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Lord Rix: Before the Minister sits down, may I make an inquiry? At the outset of her response, the Minister said that she could not agree more with the noble Lord, Lord Pearson of Rannoch, and that his was the only

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statement which seemed to make sense: that possibly the wishes of a learning disabled child would not be taken into consideration and certainly not those of a severely learning disabled child. Is the Minister saying that that recommendation, which I find totally unacceptable, will go into the code of practice and guidelines? I can assure the noble Lord, Lord Pearson of Rannoch, that I am not speaking from theory.

Baroness Blackstone: No. I should elaborate on what I meant. I am not saying that that should go into the code of practice. What I am saying, however, is that there are very difficult and sensitive issues involved where parents and children may end up in conflict. In any hierarchy of rights here, I believe that the parents have to have precedence, although, of course, it is an obligation for local education authorities to look at the best interests of the child and to take into account the child's views as well as those of the parents. However, we strongly adhere to the view that the parents' views would have to have precedence in any hierarchy of interests that are reflected here.

Lord Ashley of Stoke: Before the Minister sits down, what is the sanction if the code of practice is completely ignored?

Baroness Blackstone: In the end a parent can make a complaint to the Secretary of State and the Secretary of State can then intervene; that is the final sanction here.

Baroness Blatch: Could I ask a question? One of the issues that concerns quite a lot of us is that we are discussing the Bill in a vacuum. We do not have even a draft code of practice. Is there any idea when we are likely to see it? Are we likely to see it before the passage of the Bill through this House? By the time the Bill reaches the Commons will there be a code of practice to be considered alongside some of the measures in the Bill? The Minister will rightly say that many of the issues will be matters for the code of practice. We shall need some reassurance that we shall have some notion about what the code of practice will say.

Baroness Blackstone: I shall not be as helpful as the noble Baroness, Lady Blatch, would like. We are not able to provide a final version of the revised code until the Bill has been passed because the code has to be subject to the framework that the Bill provides. The final form of the SEN code of practice will be brought to Parliament under the affirmative procedure after the Bill has gone through. There will then be an opportunity to debate some of these issues again. Meanwhile, noble Lords have all seen the draft code of practice that went out for consultation.

Baroness Blatch: Could I come back on that point? I do not criticise the Minister, because we are in the hands of those who will be drafting the code of practice. However, if we are not to see it at all, and if it is to be drafted after the passing of this Bill, we shall want to ensure that certain aspects will appear in it. Those issues may have to be put on the face of the Bill,

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so that we have an assurance ahead of the issuing of the code of practice that they will be dealt with and properly addressed in the code. We will try to be modest in the number of demands that we make ahead of the code of practice, but some issues are so important that some indication in the Bill that they will be included in the code of practice will be necessary.

Baroness Blackstone: We will look at each issue as it arises. Where we can be receptive, we will do our best to be so.

Lord Lucas: How will Section 1(3) work? Suppose a 14 year-old girl is adamant that she wants to stay in mainstream school, and her parent is adamant that she shall go to a special school. What opportunity will that girl have to voice her opinion, and what could anyone do about it anyway--even if she was in the right?

Baroness Blackstone: It is very important that a sensible final decision is made on the basis of all the particular needs of that child. Obviously, I cannot give an answer to the question the noble Lord poses, because I do not know what the particular issues might be in any hypothetical case. It is important that we hear the child's views, although they cannot automatically prevail. Many of us here have been parents and we know that our children do not always get it right. It would be very foolish to come out with an absolute commitment to accept the child's views. The noble Lord believes that the child's view should be taken into account, and those who are making a considered decision should do so on the basis of the best interests of the child.

Lord Lucas: Yes, but under Clause 1(3)the only people who have any voice are the parents. If the parents say, "to a special school you go", and refuse to listen to the child, that child has no one to turn to and the parents' wishes will prevail. Is that not the way that the clause works? There is no provision for hearing a child's views and there is no provision for anyone else to be involved in the decision-making process. The parent says it shall be so, and it shall be so. The noble Baroness has said some admirable things about the position of the child in other aspects of the Bill. Why is this to be the one part where the child has no voice?

Baroness Blackstone: I do not want to repeat what I have already said. The noble Lord, Lord Lucas, has already had the answers. I have made it clear that we are setting out in guidance in the code of practice that the child's views should be taken into account. In our view, it is not necessary to put that on the face of the Bill. Were we to do so, we could find ourselves in unnecessary conflict that could lead to protracted court cases in which children are set against their parents.

Lord Morris of Manchester: Had the code of practice that my noble friend envisages existed at the time, would it have brought any solace to Simone Aspis, whose case I have described in some detail?

Baroness Blackstone: It is very difficult for me to respond to my noble friend one way or the other,

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because I do not know enough about the particular case. I would have to look at all the documents--I have not seen any of them. It is wrong for Ministers in these circumstances to give a categorical answer, saying yes or no, without being sufficiently familiar with the issues that case raises.

6.15 p.m.

Lord Pearson of Rannoch: I should like to thank the Minister for her remarks in reply to what I had to say. I do hope it will be clear when we come to read Hansard that I was speaking purely on behalf of children with severe learning disabilities and in that respect I hope what I had to say was not too disappointing to the movers of this group of amendments.

Before finishing, I would like to say to the noble Lord, Lord Rix, that I offer him an unqualified apology if he thinks I was accusing him of speaking from the vacuum of theory because I know perfectly well that, like me, he is the father of a child with severe learning disabilities, and I know that he has been through much of the experience that I have and indeed, for a longer period of time. It may not be that we always agree on the solutions, but I would certainly not wish to offend the noble Lord, Lord Rix, in this regard. That concludes my remarks.

6.15 pm

Lord Rix: I do not know what the protocol is on this occasion, but the apology of the noble Lord, Lord Pearson of Rannoch, which was very gracious, is accepted. Thank you.

Baroness Sharp of Guildford: I thank the noble Lords who have spoken in support of at least part of my amendment. I did differentiate in putting it forward as to the part that was applicable to the batch of amendments concerned with the wishes of the child.

I reflect the views of many noble Lords in saying that I am disappointed in the Minister's response. We now have a Human Rights Act and it is about time that the United Kingdom endorsed the UN Convention on the Rights of the Child which establishes the principle that the child's voice should be heard.

I am delighted that we now have a full chapter on the matter in the draft code of practice. However, I echo the words of the noble Baroness, Lady Blatch. It is most unfortunate that while we are trying to make sense of this Bill we do not see that draft code of practice. At the end of the day the implementation of the Bill depends entirely upon the code of practice.

Baroness Blackstone: Members of the Committee have already seen the draft code of practice; it has been out for some time. I can supply a copy to the noble Baroness, Lady Sharp, if she would like one.

Baroness Sharp of Guildford: I meant to say we know that changes have been made to the draft code of practice. In particular a very important change was announced just before Second Reading. Therefore, we

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know that as a result of consultation the code of practice is being changed. We do not quite know what it will contain.

I reiterate the points that the noble Lord, Lord Lucas, made. This is a minor amendment. We do not seek to make the voice of the child paramount; we seek to make the voice of the child heard--where it is ascertainable--among the other considerations that are taken into account.

I take on board the point made by the noble Lord, Lord Pearson of Rannoch. There is a balance to be drawn. But as we know well, unless there is on the face of the Bill some mention of this factor, it can be ignored. When other considerations are at stake, such as those of parents and resources, the voice of the child is lost.

I accept that we have had a response from the Minister. I shall withdraw the amendment, but we shall undoubtedly return to it later in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 10 not moved.]

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