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Lord Mackay of Ardbrecknish: Whenever the Secretary of State makes a discretionary decision he is required to consider the welfare of any of the children concerned in the case. Amendment No. 25 would require information about the matters which have been considered in relation to welfare to be conveyed to both the parties to an application for a departure.
If consideration of the welfare of the child affects their decision, the matter will already be covered by the existing wording of Clause 6. Where it does not affect the decision, the amendment would lead to gratuitous information about one parent's family circumstances being passed to the other parent. We shall have to give a great deal of information to each parent about the other. I do not want to add unnecessarily to the information about the family circumstances of one parent that is conveyed to the other parent. For that reason I ask the noble Lord to withdraw his amendment to Clause 6, bearing in mind that if consideration of the welfare of the child affects their decision, that is already covered by the wording in the clause.
The noble Earl, Lord Russell, in proposing other amendments relating to the welfare of the child, is addressing issues which are already part of the substance of child support legislation. Section 2 of the 1991 Act exists to ensure that the welfare of the children is given due weight when discretionary decisions are taken on cases.
The noble Earl wishes to incorporate the 1989 Children Act definition of welfare into the Child Support Act. But Section 1 of the Children Act relates to specific, limited circumstances and to the decisions of courts in those circumstances. The wording of the Children Act section does not readily translate across to child support. Section 2 of the 1991 Act ensures that whenever discretion is being applied, the welfare of any child likely to be affected is considered. I have no evidence which suggests that officials are neglecting their responsibility in this matter. Crucially therefore, the 1991 Act already ensures that due weight is given to the welfare of the children concerned.
Lord Carter: I am grateful to the noble Lord for allowing me to intervene. We have seen evidence which perhaps is anecdotal. However, if I send it to the noble Lord perhaps he will consider it in the light of what he said.
Section 1 of the Children Act is specifically about the determination of questions which are central to the child's lifehis upbringing; or the administration of his property or the application of any income arising from his property.
Parliament supports the principle that parents should maintain their own children if they can afford it. The Government believe child support improves the position of children whose parents live apart by opening up opportunities for the parent with care to become self-sufficient by taking up employment, which not only improves the family's standard of living but also has wider implications for the messages given to children about individual responsibility. It was never the intention of Parliament that Section 2 of the 1991 Act should be used to undermine the basic principles of that Act. Yet the noble Earl's amendment would have precisely that effect. It would tie the decision-making process up in knots whenever discretion was involved.
Section 2 of the 1991 Act relates to the exercise of discretion in any case, and the section has no application to the making of regulations. The section is confined to the exercise of discretionary powers by the Secretary of State or a child support officer in individual cases. The noble Earl, Lord Russell, goes further than Section 2 of the 1991 Act by requiring the welfare of the child to be considered whenever the Secretary of State exercises his regulation-making and amending powers. The wording of Section 2 is not appropriate to the general power of the Secretary of State to make regulations under other sections of the Act. If Parliament wished to impose this requirement, then it would be more appropriate to do so either in the individual sections which give the regulation-making power, or in Section 52 of the 1991 Act, which gives a general regulation-making power.
Having said that, I may invite the noble Earl to try an amendment in that regard. However, my answer may be the same so perhaps I can help him, or at least help the rest of us and save the noble Earl the problem of devising more amendments. Bearing in mind the number of amendments the noble Earl has tabled, I am surprised that I have seen him around the place in the past week or so. Such is the quantity of drafting and knowing the time it takes to get drafting out of parliamentary draftsmen, I congratulate the noble Earl on the way he managed to draft these detailed and complex amendments.
I do not believe that it would be right to attach the welfare of the child provision to the Secretary of State's regulation-making powers. Parliament decided that child maintenance should be set within a clear framework, which takes due account of the needs of all the parties involved. It also decided that, fundamentally, the welfare of the child is best served through the support of his own parents based on their ability to pay. There are already safeguards to ensure the proper use of regulation-making powers, such as those relating to intra and ultra vires, and unusual and unexpected use of powers.
The noble Earl's amendment would make the Secretary of State liable for the actions of child support officers in the context of Section 2, but would nevertheless create a situation in which individual staff members making decisions on a daily basis would be fearful that their decisions, honestly made, would be subject to court action simply because one or other of the parties objected to them.
As I have explained, consideration of the welfare of the child is already given due weight in child maintenance matters. That is why I do not believe it would be appropriate to write into the Bill this amendment as proposed by the noble Earl, Lord Russell.
The noble Lord, Lord Carter, asked if we would publish the guidelines on the welfare of the child. Instructions to consider the welfare of any children involved are currently in several procedural guides used by the Child Support Agency staff, and the agency makes those guides available on request. However, the department is in the process of preparing a comprehensive guide for the use of staff making discretionary decisions on behalf of the Secretary of State and in due course that guidance will also be made available on request.
Earl Russell: I do not know by what authority the Minister tells us what was the intention of Parliament in 1991. This provision was introduced in this Chamber. At least three people are present who shared in the responsibility for introducing it. The Minister was not present. How does he know what the intention of Parliament was in 1991? It was certainly my intentionthe noble Lord, Lord Carter, and the noble Baroness, Lady Faithfull, may or may not say it was theirsthat the welfare of the child should be taken into account in making assessments; that we should not have an assessment which was contrary to the welfare of the child. That is not happening.
Is the Minister really sure that Section 2 is being so fully taken into account? I quoted a commissioner's decision. I shall give the Minister the reference for that decision and I hope he will check it before we return to this at another stage. I refer to case CCX/011/1994 Kirkley, decided on 15th May of this year.
I hope that the Minister will think again about whether the welfare of the child is being adequately taken into account. It is not being adequately taken into account if it does not influence the assessments. Before the Minister again invokes the interests of the taxpayer, I remind him that I am a taxpayer and I would be ashamed to build my prosperity on the unnecessary and useless ruin of other households, especially since I think that I would end up paying more taxes in the end because they would not be able to pay any more. So, altruism and self-interest always work in the same direction
Earl Russell: My noble friend Lady Seear says "Not always", but that depends on whether self-interest is adequately understood because often it is not. On that point, my noble friend is entirely right. It is not always perceived.
I see nothing whatever wrong with imposing further conditions on the vires of regulations, but if this is not the right place to do it, I shall think about it. I am afraid, however, that the Minister may hear more of this later. I am not satisfied by his replies and until the welfare of the child is actually taken into account, I will not be satisfied.
Lord Carter: I am extremely grateful to both the Minister and the noble Earl, Lord Russell. I am prepared to concede that the noble Earl made a very good point, although he was extremely rude about one of our amendments earlier. Besides the welfare of the child being paramount, the welfare of the noble Earl is always paramount for those of us who have had to deal with social security matters over many years.
He is right that we accepted in the 1991 Act that it was wrong to regard the concept of the welfare of the child as paramount. I am sure that the noble Baroness, Lady Faithfull, remembers that we moved an amendment in Committee to establish that concept and that the noble and learned Lord the Lord Chancellor pointed out that we could not make it paramount because of all the other considerations that had to be taken into account. We accepted that on the legal basis. However, we have since found that, in practice, if it is not being ignored, it is largely neglected. We shall have to return to that point in one way or another and send the Minister evidence, which I am sure he will consider, of cases where that is actually happening.
I do not think that I have ever seen those words before in legislation. Perhaps it was "extraordinary or amazing" that the noble Earl made a Freudian slip, thinking of the possibility of a Liberal Government. I understand that that event is likely to coincide with the bicentennial celebrations of the 1906 Liberal Government.
The Minister has answered our point on Amendment No. 25 in which we sought to deal with a narrower point. We are still not totally happy about the way in which this matter is being handled. As the noble Earl said, we should remember the intention of Parliament. It was not only the expression of this House but actually an amendment moved by the Government in another place, which ended up as Section 2 of the 1991 Act. That led the Government to spell out how they saw the welfare of the child. We do not think that now, in practice, the welfare of the child is being taken into account as it should be. Perhaps we were wrong not to insist at the time on wording to make the welfare of the child paramount, but we understood the legal reasons for that. We are now not sure that that wording is right. As I said, we shall have to return to this point on Report but, at this stage, I beg leave to withdraw the amendment.