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Lord Carter: My Lords, it was tabled in my noble friend's name in Committee but I took it on for Report and Third Reading.

Earl Russell: My Lords, I beg the noble Lord's pardon and I congratulate him on it. We thought that it would make more difference to the welfare of the child than in the event has been the case. We thought that the child would be the better for it. Unless there is power to vary the assessment because it is acting against the welfare of the child that section is nugatory. It was not our belief when we passed the provision in 1991 that it was as nugatory as it has turned out to be. I believe that it needs strengthening.

Lord Mackay of Ardbrecknish: My Lords, the noble Earl, Lord Russell, surprised me by speaking for a shorter time than I anticipated and certainly for a shorter time than he spoke in Committee. I hope that that augurs well for the rest of the evening and that he has decided to make shorter speeches.

The noble Lord, Lord Carter, and the noble Earl, Lord Russell, propose in their amendments to make all the decisions in relation to child support subject to the welfare of any child concerned and not just discretionary decisions. Of course, discretionary decisions are subject to the welfare of the child. The overall effect of the amendments would be to return to a discretionary system for determining maintenance and for dealing with other aspects of child support. I know that that is not the intention of the amendment tabled by the noble Lord, Lord Carter, but it is certainly the intention of those tabled by the noble Earl, Lord Russell, and I do not believe that he would deny that.

Section 2 of the 1991 Act exists to ensure that the welfare of the children who may be affected is given due weight when discretionary decisions are taken on cases. I have no evidence, and I do not believe that any evidence was laid, to suggest that officials are failing to do that. Therefore, we should be clear that the 1991 Act already ensures that proper consideration is given to the welfare of the children concerned.

Several references have been made to the debate on amendments tabled on this issue in 1991. I wish to return to that Act later. As the noble Earl reminded the House, I was not present at the time and he kindly suggested that I can, so to speak, escape responsibility. I must tell him that it is kind of him but I do not particularly wish to escape responsibility. I believe—and the noble Earl has heard me say so previously—that it is right, proper and just that absent parents should pay for the children of their first marriage if they can afford

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to do so. That should not become a cost on other taxpayers, many of whom have families and will be no better off than the absent parent.

My noble and learned fellow clansman the Lord Chancellor said in 1991 that it is an underlying objective of the child support scheme to provide for the welfare of children and one of the most important issues which affects them; namely, the provision of maintenance by the parent who is not the person who has care of the child. Your Lordships will not be surprised to learn that I totally and completely endorse the words of my noble and learned clansman. In this case, not only am I being loyal to the Government, although I was not a Member at the time, but I am following that good Scottish trait of being loyal to my clansman. In this case, he is a slightly superior clansman, so that is further reason for being loyal to him.

Lord Carter: My Lords, surely it should be "clansperson" and not clansman.

Lord Mackay of Ardbrecknish: My Lords, I must tell the noble Lord, Lord Carter, that in the days when the language of the Scottish clans was devised, political correctness had not yet entered the landscape. "Clansman" also encompasses—and for my part will continue to encompass—clanswomen. All your Lordships will have heard of the major endeavours of that famous clansman, or clanswoman, Flora Macdonald, when she helped Bonnie Prince Charlie to escape. But that is a story which is a long way over the sea to Skye from this discussion.

The whole purpose of the legislation is, self-evidently, to benefit the child in that it provides for the assessment of the parents' financial liability for their children. The formula takes proper account of the financial needs of the children, both of the children for whom maintenance is an issue and of other children in the households concerned through the various allowances in exempt and protected income. As your Lordships will know, in the exempt income total housing costs are taken into account as are the children of the second marriage or relationship. In the protected income, any children of the second household are also taken into consideration in relation to calculating protected income. The aim of securing the welfare of the child is achieved by introducing a formula based on objective criteria rather than on discretion. The formula takes account of all the circumstances of all the children involved in the case. It considers the children of the absent parent—

Lord Simon of Glaisdale: My Lords, when the noble Lord refers to the formula, is he referring to the formula in Schedule 1 to the 1991 Act or some other formula?

Lord Mackay of Ardbrecknish: My Lords, I am referring to the formula used by the Child Support Agency, which comes from the 1991 Act. It considers the children of the absent parent as well as the children for whom maintenance is being sought through, in relation to the absent parent, the calculations to arrive at the exempt and protected income.

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It is important for Parliament to consider the position of all the people with an interest—and I know that it sometimes irritates at least some of your Lordships, including the noble Earl, when I say that—for example, the children, their own parents and the wider community of tax payers. I do not believe that those of us who want to see the child support scheme working effectively would wish to see a return to wide discretion in the calculation of maintenance, or in other aspects of the scheme.

At Third Reading, in 1991 the noble Lord, Lord Carter, said that there were certain parts of the 1991 Bill, such as the calculation of the maintenance formula, where it was evident that the welfare of the child was taken into account. If he will allow me to remind him, at that time the noble Lord had particular concerns about the requirement to co-operate with that provision as it was then drafted. The Government listened to what was said at that time and strengthened that provision to ensure that parents with care would not be required to co-operate if to do so would lead to a risk of harm of undue distress for them or any of the children living with them. We shall return to that matter.

The noble Earl, Lord Russell, challenged my authority to describe Parliament's intentions in 1991 because he rightly pointed out to me that I was not there. That is the classic defence of the Glasgow man lifted by the police: "It wasna' me, I wasna' there". But it is clear from the Official Report—not from my recollection or interpretation, because I was not there—that, as I said in Committee, 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 import substantial discretion into the scheme, and would make it extremely difficult for staff to make decisions. It would have the effect of undermining the Act.

The noble Lord, Lord Carter, speaking in Committee, expressed his concerns about what was said in a recent High Court case. I shall call it the B case in order to preserve the anonymity of those involved. We must look at that case in its context. That was a case in which Judge Thorpe commented. In that case, the original appeal to the magistrates' court was principally on the grounds that the CSA had failed to consider the welfare of the children of the absent parent's second family and that the magistrates should, therefore, quash a deduction from earnings order against the absent parent. The magistrates held that the agency was bound to consider the welfare of the children and that there was no evidence that it had not done so.

The absent parent made an appeal to the High Court and it is comments at the appeal hearing made by counsel for the Secretary of State which were quoted by the noble Lord, Lord Carter, in Committee. Counsel pointed out to the judge that in his view the Secretary of State could not be challenged on the weight to be given to the welfare of the children in this case. The welfare of the children was not the paramount consideration. He also said that issues relating to the breach of Section 2 by the Secretary of State were in

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any event matters for judicial review rather than for the magistrates. In that case, the judge agreed with the Secretary of State.

The noble Earl, Lord Russell, alluded to other cases. In one case, the commissioners said that the welfare provision was applicable only in relation to the discretionary powers of the Secretary of State or a child support officer. The making of a maintenance assessment was an absolute duty, not a matter of discretion, and so Section 2 had no application.

The commissioners went on to say that even in discretionary matters, Section 2 provided only that the Secretary of State or the child support officer "shall have regard" to the welfare of any child rightly to be affected by the decision. The provision did not say that the child's welfare should be a paramount concern, only that it should be taken into account. Those cases illustrate that the welfare of children is not the paramount consideration. The Section 2 provision in the 1991 Act is, therefore, working as Parliament intended.

The noble Lord, Lord Carter, raised the issue of notifications to the parties in cases concerning a departure from the formula assessment. When we discussed this amendment in Committee I was able to tell the noble Lord that staff are asked to keep a note of any information relevant to the welfare of the child which comes to them, and to consider it when they make their decision. If it affects their decision, the matter will already be covered by the existing wording of the clause. Where it does not affect the decision, the amendment would lead to gratuitous information about the 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. I believe that that concern was raised in Committee. Clearly, at least a number of your Lordships share my concern that we really want to keep the amount of information which flows down to a minimum.

I will turn now to Amendment No. 32. The noble Earl, Lord Russell, has again returned to an issue that he raised in Committee. The amendment would require the Lord Chancellor, the Lord Advocate or the Secretary of State to have regard to the welfare of the child when they make legislation under the 1991 Act.

We have discussed issues relating to welfare of the child at some length, both today and in Committee. I do not intend to repeat all that I have said previously. However, as I said in Committee, I do not believe that it would be right to import such a requirement into regulation making powers. Parliament has decided that child maintenance should be dealt with through a formula which takes due account of the needs of all the parties involved: the children, their parents, and the taxpayer. As I said when we last discussed the matter in Committee, Parliament 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. The House is aware that there are already safeguards to ensure the proper use of regulation making powers.

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As I have explained, consideration of the welfare of a child is already given due weight in maintenance matters. I do not believe that it would be appropriate to insert into the Bill the amendments as proposed by the noble Earl, Lord Russell.

I turn now to deal with the two very much longer amendments tabled on the basis of proposed new clauses by the noble Earl. Again, Amendment No. 19 was discussed in Committee. Amendment No. 20 offers a small variation on the text of Amendment No. 19 but does not alter it in any significant way. Both amendments introduce a new clause to set down all the children whose welfare should be considered when discretionary decisions are made by the Secretary of State or child support officers. Its meaning is not entirely clear, since it seeks to transfer a definition of welfare from the Children Act 1989 which does not actually exist.

Therefore, as I said, the noble Earl's amendment seeks to incorporate the definition of "welfare" from the Children Act 1989 into this Bill. In Committee, I explained that 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 into child support legislation.

From the words that he used in Committee, I rather inferred that the noble Earl wishes to make the welfare of the child paramount. The latter is the word used in the Children Act. However, as the amendment stands, it is difficult to establish precisely what the noble Earl hopes to achieve. As I said, it would mean that the welfare of the child would have to be paramount in the drafting of any regulations. The amendment includes amending regulations, but Amendment No. 20 does not. Any breach of the duty to consider the welfare of the child or children would be actionable in the civil courts, with the Secretary of State being liable for breaches by child support officers, rather than the child support officer himself having that liability.

I indicated earlier in my response that it would not be right to make consideration of welfare the paramount issue. If it were paramount, it would be above any other consideration and would mean that the needs of all the other parties to the process would become secondary. Where there were children in both the households involved, it would be extremely difficult to make a decision in a case.

I know that the noble Earl is especially concerned with second families. However, we must remember the position of first families. I should like to share with your Lordships some statistics which I believe underline my case. Frankly, no matter how far the balance is tilted, the first family is almost inevitably always in a worse position than the second family. For example, 84 per cent. of parents with care are on income support. It seems to me that their children will always be worse off than the children in the absent parent's new family. Moreover, 11 per cent. of parents with care are on family credit. In the majority of those cases also the children of the assessment will be worse off than those in the absent parent's new family. That fact is stark but

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true. It should give us pause for thought about the relative position of absent parents, even those with unavoidable expenses, and the children for whom they pay maintenance.

I should remind your Lordships that the Child Support Bill was introduced to redress the balance, which had become heavily weighted in favour of the absent parent and the second family and to restore some of the position of the first family by ensuring that they had a fair share of the absent parent's income. But even the current formula does not result in children of the first family being as well provided for as those in the second family. The children of the second family, even where the protected income calculation is appropriate, will be better provided for than those in the first family in the vast majority of cases. To do as the noble Earl is consistently chipping away and urging me to do,—namely, to change that balance even further in favour of the absent parent's family and against the first family—would, at least in my judgment, be totally and completely unfair.

In his two major amendments, the noble Earl wishes to make a breach of the duty imposed by Section 2 actionable by means of civil action. As your Lordships know, people who are aggrieved by discretionary decisions by the Secretary of State may already seek judicial review of the decision. On previous occasions the noble Earl has cast doubts on the integrity of the people who—

6.15 p.m.

Lord Simon of Glaisdale: My Lords, I am sorry to interrupt the Minister once again, but he will know that judicial review is a very limited remedy. To succeed, one has to show that the Secretary of State was behaving quite unreasonably.

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