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Baroness Noakes: I should like to ask the Minister just one question. Does she think that she is capable of expressing in regulation this concept of "capable of calling the local authority to account"? It is relatively easy to specify independence, as that can be measured by a series of objective tests. I am a little unclear, however, as to how the regulations could deal with the matter of establishing this type of internal status. I accept that dealing with the matter of "sufficient clout" within local authorities would reduce concern about the lack of independence in employment.

Baroness Andrews: I take the point. We are addressing a number of rather subtle issues in relation to which performance management is part of the context. It may be that a combination of regulations and guidance will enable us to meet that point.

Baroness Noakes: I thank the Minister for that very comprehensive reply and for offering to pass me a copy of the letter sent to Mr Loughton, which I would be grateful to see. The point that I have just raised is an important one and perhaps the Minister will let me have any thoughts on it. It is important that the review processes not only are independent but are seen to be independent; on that will rest the credibility of the services. In the meantime, I beg leave to withdraw the amendment. However, I would value any further guidance from the Minister.

Amendment, by leave, withdrawn.

Clause 115 agreed to.

Clauses 116 and 117 agreed to.

6 p.m.

Baroness Massey of Darwen moved Amendment No. 116ZA:

In section 37 of the 1989 Act (powers of court in certain family proceedings), after subsection (6) there is inserted—
"(7) Where in any family proceedings in which a question arises in respect to the welfare of any child, the court shall have particular regard on the evidence before it to—
(a) the wishes and feelings of the child considered in the light of his age and understanding, and
(b) the need for the separate representation of the child concerned and upon making an order for separate representation the court may appoint a children's guardian and these shall be considered specified proceedings within the meaning of section 41 of this Act (representation of child and of his interests in certain proceedings)."

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The noble Baroness said: I must apologise to the Committee for arriving late, but I was involved in a Select Committee just across the way.

The issue of listening to children and the representation of children has been discussed in relation to earlier amendments to the Bill. I make no apology for raising the issue again. I know that all Ministers care very deeply about this issue. I also know that a great deal is being done across government departments to involve children and young people in issues affecting them. The All-Party Parliamentary Group for Children, of which I am co-chair, strongly supports this involvement of young people in issues which affect them.

This amendment seeks to ensure that children are heard in family proceedings, and that children in private law proceedings have the same right to protection as those in public law cases. At the moment, they are disadvantaged. Not only would this amendment remove an anomaly, it would make certain that both the Adoption and Children Bill and the Children Act are compliant with rights set out in the European Convention on Human Rights.

The current lack of independent representation of children involved in private proceedings under the Children Act makes the UK liable to challenges for breach of Article 6 of the European Convention on Human Rights. It states that a child is entitled to the opportunity to present a case on equal terms with others, a right that has been reinforced in European case law.

It would be disappointing if, in this Bill, the entitlement of children were not stated clearly and loudly. I heard what the noble Lord, Lord Hunt, said earlier; I would not wish all that to be repeated again and I will read it carefully. However, there should be a clear procedure set out in the Bill to ensure that a child's view is represented to the court independent of the adoption agency, the applicants and the birth parents where necessary.

The European Forum on Child Welfare has carried out research into discrimination against children and its findings are powerful. For example, children seem to be considered to be the object of law, not the subject. Laws often concentrate on the protection of children, important though that is, rather than on encouraging children to be autonomous. The noble Baroness, Lady Andrews implied earlier that children and young people can be vocal and articulate about their own needs.

The Convention on the Rights of the Child has specifically expressed concern about safeguarding the child's interest in adoption proceedings. Article 12(2) of the convention states that:

    "The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".

The European Convention on the Exercise of Children's Rights seeks to specify the procedural rights of a child to be heard in respect of family

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proceedings, including the right to be informed and express his or her views, the right to reply in person or through other persons to be represented and the right to be assisted in expressing his or her views. It is clearly important that a child should be dealt with in a way that takes account of age, level of maturity and intellectual and emotional capacity and that measures are taken to encourage every child's ability to understand and participate effectively in proceedings about his own welfare. I submit that a child-centred approach is not only morally and ethically right, but that the child's right to be heard should be backed up in law.

I recognise and appreciate that the Government have given some assurances to the House of Commons Special Standing Committee that children will be a party to proceedings in placement order cases, with the appointment of children's guardians and the right to separate legal representation. However, there is still lack of guarantee that all the necessary investigations of a child's welfare will be made in every adoption case with an independent check of social work practice. If the child felt that there was a problem with a proposed adoption, the guardian could be made aware of that and could alert the court.

The Law Society has suggested that the Bill be amended to provide that placement proceedings, which will be closely linked to care proceedings and adoption proceedings, be specified proceedings under Section 41 of the Children Act. In such proceedings, the court appoints an officer of the Children and Family Court Advisory and Support Services, to which the Minister referred during a previous debate. CAFCASS could represent the child unless satisfied that it is not necessary to do so to safeguard the child's interests. Thus, the child's wishes could be independently reported to the court in order to ensure proper investigation and presentation of the child's views and welfare.

The child must have a voice independent of the local authority, the prospective special guardian and the birth family, so that he or she can have proper representation and an independent check by a children's guardian as officer of the court. The Bill does not guarantee this and I hope that the Minister will consider ways in which it can. I beg to move.

Baroness David: I should like strongly to support this amendment. I have supported endless amendments on getting the views of the child heard. It is important in these proceedings that we should have provision on the face of the Bill. The Department of Health has a good reputation on listening to the views of children. Indeed, the Minister has today made a number of references to hearing the views of the child. It seems to me that in court proceedings it is very important that should be heard.

I have more confidence in the Department for Education and Skills than in the Department of Health. The other day I had a failure in getting an amendment accepted which I thought ought to have been. Therefore, I hope that today the

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Minister—I understand that it is to be my noble friend Lady Scotland—will make a real commitment to accept this one.

The Earl of Listowel: I rise to speak to the amendment which also stands in my name. Following the full laying out of terms by the noble Baroness, Lady Massey of Darwen, and having spoken to a similar amendment on Monday, I will not repeat what has been said.

I raised a problem with the Minister. I was grateful for the full response of the noble Baroness, Lady Scotland, at the previous occasion, and I asked her what she expected to happen in the case of a mother threatened with imprisonment for not allowing contact. That question was not then addressed by the Minister, although her general response was that the courts must proceed on a case-by-case basis.

I would be grateful if further information were provided on what would be expected in cases in which mothers are threatened with imprisonment. Perhaps the noble Baroness, Lady Scotland, would write to me on that. I find it hard to imagine a situation in which the loss of a mother to prison would be in the best interests of the children. I am asking for assurance that in such cases at least a guardian will have been appointed and a report produced on the consequences of the decision on the welfare interests of the child.

I apologise for not giving the noble Baroness notice of the question. In speaking with Women's Aid today, I hear that there are seven cases on its books where women appear to be under threat of imprisonment for not allowing access to their children. That is a matter of great concern. Perhaps over the Summer Recess there might be an opportunity to obtain independent examination of those cases, and when we return we will have a clearer idea of what is happening on the ground. I would certainly be grateful for more information on this matter.

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