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New Clause 23
Rules of Court
.--(1) An authority having power to make rules of court may make such provision for giving effect to--
(a) this Act ;
(b) the provisions of any statutory instrument made under this Act ; or
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(c) any amendment made by this Act in any other enactment, as appears to that authority to be necessary or expedient. (2) The rules may, in particular, make provision--(a) with respect to the procedure to be followed in any relevant proceedings (including the manner in which any application is to be made or other proceedings commenced) ;
(b) as to the persons entitled to participate in any relevant proceedings, whether as parties to the proceedings or by being given the opportunity to make representations to the court ;
(c) with respect to the documents and information to be furnished, and notices to be given, in connection with any relevant proceedings ;
(d) applying (with or without modification) enactments which govern the procedure to be followed with respect to proceedings brought on a complaint made to a magistrates' court to relevant proceedings in such a court brought otherwise than on a complaint ;
(e) with respect to preliminary hearings ;
(f) for the service outside the United Kingdom, in such circumstances and in such manner as may be prescribed, of any notice of proceedings in a magistrates' court ;
(g) for the exercise by magistrates' courts, in such circumstances as may be prescribed, of such powers as may be prescribed (even though a working party to the proceedings in question is outside England and Wales) ;
(h) enabling the court, in such circumstances as may be prescribed, to proceed on any application even though the respondent has not been given notice of the proceedings ;
(i) authorising a single justice to discharge the functions of a magistrates' court with respect to such relevant proceedings as may be prescribed ;
(j) authorising a magistrates' court to order any of the parties to such relevant proceedings as may be prescribed, in such circumstances as may be prescribed, to pay the whole or part of the costs of all or any of the other parties.
(3) In subsection (2)--
"notice of proceedings" means a summons or such other notice of proceedings as is required ; and "given", in relation to a summons, means "served" ;
"prescribed" means prescribed by the rules ; and
"relevant proceedings" means any application made, or proceedings brought, under any of the provisions mentioned in paragraphs (a) to (c) of subsection (1) and any part of such proceedings.
(4) This section and any other power in this Act to make rules of court are not to be taken as in any way limiting any other power of the authority in question to make rules of court.
(5) When making any rules under this section an authority shall be subject to the same requirements as to consultation (if any) as apply when the authority makes rules under its general rule making power.'.-- [The Solicitor-General.]
Brought up, and read the First time.
The Solicitor-General : I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Miss Betty Boothroyd) : With this it will be convenient to take Government amendments Nos. 380 and 307.
The Solicitor-General : The effect of new clause 23 is to enable rules of court to be made to govern practice and procedure and therefore to put flesh on to the bones of what we have been discussing in principle for dealing with cases involving children when the Bill comes into force. New clause 23 supersedes clause 83 of the Bill and amendment No. 380 makes clear that the separate rule-making power in clause 46(1) does not affect the new clause. Question put and agreed to.
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Clause read a Second time, and added to the Bill.New clause 20
Appeals
.--(1) An appeal shall lie to the High Court against
(a) the making by a magistrates' court of any order under this Act ; or
(b) any refusal by a magistrates' court to make such an order. (2) Where a magistrates' court has power, in relation to any proceedings under this Act, to decline jurisdiction because it considers that the case can more conveniently be dealt with by another court, no appeal shall lie against any exercise by that magistrates' court of that power.
(3) Subsection (1) does not apply in relation to an interim order for periodical payments made under Schedule 1.
(4) On an appeal under this section, the High Court may make such orders as may be necessary to give effect to its determination of the appeal.
(5) Where an order is made under subsection (4) the High Court may also make such incidental or consequential orders as appear to it to be just.
(6) Where an appeal from a magistrates's court relates to an order for the making of periodical payments, the High Court may order that its determination of the appeal shall have effect from such date as it thinks fit to specify in the order.
(7) The date so specified must not be earlier than the earliest date allowed in accordance with rules of court made for the purposes of this section.
(8) Where, on an appeal under this section in respect of an order requiring a person to make periodical payments, the High Court reduces the amount of those payments or discharges the order-- (
(a) it may order the person entitled to the payments to pay to the person making them such sum in respect of payments already made as the High Court thinks fit ; and
(b) if any arrears are due under the order for periodical payments, it may remit payment of the whole, or part, of those arrears. (9) Any order of the High Court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates' court) shall, for the purposes--
(a) of the enforcement of the order ; and
(b) of any power to vary, revive or discharge orders,
be treated as if it were an order of the magistrates' court from which the appeal was brought and not an order of the High Court. (10) The Lord Chancellor may by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of any order under paragraph 2 of Schedule (Jurisdiction) .
(11) Except to the extent provided for in any order made under subsection (10), no appeal may be made against any decision of a kind mentioned in that subsection.'.-- [The Solicitor-General.]
Brought up, and read the First time.
The Solicitor-General : I beg to move, That the clause be read a Second time.
Madam Deputy Speaker : With this it will be convenient to discuss Government amendments Nos. 63 and 300.
The Solicitor-General : New clause 20 relates to appeals and is couched mainly in terms of appeals from magistrates' courts. Subsection (1) of the new clause provides that appeals from magistrates' courts shall be to the High Court. That makes two important changes. At present appeals on the facts in care proceedings go from the magistrates court to the Crown courts. By changing the forum of the appeal, we will emphasise the civil nature of applications for care orders. Furthermore, an appeal on
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the facts is not currently available to local authorities. The new clause will change that, putting all parties on an even footing with regard to appeals. Subsections (4) to (8) set out the powers of the High Court when hearing an appeal. Clearly, it must have power to make an order which reflects its conclusions after hearing the appeal, together with any consequential orders made necessary by its determination. Subsections (4) and (5) give the High Court those powers.Subsection (9) makes clear that an order of the High Court made on appeal shall have the effect of an order made by the court appealed from. The obvious exception to that is an order for rehearing. The proposed new clause places limitations upon rights of appeal which are to be found in subsections (2), (3), (10) and (11).
Amendment No. 300 prohibits appeals from the making or refusal of an emergency order and any directions consequential upon such an order. Hon. Members will recall that the child and anyone who has parental responsibility for him or with whom he lives will be able to challenge emergency protection orders 72 hours after they have been made under clause 39(8) and (9). That will adequately safeguard the position of the child and those close to him. Given the short duration and emergency nature of the orders, no other provision is necessary. Indeed, a formal appeals procedure, with the added delay that that would necessarily involve, would be singularly inappropriate. The clauses are essential to the Bill which must deal with the question of appeals particularly from magistrates. Question put and agreed to .
Clause read a Second time, and added to the Bill .
New Clause 12
Provision of accommodation for childrenin police protection or detentionor on remand, etc.
.--(1) Every local authority shall make provision for the reception and accommodation of children who are removed or kept away from home under Part V.
(2) Every local authority shall receive, and provide accommodation for, children--
(a) in police protection whom they are requested to receive under section 40(3)(e) ;
(b) whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984 ;
(c) who are--
(i) on remand under section 23(1) of the Children and Young Persons Act 1969 ; or
(ii) the subject of a supervision order imposing a residence requirement under section 12AA of that Act,
and with respect to whom they are the designated authority. (3) Where a child has been--
(a) removed under Part V ; or
(b) detained under section 38 of the Police and Criminal Evidence Act 1984,
and he is not being provided with accommodation by a local authority or in a hospital vested in the Secretary of State, any reasonable expenses of accommodating him shall be recoverable from the local authority in whose area he is ordinarily resident.'-- [Mr. Mellor.]
Brought up, read the First and Second time, and added to the Bill .
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New Clause 13
Child assessment orders
.--(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that--
(a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm ;
(b) an assessment of the state of the child's health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm ; and
(c) it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section. (2) In this Act "a child assessment order" means an order under this section.
(3) A court may treat an application under this section as an application for an emergency protection order.
(4) No court shall make a child assessment order if it is satisfied--
(a) that there are grounds for making an emergency protection order with respect to the child ; and
(b) that it ought to make such an order rather than a child assessment order.
(5) A child assessment order shall--
(a) specify the date by which the assessment is to begin ; and (
(b) have effect for such period, not exceeding 14 days beginning with that date, as may be specified in the Order.
(6) Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child--
(a) to produce him to such person as may be named in the order, and
(b) to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order. (7) A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8) Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment. (9) The child may only be kept away from home--
(a) in accordance with directions specified in the order ; (
(b) if it necessary for the purposes of the assessment ; and (
(c) for such period or periods as may be specified in the order. (10) Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11) Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to
(a) the child's parents ;
(b) any person who is not a parent of his but who has parental responsibility for him ;
(c) any other person with whom the child is living ;
(d) any person in whose favour a contact order is in force with respect to the child ;
(e) any person who is allowed to have contact with the child by virtue of an order under section 31 ; and
(f) the child,
before the hearing of the application.
(12) Rules of court may make provision as to the circumstances in which--
(a) any of the persons mentioned in subsection (11) ; or (
(b) such other person as may be specified in the rules, may apply to the court for a child assessment order to be varied or discharged.
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(13) In this section "authorised person" means a person who is an authorised person for the purposes of section 28.'.-- [Mr. Mellor.]Brought up, and read the First time.
Mr. Mellor : I beg to move, That the clause be read a Second time.
Madam Deputy Speaker : With this it will be convenient to discuss Government new clause 5, amendment No. 1, in clause 36, page 34, line 8 at end insert--
(aa
(in the case of an application made by, or on behalf of a local authority, the court is satisfied that there has been an unreasonable failure to comply with a statutory notice served under section Child production notice.'. ) Government amendment No. 116, amendment No. 2, in clause 41, page 39, line 47, after order' insert
or notice under section (Child production notice).'.
Government amendments Nos. 376, 396 and 159.
Mr. Mellor : This group of amendments brings us back to the heart of the Bill or at least to what the many members of the public who have been following our proceedings will consider to be the heart. It is certainly the heart of the Bill when we consider the care with which hon. Members on both sides of the House have approached these issues throughout the Bill's passage.
As I explained in Standing Committee, the difficulty is to know whether the emergency protection order is adequate or whether we require an additional order--a child assessment order--to run in parallel with it. Further refinements of the emergency protection order will be proposed tonight to provide for the circumstances within which a failure to produce a child is coupled with a genuine and immediate fear for the child--leading to the granting of an emergency protection order. There are other circumstances in which there might be serious cause for concern about the welfare of a child. There may be a repeated failure to produce a child and perhaps it cannot be asserted that the matter is quite so urgent that there is an immediate need to intervene to take the child away. It is at the heart of our concerns that the emergency protection order is used only in those very serious circumstances, so the issue is whether there should be a lesser order requiring the production of a child and one which allows for the assessment of the child.
I listened with great care to what was said in Standing Committee. I want to thank all the hon. Members who took part in our debate in Committee. I am also grateful for the tentative discussions involving certain Members which have taken place subsequently--as late as this week. I want also to thank various groups concerned with this issue which have contributed to our discussions. It has been a significant development in this debate that the Association of Directors of Social Services and the National Society for the Prevention of Cruelty to Children have discussed the issue and are committed jointly to the need for a child assessment order.
New clause 13 represents the best attempt that the Government can make to take on board the various views and produce an easy-to-use, readily explicable proposition, which has the proper safeguards that one would expect when any intrusion into the rights of parents over their children is considered. I do not believe that the child assessment order, as we have it, is an unnecessary intrusion. By reducing the period from 28 days to seven days, we have shown a marked concern that the order
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