HL Deb 08 November 1989 vol 512 cc775-82

139A Leave out lines 11 and 12 and insert — ("(c) it is unlikely that such an assessment will be made because any of the persons in subsection (1A) have unreasonably refused to produce the child for a medical or psychiatric examination or other assessment or because access to the child has been unreasonably refused to a person authorised to seek access.

(1A) the persons referred to in subsection (1)(c) are —

  1. (a) the child's parents;
  2. (b) any person who is not a parent but who has parental responsibility for him;
  3. (c) any other person caring for the child.

(1B) "a person authorised to seek access" means —

  1. (a) in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with their inquiries; or
  2. (b) in the case of an application by an authorised person, that person.").

Lord Mishcon

My Lords, with the permission of the House I propose to speak to both Amendments No. 139A and Amendment No. 139B. There is so much unanimity —if I may put it that way —in your Lordships' House about the desirability of getting this measure on the statute book as soon as possible, that I can announce, before I say anything, that if the noble and learned Lord is unable to accept the amendment, there is no question of the House being divided.

I make a point immediately that if the noble and learned Lord, in his wisdom, feels that an amendment should be accepted by the Government, I am told that, if it went back to the other place, it would not be a procedure which is likely to delay the Bill. It is in that spirit that I ask him on behalf of the Government to consider carefully the importance of the amendment.

Perhaps I may first say what is the purpose of the amendment. It is to see that the child assessment order, with which we are dealing, will clearly reflect what it was intended to become.

The point of Amendment No. 139B is to see that the period of time during which a child can be removed from home under such an order is reduced. If I may, I shall give a little of the history. The whole idea of such an order being made had its birth in the Kimberly Carlile report, in which recommendations were made that an order should be obtainable from the court —it was to be from a magistrate —that a parent should bring a child, within a short period of time, to a clinic or general practitioner so that not just a medical examination but a development assessment could be made. One or two points were made in the report about such an order. Page 154 states: The order would not physically order the detachment of the child from its parents. There should be no question of family trauma". When your Lordships' House was considering whether there should be an order separate from an emergency protection order, the noble and learned Lord the Lord Chancellor on 19th January this year agreed that, although the Government were at that stage against a separate order, he would, in his kindness, consider the matter further. I rely for that on the report of the proceedings in your Lordships' House of that date (cols. 427 and 434).

If one looks at Commons Amendment No. 140, one sees that the Government have introduced an amendment —it came I believe in Committee —to the grounds for granting an emergency protection order. In that amendment they provide that within the emergency protection order there would be a ground that there is suspicion of significant harm to the child where social workers are unreasonably denied access to the child and where there is some evidence to indicate that access to the child is urgently required.

I turn, if I may, to what the Minister, Mr. David Mellor, said on Report in the other place about a child assessment order and what the limitations of that child assessment order would be.

He said: There may be a repeated failure to produce a child and perhaps it cannot be asserted that the matter is quite so urgent that there is an immediate need to intervene to take the child away".[Official Report, Commons, 23/10/89: col. 593.] Then at cols. 594 and 595 on the same date he said: it has always been difficult for the House to consider this subject, particularly in the light of several celebrated cases in which people who abused a child repeatedly failed to produce the child". One has a clear indication from those quotations and from the whole atmosphere in which the assessment order was being dealt with that we were considering cases where access to the child is denied or where parents or carers failed to produce a child —presumably either to a social worker or for examination or assessment.

If we examine the very vague words in the amendment we see the need to do something. We are trying to substitute a clear amendment, in my submission, particularly if one examines subsection (1)(c) of Amendment No. 139: it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section". The courts must be guided by that; social workers must be guided by it; others who are looking after the child must be guided by it. The words are very vague in connection with an order which we were doubtful about making first of all but have made: we now have the emergency order. It is thought that it makes it so much better —I put it as high as that —if one clearly provides, as our amendment to the Commons amendment seeks to do, that, it is unlikely that such an assessment will be made", because, any of the persons in subsection (1A) have unreasonably refused to produce the child for a medical or psychiatric examination or other assessment or because access to the child has been unreasonably refused to a person authorised to seek access". Then in subsection (1A) we define who those persons are and in subsection (1B) we define, a person authorised to seek access". I ought at once to say that this amendment has the support of a number of bodies which have very great experience in these matters. I am not saying that there is unanimous support from all the bodies which look after children. To obtain unanimity from that great body of volunteer workers is not always possible. However, I can say that a substantial body of opinion is in favour of this clarification and this amendment.

Perhaps I may quickly turn to the time that is suggested in the Commons amendment, namely up to seven days. We thought that the whole idea of this assessment order was upon the basis of no trauma being created. Somebody who ought to gives permission for a medical examination or some kind of examination in regard to the child's development. Someone takes the child and has him for one night. Surely that must be enough, if that action is necessary. Then of course, if necessary, on another day by all means he should be taken. But for us under this provision to provide that a child can be removed for up to seven days from its home seemed again, in the light of the origin and definition of the assessment order, to be wrong.

As I said at the beginning, I am putting this respectfully to the noble and learned Lord in the hope that he will see wisdom and understanding in the two amendments. I tell him beforehand that if he cannot agree to them, because we are so keen on the Bill passing without any hindrance at all in regard to time, my friends and I certainly do not intend to divide the House. However, on the basis that we wish to improve the Bill as much as possible where it is essential to do so, I hope that the noble and learned Lord will give the careful consideration that he always gives to what I have said. I beg to move.

Moved, That Amendment No. 139A, as an amendment to Commons Amendment No. 139, be agreed to. —(Lord Mishcon.)

6.15 p.m.

Lord Mottistone

My Lords, I wish to make quite certain that the noble Lord, Lord Mishcon, appreciates that not everybody gives unqualified support to his amendments. I shall be brief. I have some sympathy for the second amendment. It creates new paragraphs (b) and (c) to subsection (9). I am not at all sure that it is necessary because the situation is covered adequately, I should have thought, by the existing paragraphs (b) and (c).

As to the first amendment, about which the noble Lord spoke at some length. I do not agree with it. I am advised that the issue of failure to obtain access to the child is now dealt with in the emergency protection order. Therefore it is fair to say that if the noble Lord takes any drastic action in the Chamber I shall not be behind him.

Lord Meston

My Lords, the question as to whether there should be any child assessment at all, as the noble Lord, Lord Mottistone, has reminded us, was a matter of some controversy and difficulty at the earlier stages of the Bill. What has now been produced in Amendment No. 139 strikes me as a carefully calculated compromise, and none the worse for that.

As the noble and learned Lord the Lord Chancellor said, I think at Committee stage in this House, there is still the risk of the child assessment order being seen by the court as the softer option when what was really required was an emergency protection order. However, we can be reassured to some extent that the new subsection (4) will or ought to direct the mind of the court to the possibility of making an emergency protection order. One simply hopes that that will be enough.

The amendments to this amendment are obviously to be considered separately. Amendment No. 139A strikes me as doing little more than making specific what the Government's amendment spells out only in general terms. It adds words, but nevertheless I agree with the noble Lord, Lord Mishcon, that the words will improve the provision by producing clarity in the matter.

As regards Amendment No. 139B, I have certain misgivings because it strikes me as too limiting and too rigid. It has the same limitation as in subsection (5)(b), which has been the source of some concern. One knows in practical terms that if a child has to be removed in order to be medically assessed by a number of specialists, it may be difficult to arrange for the child to see all the specialists required within a period of seven days or indeed within a period of 24 hours. One knows from experience that if a number of specialists are required and there are a limited number of specialists in the given area —some may be on holiday and others may be ill —it may be very difficult for the local authority concerned to co-ordinate them. For those reasons I venture to support Amendment No. 139A but not Amendment No. 139B.

Baroness Faithfull

My Lords, I agree with the noble Lord, Lord Mottistone, that people are divided on the issue. The Association of Directors of Social Services agrees with the amendment put forward by the Commons. That body has come to an agreement with the NSPCC. The reason for that is that the application for an assessment order helps social workers who have nagging doubts whether there is a problem with a child but are not certain of it. Therefore, they ask for a child assessment order.

I should be grateful if the noble and learned Lord could clarify one point for me. I had understood that if an assessment order was asked for it did not necessarily mean that the child had to be removed from home. That was the great asset of the child assessment order. The parents or the social worker, or both, could take a child to see a doctor. That measure on the one hand safeguarded the social worker who had a nagging doubt about a child but who was not certain that there was a problem, and on the other hand it helped the child who one did not wish to remove if it could possibly be avoided. On behalf of the Association of Directors of Social Services, I respectfully do not agree with the noble Lord, Lord Mishcon, but agree with the Commons amendment.

The Lord Chancellor

My Lords, as has been said, this is an extremely important and difficult issue. The noble Lord, Lord Meston, raised the issue in the correspondence columns of The Times earlier in our deliberations on the Bill. He stated in his letter the point of view that I had put earlier much more clearly than I had done when I dealt with the matter in this House. However, there are great difficulties.

As the noble Lord said, this measure bears the marks of a very carefully worked out agreement between the two interests that were promoting rather different points of view when the Bill was before us. With such experts being so divided, it was not easy for the Government to come to a conclusive view on the right way forward. However, no doubt under the effective and pervasive influence of my honourable friend the then Minister responsible for health, they gradually moved together and converged on the contents of Commons Amendment No. 139.

I much appreciate the spirit in which the noble Lord, Lord Mishcon, proposed his two amendments because that is the spirit in which, all along, we have sought to approach the Bill. The Bill is an important measure on which there is a substantial degree of agreement. Certainly there is complete agreement on the results to be achieved. If there is any divergence, it is usually on the means by which that should be attained.

On the Commons amendment, I think agreement has been arrived at with a great deal of careful consideration. For that reason I would not readily depart from it in any respect. In answer to my noble friend Lady Faithfull, I should say that the question of a child being away from home is carefully addressed in the amendment because it is one of the more important aspects of it. Commons Amendment No. 139 states in subsection (9) that: The child may only be kept away from home —

  1. (a) in accordance with directions specified in the order;
  2. (b) if it is necessary for the purposes of the assessment; and
  3. (c) for such period or periods as may be specified in the order".
There is no question that as a result of granting an order with a seven-day validity a child has to be away from home for seven days or anything of the kind. The idea of the seven-day validity is, as the noble Lord, Lord Meston, said, to secure that the examination or assessment can take place. The court has to decide that. It does not follow that the assessment could immediately be carried out. Arrangements have to be made to do that and some assessments may require some time for arrangements to be made. Originally we proposed rather a longer period of validity for the orders, but as a result of further consideration and pressure to reduce the time involved we reduced it to a period of seven days.

I feel that there may be a slight element of confusion between various people who have considered this matter. If it is thought that the validity of the order is a measure of the time for which a child is to be taken away from home, that is a complete misunderstanding. The idea of the seven-day period is to limit the period for which the order shall be effective.

In many cases I should have thought that there would be no necessity at all for the child to be taken away from home if it is a question of a fairly ordinary kind of medical examination. This is often the kind of medical examination involved when a social worker has a nagging doubt about a child. In such cases all that may be necessary is to take a child to the doctor. A fairly simple examination may be called for.

I find myself in a certain amount of difficulty. The noble and learned Lord, Lord Simon of Glaisdale, seriously enjoined on the Government this afternoon the desirability of not legislating in detail but leaving the matter to the courts to decide as regards details. Amendment No. 139A substitutes much more detailed words for the rather general words of subsection (1)(c) of the proposed new clause of Commons Amendment No. 139. I should have thought that the amendment, as the Commons has passed it, is the kind of test which a court would find sufficiently precise to enable it to apply to a great variety of different circumstances.

The situation is certainly not one on which one can reach a clear conclusion. These are difficult issues and I do not wish to pretend that I am absolutely certain that what we have is correct and that there can be no improvement on it. On the other hand, I think that having regard to the history of the way in which the Commons amendment was reached, it would be rather unwise to change it.

As has been explained, I understand that the purpose of Amendment No. 139A is to tighten up the grounds for the orders so that they more closely reflect the perceived need for the orders. However, I believe it would place too narrow a restriction on the ability of courts to make orders. Unreasonable refusal to produce a child for an examination or assessment after a social worker has tried to negotiate that voluntarily could well make it unlikely that in the words of subsection (1)(c) of the proposed new clause: such an assessment will be made, or be satisfactory, in the absence of an order". The order refers to a child assessment order. However, it would be unwise to fail to cater for other eventualities. A calculating parent may produce a child at an inconvenient time or without notice so that the examination or assessment cannot properly go ahead. A parent may interfere in the arrangements so much that an assessment cannot be carried out satisfactorily. It may be difficult to show in such circumstances that there was unreasonable refusal to produce the child. Inclusion on the grounds of a reference to refusal of access may give the wrong signals in the opposite direction. It should not follow automatically where access has been refused that an assessment is needed. There is a risk that if one puts in a condition of this kind the converse may be assumed.

Paragraph (c) of subsection (1) of the proposed new clause in the Commons amendment requires a court to be satisfied that an order is required for an assessment to be made or to be satisfactory. A court should apply this condition vigorously. Specifying the circumstances which make it necessary would impose a rigidity which is best avoided. Although I appreciate the spirit in which the measure was proposed, I do not believe that imposing that rigidity on the agreed amendment would be satisfactory.

Turning to Amendment No. 139B, strictly speaking the first part of the amendment is not necessary. It has the same effect as we have proposed. The second part of Amendment No. 139B places a time limit on keeping a child away from home. There can be only one continuous period of 24 hours. As I said earlier, if that was a limit on the amount of time for which the child could be kept away from home the situation would be different, but that is not the purpose of the amendment. It is the validity of the order that is in question.

In the Commons amendment we have made very specific requirements concerning keeping children away from home. The court has to look at the matter very carefully. That is the kind of protection that Amendment No. 139 seeks and I believe that we have attained the result in another way.

I appreciate that many of those who are involved in this area support one or other of the amendments. However, as has been evidenced here tonight, there is also a substantial body of opinion in the other direction. I believe that what is set out in the amendment passed by the Commons is appropriate.

6.30 p.m.

Lord Mishcon

My Lords, I am most grateful to all those who have participated in the discussion. We all want to achieve a proper end to this issue. With regard to the observations made by the noble and learned Lord, Lord Simon of Glaisdale, who is not in his seat, perhaps I may paraphrase a biblical passage by saying that there is a time for precision in detail and a time for a general principle to be enunciated. I believe that a time for precision in detail arises when a child is taken somewhere against the wishes or without the consent of a parent or carer.

Because of what the noble Lord, Lord Mottistone, said —perfectly fairly —about the organisation for which he speaks so eloquently and well (and the same applies to the noble Baroness, Lady Faithfull), I ought to say that the following organisations supported the objective of the amendment in trying to restrict the broad grounds for a child assessment order: the Family Rights Group, the Children's Legal Centre, the British Agencies for Adoption and Fostering, the National Children's Bureau, the British Association of Social Workers, the Association of Metropolitan Authorities and, dare I say with due reverence, the Law Society.

I have to accept what the noble and learned Lord has said. I made my position perfectly clear when I spoke in favour of the amendment. I should like only to say a word about the question of the period of time. It is very easy to take it for granted that courts, seeing that there is a time limit of seven days, would automatically have in mind that it ought to be the shortest period possible. Evidence has been produced to me that when the 28-day order was prevalent in many courts somebody used to bob up and say, "Could I have a 28-day order, please, your Worship?" The result was that a 28-day order was made, the court having been satisfied that there was a need for an order. One hopes that there will not be the making of automatic seven-day orders in the same way for the assessment orders. I can only hope, when sitting down after asking leave to withdraw the amendment, as I intend to do, that guidelines or instructions will be given to the courts so that they will make orders for the minimum period and not the maximum period. In those circumstances, I beg leave to withdraw the amendment.

Amendment No. 139A, as an amendment to Amendment No. 139, by leave, withdrawn.

[Amendment No. 139B, as an amendment to Amendment No. 139, not moved.]

On Question, Amendment No. 139 agreed to.