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Baroness Kennedy of The Shaws: I have not heard a response to the suggestion that subsection (1) is deleted instead of making it part of the panoply of possibilities
before the court. It is saying that the court has to consider this matter and give reasons for rejection. That seems to be more of a demand on the court than is necessary for these kinds of cases and circumstances. The noble Lord has not responded to that.
Lord Williams of Mostyn: I did deal with the matter earlier, but I shall repeat what I said. We believe that this is the proper scheme to bring forward in the circumstances. There is a plain gap in the legislative opportunities offered to courts at the moment. Children are suffering because they do not have proper parenting. If parents will not voluntarily consent there must be a degree of sanction available in appropriate cases. That is my response.
Baroness Kennedy of The Shaws: I am happy that piloting is involved. I would have thought it important that the courts sort out whether voluntariness was an option that the parents were happy to accept before compulsion was involved. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
Baroness Anelay of St Johns moved Amendment No. 113:
The noble Baroness said: I am moving this amendment because I believe that the responsibility for bringing breach proceedings with regard to parenting orders should be clearly spelt out. The defect in Clause 9 was brought to my attention by both the Magistrates' Association and the Justices' Clerks' Society. I am grateful to both of them for the clarity of their briefing on this point.
They point out that there is a lack of clarity about procedure in the clause as it stands at present. The clause runs through a series of powers, including the making of an order and the discharge of an order but then it seems to leap over the process about what happens next if there is a breach. It goes straight to the ultimate stage in subsection (7), which simply says that if a parent breaches the order he or she is liable to a level 3 fine on conviction.
But the clause does not say who is responsible for instituting proceedings, nor does it specify in which court those proceedings shall be brought. One can make assumptions about that by the implications of the clause, but it is not made clear. If we do not make that clear, I believe that no action would be taken against a parent who breached the order, so we would never reach the penalty point.
This amendment makes it clear that where there is a breach of a parenting order it is the Crown Prosecution Service which institutes proceedings and that it should do so in the magistrates' court. I beg to move.
Lord Renton: I know that other noble Lords wish to express an opinion, but before they do so, I feel obliged
is to give rise to a problem. I use the Latin tag because lawyers understand it, but I shall try to translate it into our own language--expressio unius est exclusio alterius. If we say that the Crown Prosecution Service may bring proceedings, that implies that nobody else may do so. That is the difficulty that I find with the amendment.
It is arguable, of course, that if such a burden were placed upon the Crown Prosecution Service, the word "may" should be replaced by the word "shall" and that might not invoke the rule of interpretation about the expression of one being the exclusion of the other. Surely we want the local authorities to have the power to bring proceedings--or the police, or, as I said, any citizen. Although I have the deepest respect for the Magistrates' Association, the Justices' Clerks' Society and, above all, for my noble friend, I have doubts about the amendment.
Viscount Tenby: I should like to speak in support of Amendment No. 113. At Second Reading I mentioned the problems inherent in parenting orders arising from the difficult position in which some inadequate parents, often single-parent mothers, might be placed. In his very full answer to the debate, the noble and learned Lord the Solicitor-General dealt with the matter fully and pointed out, reasonably enough, that the imposition of fines for non-compliance would hardly be ordered by any reasonable court. From my experience over the years, I understand and accept that assessment, so I was satisfied from that point of view. However, whether it is wise to have fines as the only sanction is another matter, especially in view of the possibility of a custodial sentence for those who wilfully refuse to pay such fines.
I am concerned about the lack of any detail in the Bill in spelling out how a breach will be dealt with other than, as the amendment suggests, by the CPS bringing proceedings in a magistrates' court. The Minister may say that it is not necessary to spell it out, and that it is obvious. If that is his position, I must say, in all extreme humility, that I do not quite understand it. We should be told what is intended.
Viscount Colville of Culross: I hope that the Minister will resist the amendment. I should have thought that the right person to bring proceedings for a breach, whether in a magistrates' court or occasionally in the Crown Court (because it is not inconceivable that the Crown Court might make a parenting order) ought to be the Probation Service or whoever is supervising the order. That is the system that works at the moment. If a probation or community service order is breached, the Probation Service instructs counsel. It has had
The Earl of Mar and Kellie: The Committee may be getting this matter slightly out of proportion. No social worker or probation officer would recommend to the Bench that someone should be made the subject of a parenting order in a deliberate attempt to set him up to fail. Reflecting on the two years that I spent as the member of an intensive probation project, which a parenting order would be--I hope that I am not atypical of those who work on such projects--great efforts are made to help the person to comply. This is not a hostile environment. Most clients of such projects are remarkably relieved when they find that it is not a hostile place in which they will be criticised for everything; it is a place that entirely looks forward. I hope that the Committee will take a slightly less jaundiced view of what has been proposed.
Lord Falconer of Thoroton: I am genuinely grateful to the noble Baroness for raising this matter. It gives the Government an opportunity to explain how the enforcement process will work. To go through the matter in stages, if a parenting order is made, "a responsible person" is appointed to give directions under the order. If the parent disobeys the directions of the responsible person, that is a criminal offence under Clause 9(7). The responsible officer will report it to the police, who will investigate it. The police give the results of their investigation to the Crown Prosecution Service. It will then be for the CPS to determine whether or not a prosecution should be brought.
In determining whether or not a prosecution should be brought, the CPS will first have to satisfy itself as to the evidential burden. It will then consider, having regard to all the circumstances, whether or not it is in the public interest to bring a prosecution. It may well not be appropriate depending on the circumstances of the breach.
To answer the point raised by the noble Lord, Lord Renton, there being nothing special about this crime, in theory it would be open to a private citizen to bring a private prosecution. I anticipate that that would be exceptionally rare, if not unprecedented. However, for the purposes of defining the legal position, it appears to me to be lawful, and such a prosecution can be brought. That has not been spelt out in the Bill because it arises from the fact that the criminal offence has been identified or created in the Bill. Therefore, there is no need to spell it out. The effect of the amendment moved by the noble Baroness is to make explicit that which is already the case, including the discretion in the CPS
I hope that I have explained the position. I am jolly glad to have had the opportunity to explain the matter. If I am right in what I have said, as I believe I am, the amendment is completely redundant. Therefore, I ask that the noble Baroness withdraws her amendment.
Page 8, line 39, at end insert--
("( ) The Crown Prosecution Service may bring proceedings in a magistrates' court for failure to comply with a parenting order.").
"The Crown Prosecution Service may bring proceedings",
9.30 p.m.
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