Adoption and Children Bill

– in the House of Lords at 3:05 pm on 23 October 2002.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 3:05, 23 October 2002

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be now further considered on Report.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Schedule 2 [Disclosure of Birth Records by Registrar General]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 89:

Page 91, line 42, leave out paragraph 4.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, Amendment No. 89 is a modest amendment designed to bring one small part of the adoption law up to date. It removes paragraph 4 of Schedule 2 and thereby removes a requirement for compulsory counselling of an adopted person before receiving details of his or her birth records. We debated a slightly different amendment in Grand Committee and I would like to return to the issue today.

In the bad old days, before 1975, adopted people had no right to their birth records. That was put right in the 1976 Adoption Act but Parliament decided then that applicants adopted before the Act should undergo compulsory counselling before receiving the information. That contrasts with people adopted after 1975 who have merely been informed of counselling services and have not been required to use them.

I want to be clear about one thing: counselling for adopted people when they search for their birth relatives is undeniably a good thing. It should be strongly recommended to anyone embarking on a search. During the summer I read a book, Adoption, Search and Reunion, published by the Children's Society. That outlined the very different motivations of searchers and the many potential outcomes from search and reunion underline how difficult the territory is. For most it is a positive experience, although not necessarily, or even often, in terms of achieving a close family relationship in the end. The road is certainly rocky and it is important that searchers are aware of the possible problems that can arise.

Having said all of that, I might be expected to support compulsory counselling, but I cannot. It is a remnant of the nanny state. Compulsion is an intrusion into private life. What might have seemed right and cautious in 1975 now simply looks outdated.

By taking this opportunity to update the law we would reflect that the world has moved on. The people affected by the compulsion rule must by definition be at least 27 years old and are very likely to be much older. The stigma of illegitimacy may still have hung over our legislators in 1975 but no one can claim that it does now. If the law does not insist on intruding into the lives of today's adoptees, why should it continue to do so for yesterday's adoptees?

There is a good framework for counselling information being made available. The adoption agencies have a wealth of experience in counselling. Let us not continue to treat those adopted adults as though they are children, incapable of responding to good advice. I beg to move.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I rise to support the amendment. There is a hint of retrospection in paragraph 4 and it has a restrictive element. What is the purpose of that paragraph as it stands? I shall of course listen to everything that is said by the Minister. At the moment, it seems to me that the amendment should be supported.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am grateful to the noble Baroness, Lady Noakes, for her support of counselling. I am sure she is right that it is widely welcomed. My understanding is that where counselling is voluntary, two out of three who are offered it take up the offer, which confirms the view that she has taken.

The noble Baroness describes this as a modest amendment. I suppose it is. But it is not quite as modest as the amendment she moved in Grand Committee. That amendment—Amendment No. 86—would have replaced the current mandatory requirement for an adopted person to undergo counselling. It would have put persons adopted before 12th November 1975 on a similar footing to those adopted after that date. The amendment then would have required the registrar-general to inform the applicant that counselling services are available and to recommend strongly that the applicant use them. That is in line with her speech today.

The amendment before us today completely removes the requirement for an applicant adopted before 12th November 1975 to receive counselling before the registrar-general provides the information—primarily his birth name, but it is necessary for the applicant to obtain a certified copy of the record of his birth. My problem is that the amendment would overturn a scheme that is based on a clear commitment made by Parliament in 1997, not to legislators, but to adopted persons and to their relatives.

The requirement for compulsory counselling was introduced by Section 26 of the Children Act 1975 that was enacted in the Adoption Act 1976. Section 51 of the 1976 Act gave adult adopted persons a right to obtain the information necessary to access their birth records. For adopted persons living outside the United Kingdom, the Children Act 1989 amended the 1976 Act to allow the registrar-general to approve counselling services overseas. That was enacted in 1991.

Individuals who do not know their birth details and were adopted before 12th November 1975 are required to see a counsellor before they are given access to their birth records. Individuals adopted on or after 12th November 1975 are informed of the counselling services that are available to them, but counselling is not a pre-condition to disclosure of the birth record information.

The reason for the distinction is that until 12th November 1975 adopted people did not have a right to access their birth records. When Parliament provided the new right, it gave it to individuals prior to 12th November 1975. That was the time of the retrospection. There is no retrospection now. It was to balance the concerns of birth parents who had previously had anonymity. The concern we must have is that it was the birth parents who had had anonymity before who had to be protected. Parliament decided that counselling would be compulsory for those given the retrospective rights. An adoption that took place before 1975 could have done so in the expectation that there would be little prospect of the birth parents' identity being revealed to the adopted person.

Many adoptions before that time happened in an atmosphere of secrecy. The noble Baroness, Lady Noakes, is quite right about that. Parliament considered this issue carefully before deciding to allow the adopted adult access to his birth record. In recognition of the fact that it would be changing the position of adoptions after the event, Parliament decided that because of the potentially sensitive situations that might arise the adopted adult should have counselling before being able to have access to the sensitive information about his birth parents.

As I have said today and in Grand Committee, Parliament made this clear commitment in 1975. It was that persons adopted before 12th November 1975 would be required to discuss the circumstances of their birth, their adoption and their intentions with a trained counsellor before they could receive their birth record information.

I hope that noble Lords will see from that explanation that this is a long-standing obligation which we have to people who had expectations of anonymity in the past. We are maintaining these conditions. This amendment would do serious damage to that.

Photo of Baroness Noakes Baroness Noakes Conservative 3:15, 23 October 2002

My Lords, I thank the Minister for that reply. I am of course aware that the amendment I have tabled for Report stage is different from the one I tabled in Grand Committee. That is because on reflection I could see no reason why the intermediate stage of giving a strong recommendation as to counselling should be preferred to the position that obtains for all those adopted adults after the 1976 Act.

It is somewhat illogical that in order to protect the birth parents the adopted person has to go through counselling. There is no logical connection between the two.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, it is because the information that is being given, which is the birth record, gives information about the birth parents. That is why.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, yes. But the purpose of counselling is to prepare the adopted person for the difficulties that may flow from attempting to seek a reunion with the birth parent. I am disappointed in the Minister's reply. Those adopted adults, as I said earlier, must be over 27 years of age and many considerably older—their parents even older still. I had hoped that after this period of 27 years and in a completely different social environment we could have updated the law and not fallen back on the social position of 1975. However, I shall consider carefully what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 [Adoption Contact Register]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 90:

Page 45, leave out lines 37 and 38.

Photo of Earl Howe Earl Howe Conservative

My Lords, I beg to move Amendment No. 90, and in doing so return us to another issue that we debated in Grand Committee relating to inter-country adoptions.

It is almost self-evident that people who seek contact with family members lost through inter-country adoption face infinitely more difficult searches than do those who make the same sort of search in a domestic context. Currently, use of the adoption contact register does not extend to adopted people abandoned as babies in the UK, nor does it extend to overseas adoptees.

The Minister confirmed in Grand Committee that the registrar-general had an intention to provide this service for future inter-country adoptions if sufficient information is made available to him by those who apply for registration on the register. That is of course extremely welcome; but I should like to urge the Minister to go a little further. The contact register is to be available for "future inter-country adoptions" but not apparently in respect of those people adopted overseas prior to the implementation date of the 1999 Act or this Bill. That is most disappointing, and I hope that the Minister will feel able to reconsider.

Of course birth relatives living on limited incomes in developing countries are likely to find the current fees to use the register prohibitive. If there is not to be a separate contact register for inter-country adoption, there will need to be a much more modest fee to facilitate its use by inter-country adoption birth relatives. Indeed, without that it is hard to see how the register will in practice be effective. Can the Minister say anything on that issue?

My other concern relates to the information that has to be provided in order to access the register. We still do not know what will constitute "sufficient information" in this context. That is a critical piece of the jigsaw, because without an understanding of that we do not know how many people will be denied access to the contact register. Once again, I hope that the Minister can enlighten us.

My amendment addresses the main issue here, which is to ensure that the current contact register will be accessible to inter-country adopted people in the UK and their birth relatives overseas. I regard this as extremely important.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I rise briefly to support the amendment. Again, it is restrictive. It relates to a concept of such information which is totally at large. That is an unsatisfactory manner in which to legislate. I hope that it will not be said, as was said about the previous amendment, that because way back in the past a retrospective measure was adopted by Parliament, it must be perpetuated in an amending Bill such as this.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Liberal Democrat

My Lords, we have tabled an amendment in this group: Amendment No. 91. Its effect is broadly the same as that of the amendment moved by the noble Earl, so I shall not prolong the discussion further.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, Clauses 80 and 81 are concerned with supplementary provision for the adoption contact register. I was a little puzzled by the noble Earl's reference to overseas adoptions because, strictly speaking, the part of the Bill concerned with adoptions with a foreign element commences with Clause 83 and Chapter 6. But of course he is right in that the contact register is available to any person who can satisfy the conditions in Clause 80. That means that a birth relative of a person subject to intercountry adoption could apply to go on the register. If that is what the noble Earl meant, I understand his point more clearly.

Clause 80(5) sets out the conditions under which the registrar-general may make an entry for a birth relative in part 2 of the adoption contact register. The register provides a framework designed to facilitate contact between adopted persons and their relatives where that is what they both want. There are two parts of the register. Part 1 contains the names of adopted persons who have given notification that they want—or do not want—to contact all or some of their relatives. Part 2 contains the names and addresses of persons related to an adopted person who have given notification that they want—or do not want—to make contact with a specified adopted person.

Amendment No. 90 omits part of Clause 80(5)(b), which provides that the registrar-general can make an entry in part 2 of the register only where the applicant has such information as could enable him—that is, the registrar-general—to obtain a certified copy of the record of the adopted person's birth. The amendment would remove the means by which the registrar-general is satisfied that the person who claims to be the relative of an adopted person is in fact related to him and would be able to obtain a certified copy of the record of his birth.

Amendment No. 91 amends Clause 81, which sets out supplementary provisions for the adoption contact register. If it were correctly placed in Clause 80, rather than in Clause 81, it would merely repeat the existing provision in the Bill.

Without the essential details needed to establish a relationship between the adopted adult and the applicant, the registrar-general cannot be satisfied that a birth relationship exists, because there will be no evidence. Without that safeguard, a person claiming to be a relative could expect to be registered on part 2 of the contact register regardless of whether or not they were genuinely related to the adopted person.

The amendment would weaken the safeguards of a facility intended by Parliament to assist genuine contact between members of the same birth family—when, as I said, they both wish to make such contact. It could allow the register to be misused. For example, if an adopted person were led to believe that the other person was a relative with whom he wished to have contact, that could lead to emotional entrapment of the adopted person.

Where applicants are unable to satisfy the statutory requirements for entry to be made on the contact register, the registrar-general has referred individuals to the National Organisation for the Counselling of Adoptees and Parents, which operates its own contact register. Such applicants are advised that the threshold for proof of a relationship between the two parties is lower on NORCAP's register.

In the light of my explanation that the amendment could cause serious difficulties with the proper operation of the adoption contact register, I hope that it will not be pressed. Before I sit down, perhaps I may correct something that I said a minute ago. When I said that the applicant can make an entry in part 2 of the register where the applicant has such information as could enable the registrar-general to obtain a certified copy, I should of course have said "enable the relative to obtain a certified copy of the adopted person's birth".

Photo of Earl Howe Earl Howe Conservative

My Lords, I am grateful to the Minister and take on board his points about the effect of my amendment if accepted. As I am sure that he appreciates from my earlier remarks, the amendment was designed as a device to tease out a little more information about the Government's thinking on how the system will work in practice—in particular, on the major question, which I know puzzles and worries many people at present: what will constitute sufficient information in that context? We may each have our own ideas about what may constitute sufficient information, but it would be useful to have at least a broad idea about that placed on the record. However, I realise that that request may not be reasonable at this stage.

I had also hoped that the Minister would say something about fees, which are another worry to those who specialise in adoption. As I said, they will impact especially on those from overseas who come to the United Kingdom and are confronted with an expensive system.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I apologise to the noble Earl for not referring to fees, which he indeed raised in his opening speech. I can either give him an answer now or write to him and other noble Lords.

Photo of Earl Howe Earl Howe Conservative

My Lords, I should be most grateful if the Minister would write to me in due course on the matter. I am grateful for that offer. Nevertheless, this has been a useful exchange. Once again, I thank the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 [Adoption Contact Register: supplementary]:

[Amendment No. 91 not moved.]

Clause 83 [Restriction on bringing children in]:

[Amendment No. 92 not moved.]

Clause 84 [Giving parental responsibility prior to adoption abroad]:

[Amendment No. 93 not moved.]

Clause 85 [Restriction on taking children out]:

[Amendment No. 94 not moved.]

Clause 89 [Section 88: supplementary]:

[Amendment No. 95 not moved.]

Clause 91 [Restriction on arranging adoptions, etc.]:

[Amendment No. 96 not moved.]

Clause 96 [Sections 91 to 95: interpretation]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 96A:

After Clause 96, insert the following new clause—


(1) Regulations under section 9 may make provision for the purpose of—

(a) assisting persons adopted before the appointed day who have attained the age of 18 to obtain information in relation to their adoption, and

(b) facilitating contact between such persons and their relatives.

(2) For that purpose the regulations may confer functions on—

(a) registered adoption support agencies,

(b) the Registrar General,

(c) adoption agencies.

(3) For that purpose the regulations may—

(a) authorise or require any person mentioned in subsection (2) to disclose information,

(b) authorise or require the disclosure of information contained in records kept under section 8 of the Public Records Act 1958 (c. 51) (court records), and may impose conditions on the disclosure of information, including conditions restricting its further disclosure.

(4) The regulations may authorise the charging of prescribed fees by any person mentioned in subsection (2) or in respect of the disclosure of information under subsection (3)(b).

(5) An authorisation or requirement to disclose information by virtue of subsection (3)(a) has effect in spite of any restriction on the disclosure of information in Chapter 5.

(6) The making of regulations by virtue of subsections (2) to (4) which relate to the Registrar General requires the approval of the Chancellor of the Exchequer.

(7) In this section—

"appointed day" means the day appointed for the commencement of sections 56 to 65,

"registered adoption support agency" means an adoption support agency in respect of which a person is registered under Part 2 of the Care Standards Act 2000,

"relative", in relation to an adopted person, means any person who (but for his adoption) would be related to him by blood (including half-blood) or marriage."

On Question, amendment agreed to.

[Amendments Nos. 97 and 98 not moved.]

Clause 110 [Acquisition of parental responsibility by step-parent]:

[Amendments Nos. 99 to 101 not moved.]

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Liberal Democrat

moved Amendment No. 102:

Before Clause 111, insert the following new clause—


In section 8 of the 1989 Act (residence, contact and other orders with respect to children) there is inserted—

"(5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section.""

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Liberal Democrat

My Lords, I was under the impression that the noble Earl, Lord Listowel, was to lead on this amendment, but perhaps he has been foxed by the speed with which your Lordships have got through business. That puts me in a slightly difficult position, but I shall try at least to begin the argument, so that the amendment is not lost by default.

Noble Lords will know that there has been a great deal of concern about the availability of independent support and advocacy on behalf of children during the adoption process. The amendment, together with Amendments Nos. 117 and 118, relate to that subject.

There have been many arguments on the matter since the beginning of the Bill's passage. On these Benches, we have taken the line that children who are too young to be able to make legal representations on their own behalf should be able to get independent legal advice or advocacy—whatever word we want to use—whenever they are subject to or a party to a case relating to adoption or any other children's case.

Another aspect of the matter is that the right of a child to be represented by an advocate is already part of the general public law. We would prefer it to become part of this Bill so that, in any relevant case, the child would have the ability to be represented. Others who have spoken to us about the matter also feel that it is important to get rid of the difference between public and private law in this respect. Members on the Government Benches will be aware of that; they will have received the same briefings.

A third argument has to do with whether this country is compliant with international legislation on the rights of the child. The relevant legislation says that a child shall be represented in legal cases according to the protocols or something like that—I quote from memory—of the country involved. Our interpretation of that is that the child shall have that representation not in every case but in cases in which it is clear that the child needs that representation and that in no case involving a child should the child be unable to get such representation. The law, as it stands, puts children in the United Kingdom in that position, which is why I have constantly queried our consonance with the two major pieces of European and United Nations legislation on the rights of the child.

The Government have made their own proposals about advocacy, but we must know that the child is secure. If a judge decides, on the basis of any part of the Bill, that a child requires to be represented, the child must be independently represented. We also want to know that our compliance with international human rights law is complete. I beg to move.

Photo of Baroness Noakes Baroness Noakes Conservative 3:30, 23 October 2002

My Lords, I compliment the noble Baroness, Lady Thomas of Walliswood, on a bravura performance, even though she had no prior notice that she was about to move the amendment.

I know that the Minister will give a detailed resume of the legal position on the representation of children and will say that what is sought in the amendments is already covered by existing rule-making powers and/or the practice of the courts. I, for one, would not dream of challenging the Minister whose expertise in that area of the law is widely famed. But—it is a big "but"—the fact remains that the Government have not implemented Section 64 of the Family Law Act 1996 and have no intention of so doing. Concerns remain about the effectiveness of measures to allow the child's voice to be heard, particularly in private law cases.

I thank the Minister for the useful briefing note that was circulated on 4th October. It referred to messages from a scoping study and possible areas for further consultation. However, the note gave no timescales and did not identify any particular areas that the Government were committed to pursuing. I hope that, if the legal framework is to be accepted as perfect, the Minister will accept that something must be done about implementation in practice. It should be clear that the need for the representation of children's views about their future is beyond question. If further consultation is required, it must be timetabled.

I hope that the Minister will be positive about the matter. If she is not, the case for the amendments will become compelling.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I shall speak to Amendments Nos. 102 and 117, which stand in my name. Before doing so, I sincerely thank the noble Baroness, Lady Thomas of Walliswood, for stepping into the breach. I apologise to the House for being detained. I was trying to perfect what I was going to say, so I hope that I can do it justice now.

The Minister has been a well respected practitioner in this area, as the noble Baroness, Lady Noakes, said. The Minister has said that there should be a change in the culture of private law proceedings involving children, and she has helpfully provided briefings on the many steps she is taking to bring about that change. She has argued that it is practice that must be addressed and that that would be best done through training. She has argued that there is already an adequate framework in private law to protect children.

I have weighed carefully what the Minister said. I have paid close attention to what she said about the problems that could arise in providing equality of arms for children in private law cases. The Minister said that that could lead to the prolongation of cases and could mean that the child would have to take the side of one parent or the other. The indiscriminate use of separate representation for children in private law cases is not desirable.

I took a pause for thought and consulted children and family court reporting officers and children's lawyers working in this area. The consensus was that the framework is not as it should be. There is a lack of means for courts to appoint separate representation if it is felt that that is necessary for the child. The courts would appreciate more guidance on when to consider the introduction of separate representation for children.

There are two main pathways into separate representation for a child. There is Section 9(5), which provides for the assistance of a Children and Family Court Advisory and Support Service officer. The officer is empowered to appoint separate representation for the child. However, it can be a long-drawn-out and, possibly, fruitless process. Such provision depends on the discretion of CAFCASS. As that organisation is in disarray, there is a consensus that it may not achieve what the court wishes for the child. The second main approach is to use Section 37 of the Children Act 1989. However, it can be used only in extremis when the child is suffering abuse.

Amendment No. 102 seeks to allow the Lord Chancellor to establish rules that will enable the courts to give particular regard to whether a child should have a guardian appointed and should be empowered to have separate representation. For instance, if the parents are in court for the 24th time litigating against one another, the courts in the new circumstances will be empowered to appoint a guardian for the child. The court may be the only means, through considering the needs and wishes of the child, to end such prolonged and protracted litigation.

Where there is disputed contact, the courts can more easily obtain a thorough investigation of the children's circumstances and ensure that the voice of the child is heard by appointing separate representation.

A model already exists in statute; Amendment No. 102 is modelled closely on Section 64 of the Family Law Act 1996. My noble and learned friend Lord Simon of Glaisdale spoke eloquently at the time of passing that law for the need of such provision.

I should be grateful if the Minister could say why the Government are choosing not to reinstate a provision already accepted under the Family Law Act 1996. This is an important new means to support and protect children in private law proceedings.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I support all the amendments in the group for reasons that I have given at some length previously, both in Grand Committee and on Report. I support both their spirit and substance. The problem is, what is to be done? The Lord Chancellor is concerned that adequate regulations should be made. I am not certain he is totally satisfied that on an objective review they could not be improved.

Few regimes cannot be improved if one takes another look at them in the light of these amendments. Without being at all critical, I would not say that the present structure of the regulations is perfect or that it ever could be, but it could perhaps be improved.

Once it has been improved, there is still the question of whether the regulations are being applied. That is a problem under the existing structure. It is possible that the Lord Chancellor could take steps to seek to ensure, when he has revised the regulations, that they are more regularly applied in the courts. I look for a sympathetic response from the Minister.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench 3:45, 23 October 2002

My Lords, I too support the amendment. I have listened with care to the arguments put by the Minister, whom I respect greatly. I understand her wish to change cultures, to increase training and to use other methods to achieve those ends. Despite that, I am still convinced that it is important that the amendment is accepted.

I have a list of legal precedents in relation to the position in Europe and how we stand in relation to the various conventions. They have been outlined and I do not intend to go through them again. The other legal arguments have been made clearly. I speak on behalf of children to whom I have listened in their dozens over the lines at Childline; families I have met; and CAFCASS officers and others to whom I have spoken in recent years.

Many children feel that whatever is happening to them in court, they are simply not being heard. They often feel that they do not want to choose between parents; the Minister has made that point on a number of occasions. But if one talks to them on the telephone about that choice, it is clear that whatever help they are receiving in thinking through it, they need legal advice to sort out the issues and the pros and cons of how they take forward the issues through the courts.

They know emotionally how they feel, but they do not necessarily know how to interpret that emotion in relation to the arguments that will be put in an adult forum. I was involved in the discussions about Section 64 of the Family Law Act 1996. During the passage of that Act through the House of Commons, great emphasis was placed by the government—then in opposition—on the need for separate representation of children involved in private law proceedings. They were listening carefully to what various organisations were telling them about children's voices.

At that time, there was consensus. I am interested to know why that consensus is no longer accepted. If the debate at that time was supported by those involved in the debate now, why is it now not possible to accept the amendment? The non-implementation of the Family Law Act has effectively halted development in this area. The Bill provides an opportunity to implement those long overdue changes and to make sure that we hear children. Many of them feel that their voices have not been heard, and indeed, in difficult cases, that they have not been protected.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, I thank all noble Lords who have participated in the debate; they feel like old friends. I compliment the noble Baroness, Lady Thomas, on her sterling heroic effort. The whole House was urging her on.

I greatly sympathise with the spirit of the amendments and agree that the wishes and feelings of children must be heard when important decisions are being made about their future. The noble Baroness, Lady Howarth, spoke about the need to listen with acuity to what children have to say; that is very important. The question of how we carry out that listening is of equal importance.

The amendments seek to provide the power to extend the definition of specified proceedings so that children can automatically be separately represented by children's guardians and solicitors either in cases identified by the courts as requiring such a level of representation or in classes of proceedings to be defined by rules of court.

I hope that I can reassure noble Lords by saying as clearly as I can that these amendments are unnecessary. I am grateful for the compliments that have been showered upon me about my erstwhile participation in these cases on the ground. Having looked at the legislation, I was most careful to assure myself that that which needed to be on the statute was in fact there. I can assure the House that if it were not, I would have been as discontent as others who have spoken.

Section 41(6) of the Children Act 1989 already provides the definition of "specified proceedings" to be extended by rules of court, and the Family Proceedings Rules 1991 provide that any child in any family proceedings can be made a party to proceedings and be separately represented. The welfare check list in Section 1(3) of the Children Act requires the court to have regard to the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding. That is not an optional consideration; it is mandatory. Therefore, the issue for the court is how best to meet that obligation in the best interests of the child.

The court has a number of options. It can make the child a party to proceedings. As I have said, it can already do that in any family proceedings. It can appoint a guardian, who will now be a CAFCASS officer, for any child in any family proceedings. The court can ask a CAFCASS officer to report to the court on the welfare and best interests of the child. The Family Proceedings Rules specifically provide that the report must cover the matters in the welfare check list, which includes the child's wishes and feelings.

Only last year, we amended the rules to place an additional duty on any children and family reporter; namely, to notify the child about the contents of the report, including any reference to the child's own views and the recommendations. It is right that we would anticipate that CAFCASS officers would take that responsibility very seriously and would do exactly what the noble Baroness, Lady Howarth, outlined in helping the children to understand the proceedings and ensure that they know their views have been listened to and will be properly represented and reflected.

When decisions are being made about the state intervening in a family life, such as in a case with care proceedings or in placement proceedings under the Bill, it must be right that children are separately represented. However, it is less clear that a formulaic approach works in private law family matters. As I said earlier, and as others foreshadowed, not every child will want to be a party to proceedings. Some children may specifically not want to be drawn into a dispute between their parents. For some children, this could feel like being asked to choose between two parents both of whom they may love very deeply.

In other cases, the child may actively want to participate and have a view that either of the parents may be incapable of putting dispassionately on his behalf. We need a flexible child-centred approach that meets each child uniquely and the court must be allowed to consider what is right for each individual child. The noble Baroness, Lady Thomas, inquired about making placements in adoption cases and asked whether that would be a specified proceeding. Subject to further consultation, we do not intend to make adoption proceedings specified proceedings because under the Bill the majority of issues will be resolved before the adoption hearing.

While the amendments add nothing to existing legislation, I agree that we must consider whether the existing arrangements are operating consistently and effectively in practice. Noble Lords who highlighted that point are right and the noble Earl, Lord Listowel, was right in saying that it is an issue. That is the essence of the debate.

That point was also made in this year's concluding observations of the Committee on the UN Convention on the Rights of the Child about the representation of children in family proceedings. The committee expressed disappointment about the extent to which the provisions already contained in the Children Act were being consistently used, but were not disputing the merits of the legislation. That is precisely the point that we intend to address in consultation. We want to ensure that the full range of ways in which children can have a voice in decision-making regarding their future is considered and used consistently. The noble Baroness, Lady Noakes, asked when that will take place. We are already working on a consultation paper and we hope to begin consulting around the end of this year. Therefore, creative work is being done on that.

During Grand Committee, my noble friend Lady Thornton was concerned whether we were needlessly consulting. I want to make two points about that. First, we shall not consult on whether children are able to be separately represented. As I hope I have made clear, that is already provided for in the current system. We want to address the concerns raised in the debate and in a scoping study that we have already undertaken with organisations representing children to inform the scope of full consultation.

In summary, it seems to us that those concerns fall into two broad categories. First, that the existing arrangements are not used consistently. It may be that we need more specifically to define the types of case in which a child should be separately represented, or a CAFCASS officer appointed. If so, we already have the necessary powers to do that. Secondly, we have focused too narrowly on legal representation and have not taken account of the fact that children experiencing family breakdowns may have very different needs. That point was made by the noble Baroness, Lady Howarth.

A child may need information or advice about how to raise concerns with his parents, for example, or about the legal process and what it means. He may simply want a friendly face to talk to and to support him through the process. We must consider whether we need a greater variety of tools to ensure a flexible system in which children of all ages and levels of maturity have the opportunity to express their views and to be heard in a manner in which they feel comfortable. That is what we want to consult upon.

Existing legislation already provides for children to be separately represented in any family proceedings and for the definition of "specified proceedings" to be extended by rules of court. Therefore, we have what provision we need in that area. But we want to ensure that we make the best use of those wide powers so that the system works as effectively and as efficiently as it can. I agree with the noble Lord, Lord Campbell of Alloway, when he says that we can always make good better.

I believe that we will be able to achieve the best outcome only if we consult fully especially with children and their families. I do not believe that we have moved away from the consensus we have in relation to children; we are working creatively and constructively with all those who seek better to manage disruption in children's lives so that there is a better outcome. And we thank all those organisations because without them, our policy would not be as robust as it currently is.

I assure noble Lords that these areas are covered and that the consultation will be productive. I can reassure the noble Baroness, Lady Thomas, that we are compliant with international conditions. I will explore them now if she wishes, or I can write to her.

Photo of The Earl of Listowel The Earl of Listowel Crossbench 4:00, 23 October 2002

My Lords, before the Minister sits down, is it true that while courts can apply to CAFCASS under Section 9(5) for the help of a children's guardian, it is at the discretion of CAFCASS whether or not it provides a guardian? Perhaps the Minister could write to me. It would be helpful.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, I shall certainly write to your Lordships on any specific provisions, but certainly I have never known a situation where a court has ordered that there be a report and a report has not, in due course, been provided. Of course it sometimes happens that there are delays in relation to allocation, but I have never known a report to be refused. The court has to come to an informed judgment as to what is in the best interests of the child, and if it needs a report to do so, one is usually forthcoming. In my experience, most people find it difficult to say no to judges when so ordered.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Liberal Democrat

My Lords, the Minister has given a full response but, in many respects, it was very similar to much of the briefing she has already supplied to us. I read the briefing with care but I did not always find it entirely satisfactory. We believe that this is a very important matter. We wish to register its importance to us and to the children who will be the subject of this Bill—not the subject of disputes between parents—and who will be conveyed, in effect, from one family to another. This is a very special case. For those reasons, despite the generous allocation of time we have been given and the great expertise of the Minister, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 102) shall be agreed to?

Their Lordships divided: Contents, 136; Not-Contents, 129.

Division number 1 Private Parking: Ports and Trading Estates — Adoption and Children Bill

Aye: 134 Members of the House of Lords

No: 127 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Deputy Chairman of Committees 4:13, 23 October 2002

moved Amendment No. 102A: After Clause 111, insert the following new clause—


After section 8 of the 1989 Act there is inserted—


When determining whether the child will be safe if contact or residence is granted to the abusive party, the court shall, so far as is practicable, have regard to the following matters—

(a) the nature and severity of the ill-treatment;

(b) how recently the ill-treatment occurred;

(c) the frequency of the ill-treatment;

(d) the risk of further ill-treatment occurring;

(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;

(f) whether the other party to the proceedings—

(i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and

(ii) consents to the abusive party having residence of, or contact with, the child;

(g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

(h) any steps taken by the abusive party to prevent further ill-treatment from occurring; and

(k) any other matters as the court considers relevant.""

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Deputy Chairman of Committees

My Lords, in moving this amendment, I thank my noble friend the Minister for many helpful meetings and for setting out so clearly the current legislative framework. I should perhaps begin by apologising to the House: I cannot be brief in my remarks, and some points may overlap with the previous debate.

It is important to stress that this debate is not about the principle of children maintaining contact with both parents following separation, which is, of course, desirable in the right circumstances. It is about ensuring that that contact is in the best interests of the child, with every possible measure being taken by the courts to guarantee the safety of the child when the courts are considering the granting of residence and contact orders in private proceedings.

I appreciate that, as in the previous debate, my noble friend is of the view that these amendments would not add to the duties already imposed by the courts according to the welfare checklist in the Children Act 1989, and that the duties are already enshrined in legislation. But, in reality, those duties are not being fulfilled and children are still at risk from decisions taken by courts. The effectiveness of the guidelines has to be questioned.

It is not the Children Act itself that is at fault but the case law determined by the courts since the introduction of the Act. The consequence has been that the intention of the Children Act has been substantially altered. It is for that reason that we propose urgent action as the only way of protecting children in cases of domestic violence and child abuse.

Specifically, Amendment No. 102A, standing in my name and that of the noble Earl, Lord Russell, identifies a checklist which would require court professionals to take an objective approach to risk assessment and which would provide a clear framework for court welfare reports in cases involving allegations of violence.

The checklist is based on Section 16B(5) of the New Zealand Guardianship Act 1968, which contains such a mandatory risk checklist. The courts in New Zealand are required to consider: the nature and seriousness of the violence; how recently and how frequently it occurred; whether further violence is likely to occur; any physical or emotional harm suffered by the child as a result of violence; and whether the other parent considers that the child will be safe if contact or residence is granted to the violent parent. The point about the other parent is extremely important. This mandatory checklist therefore requires court professionals to take an objective approach to risk assessment. It also provides a clear framework for court welfare reports involving allegations of violence.

As I understand it, the objection to this proposal is that the New Zealand legislation has a general presumption in favour of contact while our legislation does not. That may well have been true. The Children Act 1989 does not contain a presumption of contact with regard to private legal proceedings; but that environment has been changed, as I said, by case law. Perhaps I may quote a couple of examples.

In the case, Re: O (Contact: Imposition of Conditions) 1995—a case involving domestic violence—the Court of Appeal ruled that contact is "almost always" in the interests of the child. This ruling established a strong presumption of contact—to such a degree that there is considerable evidence of solicitors and children and family reporters advising abused partners that there is no point in contesting contact because, in the words of the Court of Appeal, contact will almost always be granted.

In the case, Re: A v N (Committal: refusal of contact) 1996, the Court of Appeal ruled that the welfare of the child is not the paramount consideration when a parent is being sentenced for failure to comply with a contact order.

My noble friend the Minister may argue that the rulings in Re: O and in Re: A v N have been superseded by the Court of Appeal judgment in Re: L, V, M & H (Contact: Domestic Violence). However, that judgment specifically states that it is not in any way inconsistent with earlier decisions on contact. Does not that mean that the earlier judgments and the subsequent case law they establish continue to apply?

The final paragraph of the proposed new clause allows the court to take into account any other matters it considers relevant. One area that should be included in that category is the availability of contact centres, and the availability of trained supervisors.

There are 18 major cities in England and Wales which have no contact centres offering supervised contact and, overall, only 12 per cent of contact centres are able to provide supervised contact for cases of abuse and violence. Because of this shortage, contact visits with a violent parent can far too quickly become unsupervised, and high-risk cases can be referred to contact centres which cannot provide high vigilance contact.

Trained professionals seem to be available only when the absent parent is seen as extremely dangerous to the child. Disturbingly, from my own investigations there appears to be little reporting to courts or to social workers on contact visits. The untrained volunteers appear not to be making statements to the police even when abuse has been witnessed.

I appreciate that the Government are aware of the paucity of provision and have recognised the level of risk that this can cause, that they are in the process of establishing a strategy for a national network of child contact centres and an improved referral system, and that a small amount of increased resource has been made available. Clearly, that amount is not sufficient. I hope, therefore, that the necessary resources will be available to find and equip the right premises, to train supervisors, and to provide centres which are safe for the children to meet their absent parent. A network of such centres would do much to alleviate the anxiety felt by so many children and their parents. The Lord Chancellor's Department has indicated that consultation will have to take place before a mandatory risk assessment check-list can be introduced here. I do not therefore intend to press this amendment to a vote, but I would feel more justified in not doing so if the Minister could give an assurance that there will be such consultation and that a mandatory risk assessment check-list will be included in regulations.

The redefinition of "harm" and the tightening of the Family Proceedings Rules 1991 to facilitate the reporting of violence and abuse and to provide a consistent approach are welcome initiatives. Also welcome is the work of the safety stakeholder group, which is due to report at the end of the year, in strengthening the regulations and ensuring further training for judges and magistrates. But, in spite of that, the system still fails to adequately protect children from abusers known to them. We must identify that risk at the earliest possible stage in proceedings. That is the view of the coalition of children's charities and Women's Aid, which deal with such cases daily.

I have met parents who believe that the decision to grant contact, in many cases unsupervised, sometimes puts their children at risk. Often that happens because the courts receive limited information that is not sufficiently relevant to prevent harm, be it details about neglect, emotional abuse or physical violence. I shall illustrate several cases that have been put to me. The first involves a child whose absent parent has regular unsupervised contact, even though there have been signs of abuse. Another case is that of Sonia, whose abusive alcoholic parent abducted her during supervised contact clearly against her wishes. No action was taken by the untrained supervisor to prevent this distressed child from being dragged away and abducted, nor did the police take any subsequent action, even though the court order in respect of contact had been severely breached. That child is now extremely frightened and worried that she might have to see the parent again.

In a further case, a child was taken abroad, against a court decision, and returned eight days later. The child's special diet had been ignored. She had slept in a car and returned home in a distressed state.

There is also the case of the parent who was so severely abused that the abuser was given a jail sentence. The abused parent was moved to a safe address with panic links throughout the house. The abuser applied for contact on release from jail, which resulted in consultation about whether there should be supervised contact and a mediation process. It was only because the abuser failed to appear in court that the proposal was dropped. I could continue to give examples of the evidence given by other parents that I have met of the ineffectiveness of the process. One parent said:

"I feel not only that I have been a victim of domestic violence but that my punishment is continuing through the contact".

Another parent asked:

"Why does the case have to be so extreme before one, and one's child, is protected by the law?"

The majority of respondents to an investigation by Northbrook College of Further and Higher Education believed that their children had suffered abuse during contact, varying in severity from emotional and physical abuse to sexual abuse, with 72 per cent identifying resultant behavioural problems in their children. That is the picture given by other refuges throughout the country. Such cases are much too frequent. In one case in which contact was granted, the only reason that visits stopped was that the parent is now on remand, charged with committing 32 offences against children. Something is clearly wrong. The psychological damage to children and their resident parents cannot be overstressed. These children are pawns in an emotionally abusive game and need every protection we can give them.

During the progress of the Bill, we discussed the psychological damage that too many children suffer. There can be nothing more damaging to children than having to be in contact with a known abuser against their wishes. Surely nobody can deny, given the evidence before us, that the Children Act 1999 is not sufficiently effective in ensuring child protection when courts are granting contact orders. I am sure that my noble friend will agree that there is a serious problem to be resolved. My plea to the Minister is to ensure that after the completion of all the reviews and consultations, which are very necessary and will be helpful, urgent action will be taken, by legislation if necessary, to further protect children from harm. I beg to move.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, for many years I have looked forward to having the chance to speak to an amendment roughly like this one, in circumstances roughly as promising as these.

The problem is an old one, going back for many centuries. People have always liked to turn a blind eye to it; on occasion, it is slightly harder to turn a deaf ear to it. That is illustrated by a London 17th-century by-law, discovered by C.V. Wedgwood, which stated that domestic violence was to be forbidden after 9 p.m. because of the noise that it created. I regret that that attitude is not altogether dead. People do not like to think about domestic violence, and if we do not like to think about something, we like to think that it does not exist. For example, in the 1996 case of A v N, the Court of Appeal criticised a mother for making "flimsy objections" to a father's contact with the child. The flimsy objections were that the father had committed a very serious assault on the mother, for which he had served a prison sentence. There is nothing particularly flimsy about the walls of most of our prisons.

It is such readiness to sweep such violence under the carpet and to take no notice of it that makes this amendment necessary. I know that the Government are tabling their own amendment, which I welcome warmly so far as it goes. It makes clear that it may harm children if they witness harm to their mother. However, that does not meet the principal problem that the amendments are supposed to address; that is to say, not all courts are taking sufficient trouble to assess whether there is a serious risk of harm. There have even been cases in which contact, sometimes even unsupervised, has been granted to people who are on the sex offenders register. Such contact should not happen.

The underlying indifference to the interests of the child was shown in the case of In Re H and R, in which it was ruled that the required standard of proof to show that contact would pose a risk was higher than the ordinary balance of probabilities. For centuries we have had a male-based law, and I do not refer solely to the composition of the judiciary, because I have great admiration for the higher judiciary, although I look forward in due course to its having a better gender balance. Much more serious is that the law has been made by men for men since the beginning of legal memory in 1189, and, I imagine, for much longer. There is a whole male-based culture here. One can understand, if one thinks only of the man's interest, the reasoning of the decision in In Re. H and R. Although the case did not involve a criminal charge, there was an accusation that the person had done something criminal.

However, that case did not go like the case that I remember reading about in the Evening Standard when I was a boy. A man was tried for murder and acquitted. The Daily Express then said that he had done it. He sued the Daily Express for libel, but, because of the reverse burden of proof, he lost that case. That taught me a great deal about the law.

In a case such as this, one would have expected the same sort of effect of reverse balance of proof. If the amendment in the name of my noble friend Lady Barker, which the House has just carried, had been law then, and if the child had been represented in that case, the judgment might not have happened.

As it is, the man's interest, which is a perfectly legitimate interest, is given a primacy over the interests of the child. That is risky and inherently improper. It does not meet the equality of arms principle of Article 6.1 of the European Convention on Human Rights.

I have some figures about how freely contact is granted. In 2001, the courts granted 55,030 contact orders and refused 713, even though, according to the Association of Chief Officers of Probation, 16,000 of those cases involved domestic violence. I am not for a moment arguing that every case that involves domestic violence should lead to a refusal of contact. That would be a mercilessly rigid approach. However, I propose that in every case in which there is domestic violence, the extent of risk must be considered before a contact order is made and before it is decided whether that contact order should be supervised or unsupervised.

Because that does not appear to be happening at the moment, we believe that further action is needed. That action must be taken through the statute book in a form that ensures that actual consideration is given to actual risk. As the noble Baroness, Lady Gould of Potternewton, said, there must be a checklist. It cannot be exhaustive, because some of the forms of domestic violence that have been heard of beggar the imagination. I recall one case from the local women's refuge almost next door to me of a child who had been regularly buggered by his grandfather with a knitting needle. Who would have thought of specifying that in a checklist? There must be flexibility. However, we do not need just flexibility, because you cannot have flexibility until you have something to flex. There has to be something on the statute book that directs Her Majesty's judges that, although in all normal circumstances contact is likely to be good for the child, the child's safety must be paramount. It is not good for a child to be put at gross physical risk or to be put in a situation in which he or she can be used as a decoy to lead a man to somebody who may want to murder the child's mother.

I understand that there were 30,000 cases under the Protection from Harassment Act 1997 in London last year. I had a small walk-on part in helping to get that Act on the statute book. I am glad that I did so, because it seems to be used regularly in defence against a violent ex-partner. The moment when the man is most at risk of committing violence is usually the moment when the woman says that she has had enough. That is also the moment at which the man wants to apply for an order for contact.

On one occasion, a man making the application was violent in court to the extent that the judge had to adjourn the court. He still got his contact order. If nothing else proves that not enough care is being taken in this area, that case alone does so. I am proud to support the amendment.

Photo of Baroness Thornton Baroness Thornton Labour 4:30, 23 October 2002

My Lords, I shall speak to Amendment No. 102B in my name.

"This is a poem for you to see

About this man trying to get Cicely

I want you all to read this loud and clear

Then you'll know why he is my biggest fear

He touched me where I knew he shouldn't

I wanted to run away but I just couldn't

Then when I said 'Let me go'

He blocked the door and said 'No'

He said 'If you tell mother what I have done

I'll shoot her with this gun'

I love Cicely with all my heart

Please don't let this man tear us apart".

Those are extracts from a poem written by a 13 year-old girl who is terrified that the man who touched her and brutalised her mother may go on to do God knows what to her four year-old sister. The poem talks about how they escaped. I have changed the names in the case, although there has been some media coverage of it. Now, because the mother refused to let her abusive ex-partner have unsupervised access to the younger sister and went into hiding to protect the child, she may be about to have four year-old Cecily granted residence with this man. If it comes, the judgment cannot be challenged. There is no redress if this small child is abused and her life is wrecked. In that case, the system will have failed her in the most appalling way. The older child's views have not been taken into account in this case. Can we be content with a system that produces that outcome?

That is one of many cases that demonstrate the damaging effects of the 1995 ruling in In Re H and R on child sex abuse. That case, along with others, has diluted the effect of the Children Act 1989, which no longer works to protect children as originally intended. As recently as last week, I met a woman who told me a horrifying story. She separated from her violent partner three years ago, but the father obtained an order for supervised contact with her child, despite the child having witnessed the violence and, it is suspected, having also been mistreated. The mother had resisted and opposed contact because the child was so terrified and traumatised.

In the end, supervised contact was granted. At this point, the mother decided to try to make the best of the situation and to normalise the contact as far as possible. As a result, contact was extended and eventually became unsupervised and for longer periods.

Then, over a period of months, the child became withdrawn and troubled and started to behave in an inappropriate sexual manner. It emerged that the child had been sexually abused by the father as soon as unsupervised contact was granted. Social services and the police were involved. Charges were brought against the father, but they were dropped because of the age of the child, although there is no doubt that the child has been abused. The mother and the family are now involved in rebuilding that child's life.

That case raises some serious questions. The father can return to court at any time to apply for renewed contact with the child. He has not been placed on the child abuse register. The family have the issue hanging over them for as long as it takes. There is nothing they can do about that. There is no redress to the courts about what has happened to that child. Nothing can be done about the decision that was taken. The supervised contact that took place was woefully inadequate. I cannot believe that the Government can be content that that could happen to a child. How can these things happen in this rich and civilised country, with its sophisticated legal system and legal rights guaranteed? There is a growing anxiety, even desperation, that despite all the safeguards that are supposed to be there, children are being exposed to abusive parents by courts granting residence and unsupervised contact without taking proper account of the dangers to which they are exposing them.

In Grand Committee, my noble friend the Minister pointed out that these matters are already covered in the Children Act 1989 and said that our amendments would gloss or interfere with the fundamental principle that the welfare of the child is paramount. To my simple mind, that fundamental principle has already been undermined by case law. We are seeking to remedy that situation.

The case of In Re O, on the imposition of conditions for contact, states that contact is almost always in the interests of the child. To my knowledge there has been no research that suggests that contact with a violent parent is beneficial to a child. In fact, authoritative statements were made on the issue by Dr Sturge and Dr Glaser, who were commissioned to write a report about contact and domestic violence for use in the appeal courts. They described domestic violence as a,

"very serious and significant failure in parenting".

They stated that,

"the research is entirely consistent in showing the deleterious effects on children of exposure to domestic violence", and that,

"children are affected as much by exposure to violence as by being involved in it".

They said that, in other words,

"there should be no automatic assumption that contact to a previously or currently violent parent was in the child's interests; if anything, the assumption should be in the opposite direction".

There is no question but that my noble friend the Minister and her colleagues are hard at work on trying to remedy this situation. There have been attempts to improve legal protection for children in contact arrangements, and good practice guidelines have been issued to judges. However, figures from the Judicial Statistics for England and Wales suggest that those actions have had little effect. If the courts were placing greater emphasis on child protection as a result of the guidelines, one would expect an increase in the number of cases in which the courts refused contact. To date, however, there has been a decrease in the number of cases in which contact has been refused. The Minister did not accept that point as evidence when I made it in an earlier debate. I still believe, however, that the violence involved in so many marital breakdowns demonstrates the need for greater care when making contact arrangements. If the Minister believes that the rebuttable principle outlined in this amendment is not the right route, will she give us some indication of what the Government believe is the right one?

The law and the system are not working for some children. As the noble Earl, Lord Russell, said, some judges are making contact orders even after a parent has been violent in court. Women's Aid has told me of two cases in the past month in which contact was granted although the fathers had been violent in court. It is breathtaking to think that a judge could decide to allow a young child to be alone with a man who displays such lack of control even in court. It is no wonder that many parents—most of whom are women—and their children feel that the law protects judges rather than children. These vulnerable parents, and even more vulnerable children, feel that the current situation is both unfair and unbalanced.

I am grateful to the NSPCC, Women's Aid and NCH Action for Children for the material they have supplied and for their campaigning work on this issue. I am also grateful for the letters and information on the issue provided by the Lord Chancellor's Department.

I have heard my noble friend the Minister say on several occasions that the strength of our system is that each case is considered on a case-by-case basis and that all contact arrangements are considered on a child-by-child basis, which is as it should be. However, why do we keep hearing of things going so terribly wrong for some children? How can the arrangements be working on a child-by-child basis when we continually hear about cases in which things have gone so wrong? I should therefore like to ask a few more questions. When will we see the results of the reviews? Will the Government legislate on the issue if the results of the reviews warrant it? When will the Government take action to strengthen supervised contact arrangements?

There is support across the House for Amendment No. 102B. I thank the noble Baroness, Lady Noakes, and other noble Lords for their support on this issue. I am looking for movement by the Government on strengthening protection for these children.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 4:45, 23 October 2002

My Lords, I apologise to the House—I did not realise that these two amendments were grouped. I wish to support Amendment No. 102B, but not Amendment No. 102A, for a reason that I shall give in a moment.

I do not know whether your Lordships have seen the report in The Times today about the decision of the European Court of Human Rights. The point was taken that our domestic law concerning the protection of children from abuse was defective, but that the local authority—and we are concerned here with local authority treatment under Section 8—did not know and was therefore, under certain articles, not liable. However, it was liable because it did not have in place a proper system of administration. The only reason that I refer to the case is that the domestic law was defective. One has only to read The Times report to see that that is so.

I do not want to take a long time arguing law. However, the point of this amendment is that it does plug a gap in our domestic law. It does so—I say this with respect to the noble Baroness, Lady Scotland, if I could claim her attention for half a second—without in any way conflicting with the principle established in In Re W that the welfare of the child is the paramount consideration. It does not conflict in any way whatever; it is a totally different matter. The amendment is establishing in domestic law a remedy for the abuse of a child. It is not connected directly or exclusively with adoption. I do not have much more to say to Amendment No. 102B. However, if it were put to a Division, I would certainly be compelled to support it.

The reason why—with respect to the noble Earl, Lord Russell, and others—I cannot support proposed new Section 8A is that it proposes—I do not wish to be offensive—nannying the court. The amendment is telling the court to do the sort of thing that it would do in any event. I am rather against that. I am rather in favour of leaving it to the court to have regard to these types of principles—which are all totally right, totally justified, very well drafted and extremely well expressed.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, in general, I have the deepest sympathy with the feelings of the noble Lord, Lord Campbell of Alloway, about nannying the courts. However, we have between us quoted a number of cases in which the court was behaving as if it were in need of a nanny.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I do not want to indulge in a philosophical argument, because I would be bound to lose it, but it seems to me that there is no reason for having an overriding nannying provision because the court makes a mistake here and there. Courts, even with an overriding nannying provision, are known to make perverse judgments, but that is why we have an appellate system.

I am sorry—it is perhaps a defect of my life and upbringing—but I really cannot take Amendment No. 102A. However, if Amendment No. 102B were put to a Division, I would be bound to support it.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, noble Lords have made a powerful case for changing the statute law to improve protection for children where contact is considered. We certainly support the thrust of these amendments. Children must be protected from risky contact arrangements. I do not believe that there is any disagreement about the welfare of the child being paramount in contact cases, but there is profound disagreement about whether the law as currently practised achieves that standard. I say to my noble friend Lord Campbell that if the courts need nannying to avoid making errors, I for one would support nannying the courts.

I have no first, second or even third-hand experience of the impact of domestic violence on contact cases to share with noble Lords. However, I have been impressed by the strength of feeling expressed by many working at the sharp end with abused families, in particular the NSPCC and the Women's Aid Federation. Those organisations strongly believe that the current position is unsatisfactory.

I appreciated the briefing meeting organised by the Minister a few weeks ago, when she expressed the view that the legal framework was—I believe I quote her correctly—"as good as it gets". The noble Baroness outlined the many practical steps that have been taken to improve current procedure. However, many of the initiatives that she explained to us have been in train for some considerable period of time; indeed, for more than 10 years. In Grand Committee, I recall that the Minister said that the guidelines,

"seem to be seeping their way through the system".—[Official Report, 15/7/02; col. CWH 340.]

It is perhaps this lack of urgency that is most worrying.

I have just a few questions for the Minister. First, will the noble Baroness say whether the Lord Chancellor's Department is currently satisfied with the way that the guidelines are operating, or whether there are any concerns in that respect? If there are concerns, will she say what the Government intend to do about them, and when? Secondly, will the noble Baroness say what information the Lord Chancellor's Department collects about contact cases? For example, do these show whether initial contact decisions have, in practice, caused problems involving child safety? If such data are not collected, will the noble Baroness say why not and how she can be sure that the system is operating as desired? Thirdly, can the Minister point to any specific improvements that will be made within a relatively short time-scale—say, by 2004? Can she say what practical changes we will be able to identify?

I know that the Minister will make the case powerfully that the existing legal framework is fine, and that many actions are underway. However, if she does not come forward with some positive, tangible, and timetabled actions to allay the concerns of those at the coalface, it will be difficult to resist the conclusion that changes in the law, such as those proposed by these amendments, will indeed be required.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, before my noble friend sits down, perhaps I may clear the hurdle of nannying for a moment. If my noble friend will be good enough to look at Amendment No. 102B, she will see that it provides a totally new, much needed, and highly satisfactory procedure. There is no question of nannying: it provides something that is missing. However, Amendment No. 102A is just pure nannying.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I do not wish to become too caught up in this battle about nannying. However, given the ambiguity of some of the recent court cases, which have led to quite considerable problems—and speaking with many years' experience as a juvenile court chairman—I believe that there might well be some advantages in having, as it were, a checklist upon which to concentrates one's mind.

I support both amendments, though I suspect that they will be amalgamated in some way in the long term. We have heard some horrendous stories. It is quite clear from the briefings that we have all attended that there is considerable unease and concern among practitioners about the continuing harm that is being caused to children as a result of these access or residential visits that have been authorised by the court.

It is only fair to mention the really worrying anecdotal evidence of a number of children's violent deaths, which have recently occurred during such visits. It is rumoured that the number is around 15. One of the other concerns is that it is almost impossible to obtain figures in this respect from the relevant authorities. In answer to the questions posed by the noble Baroness, Lady Noakes, I hope that we may begin to receive some answers from the Minister. One survey carried out in 1999 of 130 parents showed that 76 per cent of children were abused during contact visits; that is, 10 per cent sexually, 15 per cent physically, and 62 per cent emotionally.

Clearly, the Government's decision to define the concept of "harm" to include witnessing violence to others—a child being subjected to emotional as well as physical and sexual harm—will help. But, frankly, I doubt whether it will settle the vital question of whose best interests are paramount: the child's or the parent's. It is the very strength in this Bill's premise, which states that the child's best interests have to be paramount in all these matters, that seems to me to indicate that it is vital to include the amendments being discussed on the face of the Bill. Of course, one understands the Government's reluctance to act before the consultation process is complete, but, apparently, it has already taken a long time. Surely one child harmed while this ambiguity is allowed to continue is one too many.

I have one final point to make. As I understand it, the Bill provides for the wishes of the child or children involved to be conveyed to the court, by, one hopes—in view of previous discussions—an advocate, who, where necessary, is independent of all parties. But, again, surely there should be a specific right on the face of the Bill for young people of an appropriate age to express their wishes directly to the court concerned, if they so wish. As I see it, that would be provided by way of new Section 8A(g) in Amendment No. 102A. I hope that the Minister will give us some satisfactory pointers to something more urgent being done.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I most strongly support the thrust of these two amendments. Noble Lords have given some horrendous examples of such cases; and, indeed, I could give some further examples. Far too many children are being sent back to parents, who are causing them profound damage. However, I cannot support the amendments. It seems to me that they are not closely worded, and that they do not create the right framework within which to address these problems.

I have a particular objection to the use of the word "abuse", which is not defined in the Bill. I do not know whether it is properly defined elsewhere. It is an emotive word. Any discussion on this subject should include a much more precise definition of what we are talking about. Some noble Lords may respond by saying that we all know what we mean by the word "abuse"; but, no, we do not. There is a great range of opinion as to what abuse is—everything from slapping a child right through to the most terrible sexual and physical abuse. I support the noble Baronesses, Lady Gould and Lady Noakes, in their argument that something must urgently be done, but I do not believe that these amendments are the right vehicle to achieve that aim.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, I shall start by thanking all noble Lords who have made quite passionate contributions to this debate. I should especially like to commend the efforts made by two of my noble friends; namely, my noble friend Lady Gould, who moved the first amendment in this group, and my noble friend Lady Thornton.

The most impressive part of the debates in relation to this Bill is the level of commitment and the unanimity of view as to the nature of the problems. The only disagreement is perhaps the way in which we should seek to address them. Here, again, I entirely understand the spirit behind these two amendments. We all want to see a situation in which children are safe, both in their homes and in the relationship that they have with their parents if the latter separate. I am not able to accept these amendments, but that does not mean that I do not believe that things need to change. A number of noble Lords have given quite graphic examples of cases where such relationships have clearly gone wrong.

The Women's Aid Federation (England) (WAFE), the NSPCC and others are right to ask that we learn from the tragedies of the past, that we question inconsistencies of practice and that we take all possible practical steps to protect children from harm. I have no disagreement whatever on this point with either of my noble friends or, indeed, with anyone who has spoken. We are at one on this issue.

The Children Act 1989 makes the welfare of the child the court's paramount consideration. I hear everything that has been said about how case law may have adversely affected that or, by interpretation, undermined it. However, it is our belief that the import of the Act has not been undermined and that the paramountcy of the welfare principle remains untarnished. In Re H and R, which I believe the noble Earl, Lord Russell, mentioned, reiterated what the position has always been in relation to the balance of probability; namely, the more serious the allegation, the greater the weight, on the balance of probability, that the court can be satisfied that something is proven. Obviously, it is important that if an allegation of some severity is made, there must be some evidence to substantiate the fact that it has actually occurred.

Photo of Earl Russell Earl Russell Liberal Democrat 5:00, 23 October 2002

My Lords, does the Minister agree that the trouble with saying that the principle of the welfare of the child remains paramount is that this principle does not bite on those people who do not like to think that such things happen and who are, and always have been, extremely numerous?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, I think that it does bite; the question is whether it bites hard enough. It is incredibly important that we make sure that the principle bites hard enough. The noble Earl referred to past incidents. A number of noble Lords may have fought the culture which has failed to recognise that child abuse occurs, has failed to recognise that domestic violence is a scourge which needs to be removed, and has failed to give mainly women, but also children, the protection they need. I agree with the noble Earl that that blindness has to be eradicated. Those who refuse to see must be made to see. There is no disagreement between us on that matter.

The Children Act obliges the court to consider all harm that a child has suffered or is at risk of suffering. That includes physical abuse, sexual abuse and the impairment of health or development. The government amendment to that definition of harm, tabled in the other place, makes clear that that includes harm caused to a child by witnessing the ill-treatment of others. We know that children can be harmed by witnessing violence. The Court of Appeal stressed that in the case of In Re L and others in June 2000.

The court can already attach conditions to orders it thinks necessary to ensure that the child is not at risk, for example, by deciding that the contact be indirect, restricted to letters and cards, or that it be supervised. The court can order a local authority to investigate the child's circumstances if it thinks that the child may be at risk of significant harm such that a care order might be required. It can also make orders for the protection not only of the child but also of a party to the case in any family proceedings regardless of whether an application for such an order has been made. For example, the court can make a prohibited steps order under the Children Act preventing a person taking a step in relation to a child, including contacting him or her. It can also make a non-molestation order under the Family Law Act 1996. If a court—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I am obliged to the noble Baroness. The noble Baroness is saying that the proposed new subsection (3) in Amendment No. 102B is totally unnecessary because of what she has just said. The noble Baroness nods her head. I am grateful for that clarification.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, it is not just the courts that need to be involved. A number of other agencies, not least those who practise the law and give advice, need to be robust and to understand what the provisions actually stand for. The help and assistance of many agencies is needed—I refer to the police, social services and others—to create the safety net. Some of the examples that my noble friends gave made me wonder what the lawyers were doing. It also made me wonder whether my work would not be better placed not at this Dispatch Box but back at the Bar. The tools are there but they need to be used by people who know how to wield them.

The court is already obliged to consider the risk posed to a child if an order is made. Indeed, it can make an order only if it is satisfied that that is better than making no order at all. It also has the powers to make orders to protect those it believes to be at risk, even if no application for such protection has been made. The anxieties expressed today concern the extent to which the provisions we are discussing are being exercised consistently in practice. Many of us would wish that by a stroke of a pen or by adding a provision to a Bill we could make things better and that that would be the end of the process. However, we all know that it is not the end; in fact, it is the beginning. Unless all of those who operate in the system understand and take advantage of the provisions, we work in vain. We must improve the practice.

The amendment proposed by my noble friend Lady Thornton and the noble Baroness, Lady Noakes, would introduce a presumption into the Children Act that where a person has ill treated a child or another person, that person should not have residence or contact with the child unless the child consents and the court is satisfied that the child will be safe. I wish to deal first with the matter of the child's consent. One of the most tragic and poignant aspects of children who are abused by a parent is that often they love that parent. If the child is asked whether he or she wishes to see the parent and to live with him or her, the tragedy is that they will often say yes. Why do they say that? It is because they love the parent but hate the abuse. Often the child will say—

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I find it difficult to remain seated. I acknowledge that the point the noble Baroness has just made is often the case. I did not make a speech as I felt that many noble Lords had made the points that I wished to make. I am concerned about those children who say very definitely that they do not wish to return to the abusing parent. Just before I came into the House I received a telephone call about a child who has been placed back with his abusing father following a complex case. The child ran away to his mum. His mum rang social services as she realised that an order existed but she wanted the child. As a social worker I sympathise with the noble Baroness's comments as regards being here rather than out in the field. Social services said that as there was an order they would not make an assessment and that the child should be sent home. We are keen to address situations where the child says that he or she does not want to go back to a particular parent.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department)

My Lords, I absolutely understand that. However, the noble Baroness will be aware that in framing legislation we seek to catch both those situations. We catch those who do not want to go back and who say clearly and powerfully, "I do not want to go" and we catch those cases where the child says, "Please let me go back because it is the only thing that I know". Those two cases are conjoined in the child's wishes.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I hope that noble Lords will forgive me for intervening again. I am responsible for persuading my colleagues to put these words into the amendment. The noble Baroness, Lady Howarth, read my mind exactly. This was meant to be a necessary but not a sufficient condition.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department) 5:15, 23 October 2002

My Lords, I absolutely understand that. The proposal is qualified by the provision that,

"the court is satisfied that the child will be safe".

If the court disagreed with the child, it would exercise its discretion to so order. One would then return to the question raised by my noble friends Lady Thornton and Lady Gould and reinforced by the noble Baroness, Lady Howarth: is one giving proper voice to the child's wishes? Is one dealing with that properly? This is not perhaps the most felicitous way in which to deal with the issue.

The equivalent presumption of contact is not proposed when there are no allegations. My noble friend Lady Gould touched on that point. I shall be frank with the House: I am not in favour of presumptions. The one thing that I learnt from my practice in family law is that no two cases are alike. I shall give two examples. A father may have injured a child in a road traffic accident, and he therefore becomes a Schedule 1 offender. He is caring and loving and has a supportive relationship with his children. The question is: why should there be a presumption in such a case that there should be no contact with him? The other example is that of a father who loves his children and who has never been violent to them but who opposes the children living with their mother because he is angry about the breakdown of their relationship and, as a result, actively seeks to turn the children against her. Those examples are the two ends of the scale. Why should one have a presumption of no contact in his favour and the other have a presumption that there should be contact?

Those are difficult issues. I entirely appreciate that the amendments respond to much more serious cases than I have just described, including neglect; they do not respond to the matters at the small end. However, a provision would catch both. The court would have to say, in relation to both, "No presumption" and it would have real difficulty separating the two if it wanted to. Inconsistencies would be created. There are likely to be legal arguments about the cases in which the presumption applies. A contested two-tier system could be created when dealing with child contact applications, which may add to delay and conflict, neither of which is in the interests of children. The only criterion that should apply is: what is in the child's paramount best interest?

The Children Act 1989 makes the welfare of the child the court's paramount consideration. I cannot think of a better criterion. The amendment tabled by my noble friend Lady Gould proposes a check-list for the court that will apply when it considers whether a child will be safe. We are going to consider all of those matters in the consultation process. They will be at the root of what we will examine. I hope that she is reassured on that count. These issues exercise the minds of all those who participate in this field. The group that has undertaken much of the consultation has representatives on it from a broad spectrum, including judges, lawyers, non-governmental organisations and charities working with children. Those who have been intimately involved are participating and helping us to craft something that is, we hope, of worth and importance.

Not everyone who would meet the definition of "abusive party" in Amendment No. 102B would be violent or pose any risk to their children. I entirely understand that the amendments were intended to help to better protect children. One poor outcome for children of separating parents is conflict. The more conflict that there is in families—physical or otherwise—the worse the outcome for children. We want to minimise that.

Having a check-list for Section 8 orders could also lead to some confusion, as I have outlined. It is not the test imposed by Section 1(3) of the Act. That requires the court to consider how capable each party is of meeting the child's needs. It is the child who comes first. The requirement of the child to consent in Amendment No. 102B cuts across the welfare principle itself. The law rightly requires the court to come to an objective determination—assisted by child-welfare experts, where appropriate—about what is in the child's best interests. Consent requirements are not consistent with that.

The Government are focusing on four key areas. First, we are focusing on tightening court rules and importing some of the key messages from surveys of the best practice guidelines produced by the Children Act sub-committee of the Lord Chancellor's advisory board on family law. We are working closely with members of the judiciary, the magistracy and the legal profession and with child care professionals, the police and organisations representing the interests of children, families and the victims of violence. It is fair to say that our stakeholder group achieved a good degree of consensus at its last meeting on 9th October about what needs to change. There is a sense of urgency about this work. To ensure that we can make rapid progress, it divided into smaller teams, each of which will develop proposals for change in areas such as improving information for the court and making findings of fact. We hope to consider a package of reforms by the end of the year, although the group made it clear to us that it must have the time that it needs to get this right.

The second area is specialisation. The president of the Family Division has recently taken on responsibility for the ticketing or authorising of most family judges in the county court. At district judge level, a new ticket has now been introduced for those dealing with disputed private family law including contact applications. We take very seriously the comments made by my noble friend and other noble Lords about consistency. It is not enough to have superb delivery and performance in relation to the higher courts if that is not uniformly adopted in all courts. As a noble Lord said earlier, if one child is abused, that is one child too many. There will always be a risk but we are doing everything that we can to limit the nature of that risk. The president is currently reviewing all those judges who are—or perhaps should be—sitting in family work to ensure that they have the appropriate experience and training to deal effectively with family cases. The president recommends minimum sitting levels to ensure that judges maintain their expertise. Once they get their ticket, that is not the end of the matter; they will have a proper opportunity to keep that experience fresh.

We have a precedent in this regard. The president has already completed the review with regard to judges dealing with adoption. New arrangements for specialist adoption centres and specialist judges at county court level were launched in October and November last year. We have consulted those who have gone through the adoption process at specialist centres to find out whether the system is working. We have been delighted by the positive response. We want to learn from the specialist adoption centres about improving the way in which we handle other family business, including child contacts and domestic violence.

That specialisation is being followed through in other areas. Those who provide publicly-funded legal services in family cases must meet minimum standards if their contracts are to be renewed. The Law Society in partnership with the Solicitors' Family Law Association and the Family Law Bar Association have produced a best-practice protocol for family work. It includes best practice for screening and taking forward cases involving domestic violence. Again, that is linked to the training of family solicitors and to standard-setting for family work. Therefore, no longer in the publicly funded sector will there be a generic practitioner who is unable to carry out the work properly in specialised areas such as family work.

Thirdly, I turn to training. Effective training of all those in the family justice system is key if we are to achieve the type of culture change that we should all like to see. For example, the president is working closely with the Judicial Studies Board on judicial training. Domestic violence is now included in all family seminars, conferences and training for the judiciary. The Judicial Studies Board is also working closely with the Magistrates' Courts Committees to support the development of training in the subject of domestic violence. I hope that, if the noble Baroness, Lady Howe, is still sitting, she will receive the benefit of that.

I turn to the subject of support services for families. In partnership with child contact centre services and funders, we are mapping the demand for, and provision of, child contact centres as part of the development of a national strategy. We are also facilitating child contact centres which seek to develop standard definitions of services and a standard referral process in order to ensure that families are referred only to services which meet their needs, especially in terms of levels of supervision.

However, we recognise that the issue also involves a change of culture—it is a matter of changing hearts and minds. It is not easy to change culture, but we recognise that we need to see changes in this area as part of a wider policy on child protection and on tackling domestic violence. The vast majority of families resolve disputes concerning contact and residence without resort to the courts. Therefore, we need to ensure that advice and support services work, too. The changes are of critical importance, but they are changes to practice and performance. I hope that I have said enough to persuade your Lordships that we are doing all that is feasible as quickly and as speedily as we can.

I shall now answer specifically some of the pointed questions raised by the noble Baroness, Lady Noakes. We are currently surveying contact orders in 12 courts in order to consider issues such as the rates of enforcement, whether the courts are using options such as supervised, indirect contact, the rates of domestic violence, and findings of fact. We hope that the results will be available in January.

The definition and referral of contact centres should be completed by the end of the year. The safety stakeholder group's work on changes to secondary legislation—that is, the information available to the court, the automatic triggers, and a further investigation and check—should also be available by the end of the year. The development models of supervised contact should be available at about that time, too. The second survey of guidelines on domestic violence and contact analysis should be available shortly, and that will be fed into the safety group. We are working as fast as we can. As I said earlier, the stakeholders have said that they must have time to make a considered and informed judgment before they make recommendations. We agree with them because we want to get the matter right.

I say to both my noble friends Lady Gould and Lady Thornton that, if we need primary legislation, we shall reconsider the matter. But we believe that this measure should cover the situation. If it does not, then of course we shall have to look again.

We have tried to take on board everything that noble Lords have said in relation to this issue. It is amazingly important. We are determined that the protection given to the children of this country is as robust and as sound as possible. We rely on all those who participate in the field to help us to craft a system which will achieve that. However, it will be delivered not only by the courts and by legislation; it will be delivered by practice on the ground with all participants playing their part—that is, the police, social services, lawyers, social workers, courts and health workers, who see the aberrant effects of some of the dysfunction caused by breakdown. We all need to participate in the process to ensure that the practice on the ground is as we should like it to be and so that we no longer need to feel shamed by some of the examples referred to today.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Deputy Chairman of Committees

My Lords, I thank the Minister for her detailed and thoughtful reply to the debate. It has been an extremely serious and important debate, and I thank everyone who participated in it. I am sure that my noble friend was aware of the strength of feeling around the House in relation to this issue and the fact that it was felt that something needed to be done to redress the problems of so many children.

I want to pick up a point raised by the noble Lord, Lord Campbell of Alloway. I do not particularly want to return to the subject of nannying. I simply want to say to him that in 1968 the New Zealand courts decided that a checklist would be helpful to them. It was not a question of nannying; the courts believed that a checklist would be right in helping to protect children. The fact that they produced one so many years ago is a great credit to them. Perhaps it is a pity that we are only now reaching this position.

The Minister said that the only disagreement lay in the way that we seek redress to an unsatisfactory situation. I am sure that that is right. She outlined many of the ways in which she is seeking to redress the situation. She said that the tools are there to be used but that perhaps they are not being used correctly. I appreciate all the work that is being done by the Lord Chancellor's safety stakeholder group in order to redress some of these very serious problems.

I was particularly taken by the Minister's words which referred to the fact that case law may have undermined the Children Act. I believe that indicates that there is now some recognition that the Children Act has been undermined by subsequent case law.

I was particularly pleased to hear my noble friend say that, if primary legislation is required, then action will be taken. Many of us believed that that would not happen and that the possible need for primary legislation would not be recognised.

As the debate has proved, this is a complex and serious issue. I shall study my noble friend's reply, for which, again, I thank her. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102B not moved.]

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 102C:

After Clause 111, insert the following new clause—


"(1) In section 10(4)(a) of the 1989 Act (Power of court to make section 8 orders), after "parent," leave out "or guardian"

(2) In section 34(3) of the 1989 Act (parental contact etc. with children in care), after paragraph (a) insert "(aa) a relative"."

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, first, I apologise to the House and, in particular, to the Minister and her team. The gremlins got at half of Amendment No. 102C, and your Lordships may wish to look at subsection (1). The words,

"and insert 'guardian or relative'", should be placed at the end of that subsection. For some unaccountable reason, they do not appear on the Marshalled List.

Earlier during Report stage in this House, the Government introduced Amendment No. 27 to the Bill to the effect that relatives may apply for contact with a child whom the agency is authorised to place for adoption under Clause 26. I refer noble Lords to col. 669 of the Official Report of 14th October. The effect of that amendment was to remove the earlier requirement that relatives needed to apply for leave before making an application. The Government explained that they had been swayed by the arguments in Committee that siblings should be able to apply without leave, but, in fact, they went a stage further to extend the provision to wider family members. At the time, the amendment was warmly received by the House and, in particular, by the noble Lord, Lord Astor.

This amendment seeks to address what has now become a rather anomalous situation. Relatives seeking contact with a child placed for adoption do not need to apply for leave to apply for contact, but the same people seeking contact with a child in accommodation or care do need to do so. There is no obvious rationale for retaining that differentiation. Relatives are generally successful when they apply for leave, arguably making the leave stage an unnecessary use of the court's time. If their application is, in those rare cases, inappropriate, there is already a mechanism in Section 91(14) of the Children Act to restrict future applications. It is surely time to raise the presumption—I know what the noble Baroness said about presumptions—that they may apply for contact unless they need to be restricted from doing so, rather than vice versa. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department) 5:30, 23 October 2002

My Lords, I confess that I was puzzled by an amendment that sought to remove guardians who are generally believed to be rather a good thing. I am glad to hear that that was not the intention of the noble Lord. As I now understand with a greater degree of clarity the purpose of the amendment, I ask the noble Lord whether I can take this issue away and return to the matter later. I hope that I shall be able to give the noble Lord a more comprehensive response in the interim.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I could not have had a better response from the Minister. At least she has not turned me down flat. I am pleased with that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 [Special guardianship]:

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 103:

Page 62, line 17, at end insert—

"( ) Where the court is considering whether to make a special guardianship order and no children's guardian is already appointed by the court for the child who is the subject of the application, the court shall appoint a children's guardian for the child concerned unless it is satisfied that it is not necessary to do so in order to safeguard the child's interests."

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, these amendments are linked but they cover different topics. Therefore, I apologise to the House as my introduction to Amendments Nos. 103, 105, 106, 107 and 108 will be slightly lengthy. I ask for the indulgence of the House.

I turn first to Amendment No. 103. Under the Bill the court will have the power to make a special guardianship order in both public and private law cases. That order will significantly interfere with a parent's exercise of his or her parental responsibility as it allows the special guardian to exercise parental responsibility in relation to the child to the exclusion of any parent with parental responsibility.

The current provisions in the Bill require the local authority to submit a report to the court. However, that may not, in the view of these Benches, provide adequate independent information to assist the court to decide on the suitability of the order and the level and kind of services that the child and carer will need. First, the local authority may already have formed a fixed view about the family's plan for the child, particularly when the family has a history of involvement with social services. Secondly, its view about the need for support services may be at least partially determined by its own budgetary considerations within the local authority.

The noble Lord, Lord Hunt, confirmed in Committee, at col. 348, that a CAFCASS officer will be appointed in most cases where the court is considering making a special guardianship order. If that is correct, we suggest that a presumption of appointment, unless circumstances exist to justify not appointing, would be more appropriate rather than the other way round, particularly in view of the current workload pressure on the CAFCASS service. Otherwise, the court may not have the benefit of independent advice and information about how best to meet the child's needs, which may seriously disadvantage the child, particularly in cases where there is disagreement between the parent and potential special guardian.

On Amendment No. 105, the importance of support services for children and special guardians is rightly recognised, as it has been throughout the Bill. However, birth parents are not specifically included in the list of people who may request support services. As the effect of a special guardianship order is to exclude the parent from decision making about the child, although it is also anticipated that some form of contact is likely in most cases, we believe that it is essential that the parent has the right to an assessment of their need for support services. Otherwise the provision of support may be lopsided and therefore largely ineffective because the parent will not have received any help to adjust to the new arrangements.

Although the noble Lord, Lord Hunt, confirmed in Committee, at col. 356, that birth parents may well be included in the list of those within the prescribed description who may ask for support, we suggest that that right to request support should be contained in the primary legislation; otherwise it is likely to be given low priority by local authorities.

I turn to Amendments Nos. 106 and 107. Special guardianship orders are likely to be made in respect of three categories of children who are living with relatives, friends and/or carers including foster carers. The first category is where there are private arrangements between the parents and carer that may often be as a result of child protection concerns being identified but the family is able to take steps to protect the child without the involvement of social services.

The second category is where the carer takes the child into his or her family at the request of the social worker or other child care professional involved with the family, usually to avoid the child having to be taken into care under a compulsory order. That often occurs in response to an emergency situation when, but for the offer of care from the potential special guardian, the local authority would otherwise apply for an emergency protection order.

The third category is where the child is looked after by the local authority, is placed with a carer on a fostering basis and that carer subsequently applies for a special guardianship order.

Clause 113 includes a provision that the local authority may carry out an assessment of the need for special guardianship support services at the request of a child who is subject to a special guardianship order, a special guardian and any other person who falls within a prescribed description. But there is no obligation on the local authority to do so unless the person falls within a prescribed description as specified in the regulations. Whom that will include is, as yet, unknown.

The noble Lord, Lord Hunt, clarified in Committee, at col. 355, the Government's intention to target support to the third category of children I have described who are still looked after at the time the special guardianship order is made. While that commitment for support is welcome, there is widespread concern that the first two groups of children may not receive support. Indeed, their special guardians may not even be assessed for support. Should that arise, the effect will be that a relative who responds promptly to provide protection for a child who is suffering, or who is likely to suffer, harm will in effect be penalised for preventing the child having to be taken into care. If the welfare of children is paramount, that cannot be right.

Indeed, research evidence in Second Time Around, a survey of grandparents raising their grandchildren, published by the Family Rights Group in 2001, which was referred to in Committee, showed that many grandparents caring for children who had not yet been looked after faced great difficulties but struggled to gain the support services they needed.

The amendments provide that the right to an assessment should apply to all special guardians, children subject to special guardianship orders and their parents, because of their special situation. In our view there is no category of special guardian who will never need support. Hence none should be excluded from the right to assessment. Whether they go on to receive support will depend upon the needs identified in the assessment.

The Minister's arguments in Committee rested on a number of different propositions. He said that special guardianship does not have the same long-term consequences as other provisions; that we do not have experience of it; and that it required a great deal more flexibility than may be appropriate for adoption support services.

In the course of that debate we did not assure any birth parents that they can ask for special guardianship services and we did not assure grandparents that they will be included. The Minister simply said that in a consultation process he was open to discussion on those issues and that he was open to developing the list of people who would be eligible. He would consult on the regulations to be laid in relation to special guardianship orders.

We could revisit many of those issues. No doubt government minds will remain open in the light of experience. But the issue of birth parents and grandparents should be considered now, not simply in the light of experience. The Minister also said that if we were to make it a statutory duty to provide support services after an assessment we would be placing it in a higher order—giving it a higher level of priority. The Minister is nodding, so he clearly remembers his arguments only too well. Of course, there will continue to be duties under other sections of the Children Act. What we are arguing for in these amendments does not prevent local authority action in any other respect.

On these Benches we do not believe that a balance has been achieved. Amendments Nos. 106 and 107 seek to achieve that balance so that no one should be automatically excluded from special guardianship support services. I hope that the Minister will consider those two amendments.

Finally, on Amendment No. 108, the Bill gives a local authority complete discretion as to whether it will provide any special guardianship services when a need is established by an assessment. While the local authority must have a discretion to provide services that are relevant to local need, there should, nevertheless, be a requirement on it to provide services or to arrange for them to be provided in situations where a need is established by an assessment. Otherwise, the process of assessment and subsequent service provision will be skewed by the resource implications for the local authority. On that note, I beg to move.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I rise to support the amendments in the group. I first welcome Amendment No. 104, which repeats the requirement for financial support within support services for special guardianship in the same way as for adoption support services. Of course, that leaves open many questions about the level and scope of financial support for guardianship and about parity of provision around the country. But I am glad that there is explicit recognition that special guardianship support services include financial support.

We on these Benches support Amendment No. 103. The issue of the voice of the child is one that we have considered more than once in connection with the Bill. The answer is usually that we have to trust the Government to get the matter right either by regulations or by court rules. It would be so much more satisfactory if we could see this on the face of the Bill.

I also associate these Benches with the remarks made by the noble Lord, Lord Clement-Jones, in connection with Amendment No. 105 and the position of the birth parents. Special guardianship does not sever the legal relationship between birth parents and their children but creates an additional relationship. The birth parents may well require support services—not necessarily very extensive ones—but they are a part of the child's life and should be supported where necessary.

Amendments Nos. 106 and 107 are sensible ones. They ensure that the most obvious categories of people needing special guardianship support services—the child and the special guardian—will be entitled to an assessment. It is just nonsense to leave that to regulations.

I find myself almost at a loss for words on Amendment No. 108. As with adoption support services, I cannot comprehend a framework which provides for the assessment of needs but then allows for discretion to meet those needs. Either the Government are serious about support services or they are not.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 5:45, 23 October 2002

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for bringing these matters back to the House for further consideration. I do not doubt the importance of the matters he raises or his concern; in particular his concern to ensure that birth parents and grandparents are appropriately considered in relation to special guardianship orders and support services.

I am grateful to the noble Lord for repeating many of the words that I used in Grand Committee. He will not be surprised to know that I found them fairly persuasive. The short answer to many of his points is that special guardianship orders are new. Therefore, we have sought to give ourselves greater flexibility than we have in the Bill in relation to adoption orders, both to allow us to have a widespread consultation in 2003 on the very issues that the noble Lord and the noble Baroness have raised, but also in the light of experience when the special guardianship orders come into operation. That is why we have left a number of matters to regulation. It gives us flexibility in the future.

I am very glad that the concept of special guardianship orders has been widely welcomed. All noble Lords feel that this is a considerable advance. In particular, we think they could be used for some older children, who may, for example, be being looked after in long-term foster placements, who do not wish to be legally separated from their birth parents, but who could benefit from greater legal security and permanence.

We also believe that special guardianship may apply to some children being cared for on a permanent basis by members of their wider family. Some minority ethnic communities have religious or cultural difficulties with adoption as set out in law. Again SGOs may well be appropriate.

The new order is intended to offer more than a residence order in terms of the security it brings and the support services to be made available. It is designed, as I have said, to be flexible enough to work in a range of situations.

I have listened carefully to the noble Lord, Lord Clement-Jones. As regards Amendment No. 103, I understand his wish for an independent view to be expressed to the courts. Perhaps it would be helpful if I explained the process that will be gone through before a court makes a special guardianship order.

New Section 14A sets out who may apply for a special guardianship order and the process for making an application. A person in whose favour a special guardianship order is made is described as a "special guardian".

Applicants must give three months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. We intend to set out in regulations the matters to be covered by the report. It is intended to use these regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians.

We shall consult on how the assessment process should work. However, it is envisaged at this stage that statutory guidance will require the results of earlier relevant assessments to be taken into account; for example, where the applicants are approved foster carers.

The court cannot make an order unless it has received a report of this kind covering the suitability of the people concerned to be special guardians. The involvement of the social services department in the process, and the requirements we make on what the report to the court should cover, will ensure that issues of the welfare of the child and their interests are investigated and reported to the court.

In addition, the Government intend to provide in-court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. This too will be set out in court rules.

As I have made clear, we plan to consult thoroughly on the content of these rules, including when a CAFCASS children's guardian should be appointed. At this stage, and subject to consultation, we envisage that a CAFCASS officer is likely to be appointed in most cases where the court is considering making a special guardianship order. We shall want to consider carefully the circumstances when a CAFCASS officer should be appointed in cases where the court is considering varying or discharging a special guardianship order, particularly where this is with the consent of all the parties. That is why we need some flexibility.

It might not be appropriate or necessary to appoint the child as a party and have a children's guardian in cases where the application is for a variation of the terms of the special guardianship order—again—which is agreed by all parties. We would expect the child's views to be sought out and taken into account on all such questions. But it would not be necessary for a children's guardian to be appointed for that to happen. There are other routes to ensure that the court has the child's views.

Currently, children's views are generally put before the court in private law Section 8 proceedings within the CAFCASS officer's report on matters relating to the welfare of the child. Special guardianship orders will also be private law proceedings. The Lord Chancellor may make regulations specifying matters to be dealt with in any report. In addition, the court can make particular directions as to matters to be included in the report. Currently, for example, the officer must report on whether he considers that the child should be made a party to proceedings.

As my noble friend Lady Scotland intimated, the Government will shortly be undertaking wider consultation on how children are represented in private law Children Act proceedings. As she said this afternoon, the aim will be to try to find the best conduit for the child's voice, so that children's views may be heard and taken into account by the court in the most effective manner.

I understand why noble Lords may be keen to write into the Bill a presumption one way or the other. I simply counsel a degree of caution. We are dealing with a new order, with no direct current experience on which to draw. We must carefully consider what is proportionate and appropriate for the child in terms of separate representation and participation. But I have given considerable undertakings carefully to consider the consultation. Under the Bill as drafted, we have flexibility to make regulations and court rules. I assure the House that, in the light of our experience of such orders, we shall in time consider whether we have the provision right or need to make further adjustments.

I turn to the question of support services. Just as support services are important to adoption orders, they are clearly important to special guardianship orders—on that I have no disagreement with the noble Baroness, Lady Noakes. I return to the question of financial support. The noble Baroness, Lady Barker, emphasised in Committee the important role of financial support. We agree. That is why, just as we have for adoption support, I have tabled an amendment, Amendment No. 101, to make clear that the range of support services that local authorities must provide will include financial support.

Amendments Nos. 105 to 107 seek to pre-empt some of the consultation that we want to undertake during the next year or so. The combined effect of the amendments would be twofold. First, they would insert birth parents into the list of those who could request an assessment. Secondly, they would provide that all those listed in subsection (2) had a right to request an assessment for special guardianship support services, in the same manner as Clause 4 provides for adoption support.

I want to make clear to the noble Lord, Lord Clement-Jones, that I do not rule that out as a final outcome, but I am hesitant to go down that route at this stage. There is not the same strong case as there is for adoption that in every case where a special guardianship order is made we must provide specialist services for birth parents. Special guardianship is different to adoption. For a start, it will not involve the same type of lifelong permanent legal separation and transfer to another family. We know of the fundamental and unique issues to which that gives rise for birth parents and the need for specialist services to address them. The lifelong implications of adoption is one reason why it is appropriate to provide an automatic right to assessment for all those set out in Clause 3(1).

By its very nature, special guardianship does not raise the same issues. There may be circumstances in which there is separation, but in many cases there will not. Indeed, we anticipate that there will be contact in the vast majority of cases. We cannot say for certain that in every such case we should provide a right of access to specialised support services. The consultation may conclude that it would be appropriate to develop specialist services and provide a right to request access to them for all parents of children under special guardianship orders—or indeed, for grandparents, to take the point raised by the noble Lord, Lord Clement-Jones. But we cannot stand here and say for sure that that should occur in every circumstance.

The body of evidence simply does not exist for special guardianship orders. That I why I plead with the noble Lord to recognise that we are undertaking genuine consultation. We will listen carefully and have the future flexibility in the Bill as drafted to make adjustments as we proceed. The same argument applies to Amendment No. 103.

Finally, I turn to Amendment No. 108. I should spare the House from repeating what I said last week on Report about support services, but the argument is the same. The provision should not be written into primary legislation, because that would mean that special guardianship services would inevitably have priority over services for children looked after by local authorities, for older people and for vulnerable adults.

As ever, noble Lords know how keen I am to give as much discretion as possible to local authorities. In that, I look to the Liberal Democrats for support. There must be some discretion. However, I also spoke last week about the additional resources that we are ear-marking for support services and the methods that we shall undertake to monitor and manage the performance of local authorities. That applies as much to support services for special guardianship orders as to adoption support services. I reiterate what I said last week: there is no point changing adoption practice and introducing special guardianship orders if we cannot satisfy ourselves that local authorities will do the right thing. We will ensure that they do.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I thank the Minister for that passionate reply. He clearly feels strongly about this part of the Bill—as do we on these Benches. I am grateful to him for taking us through his arguments.

On Amendment No. 103, the Minister came as close as he could without changing the primary legislation to conceding our case. He said that what we described was likely in most cases, but that he wanted to leave some leeway in cases in which it was not appropriate. His example was perfectly reasonable. If that is how it works in practice, we shall of course be satisfied. The issue is whether that provision should be in the primary legislation.

The Minister relied heavily on the existence of consultation. I agree that it is perfectly possible for consultation to cover many aspects of special guardianship. But enshrined in Amendments Nos. 106 and 107 in particular is an important principle that should be established in the Bill: all those who are subject to special guardianship should be assessed by their local authority for special guardianship support services. We feel strongly about that.

Amendment No. 108 is a rather different kettle of fish. I do not want to rehearse our previous arguments on adoption support services. Of course there must be some level of discretion; we have no disagreement on that. Resource is a major issue that I do not want to follow through its full course now. Although I shall withdraw the lead amendment, No. 103, we shall move Amendments Nos. 106 and 107 when the time comes.

We welcome Amendment No. 104 so far as it goes, but it still means that financial services will be contemplated only after an assessment. To get to that stage, there must be an assessment, and that is what we want to see.

Amendment, by leave, withdrawn.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 104:

Page 64, line 35, leave out from "information" to end of line 38 and insert "and

(b) such other services as are prescribed, in relation to special guardianship.

( ) The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support."

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 6:00, 23 October 2002

moved Amendment No. 106:

Page 64, line 44, leave out "may" and insert "must"

On Question, Whether the said amendment (No. 106) shall be agreed to?

Their Lordships divided: Contents, 128; Not-Contents, 128.

Division number 2 Private Parking: Ports and Trading Estates — Adoption and Children Bill

Aye: 126 Members of the House of Lords

No: 126 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, there being an equality of votes, in accordance with Standing Order 56, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to, unless there is a majority in favour of such amendment, I declare the amendment disagreed to.

[Amendments Nos. 107 and 108 not moved.]

Clause 114 [Accommodation of children in need etc.]:

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 6:12, 23 October 2002

moved Amendment No. 109:

Page 66, line 40, after "accommodation" insert "with their families"

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, we have heard about some of the case law surrounding the interpretation of the Children Act 1989. We welcome the amendment to the Act set out in Clause 114 in relation to some of the conflicting cases described today. Noble Lords have referred to W v Lambeth LBC and the earlier case of A v Lambeth LBC. I believe everyone would welcome the amendment to Section 17 of the Children Act 1989 that resulted from that case.

However, despite wide support for the principle, there is widespread concern that the proposed amendment to Section 17 of the Children Act coupled with the amendment to Section 22 legitimises the current local authority practice of providing accommodation—for example, bed and breakfast placements—for children and young people in need without a parent or other person with parental responsibility under Section 17 of the Children Act, instead of providing accommodation under Section 20 of the Children Act, even where there appears to be a clear duty to do so.

We are also concerned that removing the status of "looked after children" from that group removes the duty of local authorities to safeguard and promote their welfare; to consult with them about actions that affect them and to comply with the regulations designed to ensure that placements are safe and suitable. That undermines many of the commitments made as a result of People Like Us in 1997–98.

A further concern is that the clause contains no lower age limit. Technically it could be used to validate the placement of children of any age. There is also evidence to suggest that local authorities are already using Section 17 of the Children Act to provide accommodation to asylum seeker children. The Government do not appear to disapprove in principle. In a letter from the noble Lord, Lord Hunt, to the noble Baroness, Lady David, dated 5th August 2002, accommodation under Section 17 of the Children Act 1989 is acknowledged as a realistic option for older children, whether local or unaccompanied asylum-seeking children, following an assessment of need. If this practice persists in relation to asylum-seeking children, it could bring about a breach of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment.

The crucial disadvantage of this practice is that under Section 17 the local authority is not subject to the duties in Sections 22 and 23 of the Children Act and the associated regulations, which prescribe the duties of social services departments in respect of "looked after" children, including the duty to review their cases and/or apply the leaving care provisions.

If a young person is accommodated under Section 20, this additional support is mandatory depending on the assessed need. There cannot be many children or young people who need accommodation because they are no longer able to live with their families, yet do not need the support and protection laid down in those sections of the Act.

It would be unwelcome if the Government's proposal were interpreted by local authorities as giving official approval to a practice that is unlikely to meet young people's needs and that may leave them exposed to significant risk of harm. The practice already occurs, and it is largely fortuitous that it has not been exposed to judicial review. It is the view of all stakeholder organisations that it should be discouraged rather than supported by the Government, unless there are positive reasons to opt for not supporting a child who is estranged from his family environment.

In such cases action should be taken to confirm whether the young person is entitled to welfare benefits. We drafted Amendment No. 109 to clarify that the amendment to Section 17 relates to the provision of housing for children with their families rather than making any reference to children who are and indeed should be accommodated under Section 20. I beg to move.

Photo of Earl Russell Earl Russell Liberal Democrat 6:15, 23 October 2002

My Lords, I support the amendment. I happened to attend a meeting this morning to discuss the Nationality, Immigration and Asylum Bill to be debated tomorrow. Under the Government's amendment which we carried at recommital, the Government retain an obligation to support children but not their parents. Those advising us pointed out that that will involve splitting up families in the way argued by my noble friend Lord Clement-Jones.

Since then I have read the report of the Joint Committee on Human Rights published today, discussing that amendment. It makes the same point: that it will involve the splitting up of families. The Joint Committee expressed the opinion that, if that happened, it would be likely to be a breach of Article 8 of the European Convention on Human Rights on respect for private and family life. If that is true in the one case, it is possible that it might be true in the other. If the Government do not accept the amendment, they may be taking a greater legal risk than they would wish.

Photo of Baroness David Baroness David Labour

My Lords, I raised the matter of what would happen under the amendment to Section 17 of the Children Act 1989 in Committee, but no amendments were tabled then. The matter was raised with me by various children's organisations near the time when Committee stage was drawing to a close.

However, I agree with the noble Lord, Lord Clement-Jones, in all he said about the way in which the arrangement is working now. Some children are being put into such accommodation without help or care being given to them. We do not want that; we need the care that is provided under Section 20 of the Children Act. I support the amendment and hope that the Government will lend it a sympathetic ear.

Noble Lords:


Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I am not forceful enough in rising. I support the amendment, which has two aspects. First, children should never be placed in bed-and-breakfast accommodation alone, but with their families. When they are alone, it is clear that Section 20 should apply.

I have spent a great deal of time working with homeless families and some years ago I produced a report on homeless families in bed-and-breakfast accommodation. Among them were a number of young people under 17 and a number of young people under 17 continue to be placed in such accommodation. They are unsafe and often adults are placed in similar accommodation. Often, those adults have their own difficulties, including mental health difficulties. That means that young people are exposed to violence, the likelihood of abuse and other difficulties.

I believe that the state has a clear responsibility to ensure that local authorities do not place unsupported, unsupervised children alone in bed-and-breakfast accommodation and that that or family-centre-type accommodation should be used only when those children are in the accompaniment of their families. I therefore support the amendment.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I apologise to the noble Baroness for trying to prevent her from speaking. She always has something very worthwhile to say.

I am grateful to noble Lords who have spoken in this short debate. It is clearly an issue about which they feel strongly. They have raised serious concerns ranging from what they see as the deficiency in Section 17, to unaccompanied children of asylum seekers, to inappropriate provision in bed-and-breakfast accommodation for single children.

We are clearly sympathetic to the argument that one of the key principles of the Children Act is that children are best helped within their family whenever possible. We do not tolerate the idea of separating children on a casual, frivolous or careless basis. Even though we are unable to accept the amendment for several reasons, I hope that I can reassure noble Lords of the sound reasons and practice for doing so. I hope I can address some of the issues raised, if not all of them.

The intention of the amendment is to enable local authorities to provide accommodation for the family as a means of supporting the child. Technically, it is not necessary. Section 17(3) of the Children Act 1989 states that services may be provided for the family of a particular child in need, or indeed for any member of the family, if it is provided with a view to safeguarding or promoting the child's welfare. The amendment duplicates that point, so one could argue that it is redundant on those grounds.

The second reason I urge noble Lords to think again about the framing of the amendment is that as drafted its principal effect would be to limit the provision of accommodation so that it applied solely to children and their families. It would preclude the provision of accommodation to children on their own. That would, by definition, curtail local authorities' powers to help children by leaving no avenue open to providing accommodation under the Children Act except by taking children into care. I am sure that that is not what the noble Lord intended or what he and other noble Lords would want to see.

Clause 14, which was introduced on Report in another place, was intended to address the very confusions and complications in case law which the noble Lord began his speech by addressing. The clause is intended to confirm and clarify that local authorities have a range of options available to them so that they can deal with young people and their housing needs in particular on a case-by-case basis. We do not see Section 17 as a first resort, a cheap option, whereby local authorities can place young people who, if they had a proper assessment, would fall within the provisions of looked-after children. That is a signal that we want to send to local authorities.

Much has been said about practice and about placing young vulnerable, single people inappropriately in bed-and-breakfast accommodation and not making the right choices under Section 20. We want to underpin best practice as it develops under the statutory Framework for the Assessment of Children in Need and their Families. That has been in place for about one year and it sets out detailed, sensitive guidance. I do not know whether noble Lords remember the triangle with parenting on one side, developmental needs on another and environmental factors on another. That is the framework against which we want all cases tested and appropriate provision made.

When a child or young person presents to a local authority as a child in need, it is obliged to conduct a proper-needs assessment in accordance with the framework. That is why I hope that as the practice evolves, spreads and is properly monitored and performance-managed, we will not hear of the kind of cases referred to by the noble Baroness, Lady Howarth. The whole basis of the framework is the individual assessment of a child's needs within the context of the family on an individual basis. That includes taking proper account of the wishes and feelings of young people. That is fundamental. If they want to and can stay within the family, that will be respected. We do not want to restrict local authorities' scope in that.

I want to reinforce that point because it bears on several other comments made by noble Lords. There is an argument that a lone child ought, as a matter of course, to be taken into care. If the alternative is unsafe accommodation, that would be the best option. But the experience of local authorities over the years must be respected. They have found that young people under 17 commonly resist being taken into care, and we can understand why. They resist the interference in their lives and the loss of independence. Some of them have been in care for 10 or 12 years and they want to make a life for themselves. Section 17 has traditionally provided the avenue for local authorities to be able to help them with accommodation or with cash and support. They do not have to take them into care and bring them under the full weight of the looked-after system. It is essential to ensure that the lighter touch help is available for them.

The noble Earl, Lord Russell, referred to unaccompanied asylum-seeking children who present a particular problem. The largest number of lone children helped by local authorities are asylum seekers. The majority are young men between 16 and 17. There is a school of thought that they should all become looked-after children for safety and security, but we do not subscribe to that view. The assessment framework specifically refers to the special needs of asylum seekers, so we say that that framework, which takes into account the full needs of the child, should be applied to them as generously and as thoughtfully as it applies to any child in the country and to his family circumstances. That is what we would want to see.

I understand that there are concerns about practice and about whether local authorities are applying the framework as they should. That is a matter for which we must have a different remedy—not this amendment, but full, proper and rigorous performance-management through the Social Services Inspectorate rather than through the law.

The final point raised related to the Human Rights Act and to Article 8. I would prefer to give the noble Lord a full account in writing in response to the question he raised. We support in principle the intentions behind the amendment, but it would not have the outcomes that the noble Lord seeks.

Photo of Lord Northbourne Lord Northbourne Crossbench 6:30, 23 October 2002

My Lords, before the noble Baroness sits down, she referred to a thorough independent assessment of the child's needs. Can we be sure that resources will be available—not only the financial resources but the trained human resources—to ensure that such assessments will be thoroughly carried out in every case?

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, in the framework for assessment there is certainly a great deal of emphasis on the need for the training, understanding and sensitivity of everyone involved in the process. Secondly, the £70 million-worth of new money that we have made available—which will be ring-fenced for three years—is designed to provide additional support services and to ensure that these kinds of provisions are as effective and appropriate in the future as improvements require them to be.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I thank the noble Baroness not only for a graphic response in terms of the pyramid but for a forensic reply in terms of taking apart the different elements of the amendment.

We all share the same concerns about an inappropriate use of Section 17—whether they are the concerns expressed by the noble Baroness, Lady Howarth, the noble Baroness, Lady David, or my noble friend Lord Russell. It was quite interesting that the Minister considered that our amendment would not quite achieve the required effect. It may be that we need more drastic amendments to Section 17 if we are to avoid classifying children either as "with their families under Section 17" or "looked after". We may need a middle course of action which would enable local authorities to take, to use the Minister's words, "a lighter touch approach". Perhaps we should explore such an approach at the next stage of the Bill. The noble Baroness has almost made a case for us to do precisely that because the worry about the inappropriate use of Section 17 is still there.

If I had a pound for every time I have heard the words "rigorous performance management" in this House over the past nine months I would be a very rich man, particularly coming from the Minister, the noble Lord, Lord Hunt.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, we would be even richer if we had a pound for every new instruction, guidance and diktat that the noble Lord would wish to give to local authorities.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, we have debates to come on foundation hospitals and other such matters after the Queen's Speech. I am sure that we will have great debates on the level of micro-management.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, the noble Lord knows that I cannot possibly anticipate legislation in the next Session.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I know—but we on these Benches are entitled to speculate.

I shall leave the issue there on this occasion because it may be that our amendment needs to be altered. But the concern is still there. The noble Baroness, Lady Andrews, tried valiantly to allay some of our concerns by referring to how performance management would make the difference. I remain unconvinced. We shall have a further debate on this issue at Third Reading, but in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 115 [Inquiries by local authorities into representations]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 110:

Page 67, line 12, at end insert—

"(1B) Regulations may be made by the Secretary of State requiring the local authority to provide independent advocacy services on receiving representations under subsection (1)."

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, in moving Amendment No. 110, I shall speak also to Amendment No. 112. I shall be brief. These amendments to Clause 115 seek to give legislative cover for advocacy services for looked after children. They require local authorities to provide independent advocacy services for looked after children when representations are made under the Children Act. The other amendments in the group, with the name of the noble Earl, Lord Listowel, in the lead, are variants on this theme.

We had an interesting debate in Grand Committee which revealed a high level of agreement—not least from the Minister himself—that advocacy services were needed for looked after children. At that stage, the Government, while accepting that they could not introduce advocacy services without primary legislation, were resisting our modest amendments designed to give them the powers that they would need once there was agreement on the way forward. We on these Benches could not understand that position. I am, however, delighted that the summer has seen another Damascene conversion in Richmond House and that the Government have tabled their own Amendment No. 115A. I shall say no more about my own amendments because I want to hear what the Minister has to say about his amendment.

However, when the Minister speaks, I hope that he will address three points. First, will he explain why the new clause, while headed "Advocacy services", does not contain the word "advocacy" anywhere in the text? It is, after all, a word that has been used in other legislation without any trouble. Will he confirm that this new clause will unambiguously enable advocacy services to be provided?

Secondly, will the Minister say why his amendment has no reference to independence, which is a feature of the other amendments in the group? Will he agree that a looked after child needs to be helped by someone who is independent of the authority against whom the representations are being made? How is that independence to be guaranteed?

Thirdly, the new clause is yet another regulation-making power. Will the Minister say when the draft regulations will be available and, even more importantly, when the Government intend to implement this new provision?

I hope that when the Minister has spoken to his amendment I shall be able to withdraw my own. But these questions are very significant in determining whether the Government's amendment is good enough. In the mean time, I beg to move.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I need add hardly anything to what the noble Baroness, Lady Noakes, has said. As in Committee, she has encapsulated the issues and the concerns involved in this matter. I shall speak briefly to Amendments Nos. 111, 114 and 115, which stand in my name.

Amendment No. 111 seeks to ensure specifically that children who have left care—care leavers—have assistance when they seek to make use of the complaints procedure in the Children Act. Amendment No. 114 seeks to ensure that children in care have assistance and independent advocacy when they seek to make use of the complaints procedure. Amendment No. 115 seeks to ensure the independence from the local authority of the advocacy service provided.

I share the concerns raised by the noble Baroness, Lady Noakes—particularly the lack of reference to independence in the Government's amendment.

Perhaps I should go back slightly and say that I warmly welcome the fact that the Minister has come forward with his amendment. The amendment seeks to introduce requirements which we had not previously sought—for example, a requirement for local authorities widely to publicise the assistance available. That is a very welcome innovation.

But, as the noble Baroness, Lady Noakes, said, there are concerns in regard to independence and as to why "advocacy" does not appear in the amendment. Can the Minister assure the House that the current arrangements for independent advocacy will continue under the new arrangements? I look forward to the Minister's reply.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, in speaking to these amendments, I should like to indicate that I shall not be moving Amendment No. 113. I can be brief because the noble Baroness, Lady Noakes, has already made the key points. Will the advice and assistance be independent? Does "assistance" include advocacy?

I wish to ask some further questions. Who will provide this assistance? What kind or class of person will they be? Will they be professionals; will they be from CAFCASS; will they be friends, or what? Could this assistance be given by volunteers, for example, or by organisations which employ volunteers to support children in this particular way, or could it be given by family members? If it is to be given by professionals, who will pay for it?

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I am grateful to the noble Baroness, Lady Noakes, for helping me to see how to speak to Amendment No. 115A when trying to deal with the other amendments. I am learning daily how to do these things.

The issue of independence is vital. There should be a very great degree of independence from the local authority—although local authorities in some areas have attempted the practice of providing services to other local authorities. I hope that organisations such as the National Youth Advocacy Service and A Voice for the Child in Care, which have worked hard to ensure a voice for advocacy for children, are heard and are able to provide some of these services. I believe that independence is crucial and that the Government believe that, given some of their past policies. I refer to the setting up of the CAFCASS scheme, following some of the difficulties with the panels of guardians ad litem; to the National Care Standards Commission; and to the implementation of regulation within local authorities. I could continue.

I am a former director of social services, so I believe that social workers do an extraordinarily good job. I have spoken on their behalf in this House previously. However, I also know that it is extraordinarily difficult to take a position from inside a local authority against one's employers. There are still difficulties in relation to whistle-blowing and other such issues. That is why independence is crucial.

Independent advocates often help in the informal stage of complaints under Sections 24D and 26 of the Children Act in ensuring that the matter never gets to a formal procedure. One of things that I have learnt from talking to children is that they do not really want to make a complaint; they want the issue that is bothering them resolved. Sometimes it becomes a complaint, but often it is about resolution. I hope that the independence provision will help them to have someone outside the sphere of the local authority to speak on their behalf and to gain a resolution that is in their best interests.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support the amendment tabled by my noble friend Lord Listowel and the other amendments proposed. There are many good things about this welcome Bill. As it is debated and occasionally amended, it seems to get better and better. There are no fewer than six amendments seeking more or less the same provision—plus the Minister's amendment, for which I am sure everyone is grateful. Not to have a built-in and, I emphasise, transparently independent advocacy system to represent what are often the very different interests of the young person concerned would seem both to violate the intentions of human rights legislation—clearly, in today's world, where there is so much interactivity and belief that people should express their own views—and not to be in the best interests of the child concerned as defined in the Bill.

It has long been one of my ambitions to see implemented a provision which I believe first appeared in the Children and Young Persons Act 1969. This allowed for the appointment of a personal friend—no doubt a volunteer—for each young person in care without family contacts who would, no doubt, over time gain the confidence of the youngster concerned. By definition, such a person would be independent of the local authority concerned. Those are vital qualifications in terms of what we are discussing. But sadly, to date, fewer than a third of those eligible to have such a friend have one. I realise that this scheme is not part of this particular discussion. But had such a system been fully enforced, there might well have been less need for the kind of advocacy for looked after children for which these amendments call. I hope that the government amendment will be sufficient to satisfy all of us. I look forward to the Minister's response and to his reassurance on this point, as I am sure do the proposers of the many amendments.

Photo of Earl Russell Earl Russell Liberal Democrat 6:45, 23 October 2002

My Lords, on behalf of these Benches, I should like to add our support to Amendments Nos. 111 and 114 in the name of the noble Earl, Lord Listowel. Almost everyone who advises children suffers in one way or another from conflict of interest. I do not exempt myself as a parent from that judgment.

Usually, when one is listening to children or young people, what they need most of all is time to go on talking until they can hear themselves think. That cannot be arrived at until there is someone who is prepared to listen to them who has absolutely no axe to grind about the case that they arguing. It seems to me that nothing other than independent advocacy can come anywhere near guaranteeing that. It is needed not only in cases of dealings with the local authority and in proceedings relating to divorce. I am sure that it is needed in cases dealing with contact. In fact, it needs to be available all round the field. Those who contribute to it provide something very valuable.

I was glad to hear what the noble Baroness, Lady Howarth, said in praise of social workers. It needs saying. They have been used as the whipping-boys and whipping-girls of the world for far too long. But everyone still has an interest until we get to someone whose only interest is in listening. That is what these amendments are driving at. It is a very valuable thing to try to do, and a very difficult one in which to succeed.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, noble Lords who have debated with me for some time the issue of independent advocacy will know that I am very pleased to have been able to table an amendment that will secure the provision of advocacy services for the children and young people who need them most.

The noble Baroness, Lady Noakes, posed the question of what we meant by "advocacy services". It is my understanding that there is no single accepted definition. I agree that it is important to be clear as to what we are talking about.

The National Advocacy Standards, which are due to be published by the end of this month, state:

"Advocacy is about speaking up for children and young people, in particular and whenever possible by enabling them to speak up for themselves. It is about helping them to achieve understanding, to participate in and influence decisions that affect their lives, particularly about representing their views, wishes and needs to decision-makers and seeking remedies for breaches of their human rights. Advocacy services offer independent and confidential information, advice, advocacy, representation and support".

In my Amendment No. 115A, I use the term "assistance", but I make it clear that it is intended to cover precisely these kinds of services. The National Advocacy Standards will be encompassed within Section 7 statutory guidance.

The amendment that I have tabled takes a slightly different approach from that of the other amendments in this group. My amendment inserts a new clause into the Bill which seeks to insert a new Section 26A into the Children Act. This self-contained section enables all the provisions relating to assistance to be provided in connection with the complaints procedures under the Children Act to be set out in one place.

Subsection (1) of the proposed new section provides that local authorities must make arrangements to provide assistance for children and young people who make or intend to make complaints under the Children Act procedures. This covers the standard procedure under Section 26 and also the procedure for young people leaving care under Section 24D inserted by the Children (Leaving Care) Act 2000—when we had an extensive discussion about advocacy. This makes it explicit that local authorities must put in place arrangements to provide services to support these children and young people. As the noble Earl, Lord Listowel, suggested, one improvement that my amendment makes on the other amendments tabled on the issue is that it enables local authorities to arrange to provide assistance to children and young people who have not yet complained but who intend to do so. That will ensure that children will be given help in initiating complaint procedures and that they will have a voice in the process.

Subsection (2) provides that the assistance that local authorities put in place must include representation. That will ensure that the services provide for the needs of children and young people who need or wish to have someone to speak on their behalf. Subsection (3)(a) provides that advocacy services must not be provided by a person who is prevented from doing so through regulations. That is how we will ensure the independence of the service. We intend that the regulations will set out that a person who is the subject of a complaint, or who may be involved in considering it, and anyone involved in the line management of the case or in the casework, must not be appointed as the advocate. That means that, through the regulations, local authorities will be required to ensure that assistance is provided by those with no responsibility for the case of the child or the issues at stake in the complaint. In addition to the provisions in regulations under subsection (3)(a) of the new section, the principles of independence will also be addressed in the advocacy standards, which will be the subject of Section 7 guidance.

The other amendments tabled for Report on this issue refer to the advocacy services being independent on the face of the Bill, although they do not explain what is meant by "independent". It will be necessary, if pursued, to give a meaning to the term. Amendment No. 115 states that,

"the Secretary of State must have regard to the principle that the provision of independent advocacy under the arrangements should, so far as practicable, be independent of the local authority which is responsible for the child or of any person who is involved in investigating or adjudicating on such a complaint".

This is intended to reflect Section 12 of the Health and Social Care Act 2001. Although I understand the intention behind it, I do not believe that it works. Unlike in the circumstances set out in the Health and Social Care Act, in these circumstances the Secretary of State will not be directly involved in arranging the provision of advocacy services.

Again, we need to be clear about what we mean by independence. Arguably, the services could never be entirely independent of the local authority, given that the local authority will always at least be commissioning and paying for them. What do we want to achieve from providing for the service to be independent? We want to ensure that the assistance provided is not influenced by the local authority. We believe that this is best done by ensuring that no-one with a direct interest in the outcome of the complaint is involved in the provision of assistance to the child or young person. We also want to ensure that the child or young person knows that the service will not be influenced. We want them to be confident that advocates are acting exclusively on their behalf and have no potential or conflicting interests and pressures. Feedback from consultation indicated that separate literature, phone numbers, logos and physical locations are more important to children and young people than the minutiae of who funds or the governance arrangements.

We believe that local authorities, subject to certain constraints, should have the freedom to decide how best to provide advocacy according to their local needs. I listened to the points made by the noble Baroness, Lady Howarth, and other noble Lords about their concept of independence. Quite properly, there is a range of possible approaches to the provision of advocacy services, including in-house and contracted-out models. I am not confident that out-of-house provision of face-to-face services is uniformly available across the country. I would be reluctant to agree that we insist that all councils enter contracts with national advocacy organisations, although they will be free to do so.

The use of the term "independent" on the face of the legislation would prevent local authorities from using an in-house model. However, under my amendment, Amendment No. 115A, local authorities may choose either to provide assistance themselves or to come to an agreement with a national or local advocacy service provider in order to meet their responsibilities. Using the regulations to be made under subsection (3)(a) of the new section, combined with the National Advocacy Standards, which will have the force of Section 7 guidance, is the appropriate way of ensuring independence but also giving sufficient flexibility to local authorities. All noble Lords here, many of whom I have heard speak, often argue for flexibility to be given to local authorities.

Subsection (3)(b) allows us to regulate how assistance will be provided. We intend that these regulations will be used to set out persons or bodies with whom local authorities may enter into arrangements to provide assistance and the degree of choice that must be provided. I listened with care to the question of the noble Lord, Lord Northbourne, and we will consider his points when deciding what ought to be included in the regulations. I have some sympathy with the implication that a wide group of people should be used. When we debated the Children (Leaving Care) Act 2000, we had a similar discussion about the kind of people who should become young people's advisers. There was a strong consensus that we should not be hidebound by professional qualifications but, rather, we should consider the personal characteristics that the people appointed should bring to the role. I then suggested that people with experience of fostering might be appropriate. When we come to consider the matter, we will have to ensure that the people providing assistance have the proper training and skills. We cannot afford to take an amateur approach. We also feel that children and young people must be offered a choice of who should act as their advocate. One size does not fit all, and the regulations under subsection (3)(b) will set out the framework within which the service will be provided.

The noble Lord, Lord Northbourne, also asked about funding. Local authorities will be required to fund the services. Subsection (4) reflects Section 26(6) of the Children Act 1989, which provides for regulations to require local authorities to monitor the provision of assistance to ensure that they comply with regulations. That will help to ensure that requirements in the section are met. Subsection (5) reflects Section 26(8) of the Children Act, which sets out that local authorities should advertise the advocacy services as they see fit. As the noble Earl, Lord Listowel, suggested, visibility of these services will be important to ensure that they can be accessed by the children and young people who need them. There is little point in having an advocacy service if children do not know about it and cannot access it quickly.

In response to the noble Baroness, Lady Noakes, we hope to implement the provisions in 2004, with consultation to take place in 2003–04. I cannot give a definite commitment, but we hope to accede to that aim. Noble Lords who have discussed the matter will know that it is with much pleasure that I bring my amendment to the House. It is a real advance, and I am sure that all noble Lords support the intent behind it.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, before the noble Lord sits down, he said early in his discourse that his amendment made it clear that it included advocacy. It may be because of my limited intelligence, but I cannot see how it makes that clear. Is the noble Lord prepared to table an amendment on Third Reading to make it absolutely clear?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I tried to explain that. The amendment uses the term "assistance", but it is intended to cover the sort of services that will be published at the end of the month in the national adoption standards. I listed those. I am happy to read them again to help the noble Lord.

Photo of Lord Northbourne Lord Northbourne Crossbench 7:00, 23 October 2002

My Lords, I heard the list, but the noble Lord associated the list with advocacy. We have here only the word "assistance". "Advocacy" does not appear.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I sought to explain the issue. So far as I am aware there is no agreed definition of advocacy. That is why I have used "assistance" in the amendment. I sought to explain that we shall publish National Advocacy Standards as Section 7 guidance, which is statutory guidance. That will make abundantly clear to local authorities what we mean by advocacy.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I thank the Minister for that comprehensive explanation and for tabling Amendment No. 115A. I also thank all those who have taken part in this relatively short debate, which has underlined the importance of the issues involved in advocacy.

The noble Lord explained that putting "assistance" on the face of the Bill meant advocacy. We shall have to trust him on that, although I find it slightly curious that "advocacy" can be used in the heading to the new clause but does not manage to get into the text of it. That leaves some ambiguity, but we shall take the noble Lord's word as an assurance that advocacy will be included when the clause is implemented.

The one issue that may still cause some difficulty is independence. The Minister explained that the regulations would require case independence but not independence from the authority. That could cause difficulties. It is impossible for an employee to be completely independent of his or her employer. That is a fact of life. Employees have to look to their salary increases, their assessments and their career prospects. It is difficult for anyone to disentangle themselves from all those other ties. That is why we feel instinctively that independence means independence of the authority.

I heard what the noble Lord said. The matter will be left to regulation, not to the Bill. I shall reflect further. I do not wish to spoil the welcome for Amendment No. 115A, but we need to think through the remaining issue. I shall do that before Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 111 to 115 not moved.]

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 115A:

After Clause 116, insert the following new clause—


After section 26 of the 1989 Act there is inserted—


(1) Every local authority shall make arrangements for the provision of assistance to—

(a) persons who make or intend to make representations under section 24D; and

(b) children who make or intend to make representations under section 26.

(2) The assistance provided under the arrangements shall include assistance by way of representation.

(3) The arrangements—

(a) shall secure that a person may not provide assistance if he is a person who is prevented from doing so by regulations made by the Secretary of State; and

(b) shall comply with any other provision made by the regulations in relation to the arrangements.

(4) The Secretary of State may make regulations requiring local authorities to monitor the steps that they have taken with a view to ensuring that they comply with regulations made for the purposes of subsection (3).

(5) Every local authority shall give such publicity to their arrangements for the provision of assistance under this section as they consider appropriate.""

On Question, amendment agreed to.

Photo of Baroness Barker Baroness Barker Liberal Democrat

moved Amendment No. 116:

After Clause 118, insert the following new clause—


(1) In section 66 of the 1989 Act (privately fostered children), at the end of paragraph (b) there is inserted—

""a registrable private foster parent" means a person who fosters or offers to foster a child privately where the child is under the age of 11".

(2) After section 69 (power to prohibit private fostering) of that Act there is inserted—


(1) Every local authority shall keep a register of registrable private foster parents within their area.

(2) A local authority may refuse to register an applicant for registration under this section if it is satisfied that the applicant is not fit to foster privately a child under the age of 11.

(3) A local authority may refuse to register an applicant for registration under this section if it is satisfied that any person living or likely to be living in the applicant's household is not fit to be in the proximity of children under the age of 11.

(4) A local authority may refuse to register an applicant for registration under this section if it is satisfied that the premises in which the applicant is proposing to foster a child are not fit to be used for looking after a child under the age of 11.


(1) No person shall privately foster children under the age of 11 unless he is registered by the local authority under section 69A.

(2) If any person contravenes this section he shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.""

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I break my almost Trappist silence of this afternoon to return to a subject we discussed at considerable length in Grand Committee. In my view it is one of the large remaining issues before us in the Bill.

We considered private fostering with great care in Grand Committee. There was agreement at that stage that private fostering is perhaps the least understood part of childcare. There is general agreement that that lack of understanding is a cause for concern.

Over the past 30 years, many people have looked at the issue and considered what might be done to tackle it. In Grand Committee the Minister recognised the concerns that were raised but disagreed primarily on two issues. The first was the need for a registration scheme and the second was timing. I reflected on his comments over the summer and made a conscious decision to bring the issue back on Report because I believe that he was wrong, for reasons that I shall set out.

For those who did not take part in Grand Committee, it is fair to say that in the past 30 years report after report has looked at the issue of private fostering. Well known reports, such as Sir William Utting's People Like Us, have all recommended a registration scheme for private fostering. Since we last discussed the matter way back in the early part of the summer, the Social Care Institute for Excellence has conducted yet another investigation. Although its report has not yet been published, I should like to hear from the Minister what the response was and how many organisations referred to registration.

In Grand Committee, the noble Lord cast doubt on the need for a registration scheme for private fostering. He cited the legal framework of the Children Act 1989 and the duty that it places on carers and parents to notify local authorities that they are taking over responsibility for a child privately. He readily conceded that many people in that position do not register with the local authority, in many cases because they do not know that they have to. There is a lot of ignorance on the subject. I challenge the assertion that that framework is adequate. It is so widely ignored that one has to challenge its efficacy.

On re-examining the issue, I looked at the existing powers of local authorities. They are not required in any way to approve private foster carers. They can only prohibit people acting as private foster carers and they do that only in extremis.

Another argument advanced by the Minister and by his colleague in another place was that private fostering should not be registered because to do so might well drive it underground. A similar argument was advanced about the registration of childminders. It has not proved to be the case for childminding. Those who follow these matters know that the majority of private fostering cases are not registered with local authorities—indeed, almost nothing is known about the thousands of children who are in the care of private foster carers—so there is a strong case for saying that private fostering is already underground. Registering it cannot make things any worse.

The noble Lord also argued in Grand Committee that private foster carers currently do not come forward to register. He speculated that that is because they cannot see any benefit in doing so and a registration scheme would not offer them any incentive to register. However, some of the local authority pilots have reported that once private foster carers have understood the benefits of registering and have done so, it has opened up the way for them to become much more a part of the formal children's caring services in the area and to learn about issues such as their rights to benefits.

I have no wish to reopen our earlier debate on special guardians. Nevertheless, there is a correlation between the provision of childcare by a member of the extended family and the failure to take up the related benefits. People assume, whether they can afford it or not, that it is their duty to look after these children. They also wrongly believe that they are not entitled to benefit because of that family relationship.

In Grand Committee, the Minister gave a long list of arguments which I did not find very convincing. Although I have accepted many of his arguments during our consideration of this legislation, I do not find his arguments on this subject particularly persuasive.

The Minister's primary argument in this regard is about the timing. He knows as well as I do that publication of the Laming inquiry report, which is unlikely to appear before Christmas, will be a most important event for the future of childcare provision. No one will be able to ignore it. In Grand Committee, however, the Minister said that the Bill could not contain provision leading to the registration of private fostering because that might pre-empt the inquiry's findings. I did not find that a very compelling argument at the time, and, on reflection, I still do not.

The report of the noble Lord, Lord Laming, will cover a wide range of childcare and child protection issues. The main focus of that substantial report, however, will be on the co-ordination of the various statutory services and on their duty to vulnerable children. The Government will not be short of work to do and issues to address when the report is published. I would even venture to say that their hands will be pretty full in responding to it. That is the first reason why I think that the Minister is wrong about timing.

This legislation is the second reason why I think that the Minister is wrong about timing. The title of the Bill is the Adoption and Children Bill. It should therefore address the issue of private fostering. Private fostering is one aspect of childcare provision, which is the matter that we have spent months discussing.

The third reason why the Minister is wrong about timing is that, in the past 30 years, the issues have not changed but simply increased in scale. In the multitude of reports that have been produced, there has been absolutely no suggestion that the nature of the problem has changed over time; the problem has simply grown larger. Children in private foster care are some of the most vulnerable in society. Not much is known about who they are, where they are or the conditions in which they live. The little that we do know has been sufficiently disturbing to make the issue a priority.

In Grand Committee, the Minister said that, as no financial transaction is involved, it would not be right to equate private fostering with childcare. I believe that, in many cases, that argument is entirely wrong. The evidence produced by various organisations investigating this issue shows that although many children are brought to this country by someone claiming to be—at least in their own definition—a relative, there is often a financial transaction between that person and the parents, who usually reside in another country, to look after those children. That evidence, more than any other, indicates that the problem will not go away but is likely to grow.

The Minister offered two contradictory arguments in Grand Committee. The first was that the Government accept that the issue is important. The second was that this House often considers legislation on social policy. I realise that he cannot predict the contents of the Queen's Speech—notwithstanding Mr Alan Milburn's announcement last week on foundation hospitals to the conference of the Association of Directors of Social Services; a very good speech which I commend to the Minister—but it is not good enough simply to say that we will eventually be able to consider an appropriate Bill to address this issue. The issue should be addressed in this Bill, which I suspect will be the key legislation governing adoption and fostering for a generation. That is why I return to the issue.

Photo of Earl Howe Earl Howe Conservative 7:15, 23 October 2002

My Lords, I support the noble Baroness, Lady Barker, in all that she said. We established in Grand Committee, and I understood the Minister to acknowledge, that the absence of effective regulation of private foster care represents a significant unresolved problem in the eyes of the Government. I believe that all of us are agreed on that. If we agree that there is a real issue here, then surely this Bill provides a good opportunity at least to lay the foundations for a remedy. Personally, I do not see how one can frame a workable remedy without incorporating in it some sort of registration scheme for private fosterers.

I appreciate that whatever arrangements are eventually put in place will need to be enforceable and will need to satisfy the other test laid down by the Minister that they do not accentuate the tendency of private foster placements to "go underground". However, the Government have clearly done considerable work trying to find a way through these difficulties. We understand that it may not suit them to come forward now with a fully formed scheme. I agree entirely with what the noble Baroness, Lady Barker, said about the Laming inquiry. I do not see how those conclusions will greatly advance our thinking on the risks inherent in unregulated private fostering arrangements. However, even if I am mistaken in that assumption, why pass up this opportunity to establish the basis on which the Government can act when they decide to do so?

If we do not take this opportunity, we shall be left with the provisions of the current law which are patently inadequate. There is, as the noble Baroness made clear, a lack of awareness of the law among carers. Social services departments are equally unsighted about their responsibilities. Amid this lack of awareness, there is a large—probably very large—group of vulnerable children for whom the existing law affords precious little protection.

In Grand Committee, the Minister drew a distinction between private fostering and child minding. The fact that private fosterers look after children on a very different basis from that of child minders—who are now, of course, subject to registration—is no reason, in my view, to hold back from a similar type of approval and registration scheme for private fosterers. This is an urgent issue. It is five years since the Utting report. We really should not let another five years go by before finding a way of implementing its recommendations.

Photo of Lord Chan Lord Chan Crossbench

My Lords, I support the amendment. Only yesterday, I was speaking to a research worker in south London about private fostering—an issue of particular concern for ethnic minority communities and for the Lambeth social care project on fostered children which is funded by the Save the Children Fund. The majority of those using private fostering are either west African or Chinese. West African children have been privately fostered for a very long time. All the private foster parents are mainly white. It is estimated that there are some 10,000 children being cared for under private fostering arrangements.

African parents who put their babies in private fostering are in low-paid jobs. Similarly, those Chinese parents who use private fostering work in kitchens for long hours or in small take-away shops, which open seven days a week. All these children are under five years of age. The dilemma that we face—this is a paradox—is that child minders are registered and monitored, so why not private foster parents? That registration should be a matter for local authorities. We also know that private agencies are registered, but not foster parents. There is growing concern about private fostering that is not being registered.

I turn, finally, to anecdotal issues. I say "anecdotal" because some of the African parents believe that a significant number of the current generation of teenagers, especially young black children who attend mental health clinics and hospitals and who tend to get into trouble with the police, have been privately fostered. I do not have evidence to support that assumption, but that is what I have been told. I certainly support the amendment.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, perhaps I may reassure noble Lords, as I did in Grand Committee, that I well understand the concerns that have been expressed. I have no doubt that further action needs to be taken. However, my problem is that this issue is both complex and complicated. That is why I shall not be in a position to come to the House with legislation during the passage of the Bill.

My honourable friend, Mrs. Jacqui Smith, announced a review in relation to private fostering on 17th January. That review is currently in process. It is engaging a wide range of stakeholders and focusing on the existing arrangements within Part IX of the Children Act. It is considering whether the latter are robust enough to protect vulnerable children living away from their parents. It is important for us to use, and carefully consider, the findings of the review rather than attempt to pre-empt them.

I do not say that the Climbie inquiry is the be-all and end-all in this regard. None the less, it is fair to anticipate that there may just be some recommendations from the process that will need to be considered. That is why I caution the House against rushing into legislation. There are some complex issues that need to be addressed. I should point out to the noble Baroness, Lady Barker, that the review is attempting to determine issues such as whether registration is necessary, or whether there are other options available.

There is also the issue of how far central government should interfere in what are essentially private arrangements made by parents. We must be sure that those changes have the right impact. Unfortunately, there is very little public awareness of what constitutes private fostering; as, indeed, noble Lords have observed. Very few people know that they are required to notify the local council of such arrangements. That is why we have taken steps to attempt to raise public awareness, including launching a campaign in this area.

There are a number of details that need to be considered as regards the proposed registration scheme; for example, we must be careful not to opt for the apparently simple idea of an age cut off, as suggested by the amendment, without thinking through its implications. Is the amendment saying that children over the age of 11 are not vulnerable? Several noble Lords have mentioned the childminding registration scheme, which offers a close parallel for children under the age of eight. However, it is my understanding that we shall shortly see legislation proposing an extension on that scheme up to the age of 14. Clearly, we need to consider whether there are sufficient parallels to follow.

So far, the review has found that registration was recognised by most stakeholders as desirable. But it is not a simple strategy to introduce successfully. I believe that we need different strategies for different types of private fostering; for example, language schools should be seen as a separate problem. We need to consider whether they should be included under the private fostering umbrella, or perhaps under some other form of registration.

A registration scheme also means different things to different people. In its purest sense, the amendment would require a list of registered private foster carers to be held by the local authority for use in enabling the relevant checks to be carried out. It has been suggested that such lists should be available for parents wishing to place their children in private fostering arrangements, in much the same way as a list of childminders might be provided. But the one danger in that proposal is that local authorities could be legitimising a lower standard of fostering that does not require any of the stringent checks necessary for mainstream foster carers.

I do not seek to criticise the noble Baroness's amendment. I recognise her concerns, many of which I share. All I seek to do is to point out that there are some very complex issues that still need to be resolved. That is why I cannot bring a suitable proposal to your Lordships' House during the passage of this Bill. However, I assure the noble Baroness that we are very exercised by the issue. We are determined to take very careful note of the outcome of the review, and of any recommendations that the noble Lord, Lord Laming, may make.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I thank the noble Lord for his response. I can assure the House that we do not disagree on the importance of the issue that we are discussing; nor do we disagree about the practicalities involved in making this work. However, the Minister and I disagree on two points. First, we disagree on the argument that the absence of any scheme at present is worse than having a scheme that may not be perfect, or, indeed, that may not live up to the standards that he outlined.

Secondly, the Minister talked about the potential danger of bringing about a "lower quality of fostering"; but, as we know from some of the worst cases about which we have heard, that already exists. The noble Lord talked about the problem of insufficient public awareness as regards what constitutes private fostering. I have to say that I did not find some of his other arguments very convincing; for example, the state entering into what are essentially private arrangements between parents and private providers. But that is the case with childminding. The state has accepted that it is necessary to make that safe.

It is wrong to delay. I give way.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I am grateful to the noble Baroness for giving way. With the best will in the world, and even if the principle were agreed, does she agree that we are simply not in a position to be able to place detailed proposals in this Bill? That is the real problem.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I should be interested to know what the Minister believes will emerge from the Laming inquiry that has not emerged from all previous inquiries.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, it is not just a question of the Laming inquiry, though I hope that we shall be very much informed by it. I spelt out in my response some of the problems that I foresee arising in a registration scheme. I believe that we need to work out the practical implications involved.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I do not doubt for a moment that both the practicalities and the details need to be addressed. However, I have not received a satisfactory answer on the issue of timing. I therefore propose to take the measure away. However, I intend to return to the matter at Third Reading. In the mean time, I shall bear in mind the comments that the Minister made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.