Special Standing Committee
Tuesday 4 December 2001
[Mr. George Stevenson in the Chair]
Amendment proposed [this day]: No. 134, page 51, line 21, after 'camera', insert
', except where the judge deems it to be in the public interest to make all or part of the proceedings public and, in all cases so deemed, the child's identity shall be protected.'.—[Mr. Loughton.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 10, in page 51, line 21, at end add—
'(2) Notwithstanding subsection (1), any proceedings may be reported subject to the following conditions—
(a) the name of any adult or child involved in the proceedings must not be reported;
(b) no place other than that of a local authority may be reported;
(c) the name of any school or other institution, the naming of which might reasonably be expected to make possible the identification of any adult or child involved in the proceedings, must not be reported.'.
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): It is a great pleasure that you are the Chairman, Mr. Stevenson, in my first afternoon sitting as a Minister on a Standing Committee.
This morning, we were discussing amendments to clause 96. I was in the midst of saying that I hoped that Opposition Members took my point that many of the cases that they mentioned would apply to the criminal courts, whereas clause 96 applies only to the civil courts. I was saying also that there might be some room for improvement in the drafting of clause 96. However, before I set out where I think that might be, I should explain a little more about the confusion reflected in the amendment.
There is a difference between who is allowed into a court and what is reported about court proceedings. The current rule is that only the High Court can allow the public to be present in court during an adoption case. The Bill maintains that position. The current practice is that the High Court tends not to allow the public to be present to hear evidence from, for example, the family, social worker, guardian or psychiatric experts, because it preserves the principle that the child's welfare and privacy should be respected. I am sure that all Committee members will appreciate that witnesses in such circumstances are asked to give evidence about painful and sensitive topics. We feel that to have an open court would not be appropriate, and I hope that other hon. Members agree. However, the High Court gives all or part of its judgment in an open court when it feels that that is in the public interest. Some cases might involve part of the judgment being given in open court and the rest given in private, and many of the details of individual children would be in the latter part.
It may help to give some examples of when a judgment would be given in open court, as it may touch on some of the points raised by Opposition Members. A judgment could be given in open court when it raises issues of public interest, perhaps issues about the behaviour of a local authority or an adoption agency that has failed in its public duties because of the circumstances of the adoption; or there could be an issue about the state of the law, for example, if the judge feels that the law is confusing or has not been properly enforced and that it is in the public interest to have that part of the judgment heard in open court. However, if the judgment is given in open court the judge will use initials in respect of the child and the parents and usually the local authority so that anonymity is preserved. That judgment is subsequently reported in the law reports.
In a recent case involving care proceedings, the judge named the local authority when criticising it in the judgment in open court. It has to be said that judgments in open court in connection with the Bill would be more unusual because adoption proceedings tend to focus on whether a child should or should not join a new legal family and it is quite unusual for that to be a matter of public interest. In the same way, some of the cases the Opposition Members have—quite rightly—raised would not necessarily be covered under the Bill because it relates specifically to adoption proceedings.
We believe that it is right that only the High Court should be able to sit in open court, because the High Court tends to deal with issues of genuine public interest and concern, which makes the open court approach more suitable. I should also say that the rules also allow for a transfer of a case from a county court to the High Court if it is felt that the case is of such import that it should be reported in open court. That is the issue surrounding open or closed courts—courts into which the public are allowed or courts into which they are not allowed.
The issue of what is reported about court proceedings has been a cause of concern. The reporting of court proceedings can refer to a person—who is allowed to be in court—telling someone else what went on in court; or to media reporting by ordinary reporters who sit in the court with items going into newspapers, magazines and so on; or to reporting of transcripts of judgments given by the higher judiciary, county court or High Court judges in the official law reports. Currently, courts consider what they think should be reported in each individual case, with the default position being no reporting to protect children. Both the county court and High Court have the ability to make judgments public while protecting the anonymity of the child if it is in the public interest to do so. The Bill makes no change to the law on reporting. The law must strike a balance between freedom of information and protection of the privacy of children. We must remember that we are dealing with adoption cases, not the other cases that we discussed this morning.
The current drafting of the clause certainly allows room for improvement. We could examine whether there should be an automatic bar on identification in the county courts and High Court to match that in the magistrates courts. I will take the amendments away and consider them. We will decide whether county courts should have the ability to revert to open court, but good reasons would be needed to persuade us firmly. Individuals can still go to open court through the High Court, and if necessary transfer from county court to High Court. We might be able to tighten up the clause by writing in the issue of anonymity. I hope that those assurances will persuade the hon. Member for East Worthing and Shoreham (Tim Loughton) to withdraw his amendment.
Tim Loughton (East Worthing and Shoreham): I, too, welcome you back to our deliberations, Mr. Stevenson. You missed some interesting discussions this morning, and we appear to be making swifter progress.
I feel rather guilty because I accused the Minister of being slightly disappointing in her earlier responses, and she obviously took it to heart. After the benefits of reflection and a good lunch, she has returned and responded obligingly, seriously addressing several of our points. The point about dealing with civil courts was a fair one. Proceedings went well before lunch, despite the utterance—twice—of ''anonymised'', which I refuse to accept is a word in the English language, although I understand the drift. Before lunch, the Minister said that there was ''room for improvement'' in drafting of the clause. A few sentences ago, that was upgraded to ''certainly room for improvement'', and she has now offered to take away the amendments and study them, presumably with a view to tabling new ones that will make clause 96 clearer and closer to the best interests of the child. With great pleasure, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 96 ordered to stand part of the Bill.
Officers of the Service
Tim Loughton: I beg to move amendment No. 150, in page 51, line 35, after 'application', insert
'or by any local authority in whose care the child has at any time been placed.'
We now come to an interesting clause that deals with officers of the Children and Family Court Advisory and Support Service, which has been a bone of contention in the months since it was set up. The Minister said some interesting things about CAFCASS, but I will leave that my general concerns to debate on amendment No. 136. You may oblige us with a clause stand part debate, Mr. Stevenson, depending on the length of discussion of the clause.
The clause deals with the nature of the officer appointed by CAFCASS, or ''the Service'' as it is described in the clause, to act on behalf of the child, the child obviously not being in a position to act for himself. The response from lawyers is that there are many tongue-twisting descriptions of people in the Bill: the Criminal Justice and Court Services Act 2000 got rid of the court welfare officer and the guardian ad litem, and lawyers are now faced with calling the relevant individual the ''children and family court reporter'' or the ''children and family court advisory and support service officer'' or the ''officer of the Service'', as described in clause 98. It is not beyond the wit of the Government to propose a snappier title to describe that important person.
There needs to be a specific link between the person who acts on behalf of the child in care proceedings and the person who acts in adoption proceedings. The restriction in subsection (2) is that, for understandable reasons, the person appointed should not be employed by the local authority that has made the application. Our amendment would extend that exemption to employees of a local authority that has had care of the child in the past. There is a risk of partiality, however it may be expressed, on the part of someone who has known a child in their capacity as an employee of a local authority that has had charge of that child. The officer of a local authority may also have a view about how the subsequent local authority has dealt with the child, which may make his treatment partial. I am not casting aspersions or suggesting that that is likely to happen, but it would be a sensible safeguard if the Government recognised that employees of a local authority should be exempted if the child has been in the care of that local authority.
The same exemption should apply to a local authority that has had more recent care of the child. I do not know whether the Government would want to qualify how recent that care has to have been, but we are open to suggestions in the case of a child with a long-standing record of placement orders. The amendment would simply extend the exemptions under subsection (2)(a).