Overarching Principles

Orders of the Day — Children (Scotland) Bill – in the House of Commons at 7:30 pm on 1st May 1995.

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  1. '.—(1) Where any person, court or children's hearing makes any decision in a matter affecting a child, the welfare of the child throughout his childhood shall be their or its paramount consideration, and they shall have regard in particular to—
    1. (a) the views of the child concerned, taking account of his age and maturity, where it is practicable to ascertain such views and the child wishes to express them, and
    2. (b) the general principle that any delay in determining matters relating to a child is likely to prejudice the welfare of the child.
  2. (2) Without prejudice to the generality of paragraph (a) of subsection (1) above, a child of 12 years of age or more shall be presumed to be of sufficient age and maturity to form a view.
  3. (3) A court or children's hearing shall not make any order under this Act unless it considers that it would be better for the child that the order be made than that none should be made at all.
  4. (4) The Secretary of State may by regulations make provision for the procedures to be applied in identifying children who wish to express views to the children's hearing or court, and in facilitating that expression, and without prejudice to the generality of this section, such regulations may provide for—
    1. (a) a psychological assessment of a child to assess his ability to form views and his maturity;
    2. (b) representation of the child's interests in any proceedings by persons drawn from the panel referred to in section 87 of this Act, and
    3. (c) representation of the child's views by a solicitor.'.—[Mr. Wallace.]
Brought up, and read the First time.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

I beg to move, That the clause be read a Second time.

Photo of Mr Michael Morris Mr Michael Morris , Northampton South

With this, it will be convenient to discuss Government amendments Nos. 154 and 153.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

The new clause to which this one relates was considered in Committee and concerned what were generally referred to throughout the Committee stage—including the evidence taking—as overarching principles. The idea was that the Bill should include, almost as its starting point, a set of principles that would apply to all parts of the Bill, especially those relating to decisions affecting children taken by courts, children's hearings, local authorities and so on.

I tabled the new clause immediately after the Committee ended to ensure that the whole House could return to this important matter. Without making any commitment in Committee—he said that he would have to be sure that the Bill would be improved and strengthened by any additions—the Under-Secretary of State said that the matter would be given some consideration, adding that my aim was a fine one: We will be prepared to reconsider the issue to determine whether the Bill can be improved and strengthened without imposing unnecessary rigidity … It will involve quite a lot of work as the options will have to be examined very carefully and weighed up. We will return to the option which provides the most advantages to children."—[Official Report, Special Standing Committee, 23 February 1995; c. 288–89.] One can only assume that the matter has been given serious thought, that all the difficulties have been weighed up and that the Government have concluded that it is better to do nothing. That is a matter of some regret to me, but I am at least glad that I tabled the new clause to give the House the opportunity to consider the matter further.

The rights of the child are set out in the new clause. They were referred to at some length in Committee, and have been mentioned again this evening. They are: that bodies making decisions affecting children shall have regard to the views of the child concerned, taking account of his age and maturity … and the general principle that any delay in determining matters relating to a child should be avoided; and further, that the interests and welfare of the child should be paramount.

I acknowledge that it might be objected that the words "any person" should not form part of the new clause. If the Minister tells me that that is the only technical flaw preventing him from accepting the new clause, I shall not push it to a vote. But if the Government's objections are more fundamental—and they do not believe that there is a need for an overarching set of principles enshrined in the Bill—I would urge the House to come to a decision on the matter.

In legislation relating to Northern Ireland and to England a series of overarching principles are enshrined at the very heart of the provisions. The Government have argued in the past that these overarching principles are specifically imported to certain parts of the Bill, but in many other parts the important principles are missing. Clause 3(5), relating to parental responsibilities and parental rights, includes no reference to the views of the child or the child's welfare. The same can be said of clause 4(1). Clause 5 contains no reference to children's views, and in clause 6 the very principle is abrogated, inasmuch as a failure to take into account the views of children will not constitute a barrier to certain transactions being legitimated.

Clause 9 contains nothing about children's welfare. Clause 11(6) stipulates that any order … does not adversely affect the position of a person who has, in good faith and for value, acquired any property of the child concerned". Where do children's views or welfare appear in that? Clause 14, entitled Jurisdiction and choice of law in relation to certain matters", includes no reference to delays that may adversely affect children. I could go on taking samples at random. In clause 35(2), which concerns safeguarders, there is nothing about children's views or welfare, or about undue delays in making appointments.

I could more amply illustrate the point if the House wanted to stay here half the night—we could have added a good many more examples of failures to provide for the taking into account of children's views, to ensure that their welfare is paramount, or to avoid undue delay in coming to decisions. Hence the need for a general clause to ensure that all decisions to be taken by courts, children's hearings or local authorities be taken by reference to these principles. That is why such a fundamental provision should be incorporated in the Bill.

I find Government amendment No. 154 objectionable. The Minister will well recall that there was a great deal of objection in Committee to the provision to be found in clause 17(5), which allows the Secretary of State, if he considers it necessary, to give directions to a total authority as to the exercise of their powers and to override the best interests of the child. That is a matter that the House should not lightly countenance. The Government must justify the extension of the provision to clause 16, which would be the effect of Government amendment No. 154. The amendment states: If, for the purpose of protecting members of the public from serious harm … (a) a children's hearing … (b) a court may decide that the paramountcy of the welfare and best interests of the child can be overridden. The Minister should advise the House of the circumstances in which he thinks it would be legitimate for a children's hearing or a court to make a disposal that did not put the best interests of the child first. The proposal is a serious breach of a principle that has been the subject of common consent throughout the Bill's passage. To extend the proposal when the Minister knew that there was considerable opposition to what was already in the Bill is a serious development and one that the Government must justify, and not on the basis that it is a fall-back provision that might be needed in future.

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It has already been said that at the heart of the Bill is an obligation to fulfil the undertakings that were made when the Government signed the United Nations convention on the rights of the child. Articles 2, 3, 6 and 12 of the convention reflect the principles that are set out in the new clause. When the Secretary of State moved the Bill's Second Reading in the Scottish Grand Committee, he said that the measure was based on the principles contained in the convention. The White Paper states: Legislation, policy and practice all need to be founded on these clear principles. Surely the Government have no objection to importing the principles clearly and unequivocally into the Bill.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

When we discussed these matters in Committee the hon. Member for Orkney and Shetland (Mr. Wallace) did not press his new clause when I undertook to examine whether the main principles that run through the Bill could be gathered into a general statement and inserted in the Bill. We examined the proposition carefully. We examined the merits in detail of adding such a general statement, applying some serious tests. For example, we considered whether such a statement would preserve rather than confuse the duties and obligations set out in the Bill, whether it would create new duties and obligations, whether it could sensitively convey the exceptions and qualifications that are applied to paramountcy, for example, and whether it could convey the policies behind the Bill that are necessary for its effective operation. Finally, and most significant, we considered whether the addition of a general statement would improve the Bill.

Our examination led us to the conclusion that a statement of overarching principles would add to the length of the Bill—just how much would depend on the legal enforceability of the statement—without any very clear benefit in terms of substance. The Bill embodies principles, and although I appreciate the hon. Gentleman's motives I must say that his new clause well illustrates the pitfalls of constructing a general statement.

For example, the new clause, in setting out a principle about delay, does not relate to the time scales that apply to children's cases throughout part II or to the detailed procedural requirements prescribed in the children's hearings and sheriff court rules. The new clause shows the practical problems that face us. I appreciate, however, the value of providing public information to explain both the themes and principles behind legislation, which is necessarily complex, to establish clear duties, powers and rights in relation to children.

We think that the purpose that the hon. Member for Orkney and Shetland has in mind could be more effectively met by an explanatory but concise document publicising the Bill between enactment and implementation, which would outline its themes and principles and explain clearly where they are applied in the Bill. Such a document would not be an alternative Bill. It would be an aid to the understanding for all those who have reason to make use of the Bill's provisions.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

Is it common practice for sheriffs and judges to seek to interview children privately where appropriate in cases involving what I might describe as warring parents? Do judges and sheriffs take it upon themselves to seek the views of children in such cases?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

It is not unknown for that to happen. Considerable discretion rests with the court, where there is anxiety, not to alarm or distress the child. I shall note the point that the hon. Gentleman has made and make inquiries.

I hope that, with the undertaking that I have given to consider preparation of a public information document, the hon. Member for Orkney and Shetland will be prepared not to press the new clause to a Division.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

The Minister has said that some consideration was given to the making of a general statement. What consideration was given to parallel provisions in the Children Act 1989 and in legislation relating to Northern Ireland? What was it that the Government found attractive in incorporating a clause relating to overarching principles for England, Wales and Northern Ireland? Why do they find it a drawback to do so in legislation that bears on children in Scotland?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

If the hon. Gentleman reads the Bill as a whole, he will find that we are somewhat ahead of the Children Act 1989, which applies south of the border, in many respects. The Bill already incorporates the general principle that the courts, children's hearings and local authorities should regard the welfare of the child as paramount. That is set out in clauses 11, 16, 17 and 83. It provides that the views of children should be taken into account by parents on major decisions affecting their lives and should be involved in decisions taken by courts and children's hearings. That is set out in clauses 6, 11, 16 and 83. The Bill sets out that children's hearings and courts should be satisfied that making a supervision requirement or order is better than making no supervision requirement or order. That is to be found in clauses 11 and 16.

Strong general principles are incorporated in the Bill. Having examined the hon. Gentleman's proposal thoroughly, we believe that if we were to go down the path that the hon. Gentleman has suggested no clear benefit would ensue.

I move on to Government amendments Nos. 154 and 153, which are a response to the undertaking that I gave to consider the strong criticisms made in Committee of clause 17(5)(b). The paragraph was designed very much as a long-stop power, which the Secretary of State might use in exceptional circumstances where for any reason an authority was unable or unwilling to exercise the power set out in paragraph (a) to set aside the paramountcy principle in attempting to deal effectively with a serious situation created by a difficult youngster whom it was looking after. Having weighed the strong arguments with care, we propose removal of the power for the Secretary of State. I hope that the House will accept amendment No. 153.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I am not sitting down yet.

Amendment No. 154, which the hon. Member for Orkney and Shetland criticised so strongly, is linked with amendment No. 153 and makes an important addition that is designed to protect members of the public from serious harm from young people who may have shown destructive or violent behaviour to others. The amendment confers on children's hearings and the courts discretion to set aside the principle of paramountcy of the child's welfare in dealing with occasional difficult cases. It complements logically the derogation from paramountcy that is available to local authorities in dealing with a child whom they are looking after. The amendment provides through children's hearings and courts a protection that the public have every right to expect. The exception is a young person who is displaying destructive and intimidating behaviour that could lead to substantial damage to another person.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

The Minister talked about the publication of a public information document and I for one would welcome such a booklet, but is he in a position to confirm that a similar booklet has been published dealing with child abduction? He will recall that in Committee I asked him precisely that question. Scots need to go to the Lord Chancellor's Department in London for such a booklet. The Minister promised me that an identical booklet would be published to give information north of the border. Has it been published?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I do not think that it has, but the hon. Gentleman will appreciate that we shall take forward these matters as soon as possible.

I can answer in a little more detail the hon. Gentleman's earlier question about the sheriff seeking the views of the child. Sheriffs and judges will deal with each case according to the particular circumstances. Existing procedural rules allow for the sheriff to call for reports, which would incorporate the child's views. On occasion, sheriffs seek the child's views in an informal environment. That is what the hon. Gentleman has been appealing for in legislation for many years. Sheriffs can, in appropriate cases, also appoint a curator ad litem to the child. All those matters are well in hand.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

I am disappointed with the Minister's response. I am sure that the matter has been considered, but I do not honestly think that he has made a persuasive case for not pushing the new clause to a vote. He said that inserting such a clause would make the Bill unduly long. It is quite a long Bill, but the clause is not so long. In fact, it is not as long as some of the Government's new clauses that we have debated this evening.

Perhaps the Minister is suggesting that if we did not have the new clause he would be prepared to go through the Bill clause by clause in another place and fill the gaps, which I started to outline in the list from which I was reading. Indeed, if he was to give me an assurance that the Government would be prepared to do that and apply the main principles to each provision, that might be one way to make progress.

I do not think that anyone is necessarily reassured that a glossy publication will in some way fill the gap. It would have no status in law. Glossy publications were sent out to explain the poll tax, but they did not make it function effectively or make it a good measure. I cannot accept that that is in any way a satisfactory solution for something as fundamental as trying to ensure that, in all parts, our obligations under the United Nations convention are observed. Therefore, I invite right hon. and hon. Members to support the new clause in the Lobby.

Question put, That the clause be read a Second time:—

The House divided: Ayes 80, Noes 232.

Division No. 140][8.12 pm
AYES
Adams, Mrs IreneHanson, David
Alton, DavidHogg, Norman (Cumbernauld)
Ashdown, Rt Hon PaddyHughes, Robert (Aberdeen N)
Banks, Tony (Newham NW)Illsley, Eric
Barnes, HarryJamieson, David
Barron, KevinJones, Barry (Alyn and D'side)
Bennett, Andrew FJones, Jon Owen (Cardiff C)
Brown, N (N'c'tle upon Tyne E)Kennedy, Charles (Ross,C&S)
Byers, StephenKhabra, Piara S
Caborn, RichardKirkwood, Archy
Campbell, Menzies (Fife NE)Lewis, Terry
Campbell-Savours, D NLiddell, Mrs Helen
Canavan, DennisLynne, Ms Liz
Chisholm, MalcolmMcAllion, John
Clapham, MichaelMcAvoy, Thomas
Clarke, Eric (Midlothian)Macdonald, Calum
Comarty, MichaelMcFall, John
Cunningham, Jim (Covy SE)McKelvey, William
Dalyell, TarnMaclennan, Robert
Darling, AlistairMcMaster, Gordon
Davidson, IanMahon, Alice
Dewar, DonaldMarshall, David (Shettleston)
Dixon, DonMichie, Bill (Sheffield Heeley)
Donohoe, Brian HMorris, Estelle (B'ham Yardley)
Dunnachie, JimmyOakes, Rt Hon Gordon
Ewing, Mrs MargaretOlner, Bill
Foster, Don (Bath)Pike, Peter L
Fyfe, MariaPrentice, Bridget (Lew'm E)
Galbraith, SamPrescott, Rt Hon John
Gerrard, NeilReid, Dr John
Godman, Dr Norman ARendel, David
Golding, Mrs LlinRobertson, George (Hamilton)
Graham, ThomasRooney, Terry
Grant, Bernie (Tottenham)Ross, Ernie (Dundee W)
Griffiths, Nigel (Edinburgh S)Salmond, Alex
Sedgemore, BrianWinnick, David
Skinner, DennisWorthington, Tony
Soley, CliveWray, Jimmy
Spellar, John
Steinberg, GerryTellers for the Ayes:
Taylor, Mrs Ann (Dewsbury)Mr. James Wallace and
Welsh, AndrewMrs. Ray Michie.
NOES
Ainsworth, Peter (East Surrey)Evans, Roger (Monmouth)
Alison, Rt Hon Michael (Selby)Evennett, David
Allason, Rupert (Torbay)Faber, David
Amess, DavidFabricant, Michael
Ancram, MichaelFenner, Dame Peggy
Arbuthnot, JamesField, Barry (Isle of Wight)
Arnold, Jacques (Gravesham)Fishburn, Dudley
Arnold, Sir Thomas (Hazel Grv)Forman, Nigel
Ashby, DavidForsyth, Rt Hon Michael (Stirling)
Atkins, RobertForth, Eric
Atkinson, David (Bour'mouth E)Fowler, Rt Hon Sir Norman
Atkinson, Peter (Hexham)Freeman, Rt Hon Roger
Baker, Nicholas (North Dorset)French, Douglas
Baldry, TonyFry, Sir Peter
Bates, MichaelGale, Roger
Batiste, SpencerGallie, Phil
Bellingham, HenryGardiner, Sir George
Beresford, Sir PaulGarel-Jones, Rt Hon Tristan
Biffen, Rt Hon JohnGill, Christopher
Body, Sir RichardGillan, Cheryl
Booth, HartleyGoodson-Wickes, Dr Charles
Boswell, TimGorman, Mrs Teresa
Bowden, Sir AndrewGorst, Sir John
Bowis, JohnGrant, Sir A (SW Cambs)
Boyson, Rt Hon Sir RhodesGreenway, Harry (Ealing N)
Brandreth, GylesGreenway, John (Ryedale)
Brazier, JulianGriffiths, Peter (Portsmouth, N)
Bright, Sir GrahamHague, William
Brooke, Rt Hon PeterHamilton, Rt Hon Sir Archibald
Browning, Mrs AngelaHampson, Dr Keith
Bruce, Ian (Dorset)Hannam, Sir John
Budgen, NicholasHargreaves, Andrew
Burt, AlistairHarris, David
Butcher, JohnHawkins, Nick
Butler, PeterHeald, Oliver
Carlisle, John (Luton North)Hendry, Charles
Carlisle, Sir Kenneth (Lincoln)Hicks, Robert
Carttiss, MichaelHill, James (Southampton Test)
Cash, WilliamHordem, Rt Hon Sir Peter
Chapman, SydneyHoward, Rt Hon Michael
Clarke, Rt Hon Kenneth (Ru'clif)Howarth, Alan (Strat'rd-on-A)
Clifton-Brown, GeoffreyHowell, Rt Hon David (G'dford)
Coe, SebastianHughes, Robert G (Harrow W)
Congdon, DavidHunt, Sir John (Ravensbourne)
Conway, DerekHunter, Andrew
Coombs, Anthony (Wyre For'st)Jack, Michael
Coombs, Simon (Swindon)Jackson, Robert (Wantage)
Cope, Rt Hon Sir JohnJenkin, Bernard
Couchman, JamesJessel, Toby
Cran, JamesJones, Gwilym (Cardiff N)
Davies, Quentin (Stamford)Jones, Robert B (W Hertfdshr)
Davis, David (Boothferry)Kellett-Bowman, Dame Elaine
Day, StephenKing, Rt Hon Tom
Deva, Nirj JosephKirkhope, Timothy
Devlin, TimKnapman, Roger
Dicks, TerryKnight, Mrs Angela (Erewash)
Douglas-Hamilton, Lord JamesKnight, Greg (Derby N)
Dover, DenKnox, Sir David
Duncan, AlanKynoch, George (Kincardine)
Duncan-Smith, IainLait, Mrs Jacqui
Dunn, BobLamont, Rt Hon Norman
Durant, Sir AnthonyLang, Rt Hon Ian
Dykes, HughLawrence, Sir Ivan
Elletson, HaroldLegg, Barry
Evans, David (Welwyn Hatfield)Lennox-Boyd, Sir Mark
Evans, Jonathan (Brecon)Lester, Jim (Broxtowe)
Evans, Nigel (Ribble Valley)Lidington, David
Lightbown, DavidSkeet, Sir Trevor
Lilley, Rt Hon PeterSmith, Tim (Beaconsfield)
Lord, MichaelSoames, Nicholas
Luff, PeterSpeed, Sir Keith
Lyell, Rt Hon Sir NicholasSpencer, Sir Derek
MacKay, AndrewSpicer, Michael (S Worcs)
McLoughlin, PatrickSpink, Dr Robert
Maitland, Lady OlgaSproat, Iain
Malone, GeraldSquire, Robin (Hornchurch)
Marlow, TonyStanley, Rt Hon Sir John
Marshall, Sir Michael (Arundel)Steen, Anthony
Martin, David (Portsmouth S)Stephen, Michael
Mawhinney, Rt Hon Dr BrianStem, Michael
Merchant, PiersStewart, Allan
Mills, IainStreeter, Gary
Mitchell, Andrew (Gedling)Sumberg, David
Monro, Sir HectorSykes, John
Needham, Rt Hon RichardTaylor, Ian (Esher)
Nelson, AnthonyTaylor, John M (Solihull)
Neubert, Sir MichaelTaylor, Sir Teddy (Southend, E)
Newton, Rt Hon TonyTemple-Morris, Peter
Nicholls, PatrickThomason, Roy
Nicholson, David (Taunton)Thompson, Sir Donald (Cer V)
Nicholson, Emma (Devon West)Thompson, Patrick (Norwich N)
Onslow, Rt Hon Sir CranleyThornton, Sir Malcolm
Oppenheim, PhillipThurnham, Peter
Ottaway, RichardTownsend, Cyril D (Bexl'yh'th)
Page, RichardTrotter, Neville
Paice, JamesTwinn, Dr Ian
Patnick, Sir IrvineVaughan, Sir Gerard
Patrje, Rt Hon Sir GeoffreyWalden, George
Pawsey, JamesWalker, Bill (N Tayside)
Pickles, EricWaller, Gary
Porter, David (Waveney)Wardle, Charles (Bexhill)
Portillo, Rt Hon MichaelWaterson, Nigel
Rathbone, TimWatts, John
Renton, Rt Hon TimWells, Bowen
Richards, RodWhitney, Ray
Rifkind, Rt Hon MalcolmWhittingdale, John
Robertson, Raymond (Ab'd'n S)Widdecombe, Ann
Robinson, Mark (Somerton)Wiggin, Sir Jerry
Roe, Mrs Marion (Broxbourne)Wilkinson, John
Rowe, Andrew (Mid Kent)Willetts, David
Rumbold, Rt Hon Dame AngelaWinterton, Mrs Ann (Congleton)
Ryder, Rt Hon RichardWolfson, Mark
Sackville, TomWood, Timothy
Shaw, David (Dover)Young, Rt Hon Sir George
Shaw, Sir Giles (Pudsey)
Shepherd, Colin (Hereford)Tellers for the Noes:
Shersby, MichaelMr. Simon Burns and
Sims, RogerDr. Liam Fox.

Question accordingly negatived.