Emergency Exclusion Orders

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) Notwithstanding the provisions of section 67(3) of this Act, but subject to section 67(4) thereof, where on the application of a local authority the sheriff is satisfied, in relation to a child, that—
    1. (a) the conditions mentioned in section 67(2) of this Act are met; and
    2. (b) but for this section it would be necessary for an order under section 50 of this Act to be made pending the determination of an application to the sheriff for an exclusion order under section 67,
    he may grant an order under this section (to be known as "an emergency exclusion order") excluding from the child's family home any person named in the order (in this part of this Act referred to as the "named person"), for a period not exceeding four days.
  2. (2) Where an emergency exclusion order is made in terms of this section, sections 68 and.69 of this Act shall apply, so far as relevant, to the granting of that order and the local authority shall, if so requested by the named person, assist him to obtain alternative accommodation.
  3. (3) Where an order is made under this section, the Principal Reporter shall forthwith make application to the sheriff for an exclusion order in terms of section 67 of this Act, and, unless previously withdrawn, the application shall be heard by the sheriff within two working days of the lodging of the application.
  4. (4) When an emergency exclusion order is made under the section, such order shall cease to have effect—
    1. (a) on expiry of the time specified by the sheriff in terms of subsection (1) above;
    2. (b) on the refusal by the sheriff to grant an exclusion order, in terms of section 67 of this Act; or
    3. (c) where the Principal Reporter considers that such an order is no longer necessary, having regard to the welfare of the child.'.—[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 the following amendments: No. 101, in clause 67, page 52, line 45, after 'order', insert ['other than an interim order'.]No. 102, in clause 67, page 53, line 34, at end insert [; and where such an interim order is granted, the local authority shall, if so requested by the named person, assist him to obtain alternative accommodation.'.]No. 103, in clause 67, page 53, line 34, at end insert—'(7A) Where—

  1. (a) an application under subsection (7) above has been refused; and
  2. (b) the sheriff considers that the conditions for making a child protection order under section 50 of this Act are satisfied,
he shall make such an order under that section as if the application had been duly made by the local authority under that section rather than this section.'.No. 104, in clause 67, page 53, line 38, leave out 'subsection' and insert ['subsections (3), (4), (5), (6) and'.]No. 105, in clause 67, page 53, line 39, leave out 'that subsection' and insert 'subsection (7)'.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

I am sure that this new clause 4 has far more practical application than any other clause 4—new or otherwise—that may have been the subject of recent discussion.

The new clause and amendments seek to achieve the same objective in different ways—that is, to provide for emergency exclusion orders. The matter was considered fairly thoroughly in Committee, and I shall not detain the House for long. I know that the Government did not embark on the idea of exclusion orders lightly, but it has been welcomed by most—if not all—of the groups that gave evidence to the Committee, either orally or in written memoranda, and by hon. Members on both sides of the House.

It became clear from evidence taken by the Special Standing Committee in both Glasgow and Edinburgh that, if the main purpose of an exclusion order was to prevent children from having to be removed from their homes, it might not always be the right answer, given the time that would be required to give notice that such an order was being sought so that it could be served on an alleged abuser.

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

The hon. Gentleman and I have long waged a campaign to put such exclusion orders on the statute book, but would not the new clause complicate matters? Why should the person concerned be excluded for a period not excluding four days"? What purpose would that serve?

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

I am trying to achieve a balance between a number of rights. The child has a strong right not to be removed from the house, but individuals also have a right to continue to live in their main abode. I have no doubt that every effort was made to achieve that balance in the original drafting of clause 67.

If we go a bit further and ask for an interim exclusion order—an exclusion order granted before notice has been given to the person to be excluded, who will not be given the right to appear before the sheriff when the order is sought—it is important to specify a time limit. I therefore propose that the order should lapse after four days unless a full exclusion order has been sought and granted in that time.

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

Can social workers and other interested parties seek to determine within those four days whether the person concerned should be excluded for, say, several weeks, or until the likelihood of a court case materialises?

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

The order is interim in that sense—not pending a decision by social workers on how long it should last, that is, but pending a proper application to the court. In those circumstances, the person to be excluded—or by that stage, if the new clause is accepted, the excluded person—would have had an opportunity to appear before the court if the provisions of clause 67 in its present form had been used in the first place.

I have not used the word "interim", which I believe appears elsewhere. I wanted to avoid confusion, and considered the word "emergency" a more accurate description of the circumstances that the new clause was intended to meet. The four-day period was suggested because, if an order was sought on Friday, an application to the court would be possible on the following Tuesday.

We heard compelling evidence that the current provisions would not, in many cases, allow children to remain at home, and that if we did not establish an emergency procedure they might well have to be taken into care pending the application and granting of exclusion orders. I was impressed, as I think other Committee members were, by the children who told us that their being taken into care could have been avoided. We should try our utmost to avoid that. Although it is important to have regard to the fact that a person has the right not be removed from his or her home, children should also have such a right. They should not be removed unless it cannot be helped. I hope that a proper balance has been achieved by the new clause.

8.30 pm

I recall that the Minister said that he would reconsider the matter and, on that basis, he asked me not to press the amendment. He said that there was a case for emergency exclusion orders if there was perpetual child abuse and that he would consider the matter carefully in view of what had been said by members of the Committee. Again, the reason for tabling the new clause is to give the Government an opportunity to explain what consideration they have given to the matter. The absence of any provision on their part to deal with it suggests that they may have come to the conclusion that it would not be appropriate to make such emergency provision. The House should be advised as to what sort of considerations have given rise to that decision.

Hon. Members who served on the Standing Committee will remember that I quoted from an opinion of counsel that had been given to a consortium for the Bill. It suggested that the sort of provisions included in the new clause would be acceptable in European law. I remember the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) expressing considerable familiarity with the case involving the Belgian Government, which had given rise to that judgment. That is an important point. It is a good benchmark as to whether we are meeting our international obligations. If the new clause satisfies the European convention on human rights, we shall have gone a long way to striking the right balance.

The amendments in my name relate to the issue in one important respect. They are designed to bring about a result similar to that of the new clause. Amendments Nos. 102 to 105 are on pages 814 to 815 of the amendment paper. Amendment No. 102 says that where such an interim order is granted, the local authority shall, if so requested by the named person, assist him to obtain alternative accommodation. That meets one of the other concerns that was raised with us. If a person is excluded, there should be no question of that person not having proper accommodation. That clarifies the position. Provision is possibly already there in general terms, but the new clause would make it explicit that the local authority, having sought an exclusion order, should then find or help a person to obtain alternative accommodation.

I hope that I shall not stretch the relevance of this too much, but in moving amendment No. 54 in Committee, I made the point that clause 67 contained no provision for circumstances where the child was away from home. In response, the Minister accepted that the amendment was sensible and agreed that he would table a suitable Government amendment to give it effect. I do not see any amendment tonight to give that effect. A reassurance that it will be tabled in another place will be welcome.

Photo of Michael Connarty Michael Connarty , Falkirk East

I am happy to support the proposal that new clause 4 should be adopted by the Government. We would be sadly disappointed if they showed themselves to be lacking in vision, or if they did not have the honest approach to the problem that we thought they were offering the hon. Member for Orkney and Shetland (Mr. Wallace) when he tabled a similar amendment in Committee. Clearly, the key to this issue is clause 67(2), which gives the conditions of an exclusion order and relates to the new clause. Clause 67(2) states that the conditions are

  1. "(a) that the child has suffered, is suffering, or is likely to suffer, significant harm as a result of any conduct, or any threatened or reasonably apprehended conduct of the named person; and
  2. (b) that the making of an exclusion order against the named person
    1. (i) is necessary for the protection of the child; and
    2. (ii) would better safeguard the child's welfare than removing the child from the family home."
We listened to the young people from Who Cares? Scotland, who said that they are excluded from their home when there is an abuser in the home. They asked why they were punished twice and made the victims twice. That was clearly how they saw the position. They are object of the accused abuser. They are then victimised by being removed from their home while the accused abuser remains in the home. The trauma of that exclusion—the fact that they are torn away from the family home—which might last for quite a long time, as under a child protection order, is often the worst part of what happens.

The new clause is excellent, as was the similar amendment in Committee. The proposal is that the emergency order would lie for four days. Under subsection (3), the emergency order would bring the person to court before a sheriff within two working days, which is already in clause 67. Applications would be heard within two days.

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

Does the hon. Gentleman accept that the Government intend to table amendments on this subject, but for reasons that I shall give in a moment, we have not been able to do so for tonight, as we intended? I reassure the hon. Gentleman that we have not given up on the issue.

Photo of Michael Connarty Michael Connarty , Falkirk East

That is excellent information. If it had been passed on to the hon. Member for Orkney and Shetland he may have made a different and probably much shorter speech. I shall shorten mine by underlining the fact that I am worried that the question turns on whether the sheriff could react to the emergency exclusion order as proposed in subsection (3) within two working days. It is important that four days have been drafted correctly, that the two working days guarantees that the exclusion, particularly of an accused abuser, will not be prolonged any longer than is necessary, and that if the accusation turns out, in the sheriff's eyes, not to be valid, the family would be reunited.

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

Amendment No. 102 states, among other things, that the local authority shall assist an excluded person to obtain alternative accommodation. I think that I am right in saying that the Minister talked about assisting such a person to find alternative accommodation. Did he say that thinking of the Social Work (Scotland) Act 1968? If so was he referring to section 12, which allows a local authority in certain circumstances to provide financial assistance to a person? If a person is to be excluded from the family home, no question exists of him going along to the Benefits Agency to seek assistance. If he is on income support, he would not be able to afford to furnish a place. Presumably, such a person would be assisted in finding lodgings. If so, would that be by way of section 12 of the 1968 Act?

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

May I first deal with the general issue relating to exclusion orders? That was an extremely important part of the Bill. It was one of the major innovations contained within it and one of the main things sought by the hon. Member for Orkney and Shetland (Mr. Wallace). It marks an important landmark in the protection of children and it has been widely welcomed.

The detailed arrangements have been the subject of considerable debate and substantial evidence to the Special Standing Committee in Scotland from a wide range of bodies. The new clause and the associated amendments focus on the main issue that confronted us during discussions on provisions for exclusion orders. The issue is whether it should be possible to exclude a suspected abuser from a child's home by virtue of an order or an interim order granted by a sheriff without prior intimation to the person to be excluded or an opportunity being provided for that person to be heard by or represented before the sheriff.

As my right hon. and noble Friend the Minister of State made clear during the evidence taking, and as I made clear in Committee, we were prepared to listen carefully to the views expressed on the proposals in the Bill. We have done so and it might be helpful to the House, in considering the new clause and the amendments, if I say that the Government are, in principle, ready to amend the Bill to provide for exclusion on that basis.

However, I have to tell the House that the work on that is not yet complete. It has proved more complex than we had expected—in particular, in ensuring that the provisions for such an emergency exclusion provide for a proper recourse, by the excluded person, to the courts for a judicial review. We had to have regard to the requirements of the United Nations convention on human rights and to ensuring the correct entitlement of the person together with the right procedural steps in the courts, so as to ensure proper judicial review. I had hoped to get that done by Report, but it has proved extremely complex.

On the main point of principle—that it should it possible for an interim exclusion order to be granted without intimation, subject to a proper judicial examination—we agree with the intention behind the new clause and the related amendments. However, I am bound to advise the House that, as they stand, they have certain technical problems. I therefore hope that the hon. Member for Orkney and Shetland will not press the new clause. We undertake to bring forward amendments in the other place that will provide for an exclusion order to be available in an emergency—amendments that will stand the test of time.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

The Minister has given a welcome response to the debate. It has given us considerable encouragement and we look forward with interest to the amendments that he will table in the other place. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.