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Grand Committee

Monday, 21 October 2013.

3.30 pm

The Deputy Chairman of Committees (Lord Colwyn) (Con): My Lords, the usual warning: if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Children and Families Bill

Committee (4th Day)

Relevant document: 7th and 9th Reports from the Delegated Powers Committee,3rd Report from the Joint Committee on Human Rights.

Amendment 56

Moved by Lord Northbourne

56: After Clause 11, insert the following new Clause—

“Children’s welfare: duties of parents

For the purposes of section 3(1) of the Children Act 1989, the duties of the parent to their child are—

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide in a manner appropriate to the age and development of the child—

(i) direction; and

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and contact with the child on a regular basis,

but only in so far as compliance with this section if practicable and in the best interest of the child.”

Lord Northbourne (CB): My Lords, having been swept away at the end of the previous session, I now have the opening say-so. Both my amendments to this important Bill are about the problems of dysfunctional families and disadvantaged children. Although this Bill suggests many important ways in which current practice could be improved—and I support many of the changes in the Bill—it does not address the possibility of reducing the number of dysfunctional families and disadvantaged children in our society. It fails to address prevention. Prevention could and, in my view, should be an important part of this Bill. My Amendments 56 and 57 explore just two of the many possible ways in which we could reduce the number of dysfunctional families and disadvantaged children in our society in the future.

Amendment 56 is about defining the duties of a parent. We all know, alas, that too many young people become parents without thinking about what their child will need of them or what parenting will involve for their own future life and lifestyle. We all know that in good schools PSHE and SRE teachers do their best to teach young people these things but they need more help than we are giving them. The relevant law on this is the Children Act 1989. As your Lordships will know, it says in Section 3(1):

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“In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

That definition may be helpful for lawyers who understand and have access to the relevant case law. It gives no clear guidance to a child or a teacher.

We need a much clearer and more understandable statement of the law, setting out the sort of role that we expect parents to play. Such a statement should not be based on outdated moral values but on the needs of the child. Of course, those needs include not only food, warmth, shelter and consistent care but being able to feel safe and loved—the secure attachment to one or two specific adults which gives a child a sense of being valued and which builds their self-confidence for life.

They have such a statement in Finland, in France and, oddly enough, in Scotland. I have used a Scottish form of words in this amendment to define the duties of a parent. This is a probing amendment and I would welcome comments on whether the wording I have suggested is helpful. For example, it may be that the duty of fathers and of mothers should be considered separately; I am not at all sure about that.

It is important to remember that the duties referred to in the Children Act are only part of the responsibilities of a parent, which is what that Act defines. Only if we as a society can agree a reasonable statement of the duties of a parent will it be possible for us to pass on to our children the obligations that parenthood will bring for them. I beg to move.

Baroness Massey of Darwen (Lab): My Lords, I thank the noble Lord, Lord Northbourne, for tabling this amendment. I, of course, agree that parents should support and guide their children: it is the key relationship. Mothers and fathers have joint responsibility. Like the noble Lord, Lord Northbourne, I agree that prevention is absolutely key to tackling dysfunction. His amendment takes note of supporting the child’s “health, development and welfare”. Like him, I suspect, I think that people are often not prepared for the responsibilities of parenthood and that we as a society have not taken this seriously, believing that parenthood comes naturally.

I am a great supporter of parenthood teaching in schools, clinics or wherever. Most young people become parents and often do not know much about the importance of child development, talking to children, setting boundaries and so on. Many parenthood classes are available for parents only once the child gets into trouble. Frankly, that is too late. Early intervention should start with parents but they are sometimes bewildered. Perhaps the Minister or somebody else knows how many parenthood schemes exist in this country to teach parents or future parents to be better parents, not when the child gets into trouble but as an education scheme for all parents. After all, not everybody has a super nanny, as in the television programme of that name, to iron out horrendous problems once the family has dug itself into a hole. Parents are often not well supported. I worry about austerity measures which hit poor families hardest and about child poverty policies, which may plunge even more parents into

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difficulty. It is a challenge to bring up children in any event; it must be extremely challenging to bring up children in poverty.

The Earl of Listowel (CB): My Lords, I support Amendment 56 in the name of my noble friend Lord Northbourne, and regret that I failed to add my name to it. When I looked at the figures for the United States recently, I discovered that a third of boys, and two-thirds of black boys, were growing up without a father in the home, which is a pointer to where we might end up if we do not adopt my noble friend’s amendment. I have had the privilege of working with young people. I have worked with young people in hostels and boys have “adopted” me as their father. I have spoken with young men working in those hostels about what it was like for them to be brought up by their mothers on their own, and how guilty they felt about the burden they had put on them. The honourable Andrea Leadsom MP, who does such great work around early years provision, highlights the concern that when mothers bring children up on their own they risk feeling overwhelmed by that burden and withdraw their emotional support for their children.

I believe that this provision is already law in France and several other European countries. This is such an important issue that I hope the Minister will give a positive response. President Barack Obama grew up in a household without a father. Your Lordships may remember the speech he made as a senator in 2008.

He said:

“But if we are honest with ourselves, we’ll admit that … too many fathers … are … missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know how true this is in the African-American community. We know that more than half of all black children live in single-parent households, a number that has doubled—doubled—since we were children. We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it”.

That is the end of the quotation from his speech.

I hope that the Minister can give a very positive response to my noble friend’s amendment. Parents sticking together and sticking with their children is vital to the well-being of all our children. In my experience, children who do not have parents or carers who stick with them are unlikely to stick at friendships, at being husbands or wives or at jobs or difficult tasks themselves. I support my noble friend, and I look forward to the Minister’s response.

Baroness Butler-Sloss (CB): My Lords, I, too, support the principle behind the noble Lord’s amendment. In Section 3(1) of the Children Act 1989, “parental responsibility” means,

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

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As has been said, one of the saddest things is that when parents separate, a substantial number of fathers walk out—very often for good reason—but in doing so they abandon their children. I regret that I have not checked the percentage but it is large, something like 60%. I believe that in the Children Act there should be something to remind the public that those rights, duties and responsibilities include that which the noble Lord has set out.

Baroness Armstrong of Hill Top (Lab): My Lords, I support the overall aim of the noble Lord, Lord Northbourne, that the Bill should address the importance of engaging people in what parenting means before they become parents. When I was Minister for Social Exclusion I had the enormous privilege to have a look at some of the evidence-based programmes around parenting. I recommend that Ministers have a look at a programme called Teens and Toddlers, which I encouraged local authorities to adopt. Young people identified by their teachers as probably vulnerable to becoming young parents were put on to this programme, which lasted for about 12 weeks. The youngsters thought that the programme was quite good because they got out of school for one day a week. In the morning they would care for a particular child in an early-years setting, week in and week out, so they got to know that child and discovered that the process was not as simple and straightforward as it might have been made out to be. They found that some children were really quite difficult, even at that very early age. I met two or three groups of young people who were engaged in the programme, as well as some who had done it some years before, and they said things like, “It was very clear that no one else spent any time with this child, so the child never looked at me for weeks”. They learnt an enormous amount. They learnt that children need feeding regularly, that they make a noise, and that they are expensive. After the session with the children in the early years setting, there would be group sessions with their peers and the tutors who were running the course. They would explore what it was all about. Many of them had never been parented; they had been parented by siblings. In particular, some of the young women involved had to look after their own young siblings.

I loved, enjoyed and was fascinated by the sessions. I met some of the young people who had been on the first course to be run in this country around eight years earlier, in the London Borough of Greenwich. Of the dozen young people who had been on that course, not a single one had become a parent. They all said, “We have learnt so much from doing the course and we knew that we had choices. We made the choice to be sensible and that we would not have a child early”. I remember one young black woman saying, “I will be 24 before I have a child because I want that child to succeed and I want a life as well”. She had learnt that from this programme, and it is exactly what the Government should be encouraging. Young people should learn about the seriousness of being a parent. Yes, it can be joyful, but it is expensive, it restricts what you can do, and it takes real knowledge and understanding of what you are doing to be a good parent. When we do not take that seriously, we are colluding with the

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issue of children being born into dysfunctional families. We know what can be done, so it is about time that we took the steps to ensure that things are done so that fewer children are born into families where the parents are simply not ready or capable at that point of parenting.

3.45 pm

Baroness Howe of Idlicote (CB): My Lords, I am particularly glad that the debate on the probing amendment moved by my noble friend Lord Northbourne did not take place at the end of the Committee session last Wednesday. We are being allowed to take a much deeper look at this important area. Reducing the number of dysfunctional children needs a lot more attention paid to it. On prevention through early intervention, Frank Field and Graham Allen have said it all. Parental responsibilities are enormous, and children need to feel safe and loved, as my noble friend rightly emphasised.

A really good plus is that today families are beginning to share the bringing up of children. Fathers are often much more practically involved in their children’s upbringing. It used to be the case that mother would say, “You wait until your father gets home. He’ll deal with you”. Not any more. Fathers themselves gain great enjoyment from this sort of relationship, and that is very pleasing to see. Young people have to learn about what is needed to bring up today’s children. They have to know about the substantial dangers that children have to face as they grow up. There are new communications techniques and things that can be found on the internet. Also, with fellow children at school, there are things like sexting and sending pictures that no one would want to have shown around. This may be a probing amendment but, my goodness, it is important and should make us all think very carefully about how wide this subject is. I am sure that the Government are fully aware of the importance of this issue.

Baroness Sharp of Guildford (LD): My Lords, in a personal capacity I very much support this amendment. I have been an officer to the Parents and Families Group for a long time. The noble Lord, Lord Northbourne, is chairman of the group. I fully agree with the remarks made by the noble Earl, Lord Listowel, on the importance of family relationships on how children emerge. As the noble and learned Baroness, Lady Butler-Sloss, said, it seems absurd that the only law we have in this country relates to property and not to responsibilities. In all conscience, we are keeping responsibilities on local authorities, on schools and on all kinds of people in this Bill. However, to some extent, those who have prime responsibility for bringing up children should be made to recognise that they have such responsibilities. As the noble Lord, Lord Northbourne, said, the Scots have this law. It is a good law and there is a lot to be said for copying their example.

Baroness Howarth of Breckland (CB): I may be a lone voice here but, much as I agree—who cannot agree?—with the essence of what the noble Lord, Lord Northbourne, has said, I do not view legislation

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as the answer. I am sure that the Minister will say that we have a plethora of legislation. I have worked in this field and I could list it but I will not do so because it would take all the time in the world. The important message that we should take from the amendment in the name of the noble Lord, Lord Northbourne, is how vital it is that we should do what the noble Baroness, Lady Massey, has been saying for so long. We still are not doing well in terms of PSHE and helping young people and children to understand as early as possible what it is to be a parent, to be part of a community and all that you have to do as a citizen. Teens and Toddlers is still going and the programmes through which young people learn at first hand about bringing up children are very important.

However, I believe we live with a myth that modern young men are all the same, which we need to face if we are to deal with some of these issues. The young men I deal with, and I am sure that the noble Lord, Lord Ramsbotham, deals with, who end up in prison or in serious difficulties certainly are not among those who see themselves as hands-on in childcare. They see themselves as at the football match, the pub or an alternative. Until we are able to get programmes that work directly with such young men, we will not make a difference to them while they are growing up. We should forget the myth that all young men are the same, particularly in understanding the wide range of cultures. The noble Earl, Lord Listowel, mentioned young men from certain cultures. There are difficulties in many different groups and we have to be sensitive to all that.

I say to my noble and learned friend Lady Butler-Sloss that I do not think that there are many good reasons for men walking out on their families. They do it because they have not been helped to face up to those issues. However, the courts are getting tougher in ensuring that they face up to their responsibilities, which I am pleased about. I know that CAFCASS has been working for a considerable time on trying to make parents face up to what they will do to their children if they leave them.

Although my heart is with what the noble Lord, Lord Northbourne, has said, we need to get on with the practical application and the proper support for good social work intervention that will make a difference, rather than have yet more legislation on the statute book.

Baroness Butler-Sloss: Perhaps I may say that I had no intention of saying that it was right for young men—or older men—to walk out on their families. They may be justified in walking out on their spouse or partner, but to leave the children behind, or not to look after them, is unacceptable.

The Earl of Listowel: May I, too, just say that while I agree that all my noble friend spoke of is vital if we are to change the culture, might not legislative change of the kind that he is proposing also be helpful? It may of minor assistance, but given that this is such a grave matter, might it not be worth pursuing?

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Lord Ramsbotham (CB): My Lords, both my heart and my head are with my noble friend Lord Northbourne on this. One of the attractions of his proposal that we should get this into law relates to the very people to whom my noble friend Lady Howarth referred. The proposed amendment would have a lateral benefit for people in custody. Some of them benefit from instruction in parenting, but many do not. If parents’ duties were more codified, it might enable better structure to be given to parenting instruction, which seems to be a crucial part not just of education in custody, but of education in school as well.

Baroness Benjamin (LD): My Lords, I, too, support this amendment, and I want to make a case for qualified play therapists to be involved in this issue. Play therapists can play an important role with children and their parents, both in schools and in children’s centres, in breaking the cycle of continual problems within families, helping them fully to understand the importance of parenting and family bonding, and about relationships and responsibilities. Where play therapists have been allowed to carry out this type of work, there has been much success in keeping families living happily together. I know this because I am the patron of the British Association of Play Therapists, for which I declare an interest.

For many years I have spoken up about the need for parenting and relationships to be taught in schools. I have seen what this can do. I have even been into prisons, talking to men, in particular, about parenting and the importance of learning to live with their children, to love them and to bond with them. Many of them do not know how to do that and have never received the investment of time and effort in their lives that would make them understand the importance of this parenting and bonding. I hope that the Government will give this serious consideration and look favourably on the amendment.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, as I have come to expect with this Bill, the amendments are thoroughly debated and raise some fundamental problems, which I promise to take on board as the Bill progresses.

My response gives me the opportunity to explain a number of measures aimed at promoting the positive involvement of both parents in their children’s lives. In many ways, I am sympathetic to the noble Lord’s intentions in tabling this amendment. When we come to make decisions on this Bill, we will all have to consider deeply whether some of the responsibilities that have been raised in this debate are most sensibly written into this legislation, or elsewhere, or addressed by other means. However, I certainly do not doubt that there is an issue—which the noble Lord, Lord Northbourne, has rightly raised—about how we get the required level of parental responsibility. The noble Earl, Lord Listowel, referred to the knock-on effects of the problems of single parents, particularly in families without fathers. The noble Baroness, Lady Massey, emphasised the importance of early intervention, while the noble and learned Baroness, Lady Butler-Sloss, lent her support to the idea that it is sensible to set out those responsibilities in the Bill.

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4 pm

I was very interested in what the noble Baroness, Lady Armstrong, had to say about the Teens and Toddlers programme, and the assurance from the noble Baroness, Lady Howarth, that it is still going. It is quite some time now since I have had constituency responsibilities, but when I did, what worried me the most about teen mothers was that so often they became mothers in order to have someone to love and who in turn gave them a sense of worth. I think that that may still be a factor in this.

The noble Lord, Lord Northbourne, the noble Baronesses, Lady Massey and Lady Armstrong, and other noble Lords asked what the Government are doing to support new parents. The Government are committed to ensuring that all families feel well supported and every child gets the best start in life. That is why the level of relationship support funding, £30 million over 2011 to 2015, marks a significant increase on previous funding levels. We know that support services for couples at key transition points such as moving in together, getting married and becoming parents, are vital. We are funding key voluntary and community sector organisations such as Relate, Marriage Care and Pace to deliver relationship support services at these important transition points. We are also funding One Plus One to run a series of campaigns to promote relationship support. This will target young people and new parents in particular, so that they see relationship support as a normal way of strengthening their relationship rather than just at crisis points.

The noble Baroness, Lady Howe, made an interesting point about the changing nature of fathers’ responsibilities. It is a long time ago, but I remember when growing up in the 1950s that fathers would not push the pram, never mind anything else. This will come as a shock to the Committee, but on Saturday I was at my local gym—not over-exerting myself—and I noticed that a babies’ swimming lesson was being held in the pool. I saw a father with his baby in the pool teaching it to swim, all without any self-consciousness. It is true that there is a sector of young men who perceive themselves as being outside of any sense of social responsibility, but there is a more positive side. I see a whole range of young men with positive attitudes towards shared parenting and responsibilities. That is quite different from what their fathers, and certainly their grandfathers, would have seen. The picture is not all dark.

We recognise the importance of high quality PSHE, and we will be dealing with that in more detail when we come to the second amendment tabled by the noble Lord, Lord Northbourne. We also want to take up the point made by the noble Baroness, Lady Armstrong, on supporting new parents in learning about what parenthood entails. Children’s centres act as a valuable hub to help families access key services, including health visitors, early education, childcare and parenting support. Children’s centres frame their activities to identify and help those families most in need. I have also noted what the noble Baroness, Lady Benjamin, said about play therapists, and I am sure that that is true. The noble Lord, Lord Ramsbotham, spoke in support of some kind of codification of responsibilities, as did the noble Baroness, Lady Sharp, referring to the Scottish experience.

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Obviously the amendment has been a probing one. The noble Lord quoted the Children Act 1989, which sets out the meaning of “parental responsibility”. I shall just quote it again:

“‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”—

that is, his or her property. This concept of parental responsibility encapsulates all the legal duties and powers concerning the child’s upbringing that exist to enable a parent to care for a child and to act on its behalf. It relates to all the obvious concerns, such as the child’s material needs and healthcare, the manner of his education, religious upbringing, legal representation and administration of property.

As the noble Lords will know, there has been much debate in this House in the context of children’s legislation about whether parental responsibility should be defined further in legislation. No evidence has been put forward, however, to suggest that the present definition causes any difficulty. Indeed, the Law Commission report on guardianship and custody, on which the Children Act 1989 was based, indicated that the meaning of “parental responsibility” would need to change according to changed circumstances. This is not in my brief, but I am well aware that that was in 1989 so we are talking about a conclusion reached nearly 30 years ago.

In addition, the new clause may cause difficulties as it may be interpreted to mean that the duties of parents are limited only to the factors set out in the recommended clause. In practice, though, a parent’s responsibility for protecting and maintaining a child is considered to be among the most important components of parental responsibility. So, too, is having contact with the child. At the moment, the Government are not persuaded that a more detailed statutory definition would serve a useful purpose, and no evidence has been put forward that demonstrates that to be the case. However, what has become clear in this debate is that early and focused intervention on specific problems works and should be supported.

The amendment was a probing one. I cannot give the noble Lord more encouragement than to say that he has initiated an extremely full and thought-provoking debate, and I will take that away with colleagues. In the end, it comes down to the balance between those who think that if you write it down in a Bill, that makes it true—I know that he does not believe that. Whether the Bill should be burdened by having some of the issues that were raised in this debate put on its shoulders is one of the matters that we will have to ponder. In the mean time, I thank him for the debate that he has stimulated; he must be very pleased with the range of well informed support that he got. For the moment, though, I ask him to withdraw his amendment.

Lord Northbourne: Yes, I shall be delighted. I think that it was 27 years ago that I found myself trying to persuade Cross-Bench Peers to let me have a debate on parenting. As I spoke, I gradually saw their eyes glazing over. None of them had the foggiest idea what I was talking about, so we have at least done better than that today. I am intensely grateful to all noble Lords who have spoken in supporting the amendment.

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I have one point to make to the Minister. I am not trying to lay this thing down in law as something to punish people for. I am trying to get a clear statement that can act as a guide. For instance, suppose that the Minister were standing up in front of a class of 20 teenage boys and said to them, “One of the things you’ve got to realise is that you mustn’t have sex without a condom”. The boys would say, “Why shouldn’t I? If I have a baby, what does it matter? It’s her job, isn’t it, to make sure that she doesn’t get pregnant?”. That is about the state of many young people’s understanding of this matter, and we should do something to support the teachers who are trying to put across a rather more sensible message. If possible, I suggest a meeting with the Minister and perhaps some of the other noble Lords who have contributed to see whether there is some way in which we can move this matter forward. I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Amendment 57

Moved by Lord Northbourne

57: After Clause 11, insert the following new Clause—

“Children’s welfare: family responsibilities (schools)

(1) The governors, sponsors and headteacher of every school which teaches pupils in keystage 3 must prepare and publish each year a full and clear statement of the policy and practice of the school in relation to preparing pupils for the opportunities, duties and responsibilities which they are likely to encounter in adult life including the duties and responsibilities of family formation and of raising children.

(2) Every statement must also publish the qualifications, learning and experiences of teachers who are involved in the delivery of this programme.

(3) This statement must be brought up to date annually.

(4) The Secretary of State may, from time to time, make regulations concerning matters which must be covered by the statement which must include “extra curricular activities”.”

Lord Northbourne: My Lords, in a child’s life there are two periods of rapid brain development. The first is during the first three years of life, while the second is around the time of puberty, in the early teens. That is scientific fact. If we want to reduce the number of dysfunctional families and disadvantaged children in our society, we must do more to prepare young people in their early teens for their future task of forming and bringing up a family. Many young people will learn these skills from their own family, of course, but sadly others will not be so lucky.

Statistics suggest that only 50% of children born today will be living with both parents by the time that they are 16. The statistics show that lone-parent households are 2.5 times more likely to be in poverty than couple families, and today in the UK there are over 3 million growing up in lone-parent families. I have one more statistic: in a recent report, the Centre for Social Justice found that 89% of people agreed that if we wanted to have any hope of mending what they called our “broken society”, family and parenting was where we had to start. The role of schools in developing personal, social and emotional skills must therefore remain very important for many young people today; I think we all agree on that. A great deal of this has been said already, so I shall try to skip through it.

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Preparation for family formation and parenthood is not just about knowing the facts of life; it is about recognising that having a child is a serious responsibility; about learning to be the kind of person that you want to be to your child and that your child will need; and about requiring the interpersonal and emotional skills that your child will want in order to create a secure home and for the children to develop in a healthy manner. This is an important point: young people in puberty, or around that time, are keen to find out more about what it means to be an adult, what adult life is about and what the challenges and opportunities of adult life are. It creates an opportunity for schools to help them, because they are in school at that age. In doing so, of course, schools must work with parents. Schools can and often do have a huge influence on a child’s personal and social development, particularly the soft skills, which we seem to have forgotten in our education system but which are so important, both for family formation and for the workplace, and indeed in society as a whole.

Of course the best schools are already doing a wonderful job but, alas, many schools are not doing that job well. Recent Ofsted reports make grim reading. Far too many secondary schools are still treating personal and social development as an unimportant subject, and there is a chronic lack of well trained specialist PSHE and SRE teachers. The Government’s policy today is—rightly, I suspect—to give more freedom to schools to develop their own curriculums. Outside the core curriculum, the Government will not prescribe a school’s curriculum. This puts a lot more responsibility on the schools themselves to get it right. In an area of learning as sensitive and important as PSHE, it is essential that parents, Parliament and the wider public should be able to know what each school is doing, what their policies are and whether they are actively pursuing those policies.

4.15 pm

Some of your Lordships may say that schools already have an obligation to publish their curricula but I have seen a number of curricula and most of them give nothing like the amount of detail that would be necessary. I got the Library to make inquiries about six secondary schools around where I live in eastern Kent. We got the six sets of curriculum details. Of those six, five made virtually no mention of PSHE or the personal and social development programme. The sixth, which I am proud to say was in Deal, my town, has done an absolutely brilliant job, with six pages. So it can be done. I have brought this copy for the Minister and had some other copies printed off, which I will put on the Table in case other noble Lords might be interested. It is quite an interesting document.

A statutory statement such as the one I have proposed in this amendment would oblige all schools teaching young people in key stage 3 to, first, think about, secondly, clearly spell out and, thirdly, make an annual statement of how they are getting on with pursuing their policy. That would put a certain amount of pressure on schools without being prescriptive—not telling them what to do but saying, “You tell us what you are doing and then we can argue about whether or not it is the right thing”. I beg to move.

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The Deputy Chairman of Committees: I will put the question and then we will adjourn for 10 minutes. We will return at 4.27 pm.

4.17 pm

Sitting suspended for a Division in the House.

4.29 pm

The Deputy Chairman of Committees: I think that we will make a start. I had just put the question, the noble Lord, Lord Northbourne, having moved his amendment.

Lord Northbourne: Although perhaps I did not make it clear when I was speaking, it is in a way obvious that my two amendments have pretty much the same objective. I took them separately because they have two completely different ways of approaching the problem, the second of which I believe is more exciting.

Baroness Massey of Darwen: My Lords, I am very grateful to the noble Lord, Lord Northbourne, for tabling this exciting amendment. Amendment 231 in my name asks all schools to ensure that children are educated and protected through school policies, pastoral care, linking with outside agencies and the curriculum. It goes wider than that in the name of the noble Lord, Lord Northbourne, but is of a similar tone.

The reason for my amendment and, I think, for the amendment in the name of the noble Lord, Lord Northbourne, is that pupils, teachers, parents and governors need clarity about what policy and practice is in a school. Otherwise, how can they be clear about what it is and how do they know how to operate? How do children know how to operate? For example, as regards behavioural policy in a primary school, pupils know how to behave because it is in the policy. Policy and practice should give clarity and security.

We have talked about the duties and responsibilities of raising children, and the importance of enabling young people, in an ideal situation, to learn about parenting long before they become parents, or perhaps later if they are in difficulties such as those that the noble Lord, Lord Ramsbotham, mentioned relating to the criminal justice system. I remember seeing a young man in jail being taught how to read to a four year-old with all the interaction that is necessary. It is never too late but it is preferable for that to happen earlier.

However, I take issue with the noble Lord, Lord Northbourne, in two instances. First, education about social and emotional development and responsibilities should happen before and after key stage 3. For a start, it should come from parents to children but, when talking about schools, it should happen from a young age through to when the child leaves. Schools should develop a spiral of curriculum and pastoral care which matches the age and stage of a child’s development. It should not be just at a particular age, and I do not think that it is. The issue is about a child’s right to an education.

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On the other issue, I think that the noble Lord, Lord Northbourne, talked about the importance of teacher training. That is right but it is not always teachers who deliver personal, social and emotional education. I have seen many excellent school nurses giving sessions in the classroom to encourage pupils to think about issues around their own health. I have seen first-aiders talk about issues around helping others to be safe. I have even seen a teenage parent come into a class to talk about the experience of having a baby at a young age, which was a quite dramatic experience for the pupils concerned. Therefore, I say yes to all this about personal and social health education, and yes to policies and practice in schools being well advertised. However, I should like to look at just those two issues again with the noble Lord, Lord Northbourne.

Lord Ramsbotham: I, too, lend my support to the noble Lord, Lord Northbourne, and will link what I am going to say to my comments on Amendment 56. I have a grandson at a secondary school in Gloucestershire and, like the noble Lord, I was fascinated to see the material with which he and his parents were provided. Frankly, it was all about today and not about tomorrow. Although the quality is fairly good, I am quite certain that it could be improved.

Clause 70, later in this Bill, refers to the fact that education, health and care plans are allegedly to be denied to those being held in detention. Last week I had a meeting with two Ministers in the Department for Education who told me what progress has been made. What is most promising is that young offender institutions are to be classed as mainstream schools as far as the provision of the Bill is concerned. In welcoming the suggestion of the noble Lord, Lord Northbourne, that this guidance should be provided for schools, I should mention that young offender institutions should be included, absolutely for the reasons set out by the noble Baroness, Lady Massey. Above all, we must not exclude people in detention from learning to look after their children.

Baroness Tyler of Enfield (LD): My Lords, I rise briefly to underline the important point made by the noble Baroness, Lady Massey, and in so doing I should declare an interest as vice-president of the charity Relate. I am very supportive indeed of schools playing a full role in preparing children for all aspects of life, and those must include the importance of personal relationships, family relationships and parenting responsibilities. From my experience of running an organisation that helped to deliver relationship education in a large number of schools, as the noble Baroness, Lady Massey, said, it is not always teachers who do the teaching in the classroom. I know of many schools that ask experts in relationship matters to come in from outside because they are trained to do this work. I recall seeing a report from Ofsted which suggested that trained relationship practitioners are more confident and better able to deal with some aspects of relationship education, particularly the more intimate and sexual issues. If teachers have not had the appropriate training, teachers can feel a little less than confident about it. I wanted just to underline that important point.

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Baroness Hughes of Stretford: My Lords, I, too, support the amendment moved by the noble Lord, Lord Northbourne, and I congratulate him on such a novel and neat proposal. I will not delay the Committee because I suspect that we will have a very full debate on PSHE and the role that schools can play in developing these aspects of children’s well-being. Indeed, the noble Lord has himself already pointed that out. However, Amendment 57 fits closely with the concerns we have on this side about better preparing children and young people for the challenges of life, and about maximising their potential academic success through extracurricular activities to develop their confidence, self-esteem, leadership skills and so on. Those are actually two sides of the same coin.

So-called “soft skills”, which in my view is a rather derogatory term because we are talking about non-cognitive development here, are very important and have been shown to be extremely valuable not only to meet challenges better, but also to maximise their potential academically. Why else would some of our best fee-paying schools have extensive programmes of such activities? They have them because they are aiming to produce rounded individuals by developing these important aspects of character and resilience. It is a great pity that the Government have taken away much of the funding that schools had been provided with for extended activities, as well as reducing the emphasis being placed by the department and the current Secretary of State on these and other extracurricular work. As the noble Lord, Lord Northbourne, said, Ofsted has highlighted the huge variation in provision, with much of it being of very poor quality.

The reason that this amendment is so novel and neat is that it is not prescriptive. It simply asks schools to discuss and debate these issues, and to review them every year. That will involve a conversation with parents and with the pupils themselves. They should then publish what they intend to provide. It will not cost schools any money to do that, but it will put this issue on the agenda and make it more transparent for parents and pupils alike. I am therefore very happy to support the amendment.

Baroness Benjamin: My Lords, I support this amendment. There is something close to my heart that the noble Lord also supports. Twenty years ago my production company tried to get a schools programme on parenting commissioned. I was told that could not happen because it was not part of the national curriculum. Thankfully it now is. Some schools are attempting to address this important issue. Parenting is not about sex education, but about teaching young people about life skills, relationships, respect for one another, responsibilities, basic money matters, social policies and solving domestic problems. That applies to everybody’s family life, no matter what their background is. All schools should promote parental responsibility and make it an essential part of delivering holistic education to all our children. That is why I support this amendment.

Baroness Howarth of Breckland: I rise very briefly to support this amendment, and to ask for it to be looked at in a broader context of social policy. The

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noble Lord, Lord Ramsbotham, talked of young men in prison. I want to give one example—something I heard last week—which relates to how young people can learn. I was told of a hostel for young women with their babies that was closed, probably for financial reasons. The young women and their babies were dispersed. Six of them were at university, and no consideration was given to this fact, to the support they received at the hostel or to what would happen to them in future. If we are thinking about how we can ensure that each generation gets the support they need, that story is a good example of how broader policy could make a difference.

Baroness Butler-Sloss: My Lords, for the reasons already given, which I will not repeat, I, too, support this amendment.

Baroness Howe of Idlicote: My Lords, I was intending to support Amendment 57 when we spoke earlier on Amendment 56. However, it is clearly essential that governors, sponsors, head teachers—those responsible for what goes on in the school—are alert to what is set out here. The point I make about this—others have made it too —is that there are a lot of amendments dotted all over this paper referring to different aspects of what we are discussing, so we are going to come back to this again and again. The ear-bashing and encouragement that the Minister has had will help to indicate the right way of making these important issues completely plain. It is crucial that what the school stands for is made clear to the pupils. I could not be more supportive of the importance of getting that principle across.

Lord McNally: My Lords, I again thank all contributors to this debate. As the noble Baroness, Lady Howe, said, we will return to some of the issues in different guises during the passage of the Bill. That is partly what Committee stage is for: to look at these issues and see where we can clean up the Bill.

Since 1998, all schools have been required to provide a balanced and broadly based curriculum which prepares pupils for the opportunities, responsibilities and experiences of later life. This includes academy schools by virtue of Section 1A of the Academies Act 2010, which is reflected in their funding agreements.

4.45 pm

The underlying sentiment of much of this new clause is one that the Government would support. In 2012, we amended the School Information Regulations and Schedule 4 contains a list of the minimum information a school is required to publish. In addition to a statement of the school’s ethos and values, a school must publish, among other things, the content of the curriculum followed for each subject in relation to each school year and details of how additional information relating to the curriculum may be obtained.

Sex and relationship education forms part of the statutory school curriculum of secondary schools. On this basis, all secondary schools must publish information about their sex and relationship provision by academic year, as well as about any other subjects they teach that are not national curriculum subjects.

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The new regulations came into force in September 2012 and so we need to give them time to bed in. However, if parents want more information on any subject to be published, including on SRE, they can complain to the school through the school’s complaints process. When teaching SRE, it is a statutory requirement for schools, including academies through their funding agreements, to have regard to the Secretary of State’s Sex and Relationship Guidance. It is worth reminding the Committee what that guidance sets out. It states:

“Secondary schools should: teach about relationships, love and care and the responsibilities of parenthood as well as sex; focus on boys as much as girls; build self-esteem; teach the taking on of responsibility and the consequences of one’s actions in relation to sexual activity and parenthood; provide young people with information about different types of contraception, safe sex and how they can access local sources of further advice and treatment; use young people as peer educators, e.g. teenage mothers and fathers; give young people a clear understanding of the arguments for delaying sexual activity and resisting pressure; link sex and relationship education with issues of peer pressure and other risk-taking behaviour, such as drugs, smoking and alcohol; and ensure young people understand how the law applies to sexual relationships”.

In many ways, that guidance issued in 2000 was very specific and very detailed. It makes clear that—

Baroness Massey of Darwen: I am sorry to interrupt but is the Minister aware that the recent Ofsted report on personal, social and health education indicates that many schools are not carrying out their duties in that regard?

Lord McNally: Yes, I am aware of that. Our PSHE review concluded in March 2013 and found that the existing guidance offers a sound framework for sex and relationship education in schools. Sex and relationship education is a sensitive area in which expert organisations and professionals have an essential role to play, but this does not require the Government to revise the existing guidance. However, I agree with the noble Baroness that there are problems from school to school and this is an issue that we must continue to pursue. As the noble Baroness, Lady Howe, said in the previous debate and on other occasions, the media do not always give the most constructive and positive support for this aspect of education.

As I say, the guidance makes clear that all SRE should be age appropriate and that schools should ensure that young people,

“develop positive values and a moral framework that will guide their decisions, judgements and behaviour”.

In particular, paragraph 1.18 states that secondary schools should, among other issues, teach about,

“relationships, love and care and the responsibilities of parenthood as well as sex”,


“taking on of responsibility and the consequences of one’s actions in relation to sexual activity and parenthood”.

The point that the noble Baroness, Lady Massey, made is also relevant in relation to writing things into legislation. There is a gap—you can write the most careful guidance, but how it is practised and carried out at the sharp end is another task, and one that we should address.

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It is vital that schools prepare young people for later life, and especially the responsibilities of parenthood. However, the Government strongly believe that teachers need flexibility to use their professional judgment to decide when and how to provide SRE in their particular local circumstances, and to do so in an appropriate manner. We believe that it would be inappropriate to introduce a requirement for pupils in key stage 3, including those as young as 11, to be taught about parenting and sexual relationships. Teachers should retain discretion about whether to do so, while having regard to the Secretary of State’s guidance. Publishing the information set out in the current school information regulations is the best way for parents to have access to information; teachers should be given more freedoms, not fewer, to decide the contents of the school curriculum and how it is taught.

I hope that I have covered most of noble Lords’ concerns in that reply. The noble Lord, Lord Ramsbotham, talked about the need for this kind of education in young offender institutions. I agree that it is absolutely essential that it should be provided there. The noble Baronesses, Lady Tyler and Lady Massey, referred to the use of outside experts. Again, schools are free to use outside experts, and some to very good effect. But the head teacher should have final responsibility for which outside experts are brought in, and that is important. The noble Baroness, Lady Benjamin, made the valid point that it is about teaching wider life skills and relationships. But this is not something that schools alone should do. The media, particularly television, have a responsibility. I sometimes sit with my daughter watching very funny sitcoms, whose messages about sexual relationships are easy, to put it mildly. I often say to her, “That’s comedy—that ain’t reality”. I think that by the time they reached 40 and called it a day, all the members of “Friends” had slept with each other several times—but they all lived happily ever after. Perhaps that is one of the dangers of that kind of media.

I cannot really comment on the hostel closure mentioned by the noble Baroness, Lady Howarth, without knowing all the facts, but I fully endorse what she said about making sure that there is a joined-up policy.

As with the previous debate, I have been impressed by the breadth of opinion in support of what the noble Lord, Lord Northbourne, has done.

As I said, the Government are cautious about trying to write piety into legislation rather than ensuring that what is happening on the ground is effective, but we will be taking this further as the Bill progresses. In response to what the noble Lord, Lord Northbourne, said at the end of the previous debate, if he and a number of colleagues would like to meet me separately to discuss these issues between now and Report, I would be glad to do so. In the mean time, I hope that he will withdraw the amendment.

Lord Northbourne: I am most grateful to the Minister and his advisers for all that information, particularly because most of it supports my amendment. My amendment is not about dictating what schools should teach; it is simply saying, “You decide what you should

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teach but then you must report on what that is and allow an inspection to see whether you are actually doing it”. Whether some schools will then have to have a rap over the knuckles is a second stage; I certainly have not suggested that.

I suggest that every noble Lord here does what I did, which is to take the names of six secondary schools in their neighbourhood and get the Library to find out what they say in their curricula. I think your Lordships will find, as I did, that five out of six of them either have nothing at all or are absolute rubbish. It is no good prescribing what schools should do. We have to encourage them and make them declare what they are doing, which may be a source of embarrassment to them if they are not doing frightfully well. A great many are not doing frightfully well and Ofsted absolutely confirms that. On that note, I am certainly going to bring this amendment back in some form, but for the time being I beg leave to withdraw it.

Amendment 57 withdrawn.

Clause 12: Child arrangements orders

Amendment 58

Moved by Baroness Jones of Whitchurch

58: Clause 12, page 10, leave out lines 40 to 43 and insert—

“(a) with whom a child is to—

(i) live,

(ii) spend time, or

(iii) otherwise have contact; and

(b) when, with any person, a child is to—

(i) live,

(ii) spend time, or

(iii) otherwise have contact.”

Baroness Jones of Whitchurch: My Lords, on a slightly different subject, Amendments 58 and 59 deal with child arrangements orders and their potential impact internationally.

We very much welcome the basic intent of Clause 12 to move away from terminology which implies that there are winners or losers in disputes concerning children, by introducing new child arrangements orders. However, we are concerned that the move away from one parent having custody may create additional difficulty in retrieving children from other jurisdictions internationally. Noble Lords will know that this can already be a legal minefield and a source of considerable distress, which is why we have tabled the amendments.

These amendments aim to make the contents of the new child arrangements orders clearer, and set out more explicitly that the person with whom the child is to live has rights of custody for the purposes of the Hague convention and other international family law treaties. The amendments are similar to those we tabled in the Commons, and emanate from concerns expressed by, among others, the Justice Select Committee, the Family Law Bar Association and the Children’s Commissioner for England.

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The key issue here is in relation to rights of custody, which are an important concept in international law, in particular the Hague convention, and apply particularly to child kidnapping. When the Justice Select Committee considered this issue, it said:

“There are also concerns amongst our witnesses that the draft clause could cause confusion and delay in cross-jurisdiction cases … It is important that CAOs do not change how international law relating to children operates. A central concept in the relevant Hague … and EU legislation … is that of ‘rights of custody’”.

It went on to say:

“There is however a risk that the change in terms … may be hard to interpret in other jurisdictions”.

This issue was raised at Second Reading and the Minister subsequently wrote to say:

“For international understanding, it is the content of the order that is important, not its name. A child arrangements order should make clear with whom a child is to live, and this will enable a state to determine whether a person has rights of custody in a child abduction case”.

I am grateful to the Minister for trying to address that point. However, his response misses the point that by changing the name and the terminology we risk inadvertently making difficult international custody battles even more fraught.

While we cannot claim that our amendments are a panacea, and it may well be that the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, are clearer in law, we believe they go some way to providing further legal clarification that will help parents and overseas jurisdictions to understand our intent in the law. Since the Justice Committee and others continue to be concerned, I hope the Minister will feel able to take these amendments away and to reconsider the Government’s opposition to what is meant to be a simple and helpful set of changes.

We also support the amendment proposed by the Government which deals with some of the consequential impacts of child arrangements orders on the Children Act 1989.

5 pm

Baroness Butler-Sloss: My Lords, I entirely support what lies behind what the noble Baroness, Lady Jones, has said. Amendments 58 and 59 may go most of the way. Amendment 60, to which I speak, was proposed by the Bar, which is why I have put it forward. It is important that the Government understand that there are difficulties. The Child Abduction and Custody Act 1985 incorporates the Hague convention of 1980. I have spent a great amount of time as a High Court judge and in the Court of Appeal on the Hague convention. Under Article 5,

“‘rights of custody’ shall include rights relating to the care of … the child and, in particular, the right to determine the child’s place of residence”.

I congratulate the Government on their bravery as regards arrangements. Having tried cases with mothers and fathers, I do not believe that the proposal will work any better than custody and access or residence and contact. It is not the words but what happens to the child who gets one or other parent, or sometimes both parents, absolutely up in arms.

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The difficulty is that the decision under the Hague convention is not made in England if an English child has been abducted. There has been a particular decision, with which I will not bore the House, except to say that where the applicant’s right of custody is an issue the question should not be determined by the English court unless it is unavoidable. It is a matter for the court where the child is taken to, where the other parent goes to that court through the arrangements in this country and says that this parent has lost the child because the child, in respect of which he or she has a right of custody, has been removed from this jurisdiction. The court of the jurisdiction where the child is found makes the decision on whether the right of custody has been breached.

As the noble Baroness, Lady Jones, has said, these are complicated cases. It is very often difficult in some countries to get that country to accept that nationals of that country were resident in this country. Therefore, while they may have been in Germany, they may not particularly want to send their children back although they had been resident here. Guatemala is a country that I particularly have in mind. Under the Hague convention, they should come back but if there is some uneasiness about what is meant by “arrangements”, it is a marvellous opportunity for the foreign court to say, “We are not satisfied on rights of custody, so we will keep the child here”. That is exactly what the amendments of the noble Baroness, Lady Jones, and my amendments are intended to deal with.

I do not mind whether the amendment drafted for me by the Bar or any other amendment is preferable. I would like to see an interpretation of the words “rights of custody”. It should be stated that arrangements made in respect of either parent equal—but put, obviously, in more legalistic language—a right of custody. I hope that the Government will accept that both the noble Baroness and I have got a really important, highly technical point that may have an adverse, practical effect on English and Welsh children being taken unlawfully out of the jurisdiction.

Lord McNally: If there is anything likely to chill the marrow of a non-lawyer Minister, it is the noble and learned Baroness, Lady Butler-Sloss, saying that the amendment that she is proposing is highly technical and important. I have no doubt about that and will try to deal with it with due thoroughness, well aware that the noble and learned Baroness is far more well read in the Hague convention than me.

I am advised that the Hague convention gives a wide interpretation. It is intended to predict all the ways in which custody of a child can be exercised. It is not just orders concerning residence that count; it is also rights arising from the operation of law and agreements between parents which have legal effect under our law. The child arrangements order will make it clear that other jurisdictions will consider where a child lives and has contact as evidence in determining whether an individual has rights of custody.

I welcome the support expressed by the noble Baroness, Lady Jones, for the government amendment, which is purely consequential. Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012

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includes a reference to contact and residence orders. The amendment simply updates that to refer instead to child arrangements orders.

The remaining amendments relate to the recognition of the child arrangements order at international level. I agree with noble Lords that we must ensure that the order is recognised and enforced at international level in the same way as existing contact and residence orders. I welcome the thought which has been given to this issue.

The introduction of the child arrangements order stems from a recommendation of the family justice review. It seeks to move away from language which reinforces the perception that one parent is more important than the other. In terms of content, the court will, as now, be able to set out clearly in an order the person or persons with whom a child lives, spends time or has other types of contact, and when.

While the amendments which have been tabled do not change the scope of the child arrangements order, Amendment 58 would increases the focus on its distinct elements. In doing so, it risks undermining one of the key aims of the order, which is to shift the focus away from parents’ perceived rights on to the rights and needs of the child.

Amendments 59 and 60 relate more explicitly to the recognition of the order under the 1980 Hague convention. “Rights of custody” are a key concept under the convention and include rights relating to the care of a child, in particular the right to determine a child’s place of residence.

In considering whether there has been an unlawful removal for the purposes of the convention, a court will first establish what rights the applicant had under the domestic law of the state in which the child was habitually resident. What matters is what rights are recognised by that law, not how those rights are characterised.

The specific content of relevant decisions and orders, such as child arrangements orders that specify with whom a child is to live, will provide evidence as to the rights that a person has in respect of a child. However, the question as to whether those rights are properly characterised as “rights of custody” is a matter of international law. The phrase “rights of custody” is not confined to any national meaning, and it would not be appropriate to try to dictate the meaning of an international concept such as this in our law. I assure the Committee that we will be making full use of existing international groups and channels to raise awareness of the new order and ensure that it is properly understood. For that reason, I urge noble Lords to accept the Government’s amendment.

I say again that what I say here is not plucked out of the air; it is the result of considerable thought and advice from government lawyers and is on the basis of advice from the Norgrove studies. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, suggested that we might possibly be causing confusion by what we are doing. I suggest that we meet between now and Report—I am getting a long list of engagements now, but it is important to get this right—and discuss this. If the Government’s expert lawyers persuade me that noble Lords are wrong, then on Report I shall try to persuade the House that they

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are wrong. However, if noble Lords convince them that there is confusion here, that is the last thing that the Government want out of this legislation. In that spirit, I hope that the noble Baroness will agree to withdraw her amendment.

Baroness Butler-Sloss: I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

Baroness Jones of Whitchurch: I have to say I was beginning to feel very disappointed in the Minister’s response until he said that maybe we could meet—and I am very happy to take up his offer—because I felt that he was not really addressing the concerns that have been raised. They are not just the concerns of non-lawyers like myself or my colleagues; they are the concerns of some fairly major players in this sector including, as I said, the Family Law Bar Association and the Children’s Commission for England, while obviously the noble and learned Baroness, Lady Butler-Sloss, is an expert in her own right. This is not a political point but a practical one: it is about what is in the best interests of children and what can best protect them in international custody disputes. As I understand it, “rights of custody” has a particular resonance and respect around the world, and I am not sure that the new phraseology that we are putting in its place does that. I still need to be persuaded of all that, but maybe we can do that in a meeting with the Minister. I will happily take up his offer to explore it further in that context. I therefore beg leave to withdraw the amendment.

Amendment 59 withdrawn.

Clause 12 agreed.

Schedule 2: Child arrangements orders: amendments

Amendment 60 not moved.

5.15 pm

Amendment 61

Moved by Lord McNally

61: Schedule 2, page 141, line 43, at end insert—

“Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10)

70 In paragraph 13(1)(c) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services: orders mentioned in section 8(1) of the Children Act 1989) for “residence, contact” substitute “child arrangements orders”.”

Amendment 61 agreed.

Schedule 2, as amended, agreed.

Clause 13: Control of expert evidence, and of assessments, in children proceedings

Debate on whether Clause 13 should stand part of the Bill.

21 Oct 2013 : Column GC307

The Earl of Listowel: I apologise for asking for this clause stand part debate quite late in the day, without giving noble Lords more notice, and also for delaying the proceedings of the Grand Committee. But I feel that this is a very important clause on the “Control of expert evidence, and of assessments, in children proceedings”. The matter of expert witnesses is vital to the purpose of this Bill, which is child welfare. We must have a good pool of expert witnesses to advise courts in these complicated matters.

I called for this debate because I attended a briefing by Dr Julia Brophy, from the University of Oxford, two or three months ago, in which she presented her research into expert evidence produced by independent social workers. She interviewed 32 judges on their experience of expert reports from these independent social workers and found that judges valued these reports, that the expert witnesses were well known by courts, and that the social workers were very experienced. She found that they made a positive difference to the outcomes of their decision-making.

Phil King, joint founder-director of the Confederation of Independent Social Work Agencies, emailed me today on a report from a social worker detailing how a mother and her seven month-old baby were doing extremely well in the community. The CISWA had provided a report in this case. The mother had a very poor history of parenting, with her previous children placed for adoption. The local authority planned for adoption for this particular baby; however, the judge wanted an assessment to see whether the mother’s plea that she had changed had any foundation. The assessment indicated that there had been change, and there was a good prognosis. Without the independent social worker expert report, that child would now have been adopted. One has only to speak to a mother who is restricted to seeing her 12 month-old or 14 month-old infant twice a week and to see the anguish that that mother experiences to realise that we have to be timely in our decisions but also very well informed.

Local authorities have responded to the recommendation in the 2011 Family Justice Review from David Norgrove, which identified a,

“trend towards an increasing and, we believe, unjustified use of expert witness reports, with consequent delay for children”.

In particular, according to the report, independent social workers,

“should be employed only exceptionally”.

Following this, CAFCASS chief executive, Anthony Douglas, said:

“Cafcass research shows that the family justice system is responding to the recommendations made by the Family Justice Review, even before legislation has been put in place. At a time where scarce resources must be directed to the right areas, we agree with the Family Justice Board that the use of expert witnesses should be limited to cases in which they are absolutely necessary”.

He goes on to say:

“Cafcass guardians have found the right expert can offer unique insight and value about into a child’s needs. In such cases, Cafcass guardians said that the evidence offered by expert witnesses has increased the speed of proceedings”.

Just as an aside, there is another debate about the remuneration of expert witnesses in family courts. It seems to me a particular matter of concern that the

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remuneration for independent social workers is only £30 an hour, which does not fit with the quality of the reporting that they do and their many years of experience. We mentioned in earlier debates the necessity of raising the status of social work, and it seems to work against that. So I hope that the Minister, in his discussions with the relevant agency—I think it is the Law Commission—about remuneration in the family courts for expert witnesses, may think to ask whether this is a realistic rate for professionals, and whether it is a way in which to retain this high-quality pool of professionals who are so necessary to those decisions.

I refer—I apologise for taking so long, I am nearly finished—to the evaluation of senior judges’ views of expert opinion from independent social workers which is entitled: Neither Fear Nor Favour, Affection or Ill Will: Modernisation of care proceedings and the use and value of independent social work expertise to senior judges, by Dr. Julia Brophy of Oxford University. She concludes that,

“to enable courts to meet timescales, therefore, guidance will need to be sufficiently flexible to recognise”—

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): I beg the noble Earl’s pardon for interrupting, but the Division bell is ringing. The Committee will reconvene in 10 minutes, at 5.30 pm.

5.20 pm

Sitting suspended for a Division in the House.

5.30 pm

The Earl of Listowel: My Lords, the conclusions arising from the important research of Dr Julia Brophy are:

“(a) The needs of courts for skilled and experienced practitioners able to produce analytical, evidence based, forensically driven reports which meet the court’s timescale required, and … (b) The realities of resources limitations for some local authorities … In this context, utilising the skills and expertise of independent social workers both pre and within proceedings is likely to remain necessary if courts are to meet current challenges and move forward with appropriate speed and confidence and to do so in a manner which reflects a court practice which is without fear or favour”.

I want to ask the Minister whether the regulations now meet the recommendations made by Dr Brophy and, if not, what amendments he may be considering. Perhaps I may apologise once more to the Minister and the Committee for giving short notice of this debate. If the Minister would prefer to write to me, I will quite understand.

Baroness Butler-Sloss: Since this issue has been raised, I am going to jump on the bandwagon just to say that very difficult cases are tried by designated and senior judges and family judges of the High Court where expert evidence is absolutely crucial. I have to say that I have tried cases where I have ended up with 11 expert witnesses on shaken babies with subdural haematomas and so on, asking whether it was the parents or a parent, or whether it was an accident. These are extremely difficult cases. We were greatly assisted by CAFCASS and sometimes assisted by

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social workers, but even in these difficult cases, the social workers came and went. In some cases there was no consistent social worker to put in a consistent, high-quality report from their point of view. Again and again, High Court and senior circuit judges have asked for an independent social worker, which the local authority has been only too grateful to agree to. That is because the authority knows that in these difficult cases it has not actually been able to do the job itself.

In an ideal world, of course, independent social workers are not needed, but we live in a far from ideal world with children at extraordinary risk of physical injury as well as sexual injury. Here it is physical injury with which I am concerned. Again, as the noble Earl has just said, we need the doctors. I am not sure what the doctors are likely to be paid, but from the point of view of a senior consultant, it is derisory. There is a limit to pro bono, particularly if a doctor has to be in court for a day or two days. Quite simply, these really difficult cases will not be properly tried if they do not have the right experts.

Norgrove was absolutely right to want to cut it down. In the majority of cases it would be quite wrong to go in for the luxury of lots and lots of experts. I am concerned only about the small minority of extremely difficult cases, where the current system is not going to be just to the child, whose welfare, ultimately, is paramount.

Baroness Tyler of Enfield: My Lords, it is terribly important that this debate is kept in perspective. The noble and learned Baroness, Lady Butler-Sloss, has done that very well, making it clear that we are talking about a very small number of cases, involving very difficult issues, where of course an expert’s advice will be very helpful.

More broadly, I very much support the thrust of what David Norgrove said in the report of the family justice review and it is really important that we are seen to be limiting expert evidence to what is really necessary to decide, so that the judges narrow it down to the key issues where we need that expert advice and it does not add to yet more reports, with all of that adding to delay.

The noble Earl, Lord Listowel, quoted Anthony Douglas, the chief executive of CAFCASS. I declare an interest as chair of CAFCASS. In the intervening period I have had the opportunity to have a quick word with Anthony Douglas and the context in which he made those remarks is one in which we have done a lot of work to ensure that both local authority social workers and CAFCASS guardians are working up to the absolute limit of their professional knowledge and capacity, and that you need an expert report only in that very small number of cases which take them beyond their limits.

I have spoken recently to groups of CAFCASS practitioners who tell me that they now feel empowered and have renewed confidence because in the majority of cases their expert advice, analytical skills and the assessment that they can offer to the courts are being accepted as expert social work opinion and advice. Sometimes recently they have felt that their professionalism

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has been questioned, which is a danger when we have too many of these expert reports. So I hope that we can conduct this debate with a sense of perspective and balance, while understanding that we are talking about a small number of cases where we need those expert reports to deal with very specific issues.

Baroness Howarth of Breckland: My Lords, the noble Baroness, Lady Tyler, and the noble and learned Baroness, Lady Butler-Sloss, have put this very precisely. I was the chair of CAFCASS when the problem significantly arose and began the work to tackle the issue, together with the chief executive and the board. The real issue was the length of time that children were waiting for decisions in their cases, and every day for a child is vital. Experts were called to verify what another expert was saying or to give another opinion, and there has been a great improvement in the time taken to reach a decision in these cases since we have streamlined that.

I declare an interest as vice-president of the Lucy Faithfull Foundation, which prepares extremely complex expert witness reports in cases of very serious child sexual abuse. I think the Minister is well aware of its work. In those cases there have been real difficulties in getting the right expert to the right place because, as the noble and learned Baroness, Lady Butler-Sloss, mentioned, local authorities themselves have called the experts in to add to the decision.

All I want to say in this debate is: let us keep the focus on the child and make decisions as quickly as possible, but in complex cases let us make sure that those decisions are based on the right information.

Lord McNally: My Lords, perhaps I should make it clear from the start to the noble Earl, Lord Listowel, that we will resist this stand part Motion, and I am sure that he will withdraw it at the appropriate time. We want this change in the Bill. Let me be clear: experts play a vital role in many care proceedings. Their evidence can be necessary to assist the court in resolving a case justly and in a child’s best interests. It is the Government’s intention to ensure that where the court considers that expert evidence is necessary to assist it to resolve the proceedings justly, including evidence provided by independent social workers, that evidence should be used.

The reason for the measures in Clause 13 is simple: the family justice review found that, too often, expert reports were being commissioned in care proceedings when they added little real value to the decision-making process and contributed to delays. In many cases, expert evidence was provided where the evidence could be obtained from a party already involved in the proceedings. The Government believe that most social care evidence in cases could and should be supplied by local authorities and CAFCASS guardians, and I know that that view is strongly held by the present president of the Family Division, Sir James Munby. However, where a judge considers that it is necessary to have expert evidence, including an independent social work report, to resolve the proceedings justly, then that evidence will still be permitted.

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We know that improvements to social work practice will be needed to deliver these changes. That is why the Children’s Improvement Board, together with Research in Practice, delivered a series of regional family justice training seminars to local authorities to highlight good practice in this area and how it may be replicated. In addition, CIB and RiP also recently ran a series of “train the trainer” workshops aimed at those responsible for training within local authorities. The workshops focused on the practical skills that social workers need to progress cases without delay. We have also funded new research distillations to assist social workers when assessing children on the edge of care, and continue to work with the College of Social Work to ensure that social workers receive training in the specific competencies required.

With regard to legal aid fees, which the noble Baroness, Lady Howarth, raised, the hourly rate for independent social workers was introduced in May 2011 following consultation. As the response to that consultation recognised, independent social workers undertake a variety of work for different organisations but the qualifications and experience of those undertaking that work, plus similarities in the work undertaken, meant that it was not considered an effective use of public money for the Legal Services Commission, as it was then, to pay higher rates than those payable by CAFCASS for similar services.

The Government have met organisations representing independent social workers on several occasions, but we have no evidence to suggest that the majority of work undertaken by this group should attract a higher rate than is paid to other social workers. However, where independent social workers provide services that are significantly different from those normally expected of other social workers, significantly higher rates are payable—for example, when acting as an expert risk assessor in cases where there is a substantiated relevant criminal allegation in the immediate background of the case, or where a finding of sexual abuse relevant to the case has been made by a court and the report is specifically required to address this risk.

As I have said, I believe that what we are doing meets the requirements that Dr Brophy set out, as the noble Earl, Lord Listowel, asked me. We understand the concerns that expert witnesses should be used when necessary, and I hope that I made it clear that that will continue to be the case. However, when the noble and learned Baroness, Lady Butler-Sloss, tells me that in one of her cases she had 11 expert witnesses, that almost makes me think that that is what we are facing, and indeed what Norgrove identified. As I said before to the noble Earl, although I take note of what he has said, this is something that I cannot offer a meeting on because we will continue to resist.

5.45 pm

The Earl of Listowel: My Lords, I am most grateful to all noble Lords who have contributed to this debate. I am most grateful to the Minister for his reassuring response concerning the additional training for social workers to enable them to produce the right reports without additional expert support.

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I seem to remember it being put to me in the past that the involvement of expert witnesses has been particularly difficult for family courts dealing with these very complex cases. There has been a sort of arms race, with one side appointing an expert witness, then another side appointing an expert witness, and the judges—those making decisions—have sometimes lacked the confidence to say, “No, we do not need so many reports”. What the Government are doing now under Lord Justice Ryder, which will also be helpful, is the bringing together of the family courts into one place, with opportunities for greater training and support for those who make these difficult decisions, and therefore less risk of this sort of arms race of expert witnesses.

As my noble friend Lady Howarth has said, it is crucial that these decisions are timely, and what is encouraging about Dr Brophy’s report is that these expert witness reports have been found to increase the speed at which decisions are made. In the past the concern has been that they have delayed decisions, but the judges are saying that they can make speedier decisions because they have the expert information that they need. Therefore I am grateful for the Minister’s reassurance on these points, and I do not think I have to say anything more.

Clause 13 agreed.

Clause 14: Care, supervision and other family proceedings: time limits and timetables

Amendment 62

Moved by Baroness Jones of Whitchurch

62: Clause 14, page 13, line 15, after “issued” insert “unless the court considers it necessary in order to safeguard or promote the child’s welfare to permit additional time for the disposing of the application”

Baroness Jones of Whitchurch: My Lords, Amendments 62 and 63 concern the issue of time limits for court proceedings. We very much welcome the Government’s aim of reducing delays in care proceedings as set out in the clause. As we have discussed in the past, there have been unjustifiable delays, which have had serious consequences for the welfare of the children involved. We are pleased that, in anticipation of the new timescales, court proceedings are already being completed over a shorter period. However, we believe that in trying to set absolute time limits the Government may be going too far and putting at risk the best possible outcome for the child. Our amendments attempt to redress that balance by reasserting a focus on the best interests of the child.

We have a major concern that as it currently stands, Clause 14 would curtail effective interventions with children and their families that last longer than 26 weeks. We need to differentiate clearly between delay caused by unacceptable process issues on the one hand and time extensions which really are in the best interests of the child on the other. Our amendments would allow longer timescales, specifically to meet the interests of the child. They would also enable the court to set out a timetable from the outset of proceedings rather than

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continually having to add eight-week extensions. This would give practitioners more clarity about how long they have to work with the child before a court decision is made.

We agree that delay in decision-making can have an adverse effect on children. However, there is a real danger that limiting the proceedings to 26 weeks would result in court decisions being made to meet the deadline, rather than to secure the best outcome for each child. We have to acknowledge that, in practice, some assessments and intervention programmes take longer than others; for example, where parents are seeking treatment for substance misuse. Care proceedings must enable opportunities for meaningful change in parental behaviour and those working with the family need to know that they will have the time to enable a successful intervention to take place. The NSPCC’s infant and family team model is a good example of such interventions, which can and often do require longer than 26 weeks but have shown improved outcomes for both the children and the adults involved.

We believe that there are a range of circumstances where a period longer than 26 weeks may be essential for the child’s needs to be addressed, including to allow a robust support package to be developed in special guardianship cases. This may include: support for difficult contact arrangements; preventing significant financial hardship; or where the proceedings work with the family has not been done or the situation has changed at the last minute, such that a family member needs to be considered late in the day. We are already hearing anecdotes of family members being denied an assessment once the case is in court. Parents who are consistently demonstrating to the Family Drug and Alcohol Court’s intensive support team that they are turning their life around need sufficient time to prove to the court that they can sustain such an improvement. A longer period may also be needed when potentially suitable family carers live abroad. In the case of older children, an emphasis on a fast timescale may be counterproductive, and particular care, sensitivity and dialogue will be necessary to allow the child’s long-term welfare needs to be met.

This list is not exhaustive but gives an illustration of cases where a delay could well be in the child’s interest. I am grateful to the noble Lord, Lord McNally, for addressing these concerns in his recent letter. He explained that a number of pilots are taking place and that in due course the Family Procedure Rule Committee will consider whether to make court rules on these issues. However, we do not feel that this goes far enough. There are important issues here affecting the welfare of children at stake. The FPRC is under no obligation to make rules on time limits, and in any case we will not have had sight of the rules being made; meanwhile, we believe that a commitment to greater flexibility in the application of these rules is essential. Without taking away any of the good intent of the clause, which attempts to speed up court processes, we believe that our amendments, which would give the courts greater flexibility to extend deadlines where it is explicitly in the interest of the child, strike the right balance. We hope that noble Lords will support this position.

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Baroness Benjamin: My Lords, I have put my name down to this amendment because the NSPCC has raised huge concerns with me. It feels that the implementation of a 26-week time limit could make the operation of evidence-based interventions that take longer than the specified time limit more difficult; for example, in situations where parents are seeking treatment for substance misuse or domestic violence or when family members come forward late in care proceedings when the real risk of a child being taken into care becomes apparent. The NSPCC believes that we must ensure there is sufficient time for the appropriate assessments to take place.

The noble Baroness has already mentioned programmes such as the NSPCC’s infant and family team. That programme is significant as it informs professionals and helps courts decide whether maltreated children can be reunited with their birth family or should be placed for adoption with their foster family. It also assists parents in addressing the problems that they might have had as children. However, this important and emotional work requires between 12 and 15 months before a final recommendation is made. Although the Bill provides for eight-week extensions, continually adding these on to the six months causes a large amount of uncertainty for parents whose own early traumatic experiences are being explored to help them reflect on the origins of their present difficulties, and ultimately may have an adverse effect, not to mention increased administration pressure.

When I was told the following story of a young mother, it showed me just how important the NSPCC’s infant and family team can be to the well-being and happy outcome of a family in difficulty. Two years ago, Kesha’s eight children, aged between one and 13, were removed from her on the grounds of neglect. The children were split among different foster carers and she saw them for only an hour every other week. Kesha says:

“When I first began working with the Infant Team I had a bad attitude, but soon, I loved it. We had parenting sessions that really helped me, and I watched videos of parents and kids which helped me understand my kids’ needs more and how to meet them and build a sense of security so they know they can come to me. The Infant Team also asked me about when I was young. It felt like my mum leaving at a young age meant I couldn’t trust people. They helped me to be myself more and start trusting people, and I began to open up to my kids more, and my relationships with them got better. The Infant Team want you to get your kids back. I didn't want my children to have to grow up without their mum like I did. I love them too much. I fought hard to get them back”.

It took Kesha a year and a half to get her children back, but by working hard and with the right support, they have been successfully reunited.

The NSPCC and others agree that there are lots of cases that need to be speeded up, but that should not be done at the expense of limiting interventions that could be effective in dealing with family problems, so that children can stay at home when it has been proved to be safe for their well-being. These cases cannot be forced into a prescribed timeframe, as the NSPCC believes that this could be damaging. It is seeking commitments as to how the Government will address this potentially negative impact and ensure that cases are not shoehorned into a structure that will not be beneficial. There needs be more flexibility and I believe

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that this, in turn, will not undermine the policy intention. The amendment will provide greater clarity about the length of care proceedings when longer timescales are needed to meet the needs of the child. I know that that is what all noble Lords here ultimately want.

Baroness Butler-Sloss: My Lords, I regret to say to the noble Baroness, Lady Jones, that I do not agree with her amendment. I have discussed this with the President of the Family Division and with Lord Justice Ryder, who has been leading the modernisation of the family courts over a number of years—even when I was there, which is now eight years ago. This is one of the major planks of the Norgrove report. The president and Lord Justice Ryder, together with other judges, are extremely concerned about the idea that the 26-week limit should be breached. They see it as an opening for some judges simply to take longer. Certainly until very recently, we know that decisions have been taking 48 to 50 weeks. For a child to have to wait for a year for a decision on whether it can stay with the family or should go into care is half a year too long. This is what Norgrove wanted: dramatically to reduce the time.

The NSPCC has been lobbying me as well and I have heard the touching story, but I am afraid that I sent an e-mail saying that in this particular instance I do not agree. If one looks at Clause 14, which is the subject of this amendment, one can see that under new subsection (5) onwards, there is an opportunity for extensions of eight weeks. However, if there is an open book, there will be judges who allow it to remain open, whereas if you have to be ready to go back after each period of eight weeks, that has a marvellous effect on getting on with what needs to be done.

I also notice that under new subsection (9) the Lord Chancellor can change the 26-week period, while new subsection (10) states that the rules of court may provide for changes. I have absolutely no doubt that the rules committee and the senior judiciary, particularly the Family Division liaison judges on each of the circuits, will check on the designated family judges in the care centres. If there are cases where the decision has been too speedy, I have no doubt at all that the system will be able to see that, which provides an opportunity to decide at that stage whether there needs to be an extension. But, for the moment, I ask the Minister to stand firm on this one.

6 pm

Baroness Tyler of Enfield: I understand the intention behind the amendment, particularly in terms of promoting the best interests of the child and the child’s welfare, but I also feel that the signal it would send would not be the right one at this stage. I have heard the president talking about this, and I think that at the moment his mantra is, “It can be done, it will be done, it must be done”. It is all about turning around the culture from one of delay to one of urgency, with all parties involved in this—that is, the judiciary, local authorities, CAFCASS and others—doing all that they can to ensure that these cases are dealt with as quickly as they can be and in a way that is commensurate with the best interests of the child.

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I was very much reinforced in this recently. I attended the National Children and Adults Services Conference in Harrogate on Friday. It was a very good three-day event with a number of Ministers and others speaking. I went to a specialist workshop all about completing care proceedings in 26 weeks. Several academics, particularly from the University of East Anglia, presented some initial findings from the research that they have been doing into the impact of the new public law outline to try to move to a 26-week time limit, and particularly the impact of what is called the tri-borough project with Kensington and Chelsea, Westminster and Hammersmith and Fulham. I have been to visit that project myself and the results, frankly, are extremely impressive: already 50% of cases are being resolved in less than 26 weeks.

Even with the knowledge that we were going to have this clause in the Bill or at least debate it, national case duration averages were already coming down from what was something like 49 weeks to about 37 weeks, and they are on a downward trajectory. While I fully understand the case that is being made for those very exceptional cases where the extensions will be needed, there is sufficient flexibility in the Bill as drafted for that. I would be concerned about anything that diluted this very important message about trying to move away from delay in the family court system.

Lord Ponsonby of Shulbrede (Lab): My Lords, I am not briefed by the NSPCC but I have a brief from the Magistrates’ Association, which makes it clear that it also supports the 26-week time limit but also agrees that there should be specific extensions for eight weeks where people can apply to the court. It would probably be most helpful if I raised the questions that the Magistrates’ Association has raised in the brief that it sent me. Before I do so, though, I want to make the point that the examples of exceptions that my noble friend Lady Jones gave are very far from theoretical, because two of those examples I personally dealt with in the past month. They were very real examples of something that I understood very clearly.

The first of the questions that the Magistrates’ Association raised in its brief to me is really a concern that an application for an eight-week extension should resist that extension being a contested hearing, and obviously the decision of the court should be final. If there is to be a contested hearing on an eight-week extension, though, it should be as short and focused as possible. The second point that the Magistrates’ Association made was that it is not clear, from the association’s understanding, that there is any limit to the maximum number of successive extensions. The association’s final point is to ask whether there is any right of appeal if a lower court—although perhaps “lower court” is not the right expression—decides not to grant an extension. Is there any right of appeal to a higher jurisdiction?

Lord McNally: My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for her intervention in support of these proposals—I am also grateful for my momentary promotion. It gives me an opportunity to pay tribute to the work of Lord Justice Ryder when he was with the Family Division. He did a lot of ground-clearing in this area, not least bringing

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in some very useful comparative statistics which allowed us to see the variety in performance of courts, which was affecting children at a vulnerable time of their lives. When this exercise started, it took more than 60 weeks in some cases to come to a decision. The tri-borough project also demonstrated in advance of this legislation that this could be done more quickly. Certainly, the robust leadership that Sir James Munby has given in implementing the Norgrove proposals has meant that, as the noble Baroness, Lady Tyler, said, a culture of delay has been replaced by a culture of urgency. That is much to the credit of what we are proposing.

We all agree that delays in decision-making, whether by local authorities or in courts, can be very damaging. They can add to emotional insecurity and affect children’s prospects for returning to or finding a permanent loving home. Introducing a 26-week time limit for care and supervision cases will send a clear and unambiguous statement to all parts of the family justice system about the need to reduce delay. Removing certain cases from the ambit of the 26-week time limit at the outset, as proposed by Amendment 62, would undermine this effort.

I recognise that these cases deal with important and complex issues and not all will be able to be completed within this timeframe. The court will therefore have the discretion to extend the time limit in a particular case beyond 26 weeks if that is necessary to resolve the proceedings justly. The clause carefully strikes the necessary balance between putting in place a maximum 26-week time limit to tackle delay in all cases and allowing sufficient judicial discretion to extend time where necessary to resolve the case justly, having explicit regard to the child’s welfare.

Requiring extensions to last for a maximum of eight weeks at a time will help ensure that the court is focused on resolving cases as quickly as possible. To allow the court to grant an extension without imposing any limit as to the length of the extension, as proposed by Amendment 63, would potentially allow cases to drift. This could undermine the aim that we all share, of reducing unnecessary delay. There will always be some very complex cases which it may not be possible to complete within 26 weeks. Where that is the case, the court will be able to extend time, where necessary, to resolve proceedings justly. It is important, however, that we keep a clear focus on resolving cases as quickly as possible, and specifying a maximum eight-week limit on the length of extensions will ensure that this happens. There is, however, no limit on the number of extensions that can be sought.

I recognise the concerns of the noble Baronesses and have seen how successful intervention models such as the Family Drug and Alcohol Court approach can be. That is why I am very pleased that the Government are continuing to provide funding of £150,000 in each year of 2013-14 and 2014-15 to continue the development and rollout of the FDAC. As part of our funding of FDAC, we are proposing to continue work that will enable this model to meet the 26-week time limit in most cases. Proceedings in the FDAC model currently take the same time on average as standard care proceedings, and we believe that the 26-week time limit can be applied successfully in most cases.

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I think I have just answered the point raised by the noble Lord, Lord Ponsonby. The noble Baroness, Lady Jones, asked about the Family Procedure Rule Committee. On the basis of its specific expertise, the committee has been invited to consider whether to further elaborate on the matter to which the court is to have regard in order to support Clause 14, and we await its response. The court rules may set out the matters to which the court must, may or may not have regard when making the decision whether to grant an extension to the time limit. It is, rightly, the remit of the FPRC to consider whether to make court rules under the clause; it is a statutory independent non-departmental public body responsible for making these rules of the court. Before making the rules, the FPRC must consult such persons as it considers appropriate, and we will update the Committee on the FPRC’s work before Report.

I am not sure whether there were any other matters that were specific to this; the questions come thick and fast. Yes, there was one: the noble Baronesses, Lady Jones and Lady Benjamin, raised the question of whether the 26-week time limit would impact on kinship care and whether it would be shoehorned into a one-size-fits-all solution. We are aware that, in spite of everyone’s best efforts, occasionally relatives are not identified until late in the proceedings. However, the 26-week time limit should not impact on kinship care. It is not for the courts to decide whether it is Granny who the child goes to; rather, it relates to the choice of the permanence plan being a relative if possible, followed by adoption or long-term foster care. After all, the court does not decide which adopters the child goes to when it agrees to a plan for adoption. We are continuing to use programmes such as family group conferences before proceedings start in order to identify family members from the onset of cases. In addition, we are working in partnership with the Children’s Improvement Board and the College of Social Work to support the continuing improvement of social work practice. Of course, the court retains the power to extend the case for longer consideration if necessary.

The public law measures in the Bill will tackle the damaging delays that exist throughout the system. These delays can deny children the chance of a permanent home and have a harmful long-term effect on a child’s development. The measures will also refocus the system so that the child’s best interests are part of the process. Our measures strike the necessary balance between tackling delay and allowing sufficient judicial discretion to resolve proceedings justly, and I hope that noble Lords will agree to withdraw these amendments.

The Earl of Listowel: My Lords, I briefly pay tribute to the Government. In the past week I met District Judge Crichton and his team from the NHS Portman trust. District Judge Crichton set up the Family Drug and Alcohol Court five or six years ago and has had great success, with about one-third of families coming through the court keeping their children, and the best evidence so far is that those children continue to do well and thrive with those families, so the family stays off drugs and alcohol. I pay tribute to the Government for their support of FDAC from the beginning and for their continuing support. I express the hope that perhaps in future FDAC might be made even more widely

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available across the country, always bearing in mind the heavy burden that local authorities are continually faced with as more and more children each year come into care and the challenges that that poses to all of us. Once again, I pay tribute to the Government for their support of FDAC, if I may.

6.15 pm

Baroness Jones of Whitchurch: My Lords, I welcome the support of the noble Baroness, Lady Benjamin. I do not want anyone to be under any illusions: of course it is imperative that we tackle the court delays that have occurred in the system. We absolutely start from that point of view. We welcome all the steps that have been taken to modernise the family court system, including those to cut the time that is taken to deal with cases in the court. I agree with the noble Baroness, Lady Tyler, that it is a cultural issue as much as anything and we need to tackle that culture.

Our amendments were never intended to be an open door for judges just to sit on their hands and delay decisions. The intention was that in very particular cases, which people could see from the outset were going to take longer than 26 weeks, they would be able to make a decision and spell out and justify that decision at the time. It was not just an opportunity for a delay for the sake of it.

I am slightly concerned about how these eight-week extensions are going to work. For example, if a family is going through an intensive period of therapy, knowing that the case is going back to be reviewed every eight weeks is fantastically stressful and disruptive to them when they feel that they are making progress. The evidence shows that a lot of court decisions were delayed because the processes were not in place, reports were not received in time or the evidence was not there at the time. If you are then going to deal with a rolling eight-week review, there are all sorts of opportunities for things to go wrong and for the evidence simply not to be before the court at the right time. I would be interested to know how these eight-week extensions work in practice. We may well need to have a review of them in the short term.

My noble friend Lord Ponsonby said that my examples were not theoretical, and I thank him for confirming that. The point is that the families that we are talking about know from the outset that it is going to take time to turn their lives around. They know they are going on quite a long journey. To feel that that there is this time pressure hanging over them will have a negative impact on the whole process.

Lord McNally: The noble Baroness was asking about how the extensions would work in practice. The request to extend the timetable for proceedings will be considered during the proceedings, as far as possible, and should not result in additional hearings. I should also explain to the noble Lord, Lord Ponsonby, that there could be further extensions. On the right of appeal, I have an explanation in my brief but I would rather write to him to make sure that I get it right. There is a limited right of appeal. I am sorry for interrupting the noble Baroness.

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Baroness Jones of Whitchurch: I am not sure that the Minister has shed much light on things. I am now even more confused. Surely if there is going to be an eight-week extension, people have to meet every eight weeks to decide whether or not it should be further extended. You could say as a one-off, “We’ll allow a further eight weeks”, but then you will have to keep meeting every eight weeks to review that, if it is intended that there will be more than one eight-week extension. No doubt we can talk about this outside the Room and the noble Lord can clarify that further.

There is a serious point at the heart of this: what do we want to get out of the 26-week deadline? I hope that we all want children to have a chance to stay with their birth family, if possible. I feel that we will find over time that if courts are under pressure because of the 26-week timescale, the default position will be that children are taken into care because there simply will not be enough time to do the work with the birth parents. That is the real sadness behind what is being proposed here, because it is too stringent and lacking in flexibility.

Our position is that we want something that is absolutely and justifiably in the interests of the child and its welfare, and I still believe that what we are proposing would achieve that. For the time being, however, I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

Amendment 63 not moved.

Clause 14 agreed.

Amendment 64

Moved by Lord Lloyd of Berwick

64: After Clause 14, insert the following new Clause—

“Care proceedings: standard of proof

(1) The Children Act 1989 is amended as follows.

(2) In section 31 (care and supervision), after subsection (2) insert—

“(2A) Subsection (2) above shall be interpreted so as to permit a court to infer that a child is likely to suffer significant harm from the sole fact that the child is, or will be, living with a person who is a possible perpetrator of significant harm to another child.

(2B) For the purposes of subsection (2A), a person (the person concerned) is to be treated as a “possible perpetrator” if—

(a) a child has suffered significant harm;

(b) the court is unable to identify the actual perpetrator of the said harm but identifies a list of possible perpetrators by finding (in relation to each such person) that there is a real possibility that he caused significant harm to the child; and

(c) the person concerned is one of the persons on the said list.””

Lord Lloyd of Berwick: My Lords, this amendment is concerned with the standard of proof in care proceedings. I am conscious that the purpose of the amendment may not be crystal clear, so I have prepared a note setting out the background to the amendment, and it contains the wording of the section that we will be discussing. Many Members may already have a copy of that note but, if not, it is on the table.

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The relevant section is Section 31 of the Children Act 1989, which provides the threshold that must be crossed before a child can be taken into care. However, it is only a threshold. If the threshold is crossed, it does not mean that the child is necessarily taken into care. That is decided at the later, welfare stage when all the matters set out in Section 1 of the 1989 Act must be taken into account. This is all well known to the Committee. Conversely, if the threshold is not crossed, the court has no power to intervene.

Section 31 provides that a child may be taken into care only if,

“the child concerned is suffering, or is likely to suffer, significant harm; and … the harm, or likelihood of harm, is attributable to … the care given to the child”,

falling short of what it would be reasonable to expect. Those words are simple enough and they pose two questions which, I suggest, should be capable of being answered without too much help from us lawyers. Sadly, that has not proved to be the case.

6.22 pm

Sitting suspended for a Division in the House.

6.33 pm

Lord Lloyd of Berwick: My Lords, I said that the two questions posed by Section 31 should be capable of being answered without too much help from lawyers, but that has not proved to be the case. In the 27 years since 1986, the section has been considered on no fewer than eight occasions in our highest court, and on two occasions already this year. On one of those occasions it was said:

“This is unfortunate, especially in an area of the law which has to be applied on a daily basis by courts at all levels, and in which clarity is therefore of particular importance”.

I think noble Lords would say amen to that. Happily, there is one word in the section on the meaning of which everyone is agreed, and that is the word “likely” in subsection (1). It does not mean more likely than not. It means only that there is a real possibility of harm to a child or, as one judge put it, a possibility that cannot sensibly be ignored.

Perhaps I may paraphrase Section 32(1) again. It states that a child may be taken into care only if, first, it is suffering significant harm or, secondly, there is the real possibility that it will suffer significant harm. I shall not repeat all the wording. In other words, there are two separate conditions which may trigger the threshold, one relating to the present and the other relating to the future. When the case is put on the basis of present harm—for example, that the child is being physically or sexually abused by its father—it will be necessary to prove that fact on a balance of probability. Anything less than that would be unfair on the father and, indeed, on both parents. This is so also where the case is that the child has suffered serious injury and it is uncertain whether the injury was inflicted by the mother. It will be necessary to prove on a balance of probability that the child has indeed been injured and that the injury was inflicted by either the father or the mother, or both, but it will not be necessary at the threshold stage to decide which parent it was. That will be decided, if it can be decided at all, at the

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welfare stage on all the evidence which will then be available. The same principle of the threshold test also applies in relation to any unharmed child of the family.

So far, all is plain sailing. The difficulty arises when the parents separate. Let us suppose that the father goes off to live with another woman who already has a child of her own of the same age as the injured child. Is the threshold satisfied in relation to that child? Common sense would suggest that it is. There is a 50% chance on the proved facts that it was the father who injured the first child, who we will call child A. There must be at least a serious possibility that he will also injure child B—a possibility which, I repeat, cannot sensibly be ignored. If so, the threshold would be satisfied in relation to child B as well as to child A. However, the Supreme Court has held in a very recent case, Re J (Children), that that is not so. The Court has held that a serious possibility that it was the father who inflicted the injury is not enough. In order to satisfy the threshold in relation to child B, it will be for the local authority to prove on a balance of probability that it was the father and not the mother who injured child A. Since on the assumed facts that could not be done, child B would remain at risk.

I suggest that this cannot have been what Parliament intended when enacting Section 32(1), otherwise why did Parliament include the word “likely” as the alternative ground on which the threshold may be satisfied? The matter can be tested in this way by assuming that the mother is also now living with another man and has had a child which we shall call child C. Does child C also have to remain at risk because it cannot be proved on a balance of probability that it was the mother rather than the father who inflicted the harm on child A? The noble and learned Lord, Lord Nicholls, who gave the leading judgments in the three initial cases on Section 31 in the House of Lords, described such a result as,

“grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was”,

responsible for the harm in question.

How then, one may ask, has the Supreme Court in Re J arrived at a different conclusion that, as the noble and learned Lord has said, on the face of it is “grotesque”. How can two of the judges in the Supreme Court have held that the injury to child A in such a case is logically irrelevant in deciding whether child B and child C are at risk and must therefore be disregarded altogether?

The answer to how the Supreme Court can have reached that conclusion is to be found in the judgment of Lord Justice McFarlane in the same case but in the court below. Lord Justice McFarlane is one of our most experienced Family Division judges, and is the author of one of the leading textbooks in this field. It was he who gave the leading judgment in the Court of Appeal in Re J. He went through all the House of Lords and Supreme Court decisions going back to 1996, and he showed that a clear distinction is drawn in the cases between those where the question is whether any harm has been proved at all and those cases where harm has been proved but the perpetrator of the harm is uncertain. That is the very distinction drawn by the noble and learned Lord, Lord Nicholls, in the House of Lords case that I have already quoted.

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Somehow though, that distinction was overlooked in later cases. Lord Justice McFarlane makes no secret of the fact that he favours the approach of the noble and learned Lord, Lord Nicholls, and would therefore have allowed the appeal in Re J if he could. However, subsequent decisions in the Supreme Court meant of course that his hands were tied. So the Court of Appeal took the unusual course of dismissing the appeal but itself giving leave to appeal to the Supreme Court, thereby, one might think, inviting the Supreme Court to have another look at this problem. Unfortunately, as I see it, the Supreme Court simply came up with the same answer again.

Lord Justice McFarlane’s judgment is long and detailed but his conclusion is clear, concise and very relevant in this context. It is contained in a single page of the Law Reports, which I have had copied, and the Committee may find it helpful to read his conclusion when considering this amendment. Copies are available on the table by the door.

I come to the decision of the Supreme Court itself in Re J. Is it open to us to take a different view? If so, is it wise for us to do so? To both those questions I would answer yes, for three reasons. First, three of the judges in the Supreme Court were themselves attracted by the argument that the approach in these cases has become much too complicated and that this is having unfortunate consequences. Secondly, the decision in the Supreme Court has been subjected to a hail of criticism in lengthy articles by Professor Mary Hayes and Stephen Gilmore, appearing in Family Law. There is not the slightest reason to doubt that, as they point out, the decision is causing real concern, if not consternation, among social workers and local authorities who have to apply Section 32 in practice. Thirdly, the decision in the Supreme Court hardly does justice to Lord Justice McFarlane’s decision in the Court of Appeal; indeed, it is scarcely even mentioned.

There is another reason for accepting this amendment. I am not seeking to amend the wording of Section 32(1) itself; the wording is fine and has stood the test of time. It is only the interpretation of that section that needs correcting, and that is what the amendment seeks to do. Its intended purpose is to clarify, and above all to simplify, the approach in cases of the kind that I have described where the harm has been proved on the balance of probabilities but the court cannot make a finding on the evidence whether it was the father or the mother who inflicted that harm. A judge of great experience in the Family Division said that that is the sort of case that occurs very often—“commonplace”, I think he said—in practice. In such cases, if the amendment were accepted, both parents would be placed in what is called a pool of possible perpetrators, thus enabling the case to proceed to the next stage, the welfare stage, where a decision could be made.

I refer to a “pool” because that is the term used by those who read these cases, or a “list”, as it is called in the amendment. Why does one have to have a pool or a list? The reason is quite simple: in one case, which has actually occurred in practice, there was a third possible perpetrator. In addition to the parents of

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the child in question, there was a childminder who also had a child of her own of about the same age. In such a case, it obviously makes sense that the childminder should be included in the pool of possible perpetrators, thus enabling that child to be protected should it become necessary. I hope that this has done something to clarify the purpose of the amendment and I beg to move.

Lord Brown of Eaton-under-Heywood (Non-Afl): My Lords, I support the amendment as strongly as I may. The critical consideration to keep in mind here, as the noble and learned Lord, Lord Lloyd, has explained, is that what we are concerned about today is a threshold provision. The amendment would mean simply that in a small but very important additional category of cases, the court would have the jurisdiction and the power to investigate the case in depth and to consider whether in all the circumstances it should then make a care order or supervision order for the child’s protection. The small category of additional cases—again, the noble and learned Lord has explained this—is where it is established that some other child has already suffered significant harm, perhaps has even been killed, but the local authority concerned about some other child can demonstrate only the possibility, rather than the actual probability, that the perpetrator of that harm was someone who is now caring for the child in question—the child, that is, whose safety is presently under consideration.

As it happens, I was not in any of the string of cases in which the question of the true interpretation of Section 31(2) of the Children Act 1989 has arisen in recent years. Whether in the original House of Lords case I should have agreed with the majority view or with the dissenting minority view of the noble and learned Lord, Lord Browne-Wilkinson, and indeed of my noble and learned friend Lord Lloyd, does not matter. It is unnecessary to decide now which was the better interpretation of the language that Parliament originally enacted in 1989.

What is clear, as again the noble and learned Lord, Lord Lloyd, has explained, is that several judges who have had to grapple with this point, even if they felt bound by the original majority’s decision, have expressed serious misgivings about the consequences of that interpretation. In the case last year, Re J, to which again my noble and learned friend has referred, both the noble and learned Lord, Lord Judge, then the Lord Chief Justice and now a Member of this House, and the noble and learned Lord, Lord Neuberger, then Master of the Rolls and now President of the Supreme Court, agreed with Lord Justice McFarlane. His judgment expressed his trouble with the interpretation given to this section and described it,

“as a cause of concern amongst child protection agencies”.

What is certain is that the clause as originally enacted was not clear enough as to what Parliament then intended. The amendment of the noble and learned Lord, Lord Lloyd, or some comparable draft, would make it plain. It would solve the real and recurrent difficulty that this vitally important part of the law has got itself into, and it would produce a result that for my part I believe we should be striving for, which is to open the gateway to the court.

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I repeat, this is only a threshold provision which would apply whenever a child is found to be at risk of being harmed, as must surely be the case when one of the caring parents is shown to have been a possible perpetrator of serious harm in the past. To anybody who is concerned that the court, following this amendment, would too readily take children away from a parent who only might have harmed some other child, I would say this is absolutely not the case. To quote subsection (2)(2A) of the proposed amendment,

“to infer that a child is likely to suffer significant harm”,

is to infer no more than that there is a risk of that child being harmed as surely there is if there is a real possibility that its carer has significantly harmed some other child. Crucially, it would then remain for the court, looking at all the facts of the case, to decide whether, under Section 1 of the 1989 Act, the child’s welfare is indeed best served by making a care or supervision order. I support the amendment.

Baroness Perry of Southwark (Con): My Lords, as an amateur and a non-lawyer, I hope that the Government will be able to accept the noble and learned Lord’s amendment. How very fortunate we are to have people like the noble and learned Lord, Lord Lloyd, with us in Parliament; how important it is that people with experience as Law Lords should be able to return and give us the benefit of their expertise. I was entranced by his exposition of the amendment because, as an amateur, it is clear to me that people who abuse children do not stop: if you have abused one child, you will undoubtedly go on to harm another.

In the kind of case that the noble and learned Lord described, where a couple split up, we do not know which one of them was harming the child—perhaps it was both. They move into a new family with other children, that harm will continue and the new child will be at risk as well. It has been made clear to us that the Court of Appeal cannot at the moment understand with clarity what it is supposed to do. This would help enormously and I hope that the Minister will be able to accept it. However, he is looking very grim, so perhaps he will not.

Baroness Hughes of Stretford: My Lords, I want to make just a couple of remarks. First, I thank the noble and learned Lord, Lord Lloyd of Berwick, for the note that he has sent to us and for his very clear exposition today of a very complicated issue.

There is an issue here. In my own previous academic experience I did a considerable amount of government-funded research into child abuse, and child sexual abuse in particular. Apart from any other kinds of cases, we found a very significant although small number of men who quite deliberately target families and go round seeking one woman after another. In each case, there is harm to the child but it cannot necessarily be definitively proved which individual committed the harm. For a small number of children this is a problem.

It is quite difficult for those of us who are not lawyers and who have not followed the detail of the Court of Appeal and the Supreme Court and are not steeped in all this language and the issues to evaluate

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precisely—I cannot do so—whether there is an issue here and, if so, how the Government should act. It seems that there may be an issue here. I would be grateful if the Minister could say whether he thinks there is a problem and that it is the problem that the noble and learned Lord, Lord Lloyd, has identified. Is there a potential problem now where some children could be left in situations of risk when perhaps previously there might have been an intervention to protect them? If so, what is the best course of action for the Government to take?

I can perhaps understand the Government’s reluctance to intervene in or be seen to meddle with Supreme Court adjudications. None the less, if there is an issue here, clearly it is within the Government’s power to rectify or revert to the original intention of the Children Act, whether by Amendment 64 or by some other course of action. I certainly feel, as I suspect do other Members of the Committee, that it would be very helpful to have the Minister’s clarification on whether there is an issue here and, if so, what is the best remedy.

Baroness Howarth of Breckland: My Lords, I am not a practising lawyer either but I was a social worker of long standing. I want to say very briefly that the social work organisations are extremely concerned about this situation, and we should have that on the record.

The concern is that in the past, social workers would have been able to move cases forward through the courts easily because of the previous judgments, but now they cannot move to the welfare principle quickly enough, which means that often they cannot gain access to the home where the perpetrator is living. The issue is actually being able to ensure that children can be protected by social care staff or voluntary workers, if that is where the work is, being able to gain access to a home quickly and simply through a court order such as that proposed in the amendment.

7 pm

Baroness Butler-Sloss: My Lords, I am extremely sad to have to disagree with the noble and learned Lord, Lord Lloyd. I am also indebted to the noble and learned Lords, Lord Hope of Craighead and Lord Phillips of Worth Matravers, for what they would like to have said, but they are both unable to be here today.

It is important to realise that there are two views of the judiciary, of the academics and of the lawyers, not only the view put forward by the noble and learned Lord. The first view is that of seven Supreme Court judges. Normally in the Supreme Court they sit in a five-judge court. In this case, no doubt because it was either the seventh or eighth case, they sat as a seven-judge court. I have the highest possible regard for Lord Justice McFarlane, but two of the judges of the Supreme Court were family judges of even greater experience and expertise than him. Both those judges, both of whom are family practitioners and both of whom have worked with me, were absolutely unanimous with the other five that the decision to which the Supreme Court came was the right one.

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There are two issues. One concerns a situation where there has been no significant harm to the child, or in Re J, the case with which we are concerned, three children. However, there was very significant harm to one child who died. In that case, the mother and the father were the only possible perpetrators. Under the current law, it did not matter which of them had killed or injured the child. The child may have died of asphyxia from being rolled on to in the bed—the child was lying in the bed with the parents, which is a terrible habit. This child had been seriously injured before it died. Those are the facts. The mother, during the time she lived with the father, was in that pool of perpetrators and it was clearly not safe for the older child, born while the parents were engaged in the process of care, to live with them. They then parted and went to live with different people. The mother eventually went to live with a man who was the divorced father of two children who lived with him, and with him she had two further children. The pool was then a different pool, not the pool of two perpetrators, one of whom was bound to have done it, but a different pool in which nothing had happened so far. The judges in the Re J case said that there had to be some evidence from which to infer the likelihood of significant harm in the new group, and it could not be said that the mother had injured or helped to kill the child when she lived in the other group, where she and the father were the obvious suspects. In Re J, the seven Supreme Court judges, who were unanimous, said that you had to have some evidence to cross the threshold. Unfortunately in that case the only issue that the local authority presented to the Court of Appeal and to the Supreme Court was the fact that the mother was in the area pool of perpetrators; no other facts were presented at all.

The alternative view put forward by the noble and learned Lord was one he put forward in the earlier case of Re H, where he was in the minority; the majority found against him. In that case, there was a girl of 16 who the elder sister of younger children. The girl said that she had been raped by the stepfather. In the criminal proceedings, he was acquitted. In the family proceedings, the judge said he was not satisfied as to the appropriate standard that the stepfather had raped this girl, but there was a strong suspicion. In that case the Court of Appeal and the Supreme Court held that they could not infer sufficient facts to say that the other children were at risk.

The noble and learned Lord referred to another judgment by that great judge, the noble and learned Lord, Lord Nicholls of Birkenhead, who gave a leading speech in a case called B, or A, which I was on in the Court of Appeal. It involved three people; namely, the mother, the father and the childminder. In that case, the noble and learned Lord said that in relation to those three in that pool where the child was injured—I think that the child died—clearly it was “grotesque” to say that because they could not prove which of the two, or possibly three including the childminder, had actually committed the injury, they should not take steps to protect the children.

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However, that is not the present case. In that case, it was the pool of potential perpetrators, one of whom had done it. In this case, the mother had moved away. The noble and learned Lord, Lord Phillips of Worth Matravers, raised an interesting point. He asked whether there were any recorded cases where the only evidence was that the mother or father had moved from the pool of perpetrators into a subsequent pool where the current law meant that nothing could be done and the child had suffered. I have to say that I have not heard of such a case. I do not think that there is such a case because it would undoubtedly have been referred to in the later cases, particularly in Re J. I thought that the noble and learned Lord, Lord Phillips, made an extremely pertinent point that there was nothing to show that the current law has been to the detriment of children potentially at risk.

The noble and learned Lord, Lord Hope, pointed to the crucial fact that the mother in Re J was in a new pool. No one has suggested that the father of the other children had ever committed any offence. He was a totally respected man. In his note, the noble and learned Lord said that the fact that the mother was in the earlier pool of perpetrators was relevant, but by itself that was not sufficient. He went on to say that it could be relied on, together with any other facts or circumstances that might be relevant, to support the conclusion that the three other children in Re J were likely to suffer harm.

It is interesting that there are other important factors that neither the Court of Appeal nor the Supreme Court were allowed to deal with. The first factor was that the mother was very young when she was living with the man and the child died. Secondly, it was a new relationship with a totally respectable person. Thirdly, there were two further children and she was much more mature. There were factors against her which they did not take into account; namely, that she had colluded with the man in the first case. If they had taken that into account, they might well have crossed the threshold. Unfortunately, those facts were not taken into account.

Therefore, as I understand it, this is a sole issue that is unlikely and, as the noble and learned Lord, Lord Hope, said, it is extremely rare. The noble and learned Baroness, Lady Hale, who is one of the great family experts, and Lord Wilson, were both satisfied in this case that the threshold was properly not crossed. Lord Reed said in paragraph 98 of Family Law Weekthat if the current law as stated in this case was causing consternation, it would appear to be an overreaction because the one clear-cut point was not one that was likely to come up very often, if at all. I am extremely concerned that we maintain a balance between the right of children to their own family, the right of parents to family life and their own child, and the crucial importance of the protection of the child where there is danger to that child.

The very delicate balance in Section 31 has been studied and subject to the most careful judgments by the Supreme Court. I think it is a little unjust to the Supreme Court that while the noble and learned Lord, Lord Lloyd, spent a lot of time on what Lord Justice McFarlane said, he did not quote a single passage of

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what anyone in the Supreme Court said. They are worth reading and they have a very good point. I would say to noble Lords that we have to be careful to protect families from too ready an interference on the part of the state unless there is sufficient evidence to take the child or children away.

Baroness Howarth of Breckland: It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question.

Baroness Butler-Sloss: I have to say that in my experience as a family judge, speaking perhaps as the only family judge present, although of course the noble Lord, Lord Ponsonby, is a family magistrate, those judges would be issuing care proceedings immediately and removing the child while they debated whether the issue could be concluded in favour of the local authority’s view at the care hearing. On the interim care proceedings I have no doubt about the protection issues. Based on this, they would remove the child.

It is also interesting to note that despite some very strong attacks by two well known and respected family academic lawyers, another well respected family academic lawyer, Andrew Bainham, a reader in family law at Cambridge, has gone exactly the wrong way and has taken the view that the Supreme Court was right.

The last point I want to make is this: are we really right to change the point at which the threshold should be crossed, something on which seven Supreme Court judges have reached a conclusion with the greatest possible care? I urge the Committee not to do so.

The Lord Bishop of Chester: My Lords, at the risk of lowering the tone of this extraordinarily learned exchange, in the church we face a similar issue when trying to discern when someone poses a potential risk but nothing can be proved. It is a difficult line to establish. In the drafting of this amendment, my eye has been caught by the juxtaposition of the words “likely” and “possible”. I wonder whether there is a better way of phrasing it. The noble and learned Baroness, Lady Butler-Sloss, used the word “might” at one point, but interestingly then corrected herself and said “was likely to”. There is a real difference between someone being assessed as “might” be a threat and “is likely to” be a threat. I think that I come down on the side of the noble and learned Baroness. However, it is good to know that the lawyers have only two views in these situations.

If this comes back, I hope that we will be able to look at the phraseology. To deduce that something is “likely” from a certain level of possibility seems to carry a stigma that we should not attach unless we really have to do so.

Lord Mackay of Clashfern (Con): My Lords, I had the responsibility of producing Clause 31 as it was, now Section 31, of the 1989 Act. It is extremely important and, as the noble and learned Lord, Lord Lloyd, has said, it has stood the test of time. It is important because it marks a threshold. That does not

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mean that it is an introduction or a preliminary, it means that it determines whether or not the court has the power to remove a child from the natural situation in which he or she is living. It is vital, on the one hand, where there is harm to the child, that the public authority, in this case the local authority, should be able to step in. However, it is equally important that the local authority should not be able to step in where the facts required for the threshold have not been demonstrated. It is that sort of position that the threshold occupies. It is not a question of having to do this in order to go on to welfare. It is that if the threshold is not satisfied, the court cannot remove the child from its natural parents.

7.15 pm

I agree with the noble and learned Baroness, Lady Butler-Sloss, that this was a very considered decision of the Supreme Court of the United Kingdom, containing at least two very experienced family lawyers. It is not the first case to determine this matter but is possibly the first in which it has been distilled to the only point in the case. The case was brought in order to settle the law on whether the mere fact—nothing more—that a parent was in a situation where a child was damaged or injured is of itself sufficient to create a risk that will satisfy the threshold test.

I am not going to go into all the detail because Members of the Committee may read the Supreme Court judgments for themselves if they wish to do so; they are clear, precise and compelling. The point that I want to make is as follows. Let us assume that there are parents who have produced harm to their child. That could be one or both of them. If actual harm is shown to have been done to the child, it does not matter which of the parents was responsible; the child can be removed.

Now, supposing that these two people—married, we will assume—with their child harmed, split up. The mother goes away for some time, and eventually sets up a relationship with another person who has no history whatever of harming any child. He has two children of his own and there is no suggestion whatever that he has harmed them. What is the source of risk to the children who are cared for by that new union? The only possible source of risk is that the mother was a party to the injury to the first child. That is exactly what the court has not been able to take as the fact. The fact is that the only thing that was known is that this mother was a member of a group in which a child was injured. It does not follow that she had any part in it whatever.

That was the only fact that the Supreme Court was allowed to take into account. The case was deliberately put together so that this point of law could be dealt with by the Supreme Court. I think that it was in the judgment of the noble and learned Baroness, Lady Hale—noble Lords can read that for themselves if they wish—that the case was unique in the sense of being packaged in this way. In nearly every other case, it would be possible to adduce further evidence from which the court might be able to assume that it was one or the other, either the mother or the father, who had been the perpetrator. However, the unfairness of

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this idea is that if the mother had nothing whatever to do with harming the child, she should be marked as someone who creates a serious risk and that any child for whom she had responsibility thereafter is to be at serious risk and liable to be taken away from whatever union she has joined. When we look at it that way, as I assume we should, it is quite unfair to make that kind of inference from this sole fact. There may be many other facts in ordinary cases, and there usually are. At the stage at which this case was put, though, there was just the one fact, and that was the legal decision that seven judges reached.

Lord Lloyd of Berwick: Neither the noble and learned Lord nor I were Family Division judges, but another Family Division judge said that the type of case where it is not possible to tell on the evidence whether it is the mother or the father, but it is clearly one or the other, occurs very frequently. That is the kind of case that the amendment deals with.

Lord Mackay of Clashfern: The noble and learned Baroness, Lady Hale, made it perfectly plain that the case that was set up for the Supreme Court was a very special case that she certainly would not expect. She has vast experience of these matters, as has Lord Wilson. The noble and learned Lord, Lord Lloyd, said that I was not a Family Division judge. I certainly was not, but in the Court of Session in Scotland I had family cases. That was a very long time ago but some of the experience still stays at me.

Lord Storey (LD): My Lords, I was not going to speak to this amendment. I have followed the debate with great interest. I am probably out of my depth in this discussion. I want to look at it from a different point of view.

I have heard about “likely”, “possible” and “thresholds”. I am always concerned about the protection and well-being of the child. In recent years we have seen children who have been physically and mentally abused at home, and no one has been able to help them. They have seen the abuse but they have not been able to go and do anything about it. Recently, there was a little boy who was emaciated; he was scrabbling around for food in the gutter and was allowed to be ill treated by his parents. If this discussion means that a social worker can knock on the door, get into the house and provide welfare and, presumably, safety for the child—not necessarily taking the child away—then that must be the right thing to do. It must not always be about a legal interpretation or a legal battle between two sides. We must always focus on what is the best for an individual child. Recently society has let those children down. We have to remember the case of Baby P to see where that happened.

Lord McNally: My Lords, perhaps I may follow my noble friend Lord Storey because he encapsulates a lot of why this is a very difficult debate. Earlier today we heard strong appeals to ensure that local authorities did not rush to judgment and deprive a child of staying at home and being brought up by their natural

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family. I have colleagues in the other place who are extremely critical of what they think is a tendency by authorities in Britain to too readily take children from their natural parents and from their kinship carers and family. Yet, as my noble friend says, every so often we get these horrific cases, and not just the media but everyone asks, “How could it happen? Where were the teachers, the social workers and the neighbours? How was it allowed to happen?”. The question of that balance has kept on coming up throughout the debate—the importance of the threshold that has to be cleared before we can intervene.

Again, I am not pretending to the Committee that these things are coming from the top of my head, but I say to the noble Baroness, Lady Howarth, that I am told Section 47 would allow statutory intervention in a child’s life if the child’s life warranted it. Under that section the local authority has a duty to investigate and can gain access to the child’s home if it deems the child to be at risk of significant harm, and then move for an emergency protection order. It may not be the barrier that the noble Baroness was suggesting.

I thank the noble and learned Lord, Lord Lloyd of Berwick, for raising this important issue and for meeting me and my officials last week to explain his concerns in more detail. This is clearly a complicated issue, and I welcome the opportunity to hear the views of noble Lords who have such expertise and experience in these difficult matters, even if that expertise causes them to come to different conclusions.

As noble Lords will appreciate, Section 31(2) of the Children Act, which the noble and learned Lord proposes to amend, has to balance the need to protect children from harm with the need to protect the child and family from unwarranted state intrusion—the balance that the noble and learned Lord, Lord Mackay, the author of that Act, has explained to us. Any amendment to this carefully worded section, which has stood the test of time, therefore should not be taken lightly.

The amendment would allow a court to infer that the threshold for making a full care or supervision order has been met solely on the basis that someone living with a child might—but was not proven to—have significantly harmed a child previously. This is a departure from the current balance in the Act. Currently there must be a factual foundation for the state’s removal of a child. Reasonable suspicion is a sufficient basis for authorities to investigate and even take interim protective measures in order to gather evidence, but case law has outlined that it cannot be a sufficient basis for long-term intervention.

The threshold for being able to intervene under Section 31 is there not only to protect the family but to protect the child, as unjustified removal can in itself result in significant harm to the child. This is the very reason why Section 31 was included in the Children Act 1989. It is possible that such protection would be eroded if it could be inferred on the basis of unsubstantiated suspicion that there was a basis for making a final order such as a care or supervision order.

I know that the noble and learned Lord has tabled this amendment following concerns about some specific judgments. But it is important to note that in most

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cases the court would be unlikely to a make a decision based on the sole fact that a person might—but was not proven to—have significantly harmed a child previously, as was the case in re J. The noble and learned Lord, Lord Mackay, made the point that it was a unique case.

It is important to bear in mind what happens in the build-up to care proceedings. Where there are child protection concerns, the local authority is under a duty under Section 47 of the Children Act 1989 to make inquiries and decide whether any action must be taken to enable the local authority to safeguard the child’s welfare. A Section 47 inquiry should assess the needs of the individual child. The statutory safeguarding guidance, Working Together to Safeguard Children, issued in 2013, is clear that assessment is,

“a dynamic and continuous process which should build on the history of every individual case”.

A good assessment investigates,

“the child’s developmental needs … parents’ or carers’ capacity to respond to those needs; and the impact and influence of wider family and community and environmental factors”.

Research shows that taking a systematic approach,

“is the best way to deliver a comprehensive assessment for all children”.

This should mean that, when the court hears an application for a care order, the court is presented with a full range of factors and evidence for it to consider. For example, the court may consider the child’s assessed development and needs, whether drink and drugs were present in the previous household and whether they are a factor in the new relationship, along with the factors surrounding any previous incident that may have occurred.

The judgment of the noble and learned Baroness, Lady Hale, has been quoted a number of times. What she actually said is:

“There are usually many readily provable facts upon which an authority can rely to satisfy the court that a child is likely to suffer significant harm unless something is done to protect him. Cases in which the only thing upon which the authority can rely is the possibility that this parent has harmed another child in the past are very rare. As the Court of Appeal pointed out, this case has itself been artificially constructed by the decision to treat the issue as a preliminary question of law”.

A real possibility of harm having taken place in the past will not be ignored by the local authority carrying out the investigation and would form the body of evidence presented to the court as part of care proceedings. We are therefore satisfied that the court would give appropriate consideration to those matters related to the child’s history that are relevant to whether the threshold test has been met.

7.30 pm

We have had a thorough debate. I quake when asked to pronounce between the various eminent legal names that have been—“bandied about” would be too disrespectful—used on both sides of this argument. I am an old enough parliamentarian to agree with the noble Baroness, Lady Hughes, that if Parliament thinks that the law needs clarified, then Parliament should do

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that. On the other hand, I am also an old enough separation-of-powers man to have awe and respect for our Supreme Court. As the noble and learned Lord, Lord Mackay, has reminded us, the Supreme Court has considered this matter in some detail. The noble and learned Baroness, Lady Hale, explained, certainly to my satisfaction, why the case that the noble and learned Lord believes needs clarification is so special, and that in other cases there would have been innumerable other facts—injuries suffered, how they occurred, whether there was delay in getting medical help or concealment of injuries—that would have been set alongside other facts, such as what the household’s circumstances were, whether drink and drugs were involved and so on.

This matter will be discussed again on Report, but the debate has certainly shown concerns. However, the concerns do not go only one way. As a layman, I certainly would be left with great reluctance to try to second-guess our Supreme Court at this stage. I hope that the noble and learned Lord will consider withdrawing his amendment.

Lord Lloyd of Berwick: My Lords, the Minister has indicated that this matter will come back on Report, so I do not intend at this stage to deal with the arguments that have been advanced by those who are not in favour of the amendment. I am very grateful to those who have supported it, particularly the noble Baroness, Lady Howarth, who put the point as clearly as possible that if there is a doubt or a serious possibility then the balance should come down in favour of protecting the child. That is all that I am concerned to do.

Over and again, the noble and learned Lord, Lord Mackay, referred to the case where one or other of the parents might have inflicted harm, and asked how on the basis of that it could be said that the threshold was passed. That is not the case that we are discussing. We are discussing a case where the harm is certainly inflicted by either the mother or the father. To say in those circumstances that it might only have been the mother is not enough; it is clearly a serious possibility, at the very least, that it was the mother on the one hand or the father on the other, and that serious possibility is enough to trigger the threshold on the clear wording of Section 32(1), which refers to “likely”, which in turn has been held to mean a serious possibility. That is all I will say at this stage, but I will certainly come back.

One other thing: the noble and learned Baroness, Lady Butler-Sloss, referred—I do not know with what propriety—to two people who had advised her that they were on her side. I could have quoted two others, equally eminent, who were on mine. At this stage I do not think that we should count heads; that is not the way to do it. On that basis, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

Committee adjourned at 7.34 pm.