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The Earl of Mar and Kellie: My Lords, these services are important. I am pleased to hear that they will be specifically mentioned in guidance. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

The Earl of Lindsay moved Amendment No. 27:


Page 17, line 25, after ("of") insert ("—(a)").

The noble Earl said: My Lords, these three small amendments are a necessary reconciliation with the Jobseekers Act 1995 which received Royal Assent on 28th June. They are obviously important for consistency. I therefore commend the amendments to your Lordships. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 28:


Page 17, line 25, at end insert ("payable").

The noble Earl said: My Lords, I spoke to Amendments Nos. 28 and 29 when I moved Amendment No. 27. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 29:


Page 17, line 26, at end insert ("; or
(b) an income-based jobseeker's allowance payable under the Jobseekers Act 1995.").

On Question, amendment agreed to.

Clause 22 [Children affected by disability]:

Lord Macaulay of Bragar moved Amendment No. 30:


Page 17, line 38, leave out subsection (2) and insert:
("(2) For the purposes of this Act—
(a) a child has a disability if he has a physical, mental, or sensory impairment which has a detrimental effect on his ability to carry out activities associated with the expected stage of development of children of a similar age without disability;
(b) 'impairment' means any damage to or loss or absence of a physiological, psychological or anatomical function; and
(c) an adult has a disability if he has a physical, mental or sensory impairment which has a detrimental effect on his ability to carry out normal day to day activities, including the normal activities involved in caring for a child.").

5 Jul 1995 : Column 1138

The noble Lord said: My Lords, this is an amendment to Clause 22 of the Bill. Clause 22(2) states,


    "For the purposes of this Chapter of this Part a person is disabled if he is chronically sick or disabled or suffers from mental disorder (within the meaning of the Mental Health (Scotland) Act 1984)."

The Bill we are discussing is entitled Children (Scotland) Bill and the child for whose welfare we are all concerned suddenly becomes a person in this clause within the meaning of the Mental Health (Scotland) Act which deals with adults who are unfortunate enough to have mental disorders. This amendment seeks to introduce flexibility into the definition of disablement within the terms of the Mental Health (Scotland) Act. It gives time for the condition of the child to be properly assessed over a number of years. It is quite a simple amendment but it has great significance for the children of Scotland for whom this Bill has been introduced into your Lordships' House with all-party support.

It is difficult to diagnose at an early age whether a child is mentally ill within the definition of the Mental Health (Scotland) Act. However, an adult has had time to develop and to demonstrate his propensities one way or another, whether he demonstrates violence, schizophrenia or any other condition. It is easier—I do not use that word lightly—for a psychiatrist to diagnose an adult's condition who is 18 or older as that adult will have had time to develop by then. The Bill as it stands at present will place children in a context which has nothing to do with children's disorders. The objective behind the amendment is to tailor the Bill to suit the needs of children. As we all know, children develop in various ways. Unless there is a child who is an absolute menace—if I can put it that way—and can be diagnosed psychologically as being,


    "chronically sick or disabled or suffers from mental disorder (within the meaning of the Mental Health (Scotland) Act 1984)"

it is difficult to take a child out of a home, for example, and place him within the context of that Act.

The definition contained within Clause 22(2) may have been taken from some other Act. I believe it is adult-based and that it has nothing to do with the welfare of children. We must look after children and ensure that they develop properly, in so far as we can. I know that children may develop some conditions and no one can help that, just as some adults become schizophrenics and develop other conditions. I believe that the definition contained in Clause 22(2) is a fairly draconian one to impose on children who are governed by this Bill. On that basis, I would ask the Government, even if they do not accept the terminology of the amendment, to consider that the people who framed this amendment are all concerned with the welfare of children. Even if the phraseology of the amendment is not acceptable to the Government, perhaps they might reconsider the clause we are discussing and return at Third Reading with a different definition of disablement in Clause 22(2). I beg to move.

The Earl of Balfour: My Lords, I should like to make one comment here. Even if the amendment moved by the noble Lord, Lord Macaulay of Bragar, is not

5 Jul 1995 : Column 1139

accepted, I wonder whether in the existing subsection (2) of Clause 22 the Government would consider using the words,


    "For the purpose of this part of this Act".

If it is restricted to this chapter, as the clause reads, Chapters 3 and 4 could be affected.

My other concern about the amendment is the reference to "an adult" in sub-paragraph (c). I wonder whether we have allowed for a disabled adult, who perhaps was physically fit when the child was born but subsequently had a serious accident, to be helped with the care of children within the provisions of the Bill.

The Earl of Lindsay: My Lords, this is the second occasion on which the amendment moved by the noble Lord, Lord Macaulay, has been discussed in this House. It has also been discussed at length on separate occasions in another place.

If I may be forgiven for being equally persistent, I shall reiterate what my noble and learned friend said when we previously debated the matter in Committee. The definition in the Bill has the twin advantages of being flexible and also of being familiar to local authorities in that it is drawn from the Disabled Persons (Services, Consultation and Representation) Act 1986. It is not draconian, as the noble Lord, Lord Macaulay, suggested. Moreover, we have already provided a definition of a disabled adult which for the purposes of Clause 22 is the same as that of a disabled child.

My noble and learned friend also said that he could appreciate the temptation to produce particular types of conditions within the definition of disability. Again I have to say that going down that road carries the real risk that some specific condition may be omitted, thus placing the child with that condition outside the definition of a disabled child and, more importantly, denying the child the opportunity to benefit from services which authorities will provide under Clause 21.

My noble friend Lord Balfour raised a point about the drafting in line 38 on page 17. We shall look into that and contact him in relation to the point that he made.

On the basis of the argument that I have reiterated to the noble Lord, I hope that he will feel able to withdraw his amendment.

Lord Macaulay of Bragar: My Lords, I may feel obliged to withdraw the amendment, but whether I am able to do so is another matter.

Looking at the terminology of Clause 22(2), it occurs to me that it is a restricting clause. Let us assume that, as suggested by the noble Earl, Lord Balfour, the reference to the chapter was deleted. The subsection would read:


    "For the purposes of this Part a person",

which obviously means a child,


    "is disabled if he is chronically sick or disabled or suffers from mental disorder (within the meaning of the Mental Health (Scotland) Act 1984)".

I apologise for not giving the noble Earl prior notice of this point but it has just occurred to me. Is that not a restrictive clause? It means that if a child does not fall within the definitions in the Mental Health (Scotland) Act 1984 then he or she is not designated as being

5 Jul 1995 : Column 1140

disabled within the meaning of the Children (Scotland) Bill. I wonder whether the Government and their advisers might look at that point and consider whether a broader concept to take account at least of the spirit of my amendment might be more suitable to a Bill which is entitled the Children (Scotland) Bill.

We are not dealing with adults. We are dealing with developing personalities. Those of us who are familiar with children know how children develop over the years. They develop one way and then another. It seems to me that Clause 22(2) places a limit on the children who can be covered by the Bill.

The noble Earl is a caring Minister, as is the noble and learned Lord, Lord Fraser, who has taken a great interest in the Bill. We are all trying to do our best for children. It would not be good for the children of Scotland if a restrictive piece of legislation deprived them of the assistance they might need during their years of development. With those observations, and having heard what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

6.15 p.m.

Lord Macaulay of Bragar moved Amendment No. 32:


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