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The Earl of Balfour: My Lords, I am worried about the amendment. It reads:



    "prior to the coming into force of this Act".

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It has been my experience when dealing with legislation in your Lordships' House that different bits of an Act are brought into force at different times. If the amendment were to be considered, the words should read:


    "prior to the coming into force of this part of this Act".

Otherwise, I feel that the amendment will lie on the shelf for an incredibly long time.

The Earl of Lindsay: My Lords, I can understand why the noble Lord has tabled the amendment, but I can give my noble friend Lord Balfour some immediate reassurance and say that I am not convinced that the amendment is necessary.

First, although I am aware that sheriffs do on occasion provide a note explaining the reason for their decisions, it is not the same as one which explains the nature and effect of the order. Secondly, I believe that it should be for the legal adviser to the party who is the subject of the order to explain the nature and effect of the order to his or her client. That reflects the current position. Lastly, I would hope that (following rules of court and procedure guidance which will arise after the Bill is enacted) orders made by the courts under subsections (1) and (2) of Clause 11 will be clear as respects their nature and effect.

As regards how a Clause 11 order would relate to existing orders for custody or access, orders for custody or access would be superseded by an order under Clause 11(1) or (2). For instance, if a person applied for a "residence order" under Clause 11(2), that order would, in effect, overtake any existing order for custody. In addition, Clause 15(2) makes it clear that where, before Clause 11 comes into force, a final decree has been made in relation to a custody or access order, any application to vary or recall that order is to be treated as if it has been made under Clause 11.

The thrust of the Bill is that all new orders, or variations of existing orders, should be in terms of Clause 11. So the position is quite clear and, I would suggest, means that there is no real need for this amendment. On the basis of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Macaulay of Bragar: My Lords, I listened with interest to that explanation, but I am not sure that it meets the problem in relation to international law. The words "custody", "access", "residence", and "contact" are used in the Bill. I am sure that the noble Earl is well aware that the essence of the Bill in relation to children is the making of a residence order and an order for contact with the parents. The amendment was put down so that from the international point of view it will be clear what is meant by the words "residence" and "contact".

Schedule 3 paragraph 40(2) and paragraph 36(3) mention the words "residence", "contact", "custody" and "access". They are all mixed up and that might not be understood by people outwith Scotland. We have an international convention on child abduction and a European convention on the recognition and enforcement of decisions concerning the custody of children. The amendment has been put down to ensure

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that if any order is made by a court, which has to go to a foreign court, the foreign court should have no doubt about what is meant by the words "residence" and "contact".

I hope that the Government will have a look at this matter because it could lead to great confusion. As we know from child abduction and custody cases, which are reported day in and day out in the newspapers, there is sometimes a great deal of confusion about what those words mean. It is not difficult for a judge to spell out what he means when he talks about "residence" and "contact". If it means custody or access, let him say that so that the matter can be dealt with properly. With those observations, which I hope the Government will take away and look at, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Clause 15 [Interpretation of Part I]:

Lord Rodger of Earlsferry moved Amendment No. 14:


Page 12, line 15, at end insert ("(except that, for the purposes of subsection (5) (b) below, paragraph (d) of the definition in question shall be disregarded)").

The noble and learned Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendment No. 15. These are drafting amendments which are designed to remove unnecessary language from the definition of a transaction as it currently appears in Clause 15. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 15:


Page 12, line 37, leave out ("having legal effect").

On Question, amendment agreed to.

Clause 16 [Welfare of child and consideration of his views]:

Lord Rodger of Earlsferry moved Amendment No. 16:


Page 13, line 12, leave out from ("sheriff") to ("without") in line 14 and insert:(", taking account of the age and maturity of the child concerned, shall so far as practicable—
(a) give him an opportunity to indicate whether he wishes to express his views;
(b) if he does so wish, give him an opportunity to express them; and
(c) have regard to such views as he may express;
and").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 17:


Page 14, line 5, after ("decision") insert:(", provided that the best interests of the child concerned shall remain a primary consideration of the children's hearing").

The noble Lord said: My Lords, in moving Amendment No. 17 I speak also to Amendments Nos. 18 and 19 which echo the same theme. Some people may believe the amendment is philosophical rather than practical. Within the context of the statutory provision, it re-emphasises that the best interests of the child shall remain a primary consideration of the hearing.

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The word "paramount" has crept into the Bill and Amendments Nos. 17 to 19 make clear that, within the context of the legislation, people dealing with children should remember that the best interests of the child, as distinct from the paramount interests, shall remain a primary consideration of the hearing. The inclusion of the amendments will not harm the legislation. I beg to move.

Lord Rodger of Earlsferry: My Lords, the exception to the paramountcy principle in Clause 16 (for the courts and children's hearing) and also in Clause 17 (for local authorities) has been discussed at previous stages of the Bill. The question of paramountcy has not crept into the Bill; the word "paramount" has been part of the legislation relating to children for about 70 years and is an important aspect.

The Bill is essentially about the welfare and protection of children and it clearly establishes and endorses the paramountcy of the child's welfare. It makes only one exception; to protect members of the public from serious harm. That is a protection which they have every right to expect.

The key point is that Clause 16(5) is not about giving hearings and courts powers to take specific action in relation to a child but rather it provides hearings and courts with a power to do something which would not put the welfare of the child as the paramount concern. That in itself is not a separate power to send a child to secure accommodation or to place the child under a supervision requirement. It opens the way to the body exercising its functions, for which succeeding provisions of the Bill provide specific authority.

It is important to see Clause 16(5) in its context. It does not stand on its own; it provides flexibility for a sheriff or a hearing to make appropriate decisions under the relevant legislation where children threaten members of the public with harm. This is not some draconian measure which will allow hearings and courts carte blanche to deal with children as they see fit. They would have to exercise their powers in accordance with the legislative provisions and in doing so the welfare of the child would continue to be a consideration but not the paramount one.

With that reassurance I hope that the noble Lord will agree to withdraw his amendment.

Lord Macaulay of Bragar: My Lords, I am grateful to the Minister for that explanation and in due course I shall beg leave to withdraw the amendment.

Perhaps at this point I may raise the question of progress in your Lordships' House. It is no one's fault that today we have to deal with two Scottish Bills, one directly following the other. As regards this Bill, we have about 80 groups of amendments to deal with. Even with the best will in the world, and if the amendments sail through, the Government having taken on board the suggestions that we made in Committee, we shall need about four hours to debate this Bill. I do not mind working late because I am in the Palace in any event but four hours from now is half past nine. I believe that it would be wrong to begin debate on a Bill as serious as the Criminal Justice (Scotland) Bill at that time.

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It contains a serious clause about hearsay evidence in criminal matters and other Members of your Lordships' House may wish to speak on that.

I suggest that the House adjourns for a short time in order that we can discuss whether the Criminal Justice (Scotland) Bill should proceed after debates on this Bill are concluded. It would be wrong to consider such a serious Bill at ten o'clock at night. Indeed, the Children (Scotland) Bill is equally important. Perhaps we could adjourn the House for five minutes.


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