for a third time, may I remind the noble and learned Lord, with deep respect, that the provision in Clause 9(7) is a negative provision, not a positive one. It does not say that a child shall be able to apply. But the court of course cannot grant the application if, by any chance, it finds that the child is lacking in understanding. It is a perfectly negative provision, and in view of what I have said I owe it to the noble and learned Lord and to the House to read what is only one sentence:Where the person applying for leave to make an application for a section 7 order is the child concerned. the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 7 order".That is not very helpful. It is a negative provision. I am trying to see that there are positive rules of court which enable a child to know when the application can be made and how it can be made, with proper legal advice being given.
§ 4.35 p.m.
§ On Question, Whether the said amendment (No. 8) shall be agreed to?
§ Their Lordships divided: Contents, 83; Not-Contents, 112.1341
|DIVISION NO. 1|
|Airedale, L.||Jenkins of Putney, L.|
|Amherst, E.||John-Mackie, L.|
|Ardwick, L.||Kennet, L.|
|Aylestone. L.||Kilmarnock, L.|
|Banks, L.||Kinloss, Ly.|
|Birk, B.||Leatherland, L.|
|Bonham-Carter, L.||Listowel, E.|
|Boston of Faversham, L.||Llewelyn-Davies of Hastoe, B.|
|Bottomley, L.||Lloyd of Kilgerran, L.|
|Briginshaw, L.||Lockwood, B.|
|Bruce of Donington, L.||Lovell-Davis, L.|
|Caradon, L.||McNair, L.|
|Carmichael of Kelvingrove, L.||Mason of Barnsley, L.|
|Carter, L.||Meston, L.|
|Darcy (de Knayth), B.||Milner of Leeds, L.|
|David, B.||Mishcon, L.|
|Davies of Penrhys, L.||Molloy, L.|
|Dormand of Easington, L.||Mulley, L.|
|Elwyn-Jones, L.||Nicol, B. [Teller.]|
|Ewart-Biggs, B.||Paget of Northampton, L.|
|Falkland, V.||Phillips, B.|
|Fisher of Rednal. B.||Pitt of Hampstead, L.|
|Foot, L.||Ponsonhy of Shulbrede, L. [Teller.]|
|Galpern, L.||Porritt, L.|
|Gladwyn, L.||Prys-Davies, L.|
|Graham of Edmonton, L.||Rea, L.|
|Grey, E.||Ritchie of Dundee, L.|
|Halsbury, E.||Sainsbury, L.|
|Hampton, L.||Seear, B.|
|Hanworth, V.||Seebohm, L.|
|Harris of Greenwich, L.||Shepherd, L.|
|Henderson of Brompton, L.||Stallard, L.|
|Hirshfield, L.||Stoddart of Swindon, L.|
|Howie of Troon, L.||Strabolgi, L.|
|Hughes, L.||Taylor of Blackburn, L.|
|Hunt, L.||Taylor of Mansfield, L.|
|Hylton-Foster, B.||Turner of Camden, B.|
|Irvine of Lairg, L.||Underhill, L.|
|Irving of Dartford, L.||Wallace of Coslany, L.|
|Jay, L.||White, B.|
|Jeger, B.||Wilson of Langside, L.|
|Airey of Abingdon, B.||Johnston of Rockport, L.|
|Aldington, L.||Killearn, L.|
|Alexander of Tunis, E.||Lauderdale, E.|
|Alexander of Weedon, L.||Long, V.|
|Allerton, L.||Lyell, L.|
|Alport, L.||Mackay of Clashfern, L.|
|Arran, E.||Margadale, L.|
|Ashbourne, L.||L. Marley, L.|
|Auckland, L.||Merrivale, L.|
|Beaverbrook, L.||Mersey, V.|
|Belhaven and Stenton, L.||Morris, L.|
|Beloff, L.||Mottistone, L.|
|Belstead, L.||Mowbray and Stourton, L.|
|Bessborough, E.||Munster, E.|
|Birdwood, L.||Murton of Lindisfarne, L.|
|Bolton, L.||Nelson, E.|
|Borthwick, L.||Nugent of Guildford, L.|
|Boyd-Carpenter, L.||Orkney, E.|
|Brabazon of Tara, L.||Orr-Ewing, L.|
|Brougham and Vaux, L.||Oxfuird, V.|
|Butterworth, L.||Pender, L.|
|Caithness, E.||Penrhyn, L.|
|Campbell of Alloway, L.||Platt of Writtle, B.|
|Campbell of Croy, L.||Plummer of St. Marylebone, L.|
|Cockfield, L.||Portland, D.|
|Coleraine, L.||Reay, L.|
|Constantine of Stanmore, L.||Redesdale, L.|
|Cottesloe, L.||Rodney, L.|
|Cullen of Ashbourne, L.||Romney, E.|
|Davidson, V. [Teller.]||Rootes, L.|
|Denham, L. [Teller.]||St. Davids, V.|
|Derwent, L.||St. John of Fawsley, L.|
|Dilhorne, V.||Saltoun of Abernethy, Ly.|
|Dundee, E.||Sanderson of Bowden, L.|
|Elibank, L.||Selborne, E.|
|Ellenborough, L.||Sempill, Ly.|
|Elliot of Harwood, B.||Simon of Glaisdale, L.|
|Elliott of Morpeth, L.||Skelmersdale, L.|
|Faithfull, B.||Slim, V.|
|Fanshawe of Richmond, L.||Strange, B.|
|Fisher, L.||Strathclyde, L.|
|Fraser of Kilmorack, L.||Strathspey, L.|
|Gardner of Parkes, B.||Sudeley, L.|
|Glenarthur, L.||Swansea, L.|
|Gridley, L.||Terrington, L.|
|Grimthorpe, L.||Teviot, L.|
|Hailsham of Saint Marylebone, L.||Thomas of Gwydir, L.|
|Harmar-Nicholls, L.||Trafford, L.|
|Havers, L.||Trumpington, B.|
|Henley, L.||Vaux of Harrowden, L.|
|Hesketh, L.||Whitelaw, V.|
|Hives, L.||Windlesham, L.|
|Home of the Hirsel, L.||Wise, L.|
|Hooper, B.||Young, B.|
|Jenkin of Roding, L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.43 p.m.
Lord Meston moved Amendment No. 9:
Page 7, line 40, at end insert ("Provided that the grandparents of the child may apply for a contact order notwithstanding that the requisite consents have not been obtained for the making of the application.").
§ The noble Lord said: My Lords, this is a greatly modified version of an amendment which I moved at Committee stage. It concerns the ability of grandparents to seek access orders or, in the language of this Bill, contact orders. At present, generally speaking, grandparents have the right to apply for access to a child irrespective of the consent of the parents. The Bill seems to debar such applications as of right. It is not clear that grandparents will be 1342 covered by the rules which are to be made under Clause 9(6), and if they are not grandparents will only be entitled to apply, unless they obtain the leave of the court, if they fall within the categories set out in Clause 9(5) of the Bill. Therefore, in practice, under this Bill the grandparents will need the consent of the parents to apply.
§ The problem is that a grandparent will only be in the position of wanting to apply for access precisely because one or other of the parents, arid possibly both, objects to the grandparents having access. That self-same objection by the parent or parents means that the grandparents cannot apply to the court for contact or access without leave of the court. In these circumstances I would suggest that leave is an unnecessary hurdle in the case of grandparents. Grandparents ought to be able to apply for access in the face of parental objection, and it is by means of this amendment that I seek to deal with that position. I beg to move.
§ The Lord Chancellor
My Lords, the present position, as I understand it, is that a grandparent can apply as of right for an access order under Section 14A of the Guardianship of Minors Act 1971 when a custody or access order is in force under Section 9(1) of that Act or when the grandparent's child has himself died leaving children. Those rights are rather restrictive and arbitrary in the Government's view. Accordingly, the Bill will allow grandparents to apply at any time and in any circumstances for a contact order only provided that they obtain the court's leave by demonstrating that they have a good reason. In addition, of course, a grandparent can apply if he or she has lived with the child for three or more years or has the consent of those with parental responsibility.
I recognise that there is often a close bond of concern between a grandparent and a grandchild—and I speak with particular feeling on this point—and in such cases leave, if needed, will no doubt be granted. Indeed, in many cases it will be a formality; but we would be naive if we did not accept that not all interest shown by a grandparent in a child's life is necessarily benign, even if well intentioned. Arguably, at least until we have experience of the wider rights of, application, the law should provide some protection to children and their parents against unwarranted applications by grandparents when they occur.
As the House will know, on this issue, as on others under the Bill, we are entering unknown territory to some extent—in other words, territory that has not been charted—and so we have taken power to react flexibly to experience as it is gained. Thus subsection (6) enables subordinate legislation to add to the categories of persons who may apply for orders as of right under the Bill. If it is shown by experience that grandparents are generally granted leave, so that the protection is shown to be an unnecessary impediment, we can remedy the situation. However, the reverse would not be true. There is no power in the Bill, by subordinate legislation, to cut down the number of those who may apply as of right. If unfettered rights to apply under the Bill led to problems we would be powerless to remedy them. If 1343 experience showed that grandparents coming into cases as of right caused increased problems, expense, delay and so on we could not under this Bill, if it passes into law as it is, do anything about it.
Therefore, while recognising that your Lordships may have particular expertise in this field, I would suggest that the court's grant of leave is a very useful and flexible way of dealing with this matter; that is, allowing the court to look in a very preliminary way at the circumstances and then to decide whether they were circumstances in which the grandparent should be allowed to participate fully in the application. I believe this is a reasonable position for us to adopt, and I hope that in the light of that explanation the noble Lord will feel able, although I appreciate he has modified the amendment considerably, to leave the position as it is and withdraw this amendment.
§ Lord Meston
My Lords, I had thought that all your Lordships were too young to declare an interest as grandparents! The noble and learned Lord quite rightly said that the present provisions to some extent are restrictive and arbitrary. Nevertheless, we must be careful not to replace those provisions with other provisions which in a different way are unduly restrictive and arbitrary.
I suggest that in the great majority of cases the court's leave will tend to place in the way of grandparents an unnecessary hurdle in what are already difficult and probably highly charged circumstances. I do not believe that there will be a flood of applications. I should hope that if the leave requirement is to be adhered to as a requirement under the law when this Bill comes into force, administrative arrangements will be made to ensure that there is not unnecessary duplication of proceedings and that the leave application and the substantive application can in appropriate cases be heard together.
I accepted in Committee, and I accept now, that this is a balancing arrangement. I appreciate what the noble and learned Lord said about the rule-making power in the sense that once a door is opened it cannot be closed again. For that reason I accept his arguments and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness David moved Amendment No. 10:
Page 8, leave out lines 8 to 11.
§ The noble Baroness said: My Lords, if paragraph (d) in Clause 9(8) remains part of the Bill there is a danger that relatives will never succeed on an application for leave to apply for a residence order when a child is being looked after by a local authority.
§ The present position is that when a child is in care, the local authority has total discretion to decide where that child should live. In recent years the Family Rights Group has advised and represented many grandparents and some other relatives such as uncles and aunts who wish to offer a home to their young relatives in care. If the local authority wishes 1344 instead to place the child with strangers for adoption, as is frequently the case, grandparents and relatives have no legal remedy. They are not able to apply to discharge the care order on a child.
§ They can apply to be parties to adoption and freeing for adoption proceedings but they are very often unsuccessful in this application because there are no orders a court can make in their favour in those proceedings. They cannot use the wardship jurisdiction because of the series of decisions made by the House of Lords—most notably A. v Liverpool City Council (decided in 1981) and re W (decided in 1985)—which made it clear that the wardship jurisdiction could not be used to challenge the exercise of a local authority's discretion.
§ Referring to the changes introduced in this Bill, it is clear from the face of the Bill and from the discussions in the consultative period leading up to it that it is intended that greater powers should be given to the courts to give directions to a local authority in only two important areas. These areas are contact orders and residence orders.
§ It is clearly intended that relatives should be able to apply for a residence order even if their young relative is in care and even if the local authority disagrees. If this paragraph remains, the danger is that the courts may interpret this reference to the local authority's plans as meaning that they cannot interfere with those plans. If that happens, relatives will never get to be on the application for leave to the substantive hearing.
§ During the Committee stage the noble Lord, Lord Meston, proposed an amendment to remove the requirement for relatives to seek leave before applying for a residence order. The Lord Chancellor's response to that was that, if it became apparent that grandparents or siblings should have a right to apply without leave for orders, then that could be achieved in the future by rules of court. That exchange was reported at cols. 1226 and 1228 of Hansard for 19th December 1988.
§ This amendment seeks only to remove the additional hurdles imposed for relatives when applying for leave to apply for residence orders in relation to children being looked after by a local authority. The local authority's plans and the parents' wishes are clearly relevant to the substantive hearing but unnecessary for the application for leave. The issues the court must consider on an application for leave—subsection (8) paragraphs (a), (b) and (c)—are quite sufficient to ensure that frivolous and vexacious applications are not allowed through.
§ Paragraph (d) is unnecessary and may very well put relatives of children in care back in the same unfortunate position they are in at the moment, having no legal remedy when a local authority refuses to agree to their providing a home for their young relatives in care. As the whole tenor of the Bill is, I thought, to seek to get children back home with their parents, that may be a hurdle which can easily be removed from the Bill without doing any harm to the symmetry or delight of the Bill in any way. I beg to move.
§ The Lord Chancellor
My Lords, as the noble Baroness explained, the amendment would remove 1345 paragraph (d) from Clause 9(8), which provides that, where a court is considering whether to grant leave for the making of an application for a Section 7 order by someone other than the child, it shall have particular regard to where the child is being looked after by a local authority, the authority's plans for the child's future and to the wishes and feelings of the parents.
Apart from local authority foster parents under Clause 8(3) who require the local authority's consent, there are no restrictions on who may apply to the court for leave to make an application for a Section 7 order. As the noble Baroness said, the purpose of subsection (8) is to require that leave to make the application is not given lightly. The court must ensure that leave is not given where it would not be in the child's interest to allow the case to be brought—for example, because it was frivolous or mischievous or the application would have a disrupting effect on the child's situation.
In considering what should go into these provisions we took account of advice in the Law Commission's report, including the requirement at paragraph (d). Children being looked after by a local authority are principally children being provided with accommodation under voluntary arrangements under Clause 17 and children in the care of the local authority by virtue of a care order. The Law Commission considered that it was important to maintain the confidence of parents in voluntary arrangements and that they should not feel more at risk of losing their children (under a residence order made in favour of someone else) by accepting the services of a local authority than they would by making private arrangements.
The Law Commission also said in the report that it was important that local authorities should feel confident in their responsibility to plan the best possible future for children in both voluntary accommodation arrangements and compulsory care, which may very well include a careful scheme for rehabilitation with the parents. The Law Commission concluded that this problem could be met by including in criteria for granting leave that which is provided for in subsection (8)(d)(i)—the authority's plans for the child. The Law Commission was considering applications by the local authority foster parents with respect to the child they are looking after, but we feel that these comments apply equally to applications from persons other than those who by virtue of their relationship with the child or in the other circumstances specified in the Bill would have an unfettered right to apply.
For those reasons we think it reasonable to require the court when considering leave applications in cases of this kind to have regard not only to authority's plans for the child but also to the wishes and feelings of the child's parents. The court does not of course have to be bound by such plans or views and may well conclude when the applicant is a grandparent or other relative that there is no risk to the child's welfare in allowing the application for leave. I should certainly not expect there to be automatic refusal of leave just because the authority had made plans for the child or the parents objected. The aim would be to sort the cases which should not go forward in the 1346 child's interests from those which should. I submit that that is a relevant consideration to be taken into account in making that decision.
This is intended to be a balanced approach which recognises that the merits of applications from persons without a clear legal interest in the child will differ and that there could be positive disadvantages for the child in allowing some to proceed. I hope that your Lordships will feel that that is a wise approach and that the amendment should not be pressed.
We have, as it were, put the court in charge of this matter by directing attention to criteria which appear to be important. I particularly stress the importance of seeking to promote voluntary arrangements. We do not wish parents to feel that putting the child under a voluntary arrangement with the local authority puts the child at more risk than if it had made private arrangements. This is an important matter, and I hope that in the light of this explanation the noble Baroness will feel able to withdraw the amendment.
§ 5 p.m.
§ Baroness David
My Lords, I am partially satisfied. It seems that a group such as the Family Rights Group, which has a great deal of experience in dealing with parents, children and courts, knows a good deal of what it is speaking about on this subject. It must have had a very strong reason for wishing this amendment to go forward with paragraph (d) being deleted. Obviously no one would mind about.(d)(ii), because that is all right. It is (d)(i), which states -the authority's plans", which seems to be the stumbling block.
In the light of the explanation that the noble and learned Lord has given, I wish to consult further on the matter. I withdraw the amendment now and retain the right to come forward at the next stage of the Bill if I am so advised.
§ Amendment, by leave, withdrawn.
§ Clause 10 [General principles and supplementary provisions]:
Lord Mishcon moved Amendment No. 11:
Page 8, line 27, at end insert ("and
(c) in drawing up a timetable, have regard to circumstances where parents are living abroad.").
§ The noble Lord said: My Lords, I return to the theme of refugee children and children who have parents abroad without their being refugee children. Clause 10 of the Bill very sensibly makes arrangements for a fairly quick timetable. It quotes the general principle with which all your Lordships would agree; namely, that any delay in determining a question of making a Section 7 order or any other question with respect to such an order is likely to prejudice the welfare of the child concerned.
Subsection (2) of that clause provides:
the court shall (in the light of any rules made by virtue of subsection (3)—
(a) draw up a timetable …";
and subsection (3) provides:
Rules of court may—
(a) specify periods within which specified steps must be taken …".
The sole purpose of this amendment, with the eye on the refugee child or the child with the parent abroad, is to see to it that in drawing up a timetable due regard is had to circumstances where parents are living abroad in order that they may find and liaise with the child's parents, who may be far away or, in some tragic circumstances, whose whereabouts may not be known.
§ The Lord Chancellor
My Lords, when drawing up a timetable the court will have to be realistic and will have to take account of all the circumstances, otherwise it will simply not be adhered to. Many things may affect the matter; for example, whether medical or welfare reports have to be obtained, when parties are available and so on. Plainly, if parents are facing difficulties because they are abroad that too would be taken into account. But so could the fact that they are hospitalised or are on a walking trip in Wales, or are uncontactable for some other reason. Perhaps, rather than living abroad, they are simply on a holiday. It really cannot make sense to tack on to the timetable power one of the very many matters which in particular cases may be relevant. Doing so is not only illogical unless a pretty near definitive list is provided but may also suggest that the factor mentioned is somehow more significant than others, and thus be misleading.
There is also available a technical criticism of the amendment, but I shall not trouble your Lordships with that. The circumstance that the parents are living abroad is obviously one to be taken into account, but there are so many others that I believe we can leave it to the court to be sensible in drawing up a timetable. I hope the noble Lord feels that confidence in the court can extend thus far.
§ Lord Mishcon
My Lords, that was a very persuasive reply to the amendment. The purpose of the amendment is not to see that the court behaves sensibly. Clause 10(3) states:Rules of court may—(a) specify periods within which specified steps must be taken …".Therefore, the court may be bound by the rules of court so drawn up. The advantage of the exchange between myself and the noble and learned Lord is that this matter will not now be forgotten when the rules of court are drawn up. If no other purpose is served by this amendment I shall be content. In the circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 [change of child's name or removal from jurisdiction]:
Lord Elwyn-Jones moved Amendment No. 12:
Page 9, line 42, leave out from ("either") to ("or") in line 43 and insert—
The noble and learned Lord said: My Lords, this clause provides, as regards a residence order, that,
Where a residence order is in force with respect to child, no person may—
both important steps as regards the child—
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
There is no provision for requiring the consent of the child in the terms that I have read out. It is a curious and extraordinary omission. In the case of a child in care that requirement is a necessity. One sees from the provisions of paragraph 17(1) of Schedule 2, at page 81:
A local authority may, with the approval of the court, arrange for, or assist in arranging for, any child in their care to live abroad.
Then, when we come to sub-paragraph (3):
The court shall not give its approval under sub-paragraph (I) unless it is satisfied that—
(a) living abroad would be in the child's best interests;
(b) suitable arrangements have been, or will be, made for his reception",
(c) the child has consented to living in that country".
That is a clear provision for the protection of the child and for requiring his consent.
As one sees at sub-paragraph (4):
Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard subparagraph (3)(c)",
which is the sub-paragraph I have just read out.
§ For some reason there is now no such requirement as regards the provisions affecting the child who is placed in residence. The requirement that the child should have sufficient understanding is clear and necessary, and that is not sought to be avoided. It is curious that in the provision for a residence order there is no requirement that the child's consent should be given if those two important matters that are provided for are to be put into effect.
§ At the Committee stage the noble and learned Lord the Lord Chancellor pointed out that an older child who objects to being known by a new surname or being taken abroad can under Clause 9(7) apply for a prohibited steps or specific issue order to prevent it. That still leaves the child with the onus and responsibility of making the application. It would require an exceptionally self-confident and competent child to initiate such an application in the circumstances that we are envisaging in this matter; namely, where the decision as regards the child's change of name or removal abroad is being made by those with parental responsibility for the child and there is not necesssarily any court supervision of the decision.
§ In our submission it is unacceptable that major decisions such as those at issue here should be made without the consent of a competent child. Your Lordships' House in its 1985 judgment in the Gillick case, the Cleveland Inquiry report and the Law Commission's review of child law all acknowledged the importance of the child's participation in decisions such as that which we are now considering. It is wholly out of accord with recent changes in both 1349 law and policy to make provision in the Bill for significant decisions to be taken about certain children without their consent, regardless of whether they are of competent understanding to decide those matters for themselves. I hope that in those circumstances the noble and learned Lord will achieve consistency and justice by accepting the amendment.
§ Lord Meston
My Lords, I agree with everything the noble and learned Lord has said about the importance of the child's wishes and the importance of respecting and requiring adherence to the child's wishes when the child is in a position to make an informed decision, but I have never heard of a case in which a child's name has been changed in the face of objection from that child. Even if the child expresses mixed feelings as to whether or not his or her name should be changed the court will not change the name and will err on the side of caution—and quite rightly so. The usual position in these cases is that the child's wishes provide the general impetus for an application to change his name. The child will come home asking why he is not called the same at school as his half-brothers or step-brothers, and that prompts an application to the court. I wonder whether in practice the written consent of the child in cases involving a change of name adds anything of substance to what happens.
§ Lord Mishcon
My Lords, before the noble Lord sits down, and only so that we can clarify one matter, has he appreciated that the wording of Clause 12 is alternative? In other words, the leave of the court does not have to be obtained if those who have parental responsibility for the child consent to a change of name. Therefore, the court may never be consulted on this matter and the wishes of the child may never be taken into account.
§ Lord Meston
My Lords, I accept that point. I was looking at the matter purely from a forensic point of view. When it is before the court the wishes of the child are the determining factor in that case.
§ Baroness David
My Lords, I find it anomalous that Clause 12 does not allow a child the right to consent to a move abroad when he or she is subject to a residence order while the Bill grants this right to a child who is the subject of a care order. I wonder whether the noble and learned Lord can give the reasons for that.
§ The Lord Chancellor
My Lords, perhaps I may take the last question first. The reason for the distinction between Clause 12 and Schedule 2 is that children covered by Schedule 2 are in care and may not apply for an order under Clause 7, prohibiting removal. Under Clause 12 the child can apply for a prohibited steps order.
The amendment as drafted has a rather doubtful effect. If a child does not wish to give his consent to a change of surname or to his removal abroad, his consent is not required under the amendment. This is a technical point. The amendment says that the consent required is, 1350the written consent of every person who has parental responsibility for the child".It does not refer to the written consent of the child.
§ The Lord Chancellor
No, my Lords, it does not. It says,the written consent of the child who has sufficient understanding to make an informed decision and who wishes to give his consent".Therefore it refers not to "the child" but to "the child … who wishes to give his consent".
§ The Lord Chancellor
My Lords, the child is free to agree, perhaps, but certainly not to disagree. The question is whether his consent is required. The amendment does not refer to the written consent of the child in every case. It refers to,the written consent of the child who has sufficient understanding"—it does not stop there—to make an informed decision and who wishes to give his consent".That is part of the amendment, and must make a difference. It is not otiose. It is there for a purpose: and what can its purpose be?
§ 5.15 p.m.
§ Lord Mishcon
My Lords, before the noble and learned Lord goes any further, if he looks at the amendment with a little more care, if I may respectfully say so, he will see that it says that the child cannot be taken out of the jurisdiction nor can the child's name be changed unless there isthe written consent of every person who has parental responsibility for the child, and … the written consent of the child".If it stopped there the noble and learned Lord, with great justification, would have asked how we would know that the child had sufficient understanding to make an informed decision. The wording goes on:the written consent of the child who has sufficient understanding to make an informed decision and who wishes to give his consent".It may well be the case that one need not add the words,and who wishes to give his consent",but I am sure that the noble and learned Lord will not rest his argument in reply upon words that he regards as otiose. They may be otiose, but the meaning is transparently clear. One cannot change the name of a child who is in residence and one cannot let a child go abroad unless, if the child is able through understanding to make an informed decision, that child has given his consent. I know that the noble and learned Lord will accept the intention of the amendment in the way that I have just indicated.
§ The Lord Chancellor
My Lords, I have no doubt that the noble Lord's intention in moving the amendment was not to produce the result which I have just described. However, if one reads the words carefully, as I think I have done, there is at least a considerable danger that they have that consequence.
I said in Committee, and I repeat it now,, that since the Gillick case it is recognised that older children's rights to self-determination are important. The Bill 1351 strikes the right balance in our view, not by giving the child the right to decide these issues as such, and thus putting the burden of the decision on him, but by ensuring that in court proceedings his views are fully taken into account and by enabling him, with the court's leave, to seek an order himself. Hence, in an extreme case an older child who objects to being known by a new surname or to being taken abroad can, with leave, apply for a prohibited steps or specific issue order to prevent it.
It is important not to put the child in the invidious position of being left to choose. That would be the case here assuming that the noble and learned Lord's amendment had the effect, subject to the supplementary explanation which the noble Lord, Lord Mishcon, gave, which it is intended to have. I feel that in substance it has not met the point which I sought to make in Committee. It is true of course that in such a situation everyone with parental responsibility for the child will be required to consent. But the difficulty is putting the child in the situation where his consent determines whether the others will consent. It is a difficult issue and I do not know whether it is possible to give an absolutely right answer. For the reasons which I have given, we feel so far that this is a matter which should not be conditioned entirely upon the child consenting.
§ Lord Elwyn-Jones
My Lords, the contrast between the provisions for the child in the care of a local authority who has to consent to any change in residence and the provision contained in Clause 12 as it now stands is stark. Clause 12 makes no requirement for the consent of the child at all. It states:Where a residence order is in force with respect to a child, no person may—There is a total omission of the prime necessity of having the child's consent. If I may say so, the amendment spells that out repeatedly. It does so very well and clearly. It provides for,
without either the written consent of every person who has parental responsibility for the child or the leave of the court".
- (a) cause the child to be known by a new surname; or
- (b) remove him from the United Kingdom;(i) the written consent of every person who has parental responsibility, and(ii) the written consent of the child"—and here it goes a little further and states—who has sufficient understanding to make an informed decision"—as is the case of the child in care. Then, so as to underline the fact that it must be a decision of the child and that it is the consent of the child which is given, it adds by way of precaution the words—and who wishes to give his consent".Therefore he must consent and he must indicate that he wishes to do so. Those additional words are by way of a reasonable extension of the requirement; they are not a contradiction or a limitation in any sense of the term. Indeed, for once I am almost driven to impatience on the matter. It is a clear issue and in the light of its importance and clarity I must seek the opinion of the House.
§ 5.23 p.m.
§ On Question, Whether the said amendment (No.12) shall be agreed to?
§ Their Lordships divided: Contents, 82; Not-Contents, 99.1353
|DIVISION NO. 2|
|Airedale, L.||Jenkins of Hillhead, L.|
|Amherst, E.||Jenkins of Putney, L.|
|Ardwick, L.||L. John-Mackie, L|
|Aylestone, L.||Kinloss, Ly.|
|Banks, L.||Lovell-Davis, L.|
|Bonham-Carter, L.||McNair, L.|
|Bottomley, L.||Manchester, Bp.|
|Brooks of Tremorfa, L.||Mason of Barnsley, L.|
|Caradon, L.||Meston, L.|
|Carmichael of Kelvingrove, L.||Milner of Leeds, L.|
|Carter, L.||Mishcon, L.|
|Craigavon, V.||Molloy, L.|
|David, B.||Monson, L.|
|Davies of Penrhys, L.||Nicol, B.|
|Dean of Beswick, L.||Paget of Northampton, L.|
|Dormand of Easington, L.||Peston, B.|
|Dunrossil, V.||Phillips, B.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Ewart-Biggs, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.||Porritt, L.|
|Foot, L.||Prys-Davies, L.|
|Gallacher, L.||Rea, L.|
|Galpern, L.||Ritchie of Dundee, L.|
|Graham of Edmonton, L. [Teller.]||Saltoun of Abernethy, Ly.|
|Greenway, L.||Seebohm, L.|
|Grey, E.||Shackleton, L.|
|Halsbury, E.||Shannon, E.|
|Hampton, L.||Shepherd, L.|
|Hanworth, V.||Stallard, L.|
|Harris of Greenwich, L.||Stoddart of Swindon, L.|
|Henderson of Brompton, L.||Strabolgi, L.|
|Hirshfield, L.||Taylor of Blackburn, L.|
|Hughes, L.||Taylor of Mansfield, L.|
|Hunt, L.||Turner of Camden, B.|
|Hylton-Foster, B.||Underhill, L.|
|Irvine of Lairg, L.||Wallace of Coslany, L.|
|Irving of Dartford, L.||White, B.|
|Jay, L.||Williams of Elvel, L.|
|Jeger, B.||Wilson of Langside, L.|
|Aldington, L.||Cullen of Ashbourne, L.|
|Alexander of Weedom, L.||Davidson, V. [Teller.]|
|Allerton, L.||Denham, L.|
|Ampthill, L.||Derwent, L.|
|Arran, E.||Dilhorne, V.|
|Atholl, D.||Dundee, E.|
|Auckland, L.||Elibank, L.|
|Belhaven and Stenton, L.||Ellenborough, L.|
|Beloff, L.||Elliott of Harwood, B.|
|Belstead, L.||Elliott of Morpeth, L.|
|Borthwick, L.||Faithfull, B.|
|Boyd-Carpenter, L.||Fisher, L.|
|Brabazon of Tara, L.||Fraser of Kilmorack, L.|
|Brougham and Vaux, L.||Gardner of Parkers, B.|
|Butterworth, L.||Glenarthur, L.|
|Caithness, E.||Gridley, L.|
|Campell of Alloway, L.||Hailsham of Saint Marylebone, L.|
|Campell of Croy, L.|
|Carnegy of Lour, B.||Harmer-Nicholls, L.|
|Carnock, E.||Havers, L.|
|Cathchart, E.||Henley, L.|
|Coleraine, L.||Hesketh, L.|
|Colyton, L.||Hives, L.|
|Canstantine of Stanmore, L.||Home of the Hirsel, L.|
|Cottesloe, L.||Hooper, B.|
|Jenkin of Roding, L.||Reay, L.|
|Johnston of Rockport, L.||Renwick, L.|
|Killearn, L.||Rodney, L.|
|Lauderdale, E.||Romney, E.|
|Long, V. [Teller.]||Rootes, L.|
|Lyell, L.||St. Davids, V.|
|Mackay of Clashfern, L. [Teller.]||St. John of Fawsley, L.|
|Sanderson of Bowden, L.|
|Macleod of Borve, B.||Selborne, E.|
|Margadale, L.||Simon of Glaisdale, L.|
|Marley, L.||Skelmersdale, L.|
|Merrivale, L.||Stevens of Ludgate, L.|
|Mersey, V.||Strange, B.|
|Morris, L.||Strathclyde, L.|
|Mottistone, L.||Strathspey, L.|
|Munster, E.||Sudeley, L.|
|Murton of Lindisfarne, L.||Terrington, L.|
|Nelson, E.||Thomas of Gwydir, L.|
|Orkney, E.||Trafford, L.|
|Orr-Ewing, L.||Trumpington, B.|
|Oxfuird, V.||Vaux of Harrowden, L.|
|Pender, L.||Westbury, L.|
|Penrhyn, L.||Whitelaw, V.|
|Platt of Writtle, B.||Windlesham, L.|
|Plummer of St. Marylebone, L.||Wise, L.|
Moved accordingly, and, on Question, Motion agreed to.
§ 5.33 p.m
Lord Meston moved Amendment No. 13:
Page 9, line 45, after ("month") insert (in any twelve consecutive months.")
§ The noble Lord said: My Lords, with the leave of the House I shall speak also to the identical amendment, Amendment No. 89.
§ The amendment arises out of a point raised in Committee about which the noble and learned Lord the Lord Chancellor was good enough to write to me. At present the law provides that a child who is subject to a custody order may be removed from England and Wales only with the consent of the other parent or leave of the court. There is a great deal to be said for the present law with the exception, perhaps, that consent is technically needed to take a child to Scotland.
§ I can understand that the Bill seeks to extend the present law to the United Kingdom as a whole. The amendment is concerned with a modification introduced by the Bill. Clause 12(2) provides an automatic right of removal of the child, or children, for a period of up to one month. It was mentioned in Committee that there is no limit to the number of monthly periods in a year for which the child might be removed from the United Kingdom. That creates a potential for abuse. Clearly the right given by Clause 12(2) is a right which must not, in all common sense, be exercised too frequently. The child should not be allowed to suffer unnecessary disruption merely for the convenience of one or other of his or her parents.
§ I propose a modification of the right given by the Bill to limit the automatic entitlement to remove the child for a period of up to a month to a right which can be exercised once every 12 months only. That, of course, does not rule out the possibility of further removals from the jurisdiction of the British courts during the same period. The parent concerned can take the child if he or she obtains the consent of the other parent for a further period of absence or if the 1354 court gives permission when the other parent has refused consent on unreasonable grounds.
§ The risk of abuse which is latent, at any rate under this part of the Bill, is that of the freedom to take the child out of the country. It is a risk which will be aggravated—that is the topic which I seek to cover—by the absence of any provision in the Bill for notification to the other parent of the intended removal of the child.
§ If there is a risk of abuse, it may well be said, "Oh well, the other parent can go to the court before or after". Going to court after the child has been removed is too late. It will be too late especially if that other parent does not have the right to be notified. I suggest that the Bill goes a little too far. There should be a measure of control on the face of the Bill to provide that a child may be removed as a matter of right for a period of less than one month but that that right should be exercised, at least normally, only once every 12 months. I beg to move.
§ The Lord Chancellor
My Lords, I said in Committee that I would consider whether there should be a limit on the overall time during which a child may be kept abroad during a given period. That I have done, and I have come to the conclusion that there is no need for such a limitation.
The Bill provides for great flexibility. Not only may the court make orders about residence of, and contact with, a child; it can also make orders about any specific issue, such as periods to be spent abroad and can prohibit any steps being taken in respect of a child. In addition Clause 10(8) provides that any order under Clause 7 may contain directions, conditions and any incidental, supplemental or consequential amendments that the court thinks fit. Accordingly, if a party thinks that the right to take the child abroad for a period of less than a month is likely to be abused, he may ask the court al the outset, or later, to curtail or limit it. I accept entirely that if there is abuse, that is too late; but nothing can effectively prevent that position once a person is outside the jurisdiction. The flexibility allows the person who fears that such a power may be abused to raise the issue with the court and ask the court to do what is right in the circumstances.
The Law Commission, which I have consulted on this matter, considers that subsection (2) provides a sensible and simple rule which in the vast majority of cases will clarify the position and work well. The Government accept that view and, accordingly, would not want to see the general rule that it provides complicated.
Even if your Lordships were minded to impose some limit, it would not be reasonable, as the amendment provides, that a single period abroad—no matter for how short a time—should use up the whole allowance. That would be the effect of the amendment. It would be unacceptable if, for example, a day trip to Boulogne prevented further trips aboad for a whole year without consent. I appreciate that this is a difficult matter. Trouble often 1355 arises after the order has been made and someone has been taken abroad. The necessity to take steps in advance is almost underlined by this way of handling the matter, that it must be considered. The court has very wide and flexible powers to do what it can to prevent abuse. I do not believe that merely putting a limit, as this amendment seeks to do, would cope with all forms of abuse. I do not think that the noble Lord claims that for the amendment. What we have proposed in the Bill is, I believe, a good way of dealing with the matter. No way is perfect but this is the best that can be devised when we take account of all the possible cases with which the court may be concerned.
§ Lady Saltoun of Abernethy
My Lords, perhaps I may add one word to what has been said. It would be a pity to tie up people with parental responsibility for children with too much red tape, particularly when nowadays many families take two holidays per year—a bucket-and-spade holiday in the summer and a skiing holiday in the winter, or something similar. One could end up with a lot of unnecessary administrative work.
§ Lord Meston
My Lords, in response to the last point, I should say that the requirement is not to tie people up with red tape. The Bill already provides a considerable loosening of the present requirements. As things stand, even if one wants to go for a day trip to the Isle of Man or the Channel Islands one needs not only to inform the other party but to get his or her consent. I recognise the common sense of the basic general entitlement to take children abroad if there is no possible objection.
However, the amendment would impose some limit on the entitlement in that it provides a numerical or periodical limitation on the number of times on which a child may be removed or at least removed without consent. The problem of frequent removals is not addressed in the Bill. As we have all agreed, and as I think the noble and learned Lord agreed, the problem arises after the event. There is a risk of giving a little too much flexibility. In my submission to your Lordships there ought to be certain ground rules for when parents separate and divorce and the child is with one or other of the parents. There ought to be a basic understanding, preferably an understanding which the law has the right to dictate, if necessary, as to how often the child can be taken abroad.
I accept the point made by the noble and learned Lord that the amendment ought to deal with aggregate periods amounting to one month rather than any one period. He gave the instance of a day trip across the Channel which forfeited the right for the rest of the year. I accept that and therefore there is a drafting defect in that part of the amendment. I feel most strongly however about the next amendment. For those two reasons, at this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1356
§ 5.45 p.m.
Lord Meston moved Amendment No. 14:
Page 9, line, 46, at end insert ("Provided notice and such other relevant information is given to other persons with parental responsibility for the child as the court may direct or rules of court may prescribe.").
§ The noble Lord said: My Lords, this amendment touches on the same topic and I wish also to speak to Amendment No. 90. It is a modified and I hope much less cumbersome version of an amendment I moved at Committee stage. The intention is to provide on the face of the Bill some mechanism whereby if a parent with a residence order intends to take a child abroad, he or she should at least be required to inform the other parent. The notification by one parent of the other ought to be the law.
§ At the lowest level, notification of the other parent ought to be a matter of good manners and good sense. But I put it higher. There should be a duty in the great majority of cases to notify the other parent—that is to say the parent who does not normally have the child living with him or her—as part of the joint responsibilities of separated and divorced parents.
§ In moving the amendment I recognise, as one must, that parents do not always behave responsibly. I gave instances at the Committee stage. In a case in which I was involved, a parent insisted on taking a child to Sri Lanka, notwithstanding warnings from the Foreign Office that nobody should travel to Sri Lanka, particularly that part of the country to which she wanted to go, unless it was absolutely necessary. Had the Bill been in force in law at the time and had the father concerned not been notified, that child would now be in Sri Lanka. There would be nothing anyone could do about it.
§ Likewise, I gave the example of the parent who decides that for reasons of his or her own convenience he or she wishes to take the child abroad, notwithstanding that it will clash with the run up to some very important exams. Those are examples which one comes across in practice. When I suggest to your Lordships that there ought to be a duty to notify the other parent, I do so because there is a corresponding right for the other parent to know at least in general terms where his or her child is and where his or her child is going. That enables the other parent to reassure himself or herself as to where the child is going, whether it is a safe area, where the child will be staying, who else will be there and that the child will be back in time for important exams or some other important event or back in time for the next arranged period of access.
§ There is another aspect, although I emphasise the basic right—and I suggest that it is a basic right—of the other parent to know where his or her child is at least in general terms. That area is child abduction. We have passed much valuable legislation in relation to child abduction. We have already agreed among ourselves this afternoon that no amount of legislation and regulation will prevent child abduction taking place if the person intending to abduct is determined enough. Nevertheless, it should be recognised that the provision in Clause 12(2) opens the door somewhat. If there was, as I suggest there should be, at least a requirement to give notice to the other 1357 parent and the child is then taken away without notification of the other parent, the parent taking the child away cannot pretend that he or she has taken the child away lawfully.
§ If there is no requirement of notice then of course the abductor can buy time. At least until the expiry of one month, there will be no certainty that the child has been taken unlawfully. As the Bill stands, there is no certainty when, in time, the unlawful abduction commences. It is very important that there should be certainty. The police have to prosecute if necessary in cases of attempted abduction, and, more important, foreign countries and the courts of foreign countries have to know whether the child has been removed unlawfully and when that unlawful state of affairs commenced. This is an area which needs certainty.
§ However, I come back to where I began, in a sense. The main requirement, the main purpose of the amendment, is to give the other party what I suggest the other party is entitled to—that is notification in the great majority of cases. It rules out or at least limits the ability for the capricious and irresponsible removal of the child from the country. Believe me, parents do behave irresponsibly, and very often, particularly if this Bill passes unamended, the ability of the parent left behind to protest or do something by way of access to the courts will be an ability which can only be exercised too late.
§ One has to think of the situation where parents often separate amicably enough, go to court amicably enough and do not see the need to ask the court to impose any regulation or requirement that there should be notification to the other parent if one or other of them wants to take the child abroad. The mother may, for example, meet another man; her attitude changes. The other man may say that he does not care whether the child has important exams to sit the following week. He has decided that they are all going on holiday. The child will go too.
§ When such a situation occurs, the other parent will not even have an opportunity to learn about it, let alone protest. Your Lordships may well think that parents have a basic right to know where their minor children are. It is in thinking of children, not only of parents, that I move the amendment. I beg to move.
§ Lord Simon of Glaisdale
My Lords, the drafting of this amendment seems not entirely satisfactory. 1 hope however that my noble and learned friend will look favourably upon the main thrust of the proposal. The noble Lord, Lord Meston, has given a number of examples. The fundamental point is that the parent who does not have a residence order is entitled to know what is happening to the child.
The argument against, of course, is that this may invite a rush to the court. On the whole, that seems by far the lesser argument. For the reasons given by the noble Lord, Lord Meston, both in Committee and today, 1 hope that my noble and learned friend on the Woolsack will consider the amendment favourably.
§ The Lord Chancellor
My Lords, this amendment, like its predecessor, addresses what I regard as an extremely important matter. I do not in any way under-estimate the position. However, I wonder 1358 whether the argument properly takes us to a general requirement for notification.
I think what I said in Committee and what I am about to say is probably true. I have had a further opportunity to think about this and it seems to be right. If notice is required of removals abroad, then a similar restriction should apply to movements within the United Kingdom. The noble Lord, Lord Meston, mentioned the example of a mother who has remarried and who takes her child away at the time of an important examination. Consequently, the child does not have the opportunity to sit and pass the examination. I see that that should not happen; but in order to miss an important examination the child does not necessarily have to be taken abroad. It was not clear to me why that particular aspect should be singled out in the example.
There is, of course, a general concern on the part of a parent to know where his child is. That appears to me to apply equally to movements or holidays in the United Kingdom as to those outside. We know, of course, that sometimes children disappear within the United Kingdom to addresses unknown in order to make it difficult for the other parent to follow up his desire to pursue the wellbeing of the child. If there is an underlying fear that a holiday will be used as a means to abduct a child, notice will not help. The noble Lord has already mentioned that. The abductor presumably will not trouble to give notice as the success of the abduction depends on surprise. I said in Committee, and I say again, that flexible arrangements adapted to individual cases are the best answer. I believe that in particular cases the court can do something in exercising the powers it has to deal with the matter.
The attempt to control everything by the same method does not appear to me particularly appropriate. The noble Lord, Lord Meston, pointed out—I believe this is true—that parents may separate perfectly amicably, but then something may happen to disrupt the arrangements and cause one or other of them to wish to conceal things about the child from their former partner. The Bill, of course, provides plenty of machinery for dealing with that, once it comes to the notice of the other parent.
I agree entirely that this is a very important problem. However, I believe that the best way to handle it is by the court using the very wide flexible powers that have been given. No doubt practice will develop in relation to particular kinds of case. As regards the drafting, I have no doubt that the noble Lord will keep in mind what my noble and learned friend Lord Simon of Glaisdale said. I make my point on the basis of principle because this is a very important matter.
§ Lord Meston
My Lords, it is indeed an important matter and an important problem. I shall, of course, look at the drafting. For that reason alone I shall think in terms of coming back on Third Reading. I am grateful for the support I have received from the noble and learned Lord, Lord Simon of Glaisdale.
I repeat that the Bill is a considerable relaxation on what happens now. I seek to have put on the face of the Bill—rather than allow this to grow up as a matter of practice when the Bill becomes law—a 1359 simple requirement for notification. Of course one can make the point that there is no distinction between taking a child abroad and taking a child from one part of the United Kingdom to another. Indeed, I remember conducting a case where the whole issue concerned whether the mother could take her child to Corby new town. One had the impression by the end of the case that Corby new town was something akin to outer Mongolia.
This is a matter of principle. I am glad that the noble and learned Lord, Lord Simon of Glaisdale, brought us back to it. It is a matter of the basic entitlement to know where one's child is. If a child is to be taken abroad, the other parent can be assured, for example, that the child has had the necessary innoculations.
Conversely, if a mother can take a child abroad without telling the other parent or indeed without telling anybody, and an earthquake or some other disaster occurs, nobody is in a position to alert the authorities that that particular couple are in the area or may be there. The intention of the amendment which, as I say, is a considerable modification of what I moved in Committee, is simply to give a power. It is a permissive power only. Having said that, and appreciating that there may be drafting matters to come back on, I shall withdraw the amendment at this stage. I am however very tempted to come back at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 1 [Financial Provision for Children]:
The Lord Chancellor moved Amendment No. 15:
Page 69, line 43, leave out ("above").
§ The noble and learned Lord said: My Lords, I wish also to speak to Amendments Nos. 16 and 17. These three amendments are drafting changes which in no way alter the effect of paragraphs 3 (2) and 14 (2) of Schedule 1. Their aim is simply to achieve consistency in drafting style. I hope that your Lordships will agree to them. I beg to move.
The Lord Chancellor moved Amendments Nos. 16 and 17:
Page 75, line 39, leave out ("above").
Page 75, line 40, leave out ("above").
§ The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 16 and 17 en bloc. I have already spoken to them.
§ Clause 15 [Provision of services for children in need, their families and others]:
§ 6 p.m.
Lord Elwyn-Jones moved Amendment No. 18:
Page II, line 19, leave out subsection (4).
The noble and learned Lord said: My Lords, the amendment seeks to leave out one of the most
astonishing provisions in this remarkable Bill, which is good in parts but outrageous in others. Clause 15(4) provides that:
The Secretary of State may by order modify or repeal any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there".
§ Schedule 2 is a crucial part of the Bill. It makes provision for a local authority support for children and families. It is absolutely fundamental to the Bill. But the Bill seeks a power for the Secretary of State by order to modify any of it he wishes, to repeal any of it he wishes or to add to it any power or duty.
When one looks at what is contained in the schedule one sees, for example, that Part I deals with the provision of services by local authorities for families. Within Part I paragraph 1 concerns the identification of children in need. It begins:
Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area".
The paragraph also provides that information is to be published by the local authority about the services it provides under Clauses 15 to 17. Paragraph 2 provides a duty in relation to the maintenance of a register of disabled children and paragraph 3 provides for the assessment of children's needs. Paragraph 4 deals with matters which the public, the newspapers and the rest of us have been gravely concerned about—the prevention of neglect and abuse. Paragraph 5 relates to provision for diisabled children, paragraph 6 to provisions to reduce the need for care proceedings and paragraph 7 to provision for children living with their families. Part I also deals with family centres and the maintenance of the family home.
§ All of that is cast in doubt by Clause 15(4), which provides that the Secretary of State can repeal any of those provisions by order. The provisions for Parliament to cope with that situation are, to say the least, rather rough. It cannot amend the order. The position was described graphically by the noble and learned Lord, Lord Simon of Glaisdale, as a constitutional outrage. That is a view which, accustomed as I am more to moderation than extravagance of language, in these circumstances I find entirely justified.
§ We have covered the ground before, but that provision cannot remain on the statute book. I greatly hope that, having had an opportunity to give the matter thought in the meantime, we shall hear from the noble and learned Lord the Lord Chancellor that subsection (4) will be removed lock, stock and barrel. I beg to move.
§ Lord Simon of Glaisdale
My Lords, last year we celebrated the bicentenary of the Glorious Revolution. This year we celebrate the bicentenary of its consummation. One is bound to ask why it was regarded as a glorious revolution at the time and ever after. It was assuredly not because of a rather unattractive foreigner who introduced flogging as a penal measure in the British Army was invited to supplant the legitimate King of the country. Nor today should we regard James II's attempts at toleration of Roman Catholics and dissenters as outrageous.
1361 What was outrageous was that he sought to do so by order. He sought to modify and repeal measures that were laid down by Parliament. He sought the dispensing power which is the subject matter of subsection (4). He was not the first to have done so. Only decades earlier Oliver Cromwell had purged the House of Commons and then dismissed the Rump with contemptuous words. He told them to take away "that bauble", referring to the symbol of the authority of the Houses of Parliament, a similar mace to that which lies behind my noble and learned friend.
Even earlier Henry VIII, by the Statute of Proclamations, was given the right—having demanded it in his diseased and despotic old age—to govern by proclamation. That lasted only for the last eight years of his life and was then immediately repealed. But it is significant that when this kind of clause started to reappear in statutes in the 'twenties it was called a "Henry VIII clause".
When we discussed this matter in Committee my noble and learned friend made two defences. The first was that it could not be considered as an arrogation of the powers of Parliament because it was Parliament which was vouchsafing the powers. That was so with Henry VIII. Indeed, it was so with Hitler and the Reichstag. Hitler was brought to power constitutionally by a majority in the Reichstag and it was the Reichstag which gave him the power to govern by decree and in turn registered the decrees.
The second argument of my noble and learned friend was that the provision was necessary to give flexibility: circumstances might change in which Part I of Schedule 2 might require modification, repeal or even supplementation. That was the argument that was put forward in favour of the Henry VIII clauses during the 1920s. The noble Lord, Lord Dormand, asked my noble and learned friend what precedents there were for such a measure. My noble and learned friend did not vouchsafe a direct answer to that question.
I had said that there were precedents, having in mind the Henry VIII clauses, and I specifically mentioned the Donoughmore Report. My noble and learned friend said that I would not have referred to precedents unless they existed. It struck me as an altogether uncharacteristic recklessness on his part to trust to the recollection of a man of my age giving an off-the-cuff remembrance. But I thought that it would be useful to check the Donoughmore Report on the Henry VIII clauses. In fact, the committee found that there were nine and that eight of those were purely transitory. They had quite a severe time limit, about 12 months. The only remaining one was a Henry VIII power given to county councils and that could be exercised only on the first election of a parish council or on the creation of a new parish council. In other words, they were completely transitory and transitional provisions, whereas this is quite open-ended. There is no limit in time any more than in power to what the Secretary of State can do by way of rewriting a statute passed by Parliament.
I do not need to emphasise the importance of the schedule. My noble and learned friend Lord Elwyn-Jones has just referred to its provisions. The noble Lord, Lord Mottistone, regarded the provisions of such importance that he desired to transfer two of 1362 them to Part I of the Bill. The noble Lord, Lord Prys-Davies, made a similar attempt in Committee in relation to another provision. My noble and learned friend on the Woolsack quite rightly said that that need not be done, that this Bill has a structure and that there is a relationship between the main provisions and the schedules. He said that the schedules are just as important, just as much an expression of parliamentary opinion, just as binding on the citizen as any other part of the statute.
The Donoughmore Committee, having found that the provisions that it had to review were transitional and transitory, nevertheless said in its conclusions on page 61 of the report:we are clear in our opinion first that the adoption or such a clause"—a Henry VIII clause like this—ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him up to the hilt".I am bound to say that my noble and learned friend the Lord Chancellor, who has conducted this Bill so superbly, did not even mention this provision on Second Reading. He justified it only when the matter was raised by my noble and learned friend Lord Elwyn-Jones.
The report continues:secondly its use should be avoided unless demonstrably essential".I say with confidence that neither of those conditions has been made good in the case of this Bill. If we pass this measure it will be used as a precedent in other measures.
I have one other point to add: the regulations referred to are governed now, I think, in Clause 75, and the procedure is by way of negative resolution. By practice that does not come before your Lordships' House. It is left to the other place for a Private Member to pray against a negative resolution and very rarely is it brought to debate, owing to lack of parliamentary time and a 40-day time limit. If it were by affirmative resolution, that would at least have the advantage that the Minister has to explain to Parliament what he is doing, but it cannot be amended; at most, it can be criticised.
Where then are the vaunted revising powers of your Lordships' Chamber? They are done away with by this clause. If we countenance this clause, we are not entitled to call ourselves a revising Chamber. I therefore have no hesitation in supporting my noble and learned friend Lord Elwyn-Jones.
§ 6.15 p.m.
§ Lord Henderson of Brompton
My Lords, it is a trifle daunting to follow two noble and learned Lords and to be succeeded by another, the Lord. Chancellor. Nonetheless I shall try to hold my head high in such exalted company.
There is no need for me to follow the noble and learned Lord, Lord Simon of Glaisdale, in his historical excursus or in his account of the Donoughmore Report because he has done it so well and comprehensively. I should like to make one or two observations about this schedule, which hangs on the clause, partly stemming from my experience as a member of the Renton Committee on the 1363 preparation of legislation. I had the honour to sit on that committee under the chairmanship of the noble Lord, Lord Renton.
In that committee we certainly recommended that detail should be relegated to schedules. We did not want to clutter up the clauses of the Bill with detail. It has been customary for many years and we wished to give a spin, so to speak, to that ball, so that it should be continued and if necessary used more freely.
However, none of us ever thought that the main principles of a Bill should be relegated to schedules, yet that is what this schedule does. The noble and learned Lord, Lord Elwyn-Jones, cited some of those main principles which I cannot believe any government would want to repeal, let alone to modify. Amendment No. 3, tabled by the noble Lord, Lord Mottistone, states:Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area".No one would wish to repeal or modify either that or the other amendment that the noble Lord wished to raise in relation to Part I. That amendment states that local authorities have a duty to:take reasonable steps to prevent children within their area suffering neglect or physical or sexual abuse".How on earth could the Government wish to take powers to repeal or modify that?
Let me take yet another example; there are so many. I believe that the whole of paragraph 5 regarding provision for disabled children could not conceivably be repealed. 1 agree that the paragraph might be added to. I should have thought that repeal was out of the question. Therefore no provision should be made in Clause 15(4) to repeal that provision.
Paragraph 6 of the schedule is vitally important. Let me cite the huge advance in thinking which paragraph 6(b) represents. Every local authority shall take steps designed,to encourage children within their area not to commit criminal offences".That is a most important step forward. It is of such importance that it should be embodied in the clause and not in the schedule. It should not be subject to Clause 15(4), which would allow it either to be amended or repealed by statutory instrument subject only to negative procedures. The same argument applies to paragraph 8 and so on.
I should therefore make a distinction of the proper function of a schedule, which is to contain detail, hanging on the main principles of the clause, and I should remove from this schedule the great statements of principle and embody them in Clause 15. That would be one solution. There is a certain amount of detail which could be left in the schedule. No doubt it would be quite proper to apply Clause 15 to matters of detail in the schedule such as the definition of "family centre". One might wish to change that definition from time to time.
There are other points of detail. I can see a use for Part I of Schedule 2. But the main provisions should not be subject to this draconian provision in Clause 1364 15(4). To my mind the most suitable solution to this problem is to lift the main provisions out of the schedule and put them into Clause 15. The noble and learned Lord, Lord Elwyn-Jones, used the expression lock, stock and barrel. I agree with almost everything he said, but not quite that. My solution is to divide the schedule into two parts; the first to be restored or put back into the main part of the Bill into a clause, and the second part to remain as a schedule subject to modification or even repeal if the Government so wished.
I should also like to take issue over a very minor matter which the noble and learned Lord, Lord Simon of Glaisdale, addressed. If I heard him aright, he said that negative instruments were subject only to proceeedings in the House of Commons. That was perhaps not quite right. It is equally open to the House of Lords in the case of non-financial delegated legislation to pray against orders in this House, although a convention prevails by which we do not press those Prayers to a Division. Therefore that procedure is available in this House. I hope that the noble and learned Lord will forgive my having pointed that out as a matter of detail.
This is an extreme example of something that is taking place generally in the statute book. Only the other day in Committee on the Companies Bill powerful arguments were addressed in the Chamber against such a clause in that Bill. It was not nearly so important a matter as this case. Nor was the provision for repeal and modification nearly so widespread. The power was not so great as it is in this case. However, there were powerful arguments for modifying it in the Companies Bill. But this is the most far-reaching provision of this kind that I can remember. I very much hope that the noble and learned Lord the Lord Chancellor will consider perhaps recasting the Bill on the lines that I have suggested.
§ Lord Jay
My Lords, perhaps the noble and learned Lord the Lord Chancellor can help those of us who are not lawyers in this House by citing any specific precedent for a sweeping provision of this kind—other than the special cases quoted by the noble and learned Lord, Lord Simon—being included in legislation in recent years.
§ Lord Mottistone
My Lords, as I said when moving Amendment No. 3, I am sorry to disagree with the noble Lords who have moved this amendment. However, I think that they have gone unnecessarily far. I can think of many places where there might be a need as time goes on to add to Part I of Schedule 2 to improve matters. It might be found necessary in paragraph 2 to restrict access to the register in particular ways. In paragraph 3 there might be a need to add to the references that are given therein. It might be necessary at times to add to the provisions in paragraph 5. I believe that the noble Lord, Lord Henderson, was indicating that, but he has put his name to an amendment which sweeps away the whole of subsection (4). I should have understood it more if it had swept away only the first half of subsection (4) and allowed the addition of various provisions. I should have thought that that was sensible.
1365 However, having studied this very carefully, I selected paragraph 1(1) and paragraph 4 in which to put the crucial matters into the introductory part of the Bill. I do not wish to go over that ground again. There is not much harm in making the remainder of Part I of Schedule 2 subject to Clause 15(4) as it stands now. As my noble and learned friend has said on an earlier occasion, no sensible government will sweep away sensible provisions, but it is quite useful that this part of the schedule should be flexible in order to make additions. The amendment that we have before us goes too far, and unnecessarily so.
§ The Lord Chancellor
My Lords, there are a number of different matters to be taken into account here. First, perhaps I may start with the point that my noble friend Lord Mottistone has just made. I can well see that some discrimination might be required in relation to the schedule in respect of which Clause 15(4) operates. Noble Lords will see that we have already done that. Clause 15(4) is dealing with the provisions of Part I of Schedule 2. There is nothing particularly sacrosanct about that. I am certainly willing to consider whether any particular provision of Part I should be regarded as sacrosanct. However, it is worth seeing how this position has developed.
The general provision in Clause 15 imposing a general duty of a very wide and embracing kind on the local authority is mainly derived from Section 1 of the Child Care Act 1980. The detailed provisions that we now have in Part I of Schedule 2 are intended to elucidate these general duties and to give detailed powers and duties by which they could be successfully implemented.
As my noble friend Lord Mottistone has said, we anticipate that, being based on current practice, these will be subject to improvement. This is an area of quite rapid change and I believe rapid improvement. It is surely right that the detailed regulation of the performance by local authorities of this very important duty should be able to take advantage of these improvements.
The purpose of this clause, part of which the amendment seeks to delete, is to enable that to be done. It was pointed out at Committee stage (I believe it is true) that there are advantages in having details of this kind in the schedule in that they thereby acquire an authority which it is important for those who operate these provisions to have regard for and bear in mind. Therefore it is better to have them in the schedule rather than merely doing it by regulation.
My second point is that, as has been said, regulations made under this power are subject to being prayed against in both Houses of Parliament. Your Lordships have experience of such matters. Indeed, regulations made by various Ministers have been the subject of such discussion here since I have been in the House over the past 10 years. In some situations it is appropriate that a power of this kind should be subject to affirmative resolution. In other words, the statutory instrument operating the power would not have effect unless it had affirmative resolution of both Houses. There is a later amendment, I believe, in the name of the noble and learned Lord to alter the method in some cases. I may be wrong, but I do not think it applies in relation to 1366 Clause 15(4). But I am willing to consider whether the clause should be subject to affirmative resolution.
Concerning the more general argument that my noble and learned friend Lord Simon of Glaisdale developed, I can see that matters of this kind must be considered carefully. I believe I am right in saying that I referred to this power, although I think not at Second Reading, when I was describing the proposals in the schedule in answer to the first amendment, which was designed to put them into the main part of the Bill.
I believe that powers of this kind, subject to control by both Houses of Parliament in the way I have described, have a constitutional place in our legislation. It is for Parliament to consider on any occasion whether these powers should be granted and, if so, subject to what procedure, and also to consider, as a revising Chamber, the extent of the power. In my view there is no derogation of this House's responsibility as a revising Chamber in passing a subsection of this kind, provided that it can—
§ 6.30 p.m.
§ Lord Simon of Glaisdale
My Lords, will my noble and learned friend allow me to intervene? How does he manage to run the role of your Lordships' House as a revising Chamber with a complete inability to amend any statutory instrument, whether it is brought in by negative of affirmative resolution?
§ The Lord Chancellor
My Lords, what I am saying at the moment is that this House as a revising Chamber—indeed it is to this House that the Bill was brought; it has not yet been to the other place—is exercising its legislative power in dealing with a Bill that has come before it first. I am saying that what has been referred to as the revising power of the House is to be exercised in relation to the grant of the power. I see no derogation in this House granting the power, subject to such conditions and limitations as it thinks proper. It seems to me that that is a perfectly proper exercise of the revising power of this Chamber. The mere fact that, having considered a matter, it is left to be dealt with by statutory instrument does not in any way derogate from the revising power of the House. I accept that the scope for revision is not so great in a statutory instrument as it is for an ordinary Bill. I accept that, but the power to carry out this operation by statutory instrument is what Parliament is presently considering. I cannot see that merely tallow a power to be exercised by statutory instrument is a derogation from the revising duty and responsibility of the House.
The explanation for the requirement in this case I have already given. I have explained why we think it is right to have a clause of this kind here. It is difficult to give precise precedents because the reasons we have in mind are not precisely mirrored in any previous case, but I have a list of some statutes in which fairly wide powers of amendment are contained. These are illustrations. The first is the Health and Safety at Work Act 1974. Under Section 15 of that Act the Secretary of State may modify in relation to any specified class of case any of the provisions of Sections 2 to 9 of the Act, these being 1367 the general duties of employers and employees. The second example is the Sex Discrimination Act 1975, which by Section 80 confers wide powers to amend provisions of the Act by subordinate legislation; and the third is the Race Relations Act 1976 by Section 73. The dates of some of these have a certain significance in the argument that we are developing.
I give these examples particularly in answer to what the noble Lord, Lord Jay, asked me. The matter must be considered in each case as one of principle and whether your Lordships feel that the clause is utterly wrong in principle in having regard to the circumstances of how the power is operated. If that cannot be sustained—in my submission it certainlycannot—the question then is whether the power is properly defined with sufficient precision and then whether the method for safeguarding the exercise of the power is appropriate, namely whether it ought to be an affirmative or negative resolution.
I am prepared to consider these matters, but as a matter of principle I submit that this is an appropriate power which should be granted and therefore I ask your Lordships not to support the amendment.
§ Baroness Macleod of Borve
My Lords, with leave of the House can my noble and learned friend help me about one word which he and my noble friend Lord Mottistone used in this connection and which is not as far as I can make out in subsection (4). He used the word "improvement". That is not contained in the three lines that the House is considering. They read:by order, modify or repeal".Perhaps my English is incorrect or perhaps I am insufficiently educated, but I believe that the word "improvement" is very different from the phrase "modify or repeal". If my noble and learned friend could help me it would be of enormous benefit.
§ The Lord Chancellor
My Lords, with leave, the explanation is that I gave that as the basis on which a power of this kind is sought, that there would be room for improvement in the method by which that improvement would be carried out. In the language of the schedule it would be to "modify or repeal" parts and also to,add any further duty or power to those for the time being mentioned there".The Secretary of State, by the subsection, is given power to modify or repeal any provision and to add any further duty or power to those for the time being mentioned there. The whole purpose of Part I of Schedule 2 is specified in Clause 15(2). Its principal purpose is to facilitate the discharge of their general duty under this section. Every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
I used the word "improve" to indicate that as time passes the practices may change in such a way as to require changes to the schedule. I hope that any changes which will be made—and this will be the purpose of them—will effect improvements which changes in practice bring about. That is the reason why the proposal is made, and the terms of the proposal follow from that.
§ Lord Elwyn-Jones
My Lords, Clause 15(4) provides:The Secretary of State may by order modify or repeat any provision of Part I of Schedule 2".Part I contains the heart (I shall not say "soul", although the Bill has soul because it is concerned with children) and the guts of the Bill. The subsection provides that the Secretary of State can, by order, repeal any part he wishes. There is no limitation to it and no qualification: he can repeal any of it. That is an intolerable burden to place upon this House in seeking support for it.
In my submission the precedents which the noble and learned Lord has given contain the words "modify" and "amend". I did not hear a single mention of the word "repeal" in what was recited.
§ Lord Elwyn-Jones
My Lords, it is the heart and importance of the matter. No doubt it is the presence of that word which led my noble and learned friend to call what is proposed "a constitutional outrage". I see no benefit in adding to the adjectival attack, but that is the heart of the objection. When the order is issued to repeal whichever part the noble and learned Lord the Lord Chancellor may seek to repeal that order is not capable of amendment by either House. For those reasons I hope that the House will agree to take this provision out.
§ The Lord Chancellor
My Lords, before the noble and learned Lord sits down I should like to make clear the fact that I am prepared to consider with my colleagues the removal of the word "repeal". I can see the effect of that in particular, and the noble and learned Lord has now focused on it especially. 1 shall be happy to consider removing that word if it is objectionable. However, I wish to preserve an ability to take account of improvements as they occur without the necessity for further primary legislation.
§ Lord Elwyn-Jones
My Lords, is the noble and learned Lord willing to undertake to eliminate the word "repeal" between now and the Third Reading of the Bill? If so, that will certainly affect my view as to whether we should now call for a Division on this important matter.
§ The Lord Chancellor
My Lords, yes, I believe that in the circumstances I ought to undertake to do that.
§ Lord Elwyn-Jones
My Lords, in view of thatundertaking—and when the noble and learned Lord gives an undertaking he abides by it—I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.45 p.m.
Lord Henderson of Brompton moved Amendment No. 19:
Page I I, line 28, at end insert—
("(5A) It shall be the duty of every local authority to take steps to ensure that the group of persons registered to provide day care or foster care for children in their area shall reflect the racial groups comprising the population of their area, and the term "racial group" shall have the meaning assigned to it in the Race Relations Act 1976.").
§ The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 40, 83, 88, 113, 115, 117 and 122. They relate to the strengthening of Clause 18(5)(c), which is an important provision in the Bill.
§ Clause 18(5)(c) makes specific reference to the need for racial origin to be taken into account by local authorities in respect of children in their care. It is a great step forward, and I congratulate the Government on taking it. The amendments which I am proposing are designed to strengthen the application of the provision and to ensure that it is effectively implemented.
§ There is a strong body of opinion among those in the childcare professions that the placement of a child with foster carers of the same racial origin—known as "same race placements"—is conducive to the development of the child's confidence and sense of identity. It is only by taking adequate steps to ensure that the pool of foster carers reflects the ethnic composition of their area that local authorities can properly carry out their duties specified in Clause 18(5)(c). All the amendments are designed to strengthen the operation of that provision and to enable it to be implemented satisfactorily. I believe that without them the clause cannot be properly implemented. It is for that reason that I propose them and explain briefly what they achieve.
Amendment No. 19 is moderately worded. It asks only that local authorities shall:
take steps to ensure that the group of persons registered to provide day care or foster care for children in their area shall reflect the racial groups comprising the population of their area".
The phrase "take steps" is gentle, but it may not always be possible for that to be done. However, at least it places the duty on local authorities to take those steps. The phrase "racial group" is carefully defined because the meaning is assigned to it in the Race Relations Act 1976.
§ The word "reflect" may not be as precise as it ought to be but it is difficult to be precise in this as in many other areas. I should be happy if a word other than "reflect" was substituted, but at the moment it is the best word I can think of. Perhaps one could use words such as those used in the House of Commons when those responsible for selecting Members of Standing Committees have the duty to "have regard to" the composition of the House. Much the same consideration lies behind the amendment, and I ask for it to be considered sympathetically by the Government.
§ The consequential amendments relate to different parts of the Bill. Amendments Nos. 83 and 88 relate to the courts' and the local authorities' duties in making and carrying out care and supervision orders. Amendments Nos. 113 and 115 again concern the local authorities' duties in finding suitable accommodation in community homes and the person or organisation carrying out the duties in respect of accommodation in community homes. Amendments Nos. 117 and 122 are much the same but are concerned with accommodation in registered children's homes and accommodation for privately fostered children.1370
§ I think I have said enough to show that these amendments, numerous and widespread as they are throughout the Bill, are really designed to make it easier for the authorities to enforce the provisions of the Bill which has been so wisely introduced by the Government. I beg to move.
§ Baroness David
My Lords, I should like to support the amendment very strongly. Like the noble Lord, Lord Henderson, I should like to congratulate the Government on Clause 18(5)(c) which reads:In making any such decision"—that is, what to do with the child—a local authority shall give due consideration to the child's religious persuasion, racial origin and cultural background".That is excellent and I am delighted to see it.
We want to give a little more point so that when local authorities are considering foster carers they try to have among the group ready to take children some from the ethnic minorities, thus making it easier to match the child to the foster parent. This is not of course necessarily appropriate; I am certainly not one who believes that black children should go to black foster parents. You can have very good white foster parents for black children. However, in some areas, where there are a great number of coloured people, it is a very good idea to have as big a mix as possible among the foster parents.
Some local authorities are adopting measures of this kind; but others are taking no action at all and need that little push that would be provided if this amendment became part of the Bill. I hope very much that the noble and learned Lord will feel that this very moderate amendment could be accepted.
§ Lord Meston
My Lords, the very moderate terms in which this amendment has been moved, and the very moderate terms in which it is phrased, make one hesitate before sounding a word of caution. But anyone who has read anything about the topic of trans-racial fostering and trans-racial adoption will have realised that it is an extremely sensitive and controversial area. Perhaps we ought to think carefully before providing for any regulation in primary legislation.
It is important to get the best possible foster parents for the individual child and to get those foster parents as soon as possible. In a multiracial society it may be thought that white children should not be deprived of the opportunity of being looked after by black foster parents if such parents are ready, willing and able to look after those children. Likewise, black children should not be deprived of loving white foster parents because the love and care which foster parents can provide transcends any question of race.
Nevertheless, as the noble Lord, Lord Henderson of Brompton, said, the conventional wisdom now is that it is generally desirable to place children with foster parents of their own ethnic group. That is not always easy. Social workers do not always get it right even when they try to do so. I remember the uproar in one case when a black Sudanese Muslim child was placed with a thoroughly admirable Pentecostal West Indian lady and the natural parents of the child protested. Some racial mixes are almost impossible to 1371 achieve in terms of foster parents. I recall also the case of a father who was half white English and half black Jamaican, with a mother who was half Italian and half Filipino. The resulting child was almost impossible to place with a suitable foster parent in ethnic terms. Amid such striving to place the child, there can be considerable delay and the child drifts in care.
One has to be very careful to avoid a dogmatic position in these cases. Having said that, if current thinking is that children should be placed with foster parents of the same ethnic group, and if the intention is to ensure the provision of a suitable pool of such foster parents, then this amendment will avoid the delay of which I speak. To that extent I wish to support the amendment.
I am not sure about the consequential amendments. They might be thought to be giving some support to a dogmatic insistence upon placing a child with a particular category of foster parents. Of course the Bill is right to have provided what it does in Clause 18(5)(c), but one should perhaps ponder whether, having provided as the Bill does in Clause 18(5)(c) for a local authority to give consideration to racial origin among other things, the matters to which the rest of these amendments are directed could not be left to the administrative good sense of the social workers concerned.
§ Lord Mishcon
My Lords, I know the last thing in the world that the noble Lord, Lord Meston, would want is that there should be any misunderstanding as to the wording of this amendment and its intention. There is not one word in this amendment—I know he will appreciate this, but other Members of the House having listened to his speech, may be under some misunderstanding—that says that black children shall only go with black foster parents or that white children shall only go with white foster parents. All that this amendment says is that in the grouping of persons who are registered for this purpose there shall be care taken to reflect the racial groups comprising the population of that area. In other words there will be, one hopes, black foster parents available and white foster parents available.
As the noble Lord so rightly said, it would be left to the administrative good sense and the social welfare experience of those involved to see who is placed with whom; the only consideration will be the best interests of the child.
§ Lord Meston
My Lords, I accept that, as I hope I indicated. This is a very moderate amendment. It does not lend support to any form of dogma about these matters and one should recognise that. Nevertheless we should be careful about being seen to lend too much weight to those who are more dogmatic than the mover and supporters of this amendment.
If this amendment is enacted and if it works it will be marvellous, because it will avoid delay. If there is an insistence upon, or a general belief in, the desirability of placing a child with a particular type of foster parent and that foster parent is not available, the result will be delay. That is bad for the child. I 1372 accept that the amendment seeks to redress the problem.
§ Baroness Faithfull
My Lords, I support the noble Lord, Lord Meston. We want the best available services for all children, be they indigenous or be they of the ethnic minority. That is what we ought to follow. I would go further and say that of course one wants to encourage the ethnic groups to feel that they are part of the community. However, I think we ought to go a little futher back than this: if we do not develop training—here the phrase "day care" is mentioned—for the ethnic groups and if they re not encouraged to come forward for training, we shall not get the best service for children of the racial community.
I give one example. I know one local authority which ran very good nursery schools and day care for children under five but unfortunately the staff were all of the indigenous population and the local authority asked them all to leave. In their place they put in people of the ethnic minorities, none of whom was trained. I think we ought to be careful, and I take the point of the noble Lord, Lord Meston, on a word of caution. I believe that the amendment is right, but we have to try to train those who have not had training in order that they may do the job as well as everybody else in the indigenous population.
§ 7 p.m.
§ Lord Redesdale
My Lords, I should like to support the point made by the noble Baroness. I am connected with the National Foster Care Association and I have been a foster parent. I have seen in practice a lot of the problems that come up in multiracial placing. Training comes out time and time again. Various situations could have been resolved had the people been trained in advance. I am sorry to take up the time of the House on this point, but I think it must be evaluated and emphasised.
§ The Lord Chancellor
My Lords, I very much understand and sympathise with the thought behind these various amendments: to secure that due weight is given to the needs of children from ethnic minority groups and to enable them to develop with a proper awareness of their racial and cultural backgrounds. However, I cannot accept the amendments proposed just as they stand, and it may be helpful if I spend a little time seeking to explain my reasons. I shall therefore find it necessary not only to refer to the main one but to the later ones as well.
First of all, Amendment No. 19 would impose a duty on every local authority,to take steps to ensure that groups of persons registered to provide day care or foster care for children in their area shall reflect the racial groups comprising the population in their area".The difficulty is that local authorities are not required by the Bill to register foster parents, although they would evidently need to keep a list of those approved by them, and regulations will deal with that.
It is not clear whether the reference is to local authority foster parents or to private foster parents, to local authority provided day care or to private registered day care, because all these could have importance in this regard. Neither is it clear—and the 1373 noble Lord in moving the amendment mentioned this—exactly what is meant by,shall reflect racial groups, comprising the population".If that were to be a duty imposed by law we would need to have a more precise wording. So far as private facilities are concerned, it would be a new duty on local authorities to concern themselves with the make-up of what is available, and it is not clear how they would discharge this duty.
My second objection to this amendment is that it is not necessary. This is because the Bill already requires local authorities to have regard to the racial characteristics of the children in their area in planning their level of services. Clause 15(1) imposes a general duty on local authorities to safeguard and promote the welfare of children in their area who are in need by providing a range and level of services appropriate to those children's needs.
This means that where the area includes a particular racial grouping the local authority will have to have regard to the racial or cultural characteristics of that grouping in order to discharge their duty. This would mean that in recruiting their own foster parents, for example, a local authority might need to advertise for applicants from the ethnic minorities so that the needs of children from certain racial groupings are met. This is not new and already takes place under present legislation. Local authorities have less control over private arrangements made by parents directly with foster parents or child minders. I think it would be inappropriate for the local authority to intervene in this situation, but as far as public services are concerned Clause 15(1) will place an obligation on local authorities to take reasonable steps to correct any racial imbalance in terms of what is available to meet the needs of children in care, because that is already implied in what is proposed in the clause itself.
I should like to move on now from Clause 15, which is about the local authority's duty to provide a service for the area as a whole, to Clause 18, which has already been referred to and which is concerned with the authority's duty towards the individual children it is looking after. Amendment No. 40 would insert an additional word into Clause 18(5). Instead of the present duty of local authorities to give due consideration to the child's religious persuasion, racial origin and cultural background, they would be required to consider the child's language. I do not think this is necessary. The present wording is broad enough to cover the child's linguistic needs deriving from his racial origin and cultural background. I do not see that to specify "language" would add to the present duty. I hope that your Lordships will agree with this on consideration.
Amendment No. 83 would modify the second limb of the grounds for a care order in Clause 26. Thus the harm, or likelihood of harm, which must be established should be attributable to "the standard of care" given to the child if the order were not made being below that which it would be reasonable to expect the parents of a similar child to give,taking into account racial origin and culture".1374 I would not wish to modify the grounds for a care order in that way.
The existing reference to the "standard of care" expected for "a similar child" is deliberately all-embracing. It would certainly include a child's needs relating to his racial origin and cultural background. If the racial and cultural needs of the child were identified as suggested, it would suggest that other aspects of a child's welfare should be listed, such as any disability or special educational needs. Such a list could never hope to be exhaustive and may cause other aspects of a child's needs to be given too little weight. Moreover, it would beg the question of the importance of racial or disability matters in other parts of the Bill where welfare is an issue. The policy of Clause 26(2) is to refer to all aspects of the child's character and his needs. We would not want to detract from the all-embracing character of that reference and 1 hope that your Lordships will on consideration find this a reasonable approach.
Amendment No. 88 seeks to insert a new subsection into Clause 28, which deals with the effect of a care order. This would require the local authority to cause full account to be taken in the child's upbringing of his racial origin, culture and language as if the order had not been made. I think it would be highly unusual to place a statutory requirement on the local authority to act on a hypothesis, which is what this amendment would do. In any case, I believe that the amendment is unnecessary because what appears to be the intention behind it is fully covered in Clause 18, which deals with the duties of local authorities in relation to all children they are looking after.
As your Lordships know, children who are the subject of a care order are "looked after" in the terms of the Bill. Clause 18(5)(c) in particular requires local authorities, in making any decision with respect to the child, to give,due consideration to the child's religious persuasion, racial origin and cultural background".I explained earlier that I did not think it was necessary to include a reference to "language" as the term "cultural background" embraced that concept. Therefore I believe this matter is covered very well in Clause 18(5) and I do not think it is necessary to go beyond that in the way proposed.
Amendment No. 113 would add an additional requirement to Clause 43, which deals with the provision of community homes by local authorities. When making arrangements, local authorities are required to have regard to the availability of accommodation which is,suitable for different descriptions of children".This amendment would add,having regard, among other factors, to their racial origin, culture and language".Here the relevant point is that the duty of local authorities in Clause 18 will apply to children being looked after by the local authority, including those in community homes. Apart from that, this particular clause is concerned with the provision of buildings rather than with the placement of individual children, so that factors such as racial origin, culture and language are not obviously relevant in this context.
1375 Amendment No. 115 proposes changes to the duties of voluntary organisations providing accommodation for a child. Clause 50(1) presently places a duty on the organisation to safeguard and promote the child's welfare. The amendment would add,having regard, among other factors, to their racial origin, culture and language".The words already used,to safeguard and promote his welfareencompass all the considerations that the voluntary organisation would need to give to the child in relation to his racial or cultural background or characteristics. In any case Clause 50(3)(c) goes on to specify that in making any decision about the child, the organisation should give due consideration to,the child's religious persuasion, racial origin and cultural background".This duty is analogous to the local authority duty in Clause 18 which applies to children they are looking after and which is framed in identical terms.
The same arguments apply in relation to the equivalent proposal in Amendment No. 117 to change Clause 54. This would amend the duty of the person carrying on a registered children's home to safeguard and promote the welfare of the child. For the same reasons I believe that the word "welfare" in that context includes the proposed considerations.
Amendment No. 122, the final one in the group, makes a similar proposal in relation to the duty of local authorities in relation to children who are privately fostered. Clause 57 places a duty on local authorities to satisfy themselves that the welfare of children is being "satisfactorily safeguarded and promoted" and the amendment would add,having regard, among other factors, to their racial origin, culture and language".To discharge a duty to "promote welfare" does, I believe, satisfactorily include the need to consider racial and cultural characteristics of the child.
However, another particular objection to including the suggested phrase in this clause and highlighting particular features is that it refers to private arrangements for children to be fostered. Although we think the local authority has a role in checking that the arrangements are satisfactory for the child concerned, there are limits to the extent to which we can expect or would want a public authority to intervene further in private arrangements often made by parents for the care of their child.
I hope I have made clear that while I accept what is sought to be aimed at, the actual form in which the amendments have been proposed may not be entirely satisfactory. I believe that the Bill already deals with the matter in a satisfactory way and that the proposed amendments are either unnecessary, for the reasons I have explained, or in some parts inappropriate. I trust therefore, the noble Lord feels that I have sought to answer in some detail and that he will be able to withdraw the amendment.
§ Lord Henderson of Brompton
My Lords, I thank all those who have taken part in this thoughtful debate. I am glad to have raised this issue and to have 1376 elicited the response that we have heard. I am particularly grateful to the noble and learned Lord the Lord Chancellor for taking such care in giving his reasons for rejecting all the amendments on the ground, mostly, that they are unnecessary and that the Bill as drafted does what the amendments seek to do but without their assistance.
The debate has been valuable. I have no doubt that the Commission for Racial Equality will read it with care and, I hope, with profit. Having said that, I ask leave to withdraw the amendment so that the commission and others interested in this most important area can have second thoughts.
§ Amendment, by leave, withdrawn.
§ Lord Ponsonby of Shulbrede
My Lords, perhaps the noble Earl can give some information as to when consideration will be resumed.