Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Hanham: I support the amendment. As the noble Earl demonstrated, the clause has two deficiencies. First, it appears to override the accepted practice that in public law cases--for example, when the state is involved--the guardian ad litem will always appoint a solicitor or legal adviser to represent the child who is the subject of the proceedings. That is accepted practice. It is accepted in the Children Act 1989 but it is not reflected in this part of the Bill. The Bill could be misconstrued as meaning that in public law cases it is not necessary for there to be a legally qualified representative for the child. That is a major deficiency.

Secondly, if there is a contested case in private law cases, where the child is a party he or she should be separately represented by a qualified lawyer who is not associated with the court welfare service. The court welfare officer is an adviser to the court, not a quasi-lawyer. The roles of both in the proceedings are different. It is interesting that in the 1998 consultation paper the question of non-legally qualified people having the right of audience in court was not raised as

2 Oct 2000 : Column 1248

an issue. What was put forward was the limiting of the amount of representation to part of the proceedings or to advice, not to exclusion.

This is one of the most important issues in the Bill. In our view, the clause as it stands is fundamentally flawed.

Lord Bach: In relation to Amendment No. 66, I must stress straightaway and put it clearly on the record that it is not the Government's intention that the tandem model of guardian and legal representation in public law cases should change. It works and is well respected. Clause 15(1) appears as it does because it is needed to replicate the work of the Official Solicitor. The amendment would mean that it could not do that. However, we are willing to give reassurances that this power would be used only in the small number of cases that currently fall to the Official Solicitor.

CAFCASS is being created by bringing together the three services to which I have referred. If we are successfully to achieve that we have to ensure that CAFCASS will have the full range of powers and responsibilities that all the existing services--not just one or two--have. That is the purpose of Clause 15. The noble Earl is concerned that the clause does not restrict the right to litigate to legally qualified officers of CAFCASS. However, I shall attempt to persuade both the noble Earl and the noble Baroness that that is not the intention behind the clause and that the clause will not undermine the tandem model which currently operates in public law cases.

If we did not have the provision in Clause 15, CAFCASS would not be able to reflect the work of the Official Solicitor. It is based on Section 90 of the Supreme Court Act, which allows the Official Solicitor to conduct litigation regardless of whether he is a solicitor or barrister. We anticipate that 21 caseworkers, four divisional managers and three family lawyers will transfer to CAFCASS from the Official Solicitor. It will be necessary for all those people to have the right to conduct litigation and a right of audience. Currently, a small number of experienced caseworkers regularly attends directions hearings in private law cases before district judges. They also attend directions hearings in public law cases. The case workers undertaking that work do so under the direction of a qualified lawyer. In transferring the work of the Official Solicitor to CAFCASS, we think it would be wrong to lose that experience.

The practice of non-lawyers conducting cases and appearing in court on preliminary matters is not wholly unusual. For example, probation officers are able to prosecute cases where there is a breach of a community order, and regularly do so in courts up and down the land.

Of course, as happens now, when Official Solicitor cases reach the court for trial in serious matters--we all know of such cases that have been reported recently in the newspapers--their qualified lawyers take over and deal with those cases. They will continue so to do. It is not our intention that this clause should

2 Oct 2000 : Column 1249

undermine the tandem model of GALROs and solicitors working together to ensure that the child is properly represented. The tandem model works well and we want to retain it. It is enshrined in the rules of court that once a guardian is appointed, they then engage a lawyer to legally represent the child. The rules will need to be updated to take account of the emergence of CAFCASS, but we intend to preserve the tandem model in the updated rules. It would not be possible, therefore, for CAFCASS to require guardians transferring into the new service to take on the role of the child's legal advocate.

That last point has been a matter of concern to those representing GALROs; namely, that they will be required to appear in court as advocates for the child. I can give to the Committee the reassurance that that will not change. It would not be right if it were to change. In public law cases the child is made a party to the case and has the right to legal representation. Article 6 deals with the right to a fair trial. There would be clear difficulties in establishing that CAFCASS had complied with this requirement if it were to require children in public law cases to be legally represented by an inexperienced officer. Clause 15 will enable CAFCASS to be responsive to the specialist nature of the work undertaken by the Official Solicitor, as is currently the position.

I hope that the noble Earl will accept my reassurance that there is nothing sinister in Clause 15. It is not intended to undermine the tandem model or to force GALROs to undertake litigation. It ensures simply that CAFCASS is able to act as the Official Solicitor does now.

In a small number of cases, officers of CAFCASS will undertake litigation, as would the staff of the Official Solicitor now. When they appear in court as litigants, it would be inappropriate for them to be subject to cross-examination where this was their only involvement in the case. However, if they were not advocates in the case, they would be open to cross-examination in a broader manner than is the case now. Currently, I believe that family court welfare officers are not normally cross-examined as regards their reports, unlike guardians, who can be cross-examined. It is our intention that anyone who is not an advocate in the case itself will be open to cross-examination. It is not usual in court proceedings for an advocate to be cross-examined without extremely good and obvious reasons. I therefore invite the noble Earl to withdraw Amendment No. 66.

Baroness Hanham: Before the noble Earl rises to make his response, perhaps I may press the Minister further. The problem with Clause 15 is that it does not say what the Minister intends it to say. That makes for poor legislation. What it states is,

    "to conduct litigation in relation to any proceedings in any court".

That is prefaced by:

    "The Service may authorise an officer".

2 Oct 2000 : Column 1250

If the only officers being referred to here by the Minister are those from the Official Solicitor under Section 19 of the Supreme Court Act, then it seems to me that it would be sensible to say so. Otherwise, the question is left open as to whether the tandem proceedings are being interfered with or whether children who are parties in private law cases are in fact stopped from receiving the legal representation to which they are entitled by substituting an officer to fulfil that role.

I hope that the Minister will be kind enough to take this away and reflect on what I have said. This is such an important part of the Bill. Furthermore, it is extremely important to ensure that children do receive proper and qualified legal representation. It would be quite wrong if the legislation were to lead anyone to misunderstand those circumstances.

The Minister went on into an area that we had not covered--that is, the cross-examination of advocates. Now that he has mentioned the matter, perhaps I may comment on it. It is obviously clear that where an advocate is acting for and on behalf of the child there should be no question of that advocate being put into the witness box. That would leave the child unprotected at that stage. In public proceedings, of course, the guardian ad litem--now the CAFCASS representative--would be put in that position, not the child's representative.

But that is the second part of the issue. It is the first part in regard to representation that I would ask the Minister to look at again.

10.30 p.m.

Lord Bach: I can give the noble Baroness an assurance that I shall look at it again. I should make clear our position in regard to the principle of the separate representation of children in all private law cases: we do not support the principle of separate representation of children in all private law cases. There may be cases where that is appropriate, but it would be wrong to use the Bill to introduce the idea of universal independent representation in that kind of case. The noble Baroness will know well that there rarely is separate representation for the child in divorce cases. CAFCASS will provide representation for the children in many cases.

The law of England and Wales provides for the views of the child to be conveyed to the court by a number of means, including via the Official Solicitor, via the court welfare officer and via the guardian ad litem as appropriate. In making any decision about the upbringing of a child, the court is required to treat the welfare of that child as paramount. I repeat that in public law cases the position that has obtained up until now will be continued--and that, of course, is now on the record. But I shall go back and look again at the points made by the noble Earl and the noble Baroness.

Next Section Back to Table of Contents Lords Hansard Home Page