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"vary or recall an exclusion order", and so on, but I am not quite satisfied that this is not a "bring the guillotine down" on an exclusion order at the end of six months and, whatever the circumstances may be, the alleged abuser is back home with there being no power to stop him. I wonder whether the noble and learned Lord the Minister has any views on that point. Can he say what Clause 73 really means and what the effect of it will be in the area of exclusion orders. I beg to move.

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The Deputy Chairman of Committees: I should remind the Committee that if amendment No. 187 is agreed to, I shall be unable to call Amendment No. 188.

Lord Fraser of Carmyllie: I understand the noble Lord's concern and indeed his very proper wish to ensure maximum protection for children in these difficult circumstances. On the other hand, I have very real concerns, which I consider to be equally proper, over introducing open-ended exclusion orders which would run indefinitely until otherwise buried or recalled. That would be the effect of the noble Lord's amendment.

I agree with the noble Lord's construction of Clause 73 (3) that, while variation or recall is permitted, it would not allow for an indefinite extension beyond the six months period of the order.

Having reflected on this very carefully, we have considered that it would be quite inappropriate for public intervention of this type to continue without focus and, indeed, without regulation of property rights. As the noble Lord will recall, it was in the context of the emergency protection of children that such exclusion orders were first proposed for inclusion within our law. It was argued—as noble Lords will recollect—that this was a much better way in circumstances of emergency protection to care for children rather than have resort to a child protection order, the effect of which would be to remove the child from its home, school and one or more parent. It is in that context that we should regard what we are proposing to do, and I am sure he will recognise that it is also important that we should not leave open-ended the regulation or lack of regulation of property rights.

One of the major difficulties in domestic abuse cases is having the courage to make the first positive step towards resolving the situation. The matter can be much more difficult where children are involved. Our provision is therefore designed to allow public intervention and support in the initial stages, but with a view to the longer-term situation being resolved with, but not necessarily by, the local authority.

I believe that we have struck about the right balance in proposing that orders should lapse after six months at the latest. That gives adequate time for all concerned to address the situation and for necessary steps to be put in hand. If it is clear that the named person continues to be a threat to the remaining parent or partner, that remaining parent or partner could on their own seek an exclusion order, not only for their own protection but also for a child. They could secure that from the sheriff under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 where the named person was the spouse or cohabitant.

As I indicated, I consider that six months seems right, as the noble Lord, with his experience, will appreciate. One possible consequence of the exclusion of a named person from the home is that criminal proceedings might be taken against that person. One would certainly hope that if someone was going to be excluded, those who were responsible for investigation and/or prosecution would have taken some steps to bring matters to a head within a period of six months. The last thing one wants

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is a difficult situation like this carrying on indefinitely without resolution. It would not only be unfair to the named person. I cannot believe that it would be to the benefit of the child in question if no firm decisions were being taken.

I believe that the balance we have struck must be accepted as about right. It provides the necessary support and time to the non-abusing parent or partner to allow him to make important decisions over the child's longer-term interests and security, together with the involvement of the local authority. I hope that with that explanation the noble Lord will withdraw his amendment.

Lord Macaulay of Bragar: The noble and learned Lord has rather anticipated a point I was going to raise—the issue of court proceedings. What happens if the child is the principal witness against the excluded person, as the child is almost bound to be, and the authorities have not ensured that the matter is dealt with within the timescale in Clause 73?

I know that the noble and learned Lord has said that you can apply for an interdict or exclusion order—I cannot remember the phase and I do not have the matrimonial proceedings Act before me—but we also have the application in the criminal law. So we could have three Acts—the Children (Scotland) Act, the matrimonial proceedings Act and the criminal justice Act 1975, all getting into a terrible fankle, if I can put it that way.

Since this Bill is geared towards the interests of the child, might it not be better to build into the Bill some discretion for the court so that if, on the expiry of the six-month period, proceedings have been raised by the service of a summons, or indeed an indictment in many cases, the exclusion order can be continued within the context of the Bill rather than the burden being placed on the partner or whoever is in charge of the child—the appropriate person, as we saw in the previous context, whether it be a grandmother, grandfather or the guardian?

Perhaps the Government will reconsider the amendment, because one can see what could happen. The court could have three different Acts going in different directions. Subject to that, I am sure the Minister's answer will be read with great care by those interested in these matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Lord Fraser of Carmyllie moved Amendments Nos. 188 to 191:

Page 61, line 43, after ("person") insert (", or to an appropriate person,").
Page 61, line 46, after first ("person") insert (", an appropriate person").
Page 62, line 1, after ("home") insert ("and is not an appropriate person").
Page 62, line 3, at end insert—
("( ) For the purposes of this section, partners are persons who live together in a family home as if they were man and wife.").

On Question, amendments agreed to.

Clause 73, as amended, agreed to.

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Clause 74, [Exclusion orders: supplementary provisions]:

Lord Fraser of Carmyllie moved Amendment No. 192:

Page 62, line 13, at end insert:
("b) the period within which a hearing shall be held under subsection (3B) of section 70 of this Act after the granting of an order under subsection (3A) of that section;").

The noble and learned Lord said: In speaking to Amendment No. 192, perhaps I may speak also to Amendments Nos. 193 and 194. These amendments can safely be described as of a technical and drafting nature. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 193 and 194:

Page 62, line 14, at end insert(";
( ) the service of any exclusion order on the named person and the appropriate person within such period as may be specified in the rules.").
Page 62, leave out lines 20 and 21 and insert:
("( ) the person who will be the named person if the application is granted;
( ) the child to whom the application for the order relates;
( ) an appropriate person;").

On Question, amendments agreed to.

Clause 74, as amended, agreed to.

Clause 75 agreed to.

Clause 76 [Recovery of certain fugitive children]:

The Earl of Lindsay moved Amendment No. 195:

Page 63, line 12, leave out ("or the Channel Islands").

The noble Earl said: Government Amendment No. 206 clarifies the way in which the provisions of the Bill will extend to the Channel Islands. New subsection (9) of Clause 96 provides that

"Her Majesty may by order in council direct that any of the relevant provisions specified . . . shall extend . . . to any of the Channel Islands".

Clause 76 is one of those provisions. Therefore, the reference to the Channel Islands in Clause 76 can now be deleted. The intention will be achieved through government Amendment No. 206. Therefore, I beg to move Amendment No. 195 which is consequential upon it.

On Question, amendment agreed to.

Clause 76, as amended, agreed to.

Clauses 77 and 78 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 195A:

After Clause 78, insert the following new clause:

Application for review of establishment of grounds of referral.
("New evidence: review of establishment of grounds of referral

—(1) Subject to subsections (3) and (4) below, where subsection (2) below applies an application may be made to the sheriff for a review of a finding such as is mentioned in section 62(10) of this Act.
(2) This subsection applies where the sheriff, on an application made by virtue of subsection (6) or (8) of section 60 of this Act (in this section referred to as the "original application"), finds that any

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of the grounds of referral is established.
(3) An application under subsection (1) above may only be made where the applicant claims—
(a) to have evidence which was not considered by the sheriff on the original application, being evidence the existence or significance of which might materially have affected the determination of the original application;
(b) that such evidence—
(i) is likely to be credible and reliable; and
(ii) would have been admissible in relation to the ground of referral which was found to be established on the original application; and
(c) that there is a reasonable explanation for the failure to lead such evidence on the original application.
(4) An application under subsection (1) above may only be made by—
(a) the child in respect of whom the ground of referral was found to be established; or
(b) any person who is a relevant person in relation to that child.
(5) Where the sheriff on an application under subsection (1) above is not satisfied that any of the claims made in the application are established he shall dismiss the application.
(6) Where the sheriff is satisfied on an application under subsection (1) above that the claims made in the application are established, he shall consider the evidence and if, having considered it, he is satisfied that—
(a) none of the grounds of referral in the original application to which the application relates is established, he shall allow the application, discharge the referral to the children's hearing in respect of those grounds and proceed in accordance with subsection (7) below in relation to any supervision requirement made in respect of the child (whether or not varied under section 67 of this Act) in so far as it relates to any such ground; or
(b) any ground of referral in the original application to which the application relates is established, he may proceed in accordance with section 62(10) of this Act.
(7) Where the sheriff is satisfied as is mentioned in subsection (6)(a) above, he may—
(a) order that any supervision requirement so mentioned shall terminate—
(i) immediately; or
(ii) on such date as he may specify; or
(b) if he is satisfied that there is evidence sufficient to establish any ground of referral, being a ground which was not stated in the original application, find such ground established and proceed in accordance with section 62(10) of this Act in relation to that ground.
(8) Where the sheriff specifies a date for the termination of a supervision requirement in accordance with subsection (7)(a)(ii) above, he may, before such termination, order a variation of that requirement or of any condition contained in or related to it, of any requirement imposed under subsection (6) of section 64 of this Act, or of any determination made under subsection (7) of that section; and such variation may take effect—
(a) immediately; or
(b) on such date as he may specify.
(9) Where the sheriff orders the termination of a supervision requirement in accordance with subsection (7)(a) above, he shall consider whether, after such termination, the child concerned will still require supervision or guidance; and where he considers that such supervision or guidance will be necessary he shall direct a local authority to provide it in accordance with subsection (10) below.
(10) Where a sheriff has given a direction under subsection (9) above, it shall be the duty of the local authority to comply with that direction; but that duty shall be regarded as discharged where they offer such supervision or guidance to the child and he, being a child of sufficient age and maturity to understand what is being offered, is unwilling to accept it.").

The noble and learned Lord said: As your Lordships

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will see, Amendment No. 195A, and Amendment No. 222A with which it has been grouped, are substantial amendments. It might be helpful if I take a moment to explain exactly what they contain. They provide a new procedure for the consideration of new evidence after a sheriff has held the grounds for referral to a children's hearing to have been established. The Social Work (Scotland) Act 1968 makes no provision for the consideration of new evidence once the grounds for referral have been established. If significant and relevant information comes to light, it is necessary to make use of the nobile officium and to apply to the Court of Session under an exceptional procedure.

That is not a satisfactory way to proceed, although it is available as a route of last resort. It was the subject of comment by the Lord President of the Court of Session, the noble and learned Lord Hope of Craighead, in the recent case of the south Ayrshire children. At the Second Reading, I indicated to your Lordships' House that I would be bringing forward amendments to deal with the matter. Your Lordships may recall that in his maiden speech to your Lordships' House, the noble and learned Lord, Lord Hope, indicated his approval of the approach that we proposed to take.

If there is significant new evidence which would have materially affected the determination of the original application to the sheriff, it is important that there should be an opportunity to consider that evidence. In decisions concerning the welfare of children, it would be wrong to exclude, simply on procedural grounds, significant evidence which might affect an important decision in the life of a child. It is equally important that there should be clear criteria for dealing with potential new evidence to avoid the constant reconsideration of decisions because, if that were to be allowed, it would lead to uncertainty and affect the welfare of the child, which is at the centre of the consideration.

Our new clause tries to strike the right balance between those two objectives. The clause makes provision for a child or a relevant person, who could most commonly be a parent, to apply to the sheriff for the consideration of new evidence. To qualify as new evidence, the evidence should not have been considered at the original proof hearing before the sheriff; it should be of a significance which might materially have affected the original proof findings; there should also be a reasonable explanation of why the evidence was not given at the original proof hearing; and there is, finally in this respect, a test on the reliability, credibility, and admissibility of the evidence.

If the sheriff is not satisfied that any of the claims in relation to the new evidence meet the subsection (3) test, which I have just described, then he will dismiss the application. However, if he is satisfied that the claims do meet the test, having considered the evidence, he will, if satisfied that none of the original grounds is established, discharge the referral to the children's hearing. He may then either terminate the supervision requirement or hold established new ground on the evidence and refer the case to the children's hearing. Alternatively, if he is satisfied that any of the original grounds of referral is established, then he will remit back to the hearing.

The new clause also recognises that bringing a

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supervision requirement to an abrupt halt may create problems, particularly if the child had been under supervision away from home for a period. The clause therefore makes provision for the sheriff to set a date for the termination of the supervision requirement or vary the requirement so as, in effect, to phase the implementation of his decision. The new clause also provides for the sheriff to direct the local authority to provide supervision and guidance after the termination of the supervision requirement has taken place. The child can, of course, choose whether to accept this support. These elaborated provisions reflect particular difficulties which have, in practice, arisen in the south Ayrshire case to which I referred.

The further government amendment to Schedule 3, page 105, line 17, makes a consequential amendment to Clause 20 of the Criminal Justice (Scotland) Bill which is presently before Parliament. This amendment will ensure that Clause 20, which deals with the construction of clauses regarding the admissibility of evidence, covers the new procedure on new evidence in children's hearings.

I hope that the new clause and the associated amendment in Schedule 3 respond fully to the problem of how to take account of new evidence in relation to children's hearings and that they appropriately reflect the experience of recent cases. With that somewhat extended but necessary explanation of what is allowed for, I commend these amendments to your Lordships.

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