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Lord Hylton: My Lords, earlier today the Minister pleased the whole House by accepting Amendment No. 19 concerning the emotional well-being of children. Having done so, she will have uphill work in resisting the insertion of the words "and feelings" at this stage.

I draw attention to Amendment No. 42 and subsection (4)(c) which seems to be intended to make sure that proper weight is given to a particular child's wishes and feelings in the light of his age and understanding. That is important, otherwise quite wrong conclusions may be reached. I support the amendments.

Baroness Howe of Idlicote: My Lords, I support the amendments and particularly Amendment No. 42. I have listened to what has been said and read the careful detail in the amendment, and I believe a case is more than made. It has been proved, alas, that there has been failure to record the kind of detailed information from children to obtain their feelings and reactions in private. That is crucial in coming to the right conclusion. I hope that the Minister will be able to accept the proposals.

Lord Laming: My Lords, the problem I have with Amendment No. 42 is that prior to undertaking the Victoria Climbié inquiry I would have thought that this was the core of good practice and that every authority would have ascertained the wishes and feelings of the child in the circumstances and having access to the child unless, as the amendment says, that proves to be neither practicable nor urgent.

The Victoria Climbié inquiry had quite a devastating impact on me because I found it incomprehensible that a child could be referred to so many different services with clear indications of deliberate harm. Not only was the child not properly seen and discussed but she was placed under police protection without having been seen. Then the police protection order was removed without the child being seen. The child was taken to hospital and the person who took her there was not even interviewed. So we have to face the reality of what happens out there sometimes.
 
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I live in the hope that that case was the exception rather than the rule, but having gone around the country, I have to say that my level of confidence is not altogether high. Anything that can be done to reinforce what I am sure every Member of the House recognises are basic elements of addressing children's needs in these circumstances must be supported.

Baroness Ashton of Upholland: My Lords, let me begin by talking about Amendments Nos. 40 and 41. I recognise that accepting amendments on the hoof may lead to the noble Lord, Lord Hylton, taking me hostage somewhat for my own behaviour earlier on. That is probably the reason why I was warned against doing things like that. I shall have to face the music later.

As the noble Baroness, Lady Walmsley, indicated, the amendments would add the words "and feelings" to new Section 17. I am grateful for the welcome given to the amendments that we have put forward on "wishes" which I believe the noble Earl, Lord Howe, remarked was one of the four or five most important issues of principle raised when we considered the Bill in Committee.

I understand absolutely the sentiments that lie behind the proposal, and I understand fully that there will be Section 17 cases where a child cannot, or cannot be expected to, articulate his or her wishes. If a child is too young, is suffering from a disturbance or is coming under pressure from a division of loyalties, it may be very difficult for that child to express his or her wishes. As the noble Lord, Lord Laming, said, it is good practice and in accordance with the Framework for Assessment of Children in Need and their Families for an attempt to be made to ascertain a child's feelings.

We have also received legal opinion that is concerned to preserve the distinction between "wishes" and "feelings" as separate constructs, and to have them both expressed in Section 17. It would still be possible of course for a local authority in discharging its duties to consider to what extent it needs to ascertain a child's feelings, and to consider how to factor its conclusions into the decision-making process.

My concern, however, is that by accepting the amendments we would create an unplanned and unintentional inconsistency between Section 17 of the Children Act, which would refer to "wishes and feelings" and Section 20 of the Act, which requires a local authority to ascertain only a child's "wishes" about the accommodation provided for him.

Consistency between Section 20 and Section 17 is very important because they are sometimes considered together as alternative routes for assisting a child. They are both about providing services to children in need. Where a child or member of his family is provided with services under Section 17, which may include accommodation, he does not become a looked after child. By contrast, where the child is provided with accommodation under Section 20, he does become looked after.
 
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If we require feelings as well as wishes to be considered under Section 17, it seems to suggest that more investigation of the child's state of mind is required about providing services like home help, cash for beds or school uniforms than is required under Section 20. That is clearly not right.

It is clear to me, therefore, that we must consider carefully any changes to Section 17 because of their implications for Section 20. As noble Lords know, the words "wishes" and "feelings" have very different meanings legally. "Wishes" are what a child wants, or says he wants, while "feelings" are more complex—they are emotions which are not necessarily about what the child wants. At present, the Children Act 1989 refers only to the need to ascertain "feelings" in relation to the decisions made by a court or by local authorities in exercise of their corporate parenting role, but not in relation to specific issues around the provision of particular services.

We need to ensure that we do not upset the balance in the Children Act, which is an effective piece of legislation that has stood the test of time. So I am asking the noble Earl to withdraw his amendment on the basis that we will consider the issue it raises and bring it back in the Commons. We want to do two things: first, we want to find out why in 1989 the Act referred to "wishes" and not "wishes and feelings" because we do not know; and, secondly, we want to ensure that Section 17 and Section 20 do the same. I hope, on that basis, the noble Earl will feel comfortable about withdrawing his amendment. We just have not had time to establish the exact circumstances and we do not want to have two pieces of legislation in the same Bill that do not equate to the same thing.

I turn to Amendment No. 42, which would amend Section 47. Only last week I spent a considerable time talking to representatives of children's organisations who are concerned about this.

I have also spent a significant amount of time talking to our legal team about this, because I know how strongly noble Lords feel about it. Noble Lords know that under Section 47, a local authority is required to make inquiries where there is reason to believe that a child is suffering or likely to suffer significant harm, in order to ascertain whether it is necessary to take action.

Clearly the child concerned should be involved in the decision about what action is taken, and this is made clear in Government guidance. In any case, any action as a result of Section 47 inquiries is likely to be taken under local authority powers in Sections 17, 31 or 20 of the Children Act 1989.

I will not go into all the detail, although I have it all here, but under Section 17 there is a requirement that the child's wishes be taken into account. Under Section 31, a child's wishes and feelings are crucial to any decision that is taken. Under Section 20, a looked-after child's wishes and feelings would have to enter into every decision. We have covered the issue in those three different areas.
 
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I have looked carefully at Section 47 and we are certain that this is a potential difficulty for us. Section 47 covers a range of circumstances where we believe that social services and others might—as I said on Report—have to take action without ascertaining the child's wishes and feelings. I recognise that the amendment is not the same as the original provision, which required the child's views to be ascertained unless sufficient information has already been obtained about the child's circumstances, wishes and feelings, and not just about the child.

It may well still be the case that social services or others might take action to secure the child's safety without having any information about their wishes and feelings. We believe strongly—I rarely feel as strongly as I do about these issues—that we have to be clear on this. They must be able to act immediately in these circumstances. I take the point about the tragedy of Victoria Climbié, but she was a Section 17 child before she was a Section 47 child. That was such a dreadful example of systemic failure that nobody asked her at any point. There are lots of points in the process at which she would be asked under the amendments and changes that have already been raised. It is important that we are clear what allowing the amendment to Section 47 would do.

The other example that I discussed with the legal team concerned some of the work being done by the social services as a result of the Government guidance Achieving Best Evidence—for example, as concerns sexual abuse cases. People need to take enormous care about interviewing children before the instigation of proceedings which may be criminal proceedings. I should like to give noble Lords an example, although I rarely do so as examples are always difficult. If there were a family of four girls and there was clear evidence of abuse of three of them by a family member, we would argue—I am sure that noble Lords would all agree—that we should take action to secure the safety of the fourth child without interviewing that child about their wishes and feelings in advance.

When legal proceedings are possible great care has to be taken that any interviews are not inappropriate. They must be done at the right time, in a way that does not traumatise the child and by well trained people who know exactly what to do, particularly where criminal proceedings are involved.

I know that those two examples are in extremis, but they are real examples that would be covered by the amendment. That is why we should not pass the amendment. I accept that in all the other parts—Sections 17, 20 and 31—the issue is important, and I also agree that wherever possible it is still important that we do this in advance and that we certainly do it once a child is removed from danger. However, the amendment would affect the two specific cases I have described and I urge great caution because I believe that that could lead to something that no noble Lord wants.

My final point is about the phrase "in writing". We do not believe that it is sensible to put that provision on the face of the Bill. Most social services
 
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departments are moving to electronic recording systems for recording the child's wishes and such a system would not count as writing. Also, social workers and others involved with children might be visually impaired and would not record a child's wishes in writing. We should not put that kind of absolute requirement on the face of the Bill.

I hope that with what I have said about wishes and feelings and my undertaking to take that back, and the strength of my feelings about Amendment No. 42, noble Lords will feel able to withdraw the amendments.

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