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Lord Macaulay of Bragar: I am grateful to the Minister for that very clear explanation of the foundation for this particular amendment. It comes at a late stage in the Bill, and will require close consideration by us all to see what practical difficulties might arise in the administration of justice. Subject to that, I welcome the amendment.

On Question, amendment agreed to.

Clause 79 [Parental responsibilities order: general]:

The Earl of Lindsay moved Amendment No. 196:

Page 65, line 6, leave out ("duties") and insert ("responsibilities").

The noble Earl said: These are essentially technical drafting changes. They seek to clarify the precise role of the local authority where a parental responsibilities order is made. I beg to move.

On Question, amendment agreed to.

The Earl of Balfour moved Amendment No. 196A:

Page 65, line 21, at end insert:
("( ) Where an order has been made under this section, no application in relation to the child shall be competent under section 11 of this Act.").

The noble Earl said: On behalf of my noble friend Lady Faithfull, I would like to have the opportunity to ask whether Clause 4 could apply in Chapter 4 of Part II? I just wonder whether it would actually apply. It is a very awkward question, I know. Perhaps the Minister would like to write to me.

Lord Earl of Lyndsay: I shall take up the noble Earl's suggestion that we write to him on this matter.

Amendment, by leave, withdrawn.

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Clause 79, as amended, agreed to.

Clause 80 [Further provision as respects parental responsibilities orders]:

The Earl of Lindsay moved Amendment No. 197:

Page 65, line 40, leave out ("look after the child") and insert ("fulfil the transferred responsibilities").

The noble Earl said: I spoke to this with Amendment No. 196. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 197A:

Page 66, line 6, leave out (", or for the variation or revocation of,").

The noble Earl said: This amendment seeks to delete a misleading reference to the variation or revocation of a parental responsibilities order as requiring rules for the appointment of a reporting officer or curator ad litem. There will be no role for a reporting officer and facilities already exist for the appointment of curators. There is, therefore, no need for the subsection to refer to "variation or revocation of" an order and the amendment makes the necessary deletion. I beg to move.

The Earl of Balfour: May I again ask a question at this stage? In Clause 80 we have this person called a "reporting officer". I notice that subsection (4) says on page 66 line 17:

"no employee of theirs" —that is of the local authority—
"shall be appointed under either or both of those paragraphs".

I am sorry I have not managed to give my noble friend any warning of this but what kind of a person is this reporting officer? Who appoints him? There does not seem to be a definition of a reporting officer. It is the first time I have come across this word and I am a little mystified.

The Earl of Lindsay: The person is appointed by the courts to witness the consents of the parents. Does that enlighten the noble Earl at all?

The Earl of Balfour: I see; he is appointed by the courts. Fair enough, that is the reason why he must be completely independent from the local authorities and everything else. That is a very great help.

Perhaps I may ask another question. Clause 81(3) refers to the "named person". Is that the same person as appears in Clause 70 of the Bill? These points just made me wonder a little.

The Earl of Lindsay: No, that is a different person.

On Question, amendment agreed to.

Clause 80, as amended, agreed to.

Clauses 81 and 82 agreed to.

Clause 83 [Consent of child to certain procedures]:

Lord Fraser of Carmyllie moved Amendment No. 197B:

Page 67, line 22, at end insert ("; and without prejudice to that generality where a condition contained, by virtue of section 64(5)(a) of this Act, in a supervision requirement requires a child to submit to any examination or treatment but the child has the capacity mentioned in the said section 2(4), the examination or treatment shall only be carried out if the child consents.").

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The noble and learned Lord said: Amendment No. 197B and Amendment No. 198, which stands in the name of the noble Lord, Lord Macaulay, are intended to clarify the relationship between particular provisions of the Bill and Clause 83, and in particular to ensure that children have the right to consent or refuse any medical examination or treatment.

I can sympathise with the intention behind the noble Lord's amendment, but if his amendment were to be introduced, it would create an absolute right for children to refuse medical examination or treatment against the express direction of the sheriff or in contravention of a condition imposed by a children's hearing. Such a right is entirely appropriate for children who are of sufficient understanding to make an informed decision, but the amendment would extend that right to children of any age—down to infants. On reflection, I think that the noble Lord would recognise that would go too far.

On the other hand, our amendment, Amendment No. 197B, gives the right to consent to or to refuse an examination or treatment required by a supervision requirement only to children who are of sufficient understanding. I think that the noble Lord will recognise that terminology. It is in line with Section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 which generally extends that right. With that explanation, I invite the Committee to accept Amendment No. 197B. I hope that the noble Lord, given that explanation, will not choose to move his amendment. I suggest that mine is preferable.

Lord Macaulay of Bragar: The question of a child's consent to this particular form of treatment is a very delicate one. As I have indicated to the noble and learned Lord the Minister, notwithstanding his amendment, Amendment No. 197B, I would not in any event be moving Amendment No. 198, so the matter can be considered again.

However, I wonder whether the government amendment takes into account the religious beliefs of the child. We talk of the child having "the capacity mentioned"—that is, the capacity to give consent—but does that take into account the religious or ethnic origin of the child? If it seems that a child requires treatment bur refuses it because he is of a certain religious belief, do the provisions mean the child can withhold consent? Subject to that, I welcome the amendment.

Lord Fraser of Carmyllie: This is a matter not of the religious conviction, but of whether or not the child can consent. If the child is of sufficient understanding and withholds that consent, then because that decision has been rationally made and understood, in those circumstances the child stands in exactly the same position as would the noble Lord in consenting or withholding consent in relation to a medical treatment.

Lord Macaulay of Bragar: Does that cover the position of a child who is asked "Do you understand why you are being asked to do this?" to which the child says, "Yes", and who is then asked, "Do you understand it is necessary for your well-being", and the child says "Yes"? The child may then be asked, "Do you want to give consent?" to which the child says, "No". When the

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questioner asks "Why?", the child may say, "Because I am of a certain religious persuasion. I know it is for my benefit physically, but I cannot give consent because of my religious beliefs". I am just wondering whether we are moving into another difficult area.

Lord Fraser of Carmyllie: The circumstances in which the noble Lord might decline to consent to medical treatment might be regarded by physicians and by other noble Lords as being, in many senses, irrational, but, provided he had a clear understanding of what he was refusing to consent to, that would be his right. I am saying that in such circumstances, and provided the child is seen to have sufficient understanding, then the child is in much the same position as the adult.

It seems to me that the more critical difficulty in the 1991 Act—I do not shrink from it—lies in determining whether the child has what might be described in the words of the statute as a "sufficient" understanding.

Lord Macaulay of Bragar: The provisions mean in real terms—I am not talking of financial terms—that if a child who has the capacity to understand that for which consent is being asked then gives an irrational reason for not consenting, the questioner who is asking for the consent can do nothing about it.

The Earl of Mar and Kellie: I would like to ask how the amendment will deal with the child who is the subject of a child protection order under Section 54(5)(a)? Does it actually deal with child protection order children or do they have to wait until they come under a supervision requirement from the children's hearing?

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