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The Lord Chancellor: My Lords, as the noble Lord explained, Amendments Nos. 13 and 18 propose that the consent to an exclusion requirement being attached to an interim care and emergency protection order should be extended to include the consent of a person about to live in the dwelling-house as well as one already living there.

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The amendments would broaden considerably the categories of persons able to consent to the exclusion requirement, and as drafted could include not only relatives of the child but anyone proposing to enter the home to look after that child. I believe that it would not be right to allow someone not living in the dwelling-house to consent to an exclusion order and, therefore, that the extent of the amendments are too great.

Essentially, it is a question of the person presently providing care. It may be that the intention, as explained by the noble Lord, would be effected by another person coming to live in the house. However, if that person does not do that then it cannot be right to allow consent to an exclusion order to be made by someone who is not already living in the house.

In addition, I am concerned that the policy of the requirement of consent of the current carer of the child could also be defeated if someone else is allowed to consent to the exclusion requirement regardless of the wishes of the current carer. The examples given by the noble Lord, Lord Meston, did not encompass that possibility but, as I understand the amendment, that could happen. Someone not living in the house could give consent when the carer was not prepared to give consent. That would not work at all.

I do not believe that the noble Lord referred specifically to Amendments Nos. 14 and 15.

Lord Meston: My Lords, with the permission of the House, I intended to deal with those amendments separately. They deal with a separate matter.

The Lord Chancellor: My Lords, I am content to do that. That being the case, that completes what I have to say about Amendments Nos. 13 and 18. I believe that they would unduly open up the possibility of consent to exclusion orders by persons who are not necessarily the right people to give consent. Unless the current carer gives consent I do not believe that the provision would work.

Lord Meston: My Lords, I am grateful to the noble and learned Lord for his explanation of why he cannot accept the amendments. I see his point in relation to the drafting. It may be that the matter can be tackled better with some improved drafting. I hope to attempt to achieve that before the Bill leaves the House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.15 p.m.

Lord Meston moved Amendment No. 14:

Page 25, line 10, leave out ("may") and insert ("shall").

The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendment No. 15, which is connected. The purpose of the amendments is to amend the proposed new subsection (5) of Section 38A of the Children Act so that it reads:

    "Where the court makes an interim care order containing an exclusion requirement, the court shall attach a power of arrest to the exclusion requirement, unless the court is satisfied that in all circumstances of the case the applicant or child will be adequately protected without such a power of arrest".

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One of the nagging worries I have about this particular provision of the Bill is that, although in the main body of the Bill there are criteria governing when the power of arrest can be considered and imposed by the court, no criteria are laid down under this part of the Bill which introduces this new section of the Children Act. All one can deduce is that it is implicit that the court would probably impose a power of arrest if there was a risk of the person being excluded returning to the home.

The purpose of the amendments is to make the power of arrest mandatory when including an exclusion requirement in an interim care order. Without the amendments the child and the person looking after the child may not be sufficiently protected where the excluded person can return to the home without fear of arrest. That could make it possible for the adult responsible for caring for the child to consent to an exclusion requirement on the ground that they may not be able to protect the child should the excluded party return. In the absence of the power of arrest the local authority would be faced with having to remove the child on an emergency basis if an exclusion requirement were breached. That goes against the intention of the legislation which seeks, in an appropriate case, to remove the alleged perpetrator of the abuse rather than the child.

It is proposed that the same wording be adopted in Schedule 3 as presently exists earlier in the Bill. It leaves the option for the court to include an exclusion requirement without the power of arrest when the court is satisfied that in all the circumstances of the case the child will be adequately protected without the power of arrest. I beg to move.

Lord Archer of Sandwell: My Lords, I rise briefly to indicate that my noble friend Lady David, who unhappily cannot be with us today, very much supports the amendment. Your Lordships may recollect that in Committee it was a question from my noble friend which evoked the answer from Mr. Joel-Esam of the NSPCC to the effect indicated by the noble Lord, Lord Meston.

One can see, and Mr. Joel-Esam himself indicated, that some problems may arise. It is a matter of balance. He recognised that if the power of arrest became mandatory the courts might be reluctant to make the order in the first place. These are matters to which the NSPCC had clearly given attention. On balance it considered that the danger of making an order without a power of arrest, with the consequences indicated by the noble Lord, Lord Meston, was paramount.

All that emerges from the amendments, if they appeal to your Lordships, is that instead of the power of arrest being wholly neutral with the court directing its mind to whether it should add the power of arrest, the normal situation would be that it will exist. The second of the two amendments makes it possible to say that where there is no danger to the child it will still not be mandatory. The onus would be on those who do not wish a power of arrest to be added. In those circumstances, I support the amendment.

The Lord Chancellor: My Lords, this is obviously a difficult matter. This is an option for replacing the interim care order with an exclusion requirement; in other words,

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taking the person who is seen to be the possible cause out of the home, because it is an interim matter. That is an option that has to be considered. There is a great deal to be said for that course of action if it is a reasonable one. However, it requires the consent of the carer. Therefore all of this has to be taken into account, as regards considering realistic options, when the court is considering the matter.

In her evidence to the Committee, Mrs. Justice Hale, who was the law commissioner responsible, thought that to introduce a mandatory power of arrest here could be too draconian, and it could mean—as the noble and learned Lord, Lord Archer of Sandwell, has said—that the usefulness of the order would be limited as the court might be unwilling to make the order where it might be obliged to attach a power of arrest in these circumstances. Of course there is also the question of the consent of the carer; the carer's consent is required. There might well be a consideration in that connection of whether or not a power of arrest is there.

As regards leaving the matter discretionary, the court would have considerable opportunities to reconsider its position. It would also be possible for the matter to be reviewed. However, I have reached the conclusion—trying to balance all these matters—that I am prepared to believe that the court can be trusted properly to exercise its discretion in an open way in this situation where there are so many aspects of an option that are difficult for us here, or even for the NSPCC with its great experience, to envisage. It is much better that this matter should be considered on an individual case basis.

The inclusion of this requirement in Clause 17 of the Bill in relation to occupation orders and non-molestation orders deals with the situations where the respondent has actually used or threatened violence. This should be distinguished from the situation in relation to exclusion requirements under Schedule 3 where the use or threat of violence may not have occurred. I believe therefore that the best course for this Bill to take is to leave the court with the flexibility to decide whether to attach a power of arrest. I believe that best allows it to deal with the wide range of circumstances with which it is likely to be faced. Therefore, as at present advised, I would not feel able to support Amendments Nos. 14 or 15.

Lord Meston: My Lords, as the noble and learned Lord has just said, this is a matter of balance. The concerns of the NSPCC are obviously worthy of consideration. I, for my part, also wish to stress the point which initially concerned me; namely, that if a statute is to give a right of arrest, the statute should indicate criteria. However, I fully understand and respect the points advanced by the noble and learned Lord the Lord Chancellor. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

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