House of Commons Hansard Debates for 23 Oct 1989

(b) any other person (including one in whose favour the order is also in force) is in breach of the arrangements settled by that order,

the person mentioned in paragraph (a) may, as soon as the requirement in subsection (2) is complied with, enforce the order under section 63(3) of the Magistrates' Courts Act 1980 as if it were an order requiring the other person to produce the child to him. (2) The requirement is that a copy of the residence order has been served on the other person.

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(3) Subsection (1) is without prejudice to any other remedy open to the person in whose favour the residence order is in force.'.-- [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.

The new clause gives a person with benefit of a residence order a means of enforcing that order in a magistrates court under section 63 of the Magistrates' Courts Act 1980. That means that a magistrates court may order a person acting in breach of the order to pay a sum not exceeding £50 for evey day during which he is in default or a maximum sum of £2,000 in total, or it may commit him to custody until he has remedied his default or for a period not exceeding two months. The person in breach must first be served with a copy of the order so there is no chance of him attracting penalties in ignorance. I have referred to magistrates courts, but breaches of orders in higher courts could be dealt with as contempts. I commend the new clause to the House.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 22

Right of guardian ad litem to have access to local authority records

.--(1) Where a person has been appointed as a guardian ad litem under this Act he shall have the right at all reasonable times to examine and take copies of--

(a) any records of, or held by, a local authority which were compiled in connection with the making, or proposed making, by any person of any application under this Act with respect to the child concerned ; or

(b) any other records of, or held by, a local authority which were compiled in connection with any functions which stand referred to their social services committee under the Local Authority Social Services Act 1970, so far as those records relate to that child. (2) Where a guardian ad litem takes a copy of any record which he is entitled to examine under this section, that copy or any part of it shall be admissable as evidence of any matter referred to in any-- (

(a) report which he makes to the court in the proceedings in question ; or

(b) evidence which he gives in those proceedings.

(3) Subsection (2) has effect regardless of any enactment or rule of law which would otherwise prevent the record in question being admissible in evidence.'.-- [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.

This new clause will allow a guardian ad litem appointed under this Bill access to local authority records relating to the child with whom the guardian is concerned. The clause will apply to records held by the local authority which were compiled for the purposes of making an application under the Bill, or in connection with any function which is referred to the local authority's social services committee. These functions are set out in the first schedule to the Local Authority Social Services Act 1970, and include the care, treatment and supervision of children and young people through the court process, and the supervision of a child subject to a court order in matrimonial proceedings.

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If a guardian ad litem is to protect a child's interests when that child is subject to an application by a local authority, and if the guardian is to advise the court fully on that application, he must have access to the information held by the local authority when making decisions about that child's future. There are two reasons why this must be achieved by giving the guardian a specific right to inspect the local authority's records. First, we cannot rely upon procedural devices which will insist that local authorities give advance disclosure of their case, as that would make available only information upon which the local authority has chosen to rely. The guardian must also have access to information which the local authority does not rely on. In other words, the guardian must be entirely free to decide what information is relevant to his or her report.

Secondly, we cannot achieve the desired results by making local authorities open to everyone involved in a case because parts of the records are protected by privilege, which is necessary if the authorities themselves are to continue to perform their social work functions. For example, local authorities can protect their sources of information, which might otherwise be lost to them if that protection were removed. The contents of local authority records should not, therefore, be made generally available, but they should be made available to guardians ad litem. I have no doubt that hon. Members will appreciate the importance of the new clause and I commend it to the House.

Mr. Tom Clarke : The Solicitor-General has outlined the role of guardians ad litem in respect of local authorities. He said that it might be necessary for them to have access to local authority records at times so that they could feel free to proceed with their duties. The House will follow the thinking behind the Solicitor-General's remarks. However, for guardians ad litem adequately to discharge their duties, it may be that information from other public bodies is necessary. Does the Solicitor- General have in mind to consult the National Society for the Prevention of Cruelty to Children, for example? Clearly, its involvement with many aspects of this legislation becomes important. Will the Solicitor-General consider, as a next step, whether its records should also be available, in specific cases, to the guardians ad litem?

Mr. McCartney : It is late, but the new clause is important. Many of the problems that arise in relation to child care orders and in courts determining the long-term future of children placed in care relate to judgments of information received and disseminated, whether that judgment is a value or subjective judgment and whether the sources of information have been dubious in the first instance. When I and other hon. Members have dealt with cases in which there has been a serious miscarriage of justice about parental rights when a child has been taken into care, either in the initial stages or later in a magistrates court, much of the discussion thereafter has been about the ability of independent sources to consider and disseminate the information being prepared by the local authority in determination of the case.

Some months ago, just before the summer recess, we had a debate in the House late in the evening about access to information on social services' files and this debate follows on from that. I am one of those who are concerned that on occasions information on those files is misused, or

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that information cannot be used adequately to protect the child or to give adequate information to the court to determine the long-term relationship between the child and the family, whether the parents only or the wider family.

I welcome the opportunity provided by the new clause to discuss the general question of access to information. My hon. Friend the Member for Monklands, West (Mr. Clarke) rightly raised the question of access to information other than that controlled by the local authority. We should also consider access between local authority departments. The development of information between local authority departments is not always clear and local authorities sometimes prevent significant information passing between departments. There are cases where a local authority has parental care over a child, but where the child's education is provided in a special establishment outside the direct control of that local authority. I know of instances in which information gathered between the two authorities has not been of a quality to make possible adequate decisions about the long-term care of a child.

I want to outline a case with which I was involved a few years ago. In that case the information was unreliable and no independent source was able to check it in the subsequent court proceedings and a disastrous chain of events unfolded.

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I will not identify the real names of the individuals concerned and will refer instead to the girl whom I will call Carol and her baby Louise. As a result of the inability of an independent source to check the quality of information provided by the social services to the courts or to have access to information during the proceedings, a chain of events occurred which caused the family to be separated. However, at the end of the day they were reunited.

Carol was visited by a health visitor and confided in the woman that she had a new boyfriend called Nicky. Unknown to Carol, the health visitor already knew Nicky who had suffered from a mental illness. The health visitor reported her concerns to a male social worker. Within 24 hours he called on Carol and asked her to sever the relationship with Nicky. At that stage Carol did not know what had been said between the health visitor and the social worker. She told the social worker that, at that stage, she was unwilling to sever the relationship, but she would consider it in view of what the social worker had said to her. She was revisited 24 hours later and decided to maintain her previous decision not to sever the relationship at that stage.

The following day, without consultation with Carol, her child was removed from the local authority nursery. The local authority report concluded :

"There is no evidence at this stage of any form of abuse either in the home or the nursery."

Carol was immediately refused access to Louise and the magistrates confirmed the order at a subsequent court hearing.

Three months later Louise was put out for long-term foster and subsequently Christmas cards and presents for the baby were returned. A notice was sent to Carol stating that she would not be able to send birthday cards or correspond with the child in any way. At this stage, the mother was distraught at the circumstances and, despite

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my efforts and subsequently those of solicitors, we could not find any independent sources of information to determine the way in which the decision was taken. Six months later the local authority applied to allow the long-term foster parents to retain baby Louise on the grounds that her relationship with her mother had completely broken down and no bonding existed.

The bonding had broken down precisely because the social services department had acted to effectively break off the relationship between mother and child. At no stage was any independent review taken of how the local authority had made its decision. No one could challenge the decision or ask for a review to determine what other information--if any--the local authority had gathered to reach its original conclusion.

Eventually, the foster parents applied to the authority to adopt. Subsequently the foster mother became pregnant and the foster arrangement broke down. Louise was placed in a children's home and then sent out to short-term fostering. After two years of negotiations between the local authority and the

solicitors--instigated at my intervention--the baby was eventually returned to her mother. During that time the mother's relationship with Nicky proved to be stable--she married him and a baby sister was born to the family. At no stage during that traumatic two-year period could anyone intervene effectively to prevent that miscarriage of justice.

I welcome the new clause. If such a clause had existed in the interim, the independent guardian ad litem would have been able to intervene to assess the information provided by the local authority and the actions that were taken based on that information, and then properly represent the child.

I have met representatives of several self-help organisations throughout the United Kingdom. The case that I mentioned is not isolated. All too often decisions are taken by social workers not because they wish to act aggressively to families but because of pressure on them to try to protect children. They operate on the basis that they should act now rather than be sorry if an event takes place later. In many instances social workers work under pressure because of lack of resourcing for care teams in certain areas or because of general departmental underfunding. When protecting a child from any possible abuse we must determine whether abuse is likely to take place and not abuse that child's right to remain with its parents at that stage.

The new clause gives an opportunity also to protect children from abuses of authority when there are no grounds for children to be taken from their parents. There could be effective intervention by examining local authority records and determining whether there was sufficient reason to take certain action.

I hope that the case that I have outlined will be a matter of the past. Luckily, the family whom I mentioned have been brought together. There are many instances in which families are broken up and never brought together, with tragic consequences for mothers and children.

The Solicitor-General : I am grateful to the hon. Member for Makerfield (Mr. McCartney). His wide experience and the instances that he has mentioned help to illustrate the great variety of cases in which the Bill and this new clause might become relevant. I shall answer the personal question raised by the hon. Member for Monklands, West (Mr. Clarke) about

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circumstances in which the records of not a local authority but of some other responsible body--for example, the NSPCC- -might need to be sought. When we adopted new clause 23 we gave an opportunity to give power for rules on access to documents to be furnished. The NSPCC, as an authorised person within the meaning of clause 28(9), could be required to provide access to such documents as the hon. Gentleman had in mind. I hope that is of assistance. I commend the new clause to the House.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 24

Attendance of child at hearing under Part IV or V

.--(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, or is considering whether to make any such order, the court may order the child concerned to attend such stage or stages of the proceedings as may be specified in the order.

(2) The power conferred by subsection (1) shall be exercised in accordance with rules of court.

(3) subsections (4) to (6) apply where--

(a) an order under subsection (1) has not been complied with ; or (

(b) the order has reasonable cause to believe that it will not be complied with.

(4) The court may make a order authorising a constable, or such person as may be specified in the order--

(a) to take charge of the child and to bring him to the court ; and

(b) to enter and search any premises specified in the order if he has reasonable cause to believe that the child may be found on the premises.

(5) The court may order any person who is in a position to do so to bring the child to the court.

(6) Where the court has reason to believe that a person has information about the whereabouts of the child it may order him to disclose it to the court.'.-- [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.

The effect of this new clause is to enable a court hearing an application for an order under part IV or part V of the Bill, which relate to care and supervision orders, or education supervision orders and other orders of that kind, to order that the child attend part or all of the proceedings. Such powers must be exercised in accordance with rules of court.

Subsections (4) to (6) give the court enforcement powers in the event of non-compliance. That is another addition to the Bill in the series on procedure and practice in family proceedings in the courts having concurrent jurisdiction. The purpose is to reproduce--in a decriminalised form, I hasten to say--the provisions of the Children and Young Persons Act 1969. At present, care proceedings are brought in juvenile courts by bringing the child before the court. In future, care will be sought by an application to the court by the local authority or authorised person.

The Bill's principal reforms on representation of the child and court procedure and practice should make it unnecessary for the child to attend the hearing in many cases. I hope that this will be much welcomed and that this point illustrates the points that I made in our longer debate earlier. The presumption that there will be a guardian ad litem for the child reporting to the court and his right of access to local authority records, which we have just dealt

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with, and the requirements on advanced disclosure of the case, disclosure of documents and preliminary hearings which it is intended to make in rules of court should make it unnecessary for the child to attend. I know that all these new and welcome provisions will be much welcomed by the hon. Member for Ynys Mo n (Mr. Jones) who dealt with this informality.

However, the child's attendance will be necessary in some cases. The circumstances of the case may be such that the court would be helped by hearing from the child directly, at first hand, for a number of reasons. There may be contradictions in the arguments that have been put forward either by the legal representatives or by the guardian ad litem which may need to be sorted out. The new clause gives the court a discretionary power to call the child when hearing such applications.

There is also a decriminalising reform of the present model for enforcement. At present, under the 1969 Act, a child can be arrested and detained for up to 72 hours. That is not the kind of thing that we want to repeat, but there is a power that a child should be brought to the court for this purpose should it be necessary. One hopes that it would happen only in rare cases. I commend the new clause to the House.

Mr. Hardy : I take the view that, if a child's future is being determined by the court, there may well be a risk that the court will be excessively reluctant to bring the child to the court, but the child may be passionately keen to know what the court is saying. I am reminded of a case that I know well in which a boy of 11 was attending a case conference where they were telling him about the family that he was to join on the following day. He decided that night that he did not want to wait until he was taken there by the social worker and he went to case the joint himself. He was concerned about the place to which he was to go. I think that he wanted to inspect the two motor cars on the drive. He could not wait. He was concerned about his position and his future. A child might be in a children's home or some other establishment while a court is determining his or her future and discussing it, as it would under parts IV and V. There may be a risk that the court will be excessively protective.

Therefore, I was concerned to see the word "may" appear twice in subsection (1). I am sure that the Solicitor-General will have noted it. I am worried in case the double "may" in one sentence is evidence that the court will be excessively protective. I am not saying that it should be an invariable practice, but in the case of a relatively mature, tough or worldly wise boy or girl of 10, 11, 12 or 13, the court could be over-sensitive or over- protective if it sought to leave the child in an establishment a few miles away while his or her future was being disposed of by the court.

I am strongly in favour of the right being created but I want the right to be exercised in such a way that, especially if the child wishes, he or she may be involved.

The Solicitor-General : What the hon. Member for Wentworth (Mr. Hardy) says carries much force. The new clause not only gives the court the discretion and the right to exercise the power to require the child to come to court, but there is no reason why the court should not intimate to the child that it would like it to come and that it is open to the child to come. The child, as a party, is entitled to

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attend, and that entitlement alone might be brought to its attention. I take the hon. Gentleman's point. I commend the new clause.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 25

Orders pending appeals in cases about care or supervision orders

.--(1) Where--

(a) a court dismisses an application for a care order ; and (

(b) at the time when the court dismisses the application, the child concerned is the subject of an interim care order,

the court may make a care order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(2) Where--

(a) a court dismisses an application for a care order, or an application for a supervision order ; and

(b) at the time when the court dismisses the application, the child concerned is the subject of an interim supervision order, the court may make a supervision order with respect to the child to have effect subject to such directions (if any) as the court may see fit to include in the order.

(3) Where a court grants an application to discharge a care order or supervision order, it may order that--

(a) its decision is not to have effect ; or

(b) the care order, or supervision order, is to continue to have effect but subject to such directions as the court sees fit to include in the order.

(4) An order made under this section shall only have effect for such period, not exceeding the appeal period, as may be specified in the order.

(5) Where--

(a) an appeal is made against any decision of a court under this section ; or

(b) any application is made to the appellate court in connection with a proposed appeal against that decision,

the appellate court may extend the period for which the order in question is to have effect, but not so as to extend it beyond the end of the appeal period.

(6) In this section "the appeal period" means--

(a) where an appeal is made against the decision in question, the period between the making of that decision and the determination of the appeal ; and

(b) otherwise, the period during which an appeal may be made against the decision.'.-- [The Solicitor-General.]

Brought up, and read the First time.

11.15 pm

The Solicitor-General : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Harold Walker) : With this it will be convenient to discuss Government amendment No. 320.

The Solicitor-General : The new clause deals with orders pending appeal and will give the courts power to order that a child remain in care, or place him under supervision, pending an appeal when dismissing an application for a care order.

In a similar way, the courts will be able to order that a child stay under supervision pending appeal, when a supervision order is refused. Such powers will be available only when the child is already subject to an interim order.

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Courts will also be empowered to order that the child remain in care pending appeal when discharging a care or supervision order. Further, under amendment No. 320, the power to stay the effect of orders will also be extended to those which approve arrangements for children in local authority care to live abroad.

The powers are necessary to avoid needless disruption to the child where there is a good chance that an appellate court will reverse a first instance decision to refuse an order.

The new clause balances the need to consider the child's best interests, by protecting him from unnecessary disruption, against the basic premise that the child should not be kept away from his parents where the local authority has failed to obtain an order. The restrictions placed upon the availability and duration of the orders strike that balance in the best way possible.

Amendment No. 320 completes the picture concerning orders pending appeal. The amendment relates to the situation where the court is asked to approve arrangements for a child in local authority care to live abroad. There must be power to stay this approval pending an appeal as rights of appeal would be useless if the child could be removed from the jurisdiction before an appeal is heard.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 26

Tests to establish paternity

. In section 20 of the Family Law Reform Act 1969 (power of court to require use of tests to determine paternity), the following subsections shall be inserted after subsection (1)

"(1A) Where--

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