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The Earl of Listowel: I should have said that I am grateful to the noble Baronesses, Lady Blatch and Lady Hanham, for their support on this amendment. I am grateful also to the noble Lord, Lord Bach, for his detailed response. He may wish to correct me but I believe that the case workers of the Official Solicitor's office were required until recently to have a social work qualification. They are small in number in relation to the general manning of the operation. Would it be too much to ask that all CAFCASS officers should have a qualification in social work?
Lord Bach: I am grateful for the contributions of the noble Earl and the noble Baroness, Lady Hanham, with her experience of court work. The number coming from the Official Solicitor's Department will be small in comparison with the other two services which will make up CAFCASS. I do not believe that that small number should be a reason for saying that everyone working in CAFCASS should have a social welfare qualification. It would make the organisation of the service difficult because valuable members of the Official Solicitor's staff would be prevented from transferring. That would spoil the effect.
We shall be consulting on regulations as regards qualifications and accreditation. I can reassure the Committee that CAFCASS will advertise for staff qualified in social work. That may go some way towards relieving the anxieties expressed. However, for reasons stated, we do not believe it is appropriate to place that requirement on the face of the Bill. We are not far apart in accepting the needfor high quality entrants to this important service. We are concerned that staff coming from the Official Solicitor's office should be treated as equals and accepted in the unique role they will play in the organisation.
Baroness David: I thank the Minister for his full and interesting reply. I also thank other noble Lords who have contributed to the debate, which has been interesting and important. The Minister mentioned recruitment difficulties but did not answer the point about improving the quantity of people who come from the ethnic minorities. I hope that that will be borne in mind.
The Minister said a great deal which I want to read in Hansard and consider before deciding what, if anything, should be done at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 to 62 not moved.]
Baroness Hanham moved Amendment No. 63:
- Page 52, line 40, leave out ("prescribed persons") and insert ("any person").
The noble Baroness said: Amendment No. 63 is similar to one moved by my noble friend Lady Blatch earlier today. It is also similar to an amendment which
was moved in another place where the Minister did not agree that "prescribed persons" should be changed. I am probably teaching Ministers opposite to suck eggs. But it was said that only people party to the proceedings should have the right to make the complaint. I am concerned about that definition because it is limiting.No one would want to instigate a process that brought forward a host of vexatious litigants. However, it is our contention that many people who are not parties to the case--for example, close family members of a child--who feel that the proceedings have not been conducted properly, or that they have had an adverse result, or that for some perverse reason they have been excluded from being parties to those proceedings, should be able to make a complaint if they feel it appropriate. It should be possible to pass legislation which does not open the door to vexatious litigation.
In addition, the Bill is currently deficient in giving any formula for a complaints process, even though the schedule makes provision for one to be established. The amendment would mean that the Lord Chancellor, who will oversee the new service, would appoint an ombudsman or independent arbitrator to determine a complaint and a tribunal to deal with appeals against his decisions. We believe it is important that that process should be defined on the face of the Bill. I beg to move.
Lord Bach: The noble Baroness will not be surprised if I adopt the same arguments used in another place by my honourable friend Jane Kennedy and earlier in Committee, in respect of an equivalent matter elsewhere in the Bill.
We agree that it is important to ensure that the service is required to establish and publicise a complaints system but do not believe that "prescribed person" should be replaced by "any person" because the ability to make complaints should be reserved to those who are a party to proceedings. If anyone were given the right to complain, there is a real risk that CAFCASS would face vexatious complaints from individuals or organisations hostile to the idea of the service, policy or legal framework on which it bases its reports.
As to Amendment No. 64, we agree on the importance of establishing an independent safeguard for those who feel cause for complaint with the service. For that reason, Schedule 2(17) brings CAFCASS into the remit of the Parliamentary Commissioner for Administration. We hope that deals with the concern expressed in Amendment No. 64 and that it is therefore unnecessary. Bringing CAFCASS into the commissioner's remit will provide an independent safeguard for those who feel cause for complaint with the service.
Baroness Hanham: While I am slightly more reassured in respect of the second part of Amendment No. 64, I remain concerned about the prescriptive nature of the people who will be permitted to
complain. The Minister referred to the parties to proceedings but the Bill limits to three or four the number of people being able to make a complaint on the back of anything that has gone wrong. People beyond those who are parties to proceedings may feel that it would be appropriate to make a complaint. The provision needs widening beyond "prescribed persons"--unless they are extended beyond those who are parties to proceedings. However, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 12 [Principal functions of the Service]:
Baroness Hanham moved Amendment No. 65:
- Page 6, line 11, after ("welfare") insert ("and interests").
The noble Baroness said: While recognising that the Children Act 1989 refers only to the welfare of the child and the existing clause would conform, that suggests that a child has only a passive role in matters relating to him or her--whereas promoting its interests suggests active involvement by the child in identifying his or her future needs and requirements.
The words "welfare" and "interests" are not totally synonymous. According to Collins Dictionary, "welfare" means "health, happiness, prosperity, well-being", and "interests" are defined as "benefit or advantage". I suggest to the Committee that both are of equal importance in assessing a child's situation and the best options for its future. To have both in the legislation will enhance the requirements under this clause. I beg to move.
10.15 p.m.
Lord Bach: We believe that this amendment is effectively a distinction without a difference. The intention to represent the interests of children is clear enough in the clause as drafted. The function of promoting and safeguarding the welfare of children clearly covers their interests. Unless noble Baronesses opposite can postulate a case in which something which is in the interests of a child is contrary to its welfare, we believe that the amendment is unnecessary. We intend to revise the rules of court to reflect the introduction of CAFCASS and deal with any distinction in that way by specifically addressing the different procedures in public and private law cases. On reflection, we do not believe that the amendment adds anything to the Bill. We find it difficult to envisage a situation in which the child's interest and its welfare are at odds. I am unable to accept the amendment tonight.
Baroness Hanham: Having sat through the whole of the proceedings this afternoon, I am not surprised to hear that the amendment is not accepted; that is par for the course. I should like the amendment to be accepted. I shall read carefully what the Minister said. I believe that "interest" expands very much on "welfare" and goes beyond it. It is important that that is the situation in court proceedings. I am sure that the
Minister is as well aware as I am that often in court advice is received about the interests of the child, not just its welfare. It is sensible, right and proper that that should be recognised in legislation. I do not press this matter at the moment and seek leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 15 [Right to conduct litigation and right of audience]:
The Earl of Listowel moved Amendment No. 66:
- Page 7, line 14, leave out ("in the exercise of his functions") and insert ("to instruct a suitably qualified lawyer").
The noble Earl said: The purpose of my amendment is to ensure that the current high standard of representation of children in public law proceedings continues. Concern about the diminution of that high standard has been expressed by Barnardo's, the National Association of Guardians Ad Litem and Reporting Officers and several noble Lords at Second Reading. Currently, the rights of a child are represented by a solicitor from the children's panel and the child's welfare interests are represented by its guardian ad litem. These two professionals, with their two distinct and complementary disciplines, have been highly effective in ensuring proper representation of the child. There should be no risk of false economies being made on the tandem representation arrangement under CAFCASS. Mistakes in decisions about long-term arrangements for troubled children are tragic for those children and extremely costly for society.
If the purpose of the clause is to preserve the right of audience of official solicitors that should be articulated clearly on the face of the Bill. It is vital that the right of children to the best tandem representation is not vulnerable to erosion by future administrations. I beg to move.
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