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Baroness Gould of Potternewton: My Lords, I thank the Minister for her detailed and thoughtful reply to the debate. It has been an extremely serious and important debate, and I thank everyone who participated in it. I am sure that my noble friend was aware of the strength of feeling around the House in relation to this issue and the fact that it was felt that something needed to be done to redress the problems of so many children.

I want to pick up a point raised by the noble Lord, Lord Campbell of Alloway. I do not particularly want to return to the subject of nannying. I simply want to say to him that in 1968 the New Zealand courts decided that a checklist would be helpful to them. It was not a question of nannying; the courts believed that a checklist would be right in helping to protect children. The fact that they produced one so many years ago is a great credit to them. Perhaps it is a pity that we are only now reaching this position.

The Minister said that the only disagreement lay in the way that we seek redress to an unsatisfactory situation. I am sure that that is right. She outlined many of the ways in which she is seeking to redress the situation. She said that the tools are there to be used but that perhaps they are not being used correctly. I appreciate all the work that is being done by the Lord Chancellor's safety stakeholder group in order to redress some of these very serious problems.

I was particularly taken by the Minister's words which referred to the fact that case law may have undermined the Children Act. I believe that indicates that there is now some recognition that the Children Act has been undermined by subsequent case law.

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I was particularly pleased to hear my noble friend say that, if primary legislation is required, then action will be taken. Many of us believed that that would not happen and that the possible need for primary legislation would not be recognised.

As the debate has proved, this is a complex and serious issue. I shall study my noble friend's reply, for which, again, I thank her. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102B not moved.]

Lord Clement-Jones moved Amendment No. 102C:

    After Clause 111, insert the following new clause—

"(1) In section 10(4)(a) of the 1989 Act (Power of court to make section 8 orders), after "parent," leave out "or guardian"
(2) In section 34(3) of the 1989 Act (parental contact etc. with children in care), after paragraph (a) insert "(aa) a relative"."

The noble Lord said: My Lords, first, I apologise to the House and, in particular, to the Minister and her team. The gremlins got at half of Amendment No. 102C, and your Lordships may wish to look at subsection (1). The words,

    "and insert 'guardian or relative'",

should be placed at the end of that subsection. For some unaccountable reason, they do not appear on the Marshalled List.

Earlier during Report stage in this House, the Government introduced Amendment No. 27 to the Bill to the effect that relatives may apply for contact with a child whom the agency is authorised to place for adoption under Clause 26. I refer noble Lords to col. 669 of the Official Report of 14th October. The effect of that amendment was to remove the earlier requirement that relatives needed to apply for leave before making an application. The Government explained that they had been swayed by the arguments in Committee that siblings should be able to apply without leave, but, in fact, they went a stage further to extend the provision to wider family members. At the time, the amendment was warmly received by the House and, in particular, by the noble Lord, Lord Astor.

This amendment seeks to address what has now become a rather anomalous situation. Relatives seeking contact with a child placed for adoption do not need to apply for leave to apply for contact, but the same people seeking contact with a child in accommodation or care do need to do so. There is no obvious rationale for retaining that differentiation. Relatives are generally successful when they apply for leave, arguably making the leave stage an unnecessary use of the court's time. If their application is, in those rare cases, inappropriate, there is already a mechanism in Section 91(14) of the Children Act to restrict future applications. It is surely time to raise the presumption—I know what the noble Baroness said about presumptions—that they may apply for contact unless they need to be restricted from doing so, rather than vice versa. I beg to move.

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5.30 p.m.

Baroness Scotland of Asthal: My Lords, I confess that I was puzzled by an amendment that sought to remove guardians who are generally believed to be rather a good thing. I am glad to hear that that was not the intention of the noble Lord. As I now understand with a greater degree of clarity the purpose of the amendment, I ask the noble Lord whether I can take this issue away and return to the matter later. I hope that I shall be able to give the noble Lord a more comprehensive response in the interim.

Lord Clement-Jones: My Lords, I could not have had a better response from the Minister. At least she has not turned me down flat. I am pleased with that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 [Special guardianship]:

Lord Clement-Jones moved Amendment No. 103:

    Page 62, line 17, at end insert—

"( ) Where the court is considering whether to make a special guardianship order and no children's guardian is already appointed by the court for the child who is the subject of the application, the court shall appoint a children's guardian for the child concerned unless it is satisfied that it is not necessary to do so in order to safeguard the child's interests."

The noble Lord said: My Lords, these amendments are linked but they cover different topics. Therefore, I apologise to the House as my introduction to Amendments Nos. 103, 105, 106, 107 and 108 will be slightly lengthy. I ask for the indulgence of the House.

I turn first to Amendment No. 103. Under the Bill the court will have the power to make a special guardianship order in both public and private law cases. That order will significantly interfere with a parent's exercise of his or her parental responsibility as it allows the special guardian to exercise parental responsibility in relation to the child to the exclusion of any parent with parental responsibility.

The current provisions in the Bill require the local authority to submit a report to the court. However, that may not, in the view of these Benches, provide adequate independent information to assist the court to decide on the suitability of the order and the level and kind of services that the child and carer will need. First, the local authority may already have formed a fixed view about the family's plan for the child, particularly when the family has a history of involvement with social services. Secondly, its view about the need for support services may be at least partially determined by its own budgetary considerations within the local authority.

The noble Lord, Lord Hunt, confirmed in Committee, at col. 348, that a CAFCASS officer will be appointed in most cases where the court is considering making a special guardianship order. If that is correct, we suggest that a presumption of appointment, unless circumstances exist to justify not appointing, would be more appropriate rather than the other way round, particularly in view of the current workload pressure on the CAFCASS service. Otherwise, the court may not have the benefit of

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independent advice and information about how best to meet the child's needs, which may seriously disadvantage the child, particularly in cases where there is disagreement between the parent and potential special guardian.

On Amendment No. 105, the importance of support services for children and special guardians is rightly recognised, as it has been throughout the Bill. However, birth parents are not specifically included in the list of people who may request support services. As the effect of a special guardianship order is to exclude the parent from decision making about the child, although it is also anticipated that some form of contact is likely in most cases, we believe that it is essential that the parent has the right to an assessment of their need for support services. Otherwise the provision of support may be lopsided and therefore largely ineffective because the parent will not have received any help to adjust to the new arrangements.

Although the noble Lord, Lord Hunt, confirmed in Committee, at col. 356, that birth parents may well be included in the list of those within the prescribed description who may ask for support, we suggest that that right to request support should be contained in the primary legislation; otherwise it is likely to be given low priority by local authorities.

I turn to Amendments Nos. 106 and 107. Special guardianship orders are likely to be made in respect of three categories of children who are living with relatives, friends and/or carers including foster carers. The first category is where there are private arrangements between the parents and carer that may often be as a result of child protection concerns being identified but the family is able to take steps to protect the child without the involvement of social services.

The second category is where the carer takes the child into his or her family at the request of the social worker or other child care professional involved with the family, usually to avoid the child having to be taken into care under a compulsory order. That often occurs in response to an emergency situation when, but for the offer of care from the potential special guardian, the local authority would otherwise apply for an emergency protection order.

The third category is where the child is looked after by the local authority, is placed with a carer on a fostering basis and that carer subsequently applies for a special guardianship order.

Clause 113 includes a provision that the local authority may carry out an assessment of the need for special guardianship support services at the request of a child who is subject to a special guardianship order, a special guardian and any other person who falls within a prescribed description. But there is no obligation on the local authority to do so unless the person falls within a prescribed description as specified in the regulations. Whom that will include is, as yet, unknown.

The noble Lord, Lord Hunt, clarified in Committee, at col. 355, the Government's intention to target support to the third category of children I have described who are still looked after at the time the

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special guardianship order is made. While that commitment for support is welcome, there is widespread concern that the first two groups of children may not receive support. Indeed, their special guardians may not even be assessed for support. Should that arise, the effect will be that a relative who responds promptly to provide protection for a child who is suffering, or who is likely to suffer, harm will in effect be penalised for preventing the child having to be taken into care. If the welfare of children is paramount, that cannot be right.

Indeed, research evidence in Second Time Around, a survey of grandparents raising their grandchildren, published by the Family Rights Group in 2001, which was referred to in Committee, showed that many grandparents caring for children who had not yet been looked after faced great difficulties but struggled to gain the support services they needed.

The amendments provide that the right to an assessment should apply to all special guardians, children subject to special guardianship orders and their parents, because of their special situation. In our view there is no category of special guardian who will never need support. Hence none should be excluded from the right to assessment. Whether they go on to receive support will depend upon the needs identified in the assessment.

The Minister's arguments in Committee rested on a number of different propositions. He said that special guardianship does not have the same long-term consequences as other provisions; that we do not have experience of it; and that it required a great deal more flexibility than may be appropriate for adoption support services.

In the course of that debate we did not assure any birth parents that they can ask for special guardianship services and we did not assure grandparents that they will be included. The Minister simply said that in a consultation process he was open to discussion on those issues and that he was open to developing the list of people who would be eligible. He would consult on the regulations to be laid in relation to special guardianship orders.

We could revisit many of those issues. No doubt government minds will remain open in the light of experience. But the issue of birth parents and grandparents should be considered now, not simply in the light of experience. The Minister also said that if we were to make it a statutory duty to provide support services after an assessment we would be placing it in a higher order—giving it a higher level of priority. The Minister is nodding, so he clearly remembers his arguments only too well. Of course, there will continue to be duties under other sections of the Children Act. What we are arguing for in these amendments does not prevent local authority action in any other respect.

On these Benches we do not believe that a balance has been achieved. Amendments Nos. 106 and 107 seek to achieve that balance so that no one should be automatically excluded from special guardianship support services. I hope that the Minister will consider those two amendments.

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Finally, on Amendment No. 108, the Bill gives a local authority complete discretion as to whether it will provide any special guardianship services when a need is established by an assessment. While the local authority must have a discretion to provide services that are relevant to local need, there should, nevertheless, be a requirement on it to provide services or to arrange for them to be provided in situations where a need is established by an assessment. Otherwise, the process of assessment and subsequent service provision will be skewed by the resource implications for the local authority. On that note, I beg to move.

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