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Lord Fraser of Carmyllie moved Amendment No. 147:


Page 59, line 29, leave out ("before finally determining") and insert ("at any point prior to the final determination of").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 148:


Page 59, line 32, at end insert:
("(7A) Where—
(a) an application is made under subsection (1) above; and
(b) the sheriff considers that the conditions for making a child protection order under section 56 of this Act are satisfied,
he may make an order under that section as if the application had been duly made by the local authority under that rather than under this section.").

The noble and learned Lord said: My Lords, this amendment provides useful flexibility for the sheriff when he is considering an application for an exclusion order. As presently drafted, the Bill provides power for the sheriff to refuse the application, make the order or make an interim order.

In most cases the local authority, in full knowledge of all the appropriate family circumstances, can be expected to apply for the appropriate order. However, it is conceivable that circumstances might change. New information might come to light or other factors come into play which would make a child protection order rather than an exclusion order the better option. The aim is simply to ensure that the sheriff should have at his disposal an express statutory power to be satisfied that the order that he makes will be appropriate for the protection of the child. If he should be in any doubt about an exclusion order providing that protection he will have that power to make a child protection order and the child could be suitably removed to a place of safety. I beg to move.

On Question, amendment agreed to.

Clause 75 [Powers of arrest etc. in relation to exclusion order]:

Lord Fraser of Carmyllie moved Amendment No. 149:


Page 62, line 3, after ("arrest") insert ("is served").

The noble and learned Lord said: My Lords, this amendment to Clause 75 is a necessary clarification. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 150:


Page 63, line 13, at end insert ("above").

The noble and learned Lord said: My Lords, this amendment ensures that the reference to subsection (6) which is contained in subsection (13) (a) (i) relates to subsection (6) of Clause 75. I beg to move.

On Question, amendment agreed to.

Clause 76 [Duration, variation and recall of exclusion order]:

5 Jul 1995 : Column 1212

Lord Macaulay of Bragar moved Amendment No. 151:


Page 64, line 9, at end insert ("provided that the Sheriff may, on cause shown, extend an exclusion order for a further period or periods, with no such period to exceed six months.").

The noble Lord said: My Lords, this amendment concerns the extension of exclusion orders beyond the six-month limit within the Bill in Clause 76(1).

I am not sure whether the amendment is necessary, but it has been put down for clarification. In Clause 76(3) a power is given to the sheriff to vary or recall an exclusion order. I am not sure whether that power allows him to extend the exclusion order.

Having created a bit of a fuss about exclusion orders in the early stages of the Bill, I would be the last person to suggest that anybody should be excluded from his or her own home unnecessarily. However, the problem is that if the authorities do not get on with a prosecution, if there is to be a prosecution, then in the interests of the child and perhaps the community it may be necessary to keep the person concerned away from that particular area.

The effect of the amendment is to some extent to erode civil liberties, but in the field we are dealing with, namely child abuse, it is important that there should be some continuity in dealing with the offender and the allegedly abused child. As indicated in the Committee stage of the Bill, the Government have, to their credit, gone a long way to balance the interests of the allegedly abused child and the alleged abuser. I would not like it to be thought that from this side of your Lordships' House we are suggesting that people should be excluded from their homes unnecessarily. That is why the determining words in the amendment are "on cause shown". One would hope that we can rely on sheriffs to make sure that it will not be as a result of incompetence on the part of the authorities but on the basis of real cause shown to the sheriff that extension of the exclusion order is allowed.

I move the amendment with some reluctance. The Minister said during the Committee stage that if the authorities cannot deal with these matters within six months then, unless the person is in custody, there is something wrong with the process of justice. This is an enabling amendment to take account of extraordinary circumstances. As I said, the determining phrase is "on cause shown". I hope that the courts will interpret that as real cause to show that the exclusion order should be continued for a period, with an upper time limit of six months. I beg to move.

8.30 p.m.

Lord Fraser of Carmyllie: My Lords, the noble Lord has indicated clearly his concerns. They are proper ones. We wish to ensure that children who might be subject to abuse are protected for as long as is necessary. As he remarked, I indicated during the Committee stage that I have my concerns about introducing open-ended exclusion orders. It would be quite inappropriate for public intervention of this type to continue without any focus. Indeed, such intervention might ultimately exacerbate the problems being faced by a family.

5 Jul 1995 : Column 1213

Our exclusion provisions are accordingly focused on assisting the non-abusing parent to make the first positive step in stopping that abuse. The exclusion order provision therefore allows public intervention from a very early stage and for a period of some six months thereafter.

I believe that a period of six months should give adequate time for the non-abusing parent to receive the necessary counselling and support to resolve the situation by her own hand.

Where the "named person", as he or she is described, continues to be a threat, the remaining parent or partner could apply for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 where the named person was the spouse or cohabitant. I realise that it is a difficult area. However, on balance I believe that the six month period is both reasonable and adequate. I hope that the noble Lord will be satisfied.

Lord Macaulay of Bragar: My Lords, I am grateful to the Minister for that explanation. I agree entirely with him that six months is quite enough for the child or children involved, and for the parents. That is why the words "on cause shown", subject to the jurisdiction of the court, were put into the amendment. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Balfour moved Amendment No. 152:


Page 64, line 26, leave out ("man") and insert ("husband").

The noble Earl said: My Lords, I hope that your Lordships agree that persons who are living together as though they were "husband and wife" is better than "man and wife". I beg to move.

Lord Fraser of Carmyllie: My Lords, such is the power of my noble friend's argument that I accept the amendment.

On Question, amendment agreed to.

Clause 77 [Exclusion orders: supplementary provisions]:

The Earl of Lindsay moved Amendments Nos. 153 and 154:


Page 64, line 27, leave out subsections (1) and (2).
Page 64, line 47, leave out subsection (4).

The noble Earl said: My Lords, I spoke to Amendments Nos. 153, 154, 156 and 157 when moving Amendment No. 74. I beg to move.

On Question, amendments agreed to.

Clause 82 [Application for review of establishment of grounds of referral]:

The Earl of Lindsay moved Amendment No. 155:


Page 68, line 10, leave out from ("requirement") to second ("of") in line 11.

The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 131. I beg to move.

On Question, amendment agreed to.

Clause 84 [Further provision as respects parental responsibilities orders]:

5 Jul 1995 : Column 1214

The Earl of Lindsay moved Amendments Nos. 156 and 157:


Page 69, line 45, leave out ("under this Part").
Page 70, line 10, leave out ("act of sederunt") and insert ("such rules").

On Question, amendments agreed to.

Clause 85 [Parental contact]:

Lord Fraser of Carmyllie moved Amendment No. 158:


Page 70, line 41, leave out ("named person") and insert ("person specified in the order").

The noble and learned Lord said: My Lords, the amendment represents an important clarification. The reference in Clause 85(3) to a named person could be confused with the named person defined in the terms of exclusion orders. The intention is that the sheriff should have power when making a parental responsibilities order in favour of a local authority to decide upon what contact the child should have with various individuals. Any such person would be specified in the order and the amendment removes any risk of confusion. I beg to move.

On Question, amendment agreed to.

Clause 87 [Consent of child to certain procedures]:


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