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Baroness Kennedy of The Shaws: I support the noble Lord, Lord Thomas, who has so powerfully described the incredible journey we have made in our understanding of young people in the course of this century.
If the purpose of the child safety order included in the Bill is preventive, it is important that we do not label young children as potential criminals. Therefore, I consider that such orders should be made by the family proceedings court, not the criminal court. They should be supervised by local authority social workers and not members of youth offending teams. So I should like Amendment No. 125A included in the parcel of amendments, and when the Minister replies, perhaps he could deal with it.
The purpose of these clauses is to gain the support of parents in providing control and care for their children. The setting of the court is important in achieving that. The family proceedings court will allow a more informal setting for discussion and inclusion of the parents than a youth court would be capable of doing.
I know that the Minister is anxious that such matters should be dealt with sensitively. That sensitivity and experience are most likely to be found in the High Court. Moreover, the services needed by such children are likely to be welfare-based services with which the family proceedings court is familiar, rather than those relating to the criminal justice system. I therefore support my noble friend.
Lord Meston: Clause 11(6) states:
- "Proceedings under this section or section 12 below shall be family proceedings for the purposes of the 1989 Act".
Of course, for the purposes of the 1989 Act, public law care proceedings have a single point of entry, which is the family proceedings court. It is at the magistrates' court level, with the ability to transfer up, first, to the county court and then to the High Court in cases of particular complexity.
In the context of my noble friend's amendment, I wonder whether there is any significance in the use of the phrase "a magistrates' court" in Clause 11 and the reference in Clause 11(6) to "family proceedings". Alternatively, is what is envisaged that there will be, as in ordinary care proceedings, an initial application to the family proceedings court, as it is now understood, with at least the potential for it to move up through the county court to the High Court in cases where there is difficulty?
10.15 p.m.
Lord Henley: We have a number of amendments down which have been grouped with the amendments proposed by the noble Lord, Lord Thomas of Gresford. Perhaps I may first speak briefly to Amendments Nos. 118, 127, 129, 132, 137, 139, and 141. All those amendments suggest deleting "magistrates' court" and inserting "family proceedings court".
Following what the noble Lord, Lord Meston, said, it now seems that our amendments were completely and utterly unnecessary. I receive a nod of approval from the noble and learned Lord and the noble Lord, therefore we need not pursue those amendments any further. However, I should be grateful for an oral assurance on the matter when the Ministers come to respond.
We would support the Government's line that the magistrates' court is in fact the appropriate arena for these matters and it is not something that needs to start off at the High Court. When the noble Lord comes to respond, I would be grateful if he could say a little about Clause 11(2) which states that:
- "A court shall not make a child safety order unless it has been notified by the Secretary of State that arrangements for implementing such orders are available in the area in which it appears that the child resides or will reside and the notice has not been withdrawn".
I shall be grateful for a degree of explanation on that subsection.
We have tabled two other amendments which are included in this group and it may be helpful if I remark upon them now. I refer to Amendments Nos. 119 and 127A. I hope that to some extent they are self-explanatory. As it is currently drafted, the Bill does
not provide any power to require the attendance of the child, parent or guardian on the making of an order, yet subsequently a breach can give rise to a care order under Section 31 of the 1989 Act without the need to comply with the normal statutory requirements of being satisfied that the child is suffering or is likely to suffer harm and that it is attributable to the care being given to him or that he is beyond parental control.Granting of a care order should be a matter of last resort. I am certain that the Government will agree with that. It should be issued only after great care has been taken to ensure that all parties have been fully and fairly heard. Those who have trained for membership of the family proceedings court within the magistrates' court will remember the statistic that if a child is taken into the care of a local authority and is not returned to its family but spends six months in care, it is highly likely that the child will never return home. The making of a care order therefore seems to be a Draconian step.
As the Magistrates' Association pointed out--we are grateful to it for the advice it offered on the amendments--it would appear that a child safety order can be made without the child or parent being required to attend the court. The making of the order could in itself be seen as the first event which triggers the possibility of a care order being made later for breach of that order. The association also points out that an anomaly arises as a result of the provisions of Clause 12(2) which requires the court to explain the effect of the order to the parent or guardian. Since there is no power to compel the parent or guardian to attend, the question arises as to how that would be done.
We hope that those amendments rectify the omissions and the confusion caused by the provisions of Clauses 11 and 12. However, I shall be grateful if the Minister, when he responds, can give an explanation.
Amendment No. 125, in the name of the noble Baroness, Lady Kennedy of The Shaws, comes within this group. I do not know whether she intends to speak to it now or at some later stage. Should she wish to--to some extent she was deprived of speaking to some amendments earlier--it may be useful for me to remind the Committee of the note at the top of the groupings list that says the groupings are informal and that it is open to any Member of the Committee to speak to any amendment when we come to the natural place for that amendment on the Marshalled List. I have a sneaking feeling that the Deputy Chairman, who was formerly in his place, to some extent prevented the noble Baroness from speaking to her amendment at the appropriate time. It is open to her to speak to it at this stage or later.
Baroness Kennedy of The Shaws: My inexperience in this Chamber meant that I had not spoken to a grouping and I understand that that is what is expected of one. I had not appreciated the form that these things take; I learn by listening. On this occasion I have spoken to Amendment No. 125A, but I am grateful for the consideration of the noble Lord, Lord Henley, and I know that Members on this side will learn from it.
Lord Henley: I merely take the opportunity to remind the Committee that the groupings are informal and that
we are not bound to stick to them, useful though they may be on many occasions for expediting the progress of business through the long nights.
Viscount Tenby: On the basis that good tunes can be hummed more than once, I should like to speak for just a moment on two of the amendments to which the noble Lord, Lord Henley, referred, particularly as one of them, Amendment No. 127A, carries my name. Both are concerned with the attendance of a parent or guardian at the appropriate court and charges that court with the duty of satisfying itself that all reasonable steps have been taken to ensure that that is so.
With such an important and sensitive order, those must surely be basic considerations. It is essential that a parent or guardian be present for such proceedings. I should accordingly be most grateful if the noble Lord the Minister would be kind enough to assure some of us on this point.
The Lord Bishop of Bath and Wells: I wish to speak in support of the amendment of the noble Lord, Lord Thomas. It is of the greatest importance in ensuring that the orders prescribed do not carry the connotation of criminal responsibility. If that were to be the case, far from diverting young children from crime, a child safety order would be more likely to label them as criminals. In addition, the provisions of Clause 12 ensure that failure to comply with a child safety order will lead to proceedings under the Children Act, which will be dealt with in the family proceedings court.
It therefore seems reasonable that the same court with the same ethos should carry responsibility throughout the process. The change of court setting seems in itself unnecessarily disruptive and is also likely to be confusing and convey unclear messages to those involved. The essential point seems to be that where the priority is the care and upbringing of the child the courts charged with that prime responsibility should always be those which deal with their individual cases.
Lord Falconer of Thoroton: Like my noble friend Lady Kennedy of The Shaws, I am inexperienced in the procedures of the House. Perhaps I may indicate the amendments I intend to reply to because if we know where we stand it might assist us later on. I am replying to Amendments Nos. 117, 118, 119, 124, 126, 127, 127A, 128, 129, 131, 132, 136, 137, 138, 139, 140, 141, 189, 299, 303 and 125A, to which my noble friend Lady Kennedy of The Shaws spoke. If there is any amendment to which I am to reply to which someone would like to speak before I reply, I should think that the appropriate thing for me would be to subside at this point. However, I shall assume, unless any noble Lord interrupts, that noble Lords have made their points on those amendments.
The amendments go primarily to the procedural aspects of the child safety order. Perhaps I may briefly explain the basic structure of the child safety order. It relates only to under 10 year-olds. The application is made to the magistrates' court by the local authority. The application is made when one of the conditions under subsection (3) exists, which in effect involve a
child committing what would have been a criminal offence if he had been over 10, and the purpose is to prevent that happening again, or he has contravened a ban imposed by a curfew notice, or has behaved in a way that causes alarm or distress to two or more persons. It is in effect parallel to an antisocial behaviour order.To deal with the point raised by the right reverend Prelate--the point was picked up by the noble Lord, Lord Meston--these are not criminal proceedings. The Bill makes that clear. The Bill says:
- "Proceedings under this section...shall be family proceedings for the purposes of the 1989 Act"--
that is a reference to the Children Act--
- "and the standard of proof applicable to such proceedings shall be that applicable to civil proceedings".
These are not criminal proceedings, but family proceedings. The purpose of making an order is not to characterise a child as a criminal, but in order that the child receives appropriate care, protection and support and is subject to proper control. Alternatively, it is to prevent the repetition of the kind of behaviour which led to the child safety order being made.
This order is parallel in a sense to the parenting order. It is trying to provide assistance, not to characterise people as criminals. It is trying to lead to intervention at the earliest possible stage to try to prevent the child becoming involved in criminal activity. It is important to emphasise that point. Where there is a failure by the child to comply with the terms of the child safety order, the sanction is not criminal. That is set out in Clause 12(6). The order may be discharged at the end of it or a care order may be made in respect of that child. That is the basic structure of a child safety order.
A point has been made as to how it works in practice. The noble Lord, Lord Henley, raised a question about the point of Clause 11(2). It is there simply to indicate that the scheme will be piloted first. So one has to check whether one is in one of the pilot areas before one can use it. The noble Lord, Lord Thomas of Gresford, made a point about permitting applications to be made either to the High Court or any other court. We believe that the appropriate court is the magistrates' court. As the noble Lord, Lord Meston, pointed out, that is where all public law applications under the Children Act begin. A child safety order, just like a public law application under the Children Act 1989, can be transferred upwards, so it is in precisely the same position as the great majority of public law Children Act cases in any event.
As regards the history of how it worked given by the noble Lord, Lord Thomas of Gresford, he left out the end, which is the most important part.
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