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Lord Macaulay of Bragar moved Amendment No. 5:

Page 4, line 36, leave out ("age and").

The noble Lord said: I speak also to Amendments Nos. 6, 11 and 12. The effect of these amendments is to take the age of the child out of the consideration of his maturity and understanding, the view being taken that the reference to a child's age as a criterion of the ability to form a view is neither here nor there and that there should be a broader approach to the understanding of the child. That may be another matter the Government wish to examine. I beg to move the amendment.

Lord Fraser of Carmyllie: Noble Lords will doubtless be aware that the Scottish Law Commission, whom on this occasion I pray in aid, considered carefully the best form of words to use and decided to follow the United Nations Convention on the Rights of the Child in recommending the form, "the child's age and maturity." While I appreciate that noble Lord's desire to stress the importance of understanding, I consider that "understanding" is implied in "maturity" and that it is more appropriate to stick to the wording in the United Nations convention. Besides, this wording is also used in Part II of the Bill. Indeed, I notice that the noble Lord, Lord Macaulay, himself uses that wording in Amendment No. 25. I am sure that he will wish to be as consistent as I wish to be.

Lord Macaulay of Bragar: I certainly do not wish to be inconsistent. There is a level of consistency in this. It is all very well taking the age of 12 out of the clause because it is a judgment that has to be made of the child itself. The other clauses deal with the actual age of the child in a different context; we will come to that matter in due course. In the meantime I am grateful to the Minister for his explanation. I am glad to know that the Government are paying attention to the United Nations Convention on the Rights of the Child. We look forward to seeing it brought into the law of the United Kingdom. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved]

Clause 6 agreed to.

Clause 7 [Appointment of guardians]:

Lord Macaulay of Bragar moved Amendment No. 7:

Page 5, line 5, after ("parent") insert:
("( ) accepted in writing by the guardian;").

6 Jun 1995 : Column CWH18

The noble Lord said: This amendment and Amendments Nos. 8 and 9 relate to the question of guardianship. I do not know what view the Government are taking, but it seems to myself and others that there should be a more positive acceptance of the post of guardian rather than leaving it up in the air, so to speak. For example, and I believe this came up at Second Reading, Clause 7(3) states:

"An appointment as guardian shall not take effect until accepted, either expressly or impliedly by acts which are not consistent with any other intention".

I believe the point was made on Second Reading that it was the wrong way round; that the appointment of guardian "shall take effect when any act which either expressly or impliedly confirms their taking the post", or words to that effect. I do not know what consideration the Government have given to that but certainly where there is a serious matter in the life of the child it should be properly controlled within the legal system. For those reasons the amendments have been tabled so that the Government can consider whether there is some force in what we are saying, because the whole import of this Bill is to protect the children.

The guardian is one of the most important persons in a child's life in the event of the parent's death, as in Clause 7(1). It is important that the child's rights should be protected by making sure that everything is done within a legal context because, once again, the child has no protection. The parent can appoint a guardian but, again, the child has no rights. I may be misreading the Bill, but these amendments have been put forward so that the Government can perhaps have a look at the matter again before Report stage, to see whether the clause can be tightened up from a legal point of view to ensure that children are not exposed to the whims of their parent, or indeed their guardian, as the case may be, or a combination of both. I beg to move.

The Earl of Balfour: Perhaps I could raise one other question on Clause 7. Let us suppose that a guardian has been appointed mutually between the parents and, say, the father gets killed. Does mother then have to share the guardianship of her two children with the guardian regardless of whether or not she likes that person? That is just one of the points which concern me a little.

Lord Fraser of Carmyllie: The short answer to the noble Earl is, yes, that would be the state of affairs.

So far as the particular amendment is concerned, the Scottish Law Commission proposal on which Clause 7 is based is that there should be a certain degree of flexibility available to the person who is appointed as guardian. That person may accept the office in writing, and is recognised in the amendments and in the existing clause. However, the appointee might also make it clear by his or her actions that he or she accepted the role; for instance, by caring for the child after the death of the parent who made the appointment.

The law in Scotland currently provides that no person is obliged to accept the office of guardian, and that position is retained in this Bill. The SLC recommendation was widely accepted when they sought views on it. They felt it necessary for the person who is appointed to show that he or she has accepted the office

6 Jun 1995 : Column CWH19

of guardian, and the provision in Clause 7 allows for that while not placing an undue burden on the guardian elect.

As for the child having to give his or her consent in writing, I am afraid that Amendment No. 9 would present some fairly obvious technical problems. First, I assume that the amendment should refer to line 17 rather than line 18. More importantly, I remind the Committee that taking the views of the child into account is covered by subsection (6) of this clause. It may be a rather elaborate subsection to read, with its reference back to Clause 6, but that is what it allows for and that was recommended by the Scottish Law Commission. Could I also say to the noble Lord that as the SLC noted, any child who objects to the appointment of the guardian can apply to a court for the termination of the appointment, and indeed can apply for the appointment of a guardian of his or her choice.

Having considered the matter, I see no reason to amend the Scottish Law Commission's proposals, which received widespread support. I hope that the noble Lord will be satisfied with that explanation.

4.45 p.m.

Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. I think we will find working our way through the Bill fairly pedestrian because I note that Clause 7(2) states:

"A guardian of a child may appoint a person to take his place as guardian in the event of the guardian's death; but such appointment shall be of no effect unless in writing and signed by the person making it". What happens if the person making it is dying and cannot write? I raise that question in passing. However, subject to the explanation that the Minister has given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 and 9 not moved.]

Clause 7 agreed to.

Clauses 8 to 10 agreed to.

Clause 11 [Court orders relating to parental responsibilities etc.]:

[Amendments Nos. 10 to 13 not moved.]

Lady Saltoun of Abernethy moved Amendment No. 14:

Page 9, line 29, at end insert—
("(7A) In implementing subsection (7) above, the court shall appoint suitably qualified, trained and experienced persons—
(a) to establish if the child wishes to express his views;
(b) if so, to ascertain those views;
(c) to assess the maturity of the child and his level of understanding of the matters under consideration; and
(d) to provide the court, in the light of these enquiries, with an assessment of the best interests of the child in respect of the order.
(7B) A person appointed by the court under subsection (7A) shall not act or be regarded as acting as the legal representative of the child.").

The noble Lady said: This amendment is intended to give effect to the principle of participation for children

6 Jun 1995 : Column CWH20

in the decision-making set out in the Bill by providing a procedure by which courts may obtain the views of children.

There are presently no regulated mechanisms for ascertaining children's views within the court system. The likelihood of the child's views being sought and the method employed to ascertain the child's views will be an arbitrary reflection of individual judicial decisions. There is, therefore, a need to regularise and equalise the child's access to the right to express his view.

An essential preliminary to ascertaining the child's views must be an assessment of the child's understanding of the situation affected by the decision to be taken and an assessment of the child's capacity to form an opinion on the issues involved. That needs to be undertaken by an individual with the appropriate training and expertise. The training currently received by those involved in the legal profession or the judiciary is not intended to prepare them for such a task. While it might be possible to adjust the training received by lawyers, sheriffs and judges to take account of the demands of listening to children, it is unlikely to be appropriate or practicable for those individuals to be involved in the process in the court.

If it is to be achieved adequately, the process of ascertaining the children's views will involve more than a one-off interview. The legal representatives of the two parties in the case and the sheriff or judge are all part of the adversarial process of decision-making. Their first interest must be the satisfactory resolution of the dispute between the parties.

While it may be possible for those individuals to step outside the adversarial role when they are involved in talking to children, it is unlikely that children and young people will find it easy to achieve a similar shift in perception. For the child or young person to have a sense of the significance of his or her views, and the confidence to express them, it is of the greatest importance that the process of ascertaining views should be undertaken by an individual independent of the adversarial process.

There are particular difficulties inherent in ascertaining the views of children in matrimonial cases—and a lot of these cases will be matrimonial cases. There are difficulties in separating the accurate views of the child from the views of the parents. An understanding of the range of responses to parental separation which children experience is essential to any informed understanding of the expression of children's views in this situation. I beg to move.

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