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"in such a way as to cause, or to risk causing . . .
(ii) pain or discomfort lasting more than a very short time".

I entirely agree with the noble Lord, Lord Macaulay. The concept of "a very short time" seems hard to tease out in this context, and I believe that in the courts it would give rise to real uncertainty. Would the length of the punishment depend at all on the seriousness of the misdemeanour? More importantly, since the test would arise where there was no injury, it is extremely hard to see how anyone could ever tell whether the pain lasted more than a very short time, or whether there had been that risk. An element of subjectivity is involved which would make such a provision difficult for prosecutors and courts to apply.

Beyond that, there are other points which concern me. In subsection (1)(a), the phrase an "object of whatever description" is used. That would cover things which would lead to quite unreasonable worries on the part of parents that they might have committed an offence by, for example, slapping a child while the parent had a duster in their hand. The provisions might also cover a slap with a gloved hand. If, in another place, the concern was to avoid giving a confusing message to parents, what really concerns me is that far from clarifying that confusion, this new clause would, unfortunately, simply add to it. Again, what is meant by "injury" in subsection (1)(b)(i)? Does it mean only physical injury, and, if so, would it include a bruise?

Finally, I am not entirely clear what the effect of subsection (2) is intended to be. On that basis, I certainly cannot reach a view that it does anything to clarify the law.

It is my concerns in general about the confusion that the amendment would add to the law, rather than the clarification that it would provide, that cause me to suggest, either now or at a later stage, that it should be opposed. I appreciate that the noble Lord may wish to return to the matter at another stage, but I hope that what I have said fully sets out the attitude of the Government to the proposal.

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The Earl of Kintore: The Minister popped up far more quickly than I thought he would. May I say to the noble Baroness, Lady Faithfull, that not all beaters then beat their children? I was well deservedly beaten as a schoolboy, but I have not beaten my children, and as they are now 17 and 19, I think that I am unlikely to start.

The Minister mentioned subsection (2) of the new clause. The noble Lord, Lord Henderson of Brompton, and, I think, the noble Lord, Lord Macaulay, in his Second Reading speech, suggested that all sorts of nastiness went on at Scottish private schools. I just happened to ring up my son's old housemaster last night to find out what happened at Gordonstoun. I was told that Gordonstoun no longer carries out corporal punishment, and has not for many years, and expressed an opinion that corporal punishment does not exist in any of the Scottish independent schools.

Lady Saltoun of Abernethy: In many ways I do not see the point of this clause because I think that the only people whom it will affect are the people who already know the law and keep it. Those who are in need of this clause will not pay any attention to it anyway any more than they do to the law as it stands.

Lord Henderson of Brompton: I am very grateful to those who have spoken and in particular to the noble Baroness, Lady Faithfull, and the noble Earl, Lord Mar and Kellie, who have supported the amendment.

I have to say that I find it very surprising that a body of such authority as the Scottish Law Commission should be opposed in such root and branch fashion by the noble and learned Lord, Lord Fraser of Carmyllie, and indeed, by the noble Lord, Lord Macaulay of Bragar. I, of course, fully respect what they both had to say and one must take into account their authoritative opinions which run counter to those of the Scottish Law Commission. I shall fully take into account what they said and bear in mind the objections of other noble Lords who have spoken today when I consider what I should do with the amendment and whether I should proceed with it at Report stage.

Amendment, by leave, withdrawn.

Clause 4 [Acquisition of parental rights and responsibilities by natural father]:

Lord Macaulay of Bragar moved Amendment No.4:

Page 4, line 6, after ("State") insert—
("( ) executed by both parties before a notary public;").

The noble Lord said: Clause 4 has a side title:

"Acquisition of parental rights and responsibilities by natural father". The clause provides that where a child's father has no parental responsibilities or parental rights in relation to him, the father and mother, whatever age they may be, may by agreement provide that, as from the date of the agreement, the father shall have the parental responsibilities and parental rights, and so on. It provides that no agreement under subsection (1) shall have effect unless in a form prescribed by the Secretary of State or registered in the Books of Council and Session.

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The amendment seeks to provide that parties who have conceived a child should, if they are making a legal agreement with all the legal consequences that flow from it, have the right to take legal advice before they sign it.

The amendment is not put down lightly and I think we also discussed this matter at Second Reading. If the father admits that the mother was under 16, then he is admitting committing a criminal offence. That is not covered by the Bill as it presently stands. I think the noble Lord and learned Lord the Minister had notice of this at Second Reading as to what the consequence would be where a father acknowledged the parenthood of a child conceived by a young lady under 16 years of age and what the consequences might be for him in the criminal courts.

One of the problems is that young relationships like that are all right at the time the child is born, but then the mother may very well split up with the father and then complain that the husband had sexual relations with her when she was under 16. Putting a form of agreement into the Books of Council and Session would be an admission by the father that he had fathered the child while the mother was under 16.

The purpose of the amendment is to give people the opportunity to take proper legal advice as to how the life is going to go on. The Bill seems to perhaps envisage the problem at the bottom of page 3. It says,

    "the father and mother, whatever age they may be",

which obviously anticipates, perhaps in keeping with modern times, that the age of 16 for conception and giving birth to children is perhaps unrealistic. I may sound an old fuddy-duddy, but there you are. The Bill refers to,

    "the father and mother, whatever age they may be".

The purpose of the amendment is to make sure that people have proper legal advice before they enter into a binding agreement which might have severe social and personal consequences. I beg to move.

Lord Fraser of Carmyllie: For the reasons that the nobel Lord has advanced, I have some sympathy with what he proposes. I agree that where parents are about to undertake parental responsibilities and rights agreements, they should give due thought and consideration before doing so. It is therefore correct that that should not just be a casual act, but that the process should involve a formal step.

I believe that that is, in fact, achieved within the existing provisions of Clause 4. In addition, it is our intention, in producing the guidance notes which will accompany the agreement forms, to make it clear to such parents that they are taking a substantial step which will involve a change in their status, and on which they may wish to seek legal advice before committing themselves.

However, although I agree with the nobel Lord's desire to ensure that there is a formal step, I am not convinced that this is the appropriate way to achieve it. It would involve the parties in additional effort and cost. The noble Lord might respond by saying "and so it

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should", if such a change of status is going to be accomplished. But I am more concerned that there may still be parts of Scotland where a notary public might not immediately be available. Having to register in the books of the Court of Session is just the sort of formal step that should make people appreciate what is going on. First of all, they would have to find out what the books of the Court of Session were before they went any further.

Although this may not happen all that often, I am also concerned about how the provisions would work if one party was located in Scotland and the other in England. It may be only a temporary separation, but it might be a difficult arrangement to achieve if they both had to appear before the one notary public.

I therefore remain of the view that the existing provisions are sufficient. We are trying to strike a balance between the desirability of having that formal step, and keeping the process as straightforward as possible. I believe that we have more or less achieved the right balance and, for the reasons I have explained, I do not think it desirable to make the amendment that the noble Lord wants.

Lord Macaulay of Bragar: I am reminded by the Minister of an old Irish tale. When the judge said to the counsel, "Has your client never heard of the doctrine of res ipsa loquitur?" he said, "They talk about nothing else in Ballybunnion every night!". I am sure that in the provinces of Scotland they talk about nothing else but the books of the Court of Session, and say, "Well, we had better get the bairn registered now rightaway"! But that is perhaps a frivolous note.

We are not concerned here only with the rights of the individuals. There is, of course, a consequence for the child. The child is now identified in the register as being the child of the two parties, and that is quite important. There is nothing in this part of the Bill. The more I read the Bill, the more I see bits and pieces that indicate perhaps we should approach it very carefully.

There is no protection for the child. The mother and father of whatever age may agree that they are the father and mother of the child. It may be covered by Clause 11, but the child is then forever registered either in a form described by the Secretary of State, whatever that might be, or in the books of the Court of Session as being the child of the two parents, whether he or she is in fact the child.

I am not being frivolous. This is important from the point of view of the child. I wonder whether the Minister might look again at the clause and consider what the consequences are that flow to the child from the parental agreement, or alleged parental agreement. I would be grateful for that. I have not given notice of this matter because it has just occurred to me as I speak. However, it might be worthwhile having a look at it.

Also, with the phrase, "whatever age they may be", we have to be satisfied that when people enter into agreements with such consequences as accepting parental responsibilities and identifying the child as theirs, they are capable of giving that agreement. To that extent, I think that Clause 4 perhaps needs to be looked at again. That is why I come back to base, so to speak.

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I moved the amendment to make sure that people know what they are doing when they register the child. Whether they knew what they were doing when they conceived the child in another matter, but the child is the effective result of the relationship. I would have thought that perhaps it might be of some importance to take the clause back and look at it again. We shall return to it on Report.

In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Views of children]:

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