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The Earl of Balfour: I am most grateful to my noble and learned friend for that explanation. I had not appreciated the difference. I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clause 52 [Initial investigation by the Principal Reporter]:

[Amendment No. 143 not moved.]

Clause 52 agreed to.

Clause 53 [Child protection orders]:

Lord Macaulay of Bragar moved Amendment No. 144:


The noble Lord said: Amendment No. 144 has been grouped with Amendments Nos. 145 and 160. I am again posing the question: what does the word "significant" mean in the legislation? It is as simple as that. Perhaps the Minister could let me know what test there is of the word "significant". On that basis, I beg to move.

The Earl of Lindsay: The quick answer to the noble Lord is that the definition of the word "significant" will belong to the discretion of the judge. He would have

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to judge within the circumstances and with the details available exactly where the significance lay. However, I would just make a wider point on the noble Lord's amendments.

They seek to lower markedly the test for the removal of children from their home in emergency situations to a test of "harm" rather than "significant harm". I would remind the noble Lord that Lord Clyde in his report on the Orkney inquiry indicated that it would only be appropriate to remove children from home under a child protection order where the child is likely to suffer significant harm. I would add that the standard of "significant harm" also applies to emergency protection orders under the Children Act 1989, an Act which the noble Lord himself has prayed in aid in some of his other amendments.

The amendments would allow immediate removal of the child, and without any prior notification, in a far wider range of circumstances where there was no danger of significant harm to the child. They represent, I suggest, an unjustifiable lowering of the test against which such applications should be determined.

I hope I have answered the noble Lord's question. On that basis, I should be grateful if he would withdraw the amendment.

Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. Does it follow from what has been said that in Clause 53(1)(a)(ii) the words "such harm" are qualified by "significant" in subsection (1)(a)(i)? It is the same harm that we are talking about.

Does that mean that a child who is being so treated (or neglected) that he is suffering only harm will not get protection and the test has to be significant harm, whatever that might mean? Should not the test be that the child is being so treated or neglected that he is suffering harm? Would not that be better than putting superfluous words into the legislation? Should not the sheriff decide whether harm is being done to the child? If harm is being done to the child, in a way it does not really matter whether or not it is "significant". I have not had an opportunity to look at the Oxford English Dictionary to see what the definition of "significant" is in relation to harm as it relates to the way in which a parent treats or neglects a child.

I can see that including the word "significant" is a protection to the parent who can argue, "This is a lot of nonsense; this child has not been neglected and is not suffering harm". The parent can say to the court, "Somebody has to show that it is significant harm". Including the word "significant" might, as we discussed yesterday, create problems of interpretation for the sheriff who is to be asked to make the decision.

We do not have a Richter scale of harm. We do not have scale of one to 10 or of one to 20 as is the case for measuring post-traumatic stress disorder. If you are on the first three rungs of the ladder, then you are into the post-traumatic stress disorder. What meaning is to be given to the word "significant"? We have tabled the amendment to try to find out.

We are not trying to be clever in any way. As I have

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said more than once, we are here to help the children and we recognise that there is an equation here. We not only have to look after the children, but we have to protect the parents. We are trying to achieve a balance. I suggest that perhaps the use of the word "significant" might be looked at again. Perhaps another word could be used, such as "substantial". I am not going to suggest that because I have no responsibility for drafting legislation, but the Government might want to look at the word "significant" to see whether it is appropriate in the context of this particular clause.

The Earl of Lindsay: The noble Lord asked me a specific question at the start and I confirm that, for the purposes of immediate removal, the harm must be judged to be "significant". Judging whether or not it is significant must be left to the circumstances of the case. The noble Lord must surely understand that, without knowing the circumstances, we cannot prescribe what will or what will not be significant.

My last point in response to the noble Lord is that the children's rights underlie much of the Bill but, at the same time, parental rights are also identified and safeguarded in this Bill, so the two are in equilibrium.

Lord Macaulay of Bragar: The Minister meets my point in that we are getting dual protection here of both the child and the parent or partner, but I think that there might be a more appropriate word than "significant". Perhaps we should all go back to the Oxford English Dictionary to see if we can find one. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 145 not moved.]

6 p.m.

The Earl of Balfour moved Amendment No. 146:


Page 40, line 9, leave out ("rules") and insert ("regulations").

The noble Earl said: At the very top of page 70 you will see that rules are usually made by a court. This particular clause refers to Clause 58 under which the Secretary of State may make regulations. I am therefore suggesting that we leave out the word "rules" and substitute the word "regulations" in this clause. I shall be speaking later to Amendment No. 149. I would like to say that use of the word "rules" as the first word of Subsection (6) of Clause 53 is perfectly correct. I beg to move.

The Earl of Lindsay: We are very grateful to my noble friend Lord Balfour. He was referred to this morning by various experts looking at the Bill as the Gavin Hastings of the Committee; he has a very high score rate. This will not be the only amendment from the noble Earl that we will accept today. Indeed, this amendment does correct a wrong reference to the regulations which are made under Clause 58 of the Bill. The reference contained in Clause 53(3) is to rules under Clause 58 and should of course be to regulations under Clause 58. Therefore, I hope the Committee will accept my noble friend's amendment.

On Question, amendment agreed to.

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Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 147:


Page 40, line 31, at end insert:
("() exclude from the child's family home any person named in the order").

The noble Lord said: The drafting of this amendment is slightly defective because it does not quite fit into the context of the Bill. I should like time to consider it. I do not propose to move it.

[Amendment No. 147 not moved]

Lord Macaulay of Bragar moved Amendment No. 148:


Page 40, line 32, after ("order") insert ("and full details of the application upon which the order was made").

The noble Lord said: This amendment makes it necessary to give fuller details within the context of the clause. I beg to move.

The Earl of Balfour: The noble Lady, Lady Saltoun of Abernethy, felt that we were discussing grouped amendments. I do not believe that we are. The amendments were not grouped on the sheet I had. They were to be taken on their own.

Lady Saltoun of Abernethy: They are grouped on today's list.

The Earl of Balfour: I am sorry; I do not have it.I did not obtain the most recent one.

Lady Saltoun of Abernethy: The groupings will have to be re-done.

Lord Fraser of Carmyllie: I have a set of government amendments which begin at No. 158, which might appropriately have been dealt with in the context of Amendment No. 147. We shall deal with them now at the appropriate stage.

In response to Amendment No. 148 I say immediately that I have sympathy with the intention behind the amendment. Under the provisions of Clause 53(5), the applicant for a child protection order must advise the local authority and the principal reporter of the making of a child protection order by the sheriff. There is no reason for the two parties to be advised of the reasons for making the application in the first instance. I agree that it is important for both the local authority and the principal reporter to have such information but this is a matter which is more appropriate for rules of court rather than for primary legislation. On that basis I invite the noble Lord to withdraw the amendment.


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