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Children (Scotland) Bill

6.42 p.m.

Read a third time.

Lord Macaulay of Bragar moved Amendment No. 1:


After Clause 2, insert the following new clause:

("Award of parental responsibilities and parental rights to father

.—(1) Where a child's father does not have parental responsibilities or parental rights in relation to him and the mother and father have not agreed to provide for the father to have such responsibilities or rights, the father may apply to the court for such rights, provided that, unless there are exceptional circumstances he does so—
(a) no earlier than three months from the date of the child's birth; and
(b) no later than a maximum number of years to be prescribed by the Secretary of State from the date of the child's birth if during the intervening time he had no active part in providing for or caring for the child.
(2) Before awarding parental responsibilities and parental rights under subsection (1) above, the court shall satisfy itself that arrangements are made for these rights to be exercised in such a manner as to avoid the father having knowledge of the address of the mother if she does not wish him to have such information.
(3) Where a father awarded parental responsibilities or parental rights under subsection (1) above is subsequently convicted of any offence involving violence or of any offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975 (offences against children to which special provisions apply) or in sections 2A to 2C of the Sexual Offences (Scotland) Act 1976 (incest and intercourse with a child by step-parent or person in position of trust), or has had a protection order enforced against him, his parental responsibilities and parental rights will terminate, pending any further application by him to the court for the restoration of such responsibilities and rights.".).

The noble Lord said: My Lords, before moving this amendment, perhaps I may welcome the noble Earl, Lord Lindsay, to his new-found eminence, if that is the correct word, within the Government's structure, and the noble Earl, Lord Courtown, in the particular task which he has to perform on behalf of the Government. It seems a long time ago, but we seem to say every year that, while we wish both noble Earls well, we trust that their period in office will not be too long. Apart from that, I know from the dealings I have had with the noble Earl, Lord Lindsay, in connection with this particular Bill, which is a non-party Bill, that, like his predecessor, the

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noble and learned Lord, Lord Fraser of Carmyllie, we have all, I hope, approached this Bill in your Lordships' House in a constructive and understanding way because children are probably the most important element in our society. Parents fade away, but children grow up. We are trying to give children a decent way of life. This Bill deals with children who are unfortunate and who have to be looked after.

Amendment No. 1 was moved in another place. It was responded to by the then Minister, Lord James Douglas-Hamilton, who has moved to other pastures. The reason why the amendment is tabled is that in the course of the debate on these matters there were indications that the Government would take the amendment back and consider it and perhaps come up with their own amendment to deal with this particular issue.

Perhaps I may quote from Hansard of the other place for 1st May 1995, col. 84. The Minister then said:


    "This has been a useful debate. First, I shall answer the point made by the hon. Member for Glasgow, Maryhill, (Mrs. Fyfe,) about legal aid. Any party to an action to obtain parental responsibilities and rights can apply for legal aid, and will obtain it if he or she satisfies the usual tests. The most important point raised in the debate was concern over the safety of women, especially battered women, in refuges. Although I shall oppose new clause 2"—

which is the clause now before your Lordships' House—


    "on technical grounds, we shall consider an amendment to allow a mother to apply to the court to have her details kept confidential".

In fairness to the Minister then dealing with these matters, he made an important point at col. 85. He said that it may be practically impossible to keep the mother's address confidential because, if it follows from the fact that the father is gaining access to the child, then in some cases the child will tell the father where she is living. It is a difficult situation.

The Minister said:


    "In any event, it would not be practicable for the court to be satisfied that the mother's address would not become known to the father. The court could not necessarily control all the circumstances in which such information might be made known to the father, including by innocent third parties such as the children themselves. I have said that we will look at this issue with a view to considering it further at the next stage of the Bill, although I do not think that subsection 2 is appropriately expressed in its present form".

I took the opportunity of speaking to the noble Earl, Lord Lindsay, to see whether there was some response to this particularly sensitive subject. One of the problems in life which we males know, is that we do not have responsibilities and rights forced on us. The very act of childbirth begins the responsibility and care which is imposed on the woman. The social ethic, if I may put it that way, behind this amendment is that where a woman gives birth to a child she should not be under any particular pressure until all matters surrounding the birth, such as perhaps having a distressful birth and the sudden calamities which sometimes happen, which I shall not go into, have been dealt with. Before the mother makes any agreement of any kind with the man who claims to be the father, she should be given the opportunity of "getting herself together", if I may put it that way without being too pejorative about it. That is the reason behind the amendment.

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Subsection 1(3) refers to offences which have been committed against a child. The right of access should be withdrawn. It should,


    "terminate, pending any further application by him to the court for the restoration of such responsibilities and rights".

I declare an interest as a member of the Criminal Injuries Compensation Board. The number of claims coming in as a result of child abuse, and the amount of money which is being paid out through the board's system, are monumental. There is a real social basis for this.

I accept the difficulties as regards subsection 1(2), in that the child may tell the father where the mother is living. Where the father is convicted of an offence within subsection 1(3), access should be withdrawn because inevitably, as life is at the moment, any offence covered by subsection 1(3) would lead to a claim against the state in terms of the Criminal Injuries Compensation Board. I understand that this subject is to be debated in your Lordships' House on 19th of this month. I am not going through the minutiae of the debate which took place in the other place, because I am sure that the noble Earl has read the discussions on this particular issue. On that foundation, I beg to move.

The Earl of Balfour: My Lords, I am worried about the amendment because according to my interpretation of the Bill, particularly Clause 3, the mother has the primary responsibility for the child. I believe that the Bill is correct in that. I fear that the first few words of the proposed new clause would weaken that position. That is one of the main reasons why I am unhappy about the amendment.

The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): My Lords, first, on behalf of my noble friend Lord Courtown and myself, I should like to say how grateful we are to the noble Lord for his kind thoughts. As regards the proposed new clause, I stress that my right honourable friend the Minister of State made it clear when this clause was first considered in another place that, while the Government recognise the motives of the noble Lord in proposing such a clause, they are not convinced that such an amendment is necessary.

Under the terms of Clause 11, any person claiming an interest in the child can apply to the court for parental responsibilities and rights. In considering whether to make such an order, the court will have regard to the welfare of the child as its paramount consideration.

Subsection (1) of the new clause would restrict the circumstances in which a father who is not and has not been married to the child's mother can apply to the courts for an order conferring upon him parental responsibilities and rights. We consider, however, that the only cases where a genetic father and mother should be prevented from having access to the courts for that purpose are in the circumstances described by the House of Lords in its decision In re D and another (minors) on 9th March 1995 and in analogous circumstances where the parental rights and responsibilities of a parent have been extinguished by a court. In other cases we consider that it would be difficult, having regard to our international obligations, to have a provision which

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prevents a genetic parent from applying for such an order at any time in view of the variety of different circumstances which can arise. Therefore we think that it would be preferable to allow the genetic parent to apply but to leave it to the court to determine whether to make the order in all the circumstances of the case, having regard to the welfare of the child as its paramount consideration.

The Government remain to be persuaded that there should be a provision along the lines of subsection (2) of the new clause. It would not be practicable for the court to be satisfied that the mother's address would not become known to the father in the exercise of his parental responsibilities and rights. The court could not control all the circumstances in which such information might be made known to the father, including, as the noble Lord said, by innocent third parties such as the children themselves. It was for those reasons that the Government rejected the earlier proposal to make specific provision in legislation for the court to satisfy itself on a matter on which satisfaction may be simply impracticable to obtain. It appears paradoxical, moreover, to empower the court to satisfy itself on that matter when awarding parental responsibilities and rights when there is no provision for the court to prevent the father knowing the address of the mother in cases where it does not award such parental responsibilities and rights.

However, I recognise that my honourable friend the Minister of State agreed in another place, as the noble Lord pointed out, to examine whether an amendment might be brought forward to alleviate concerns over the safety of women, especially battered women in refuges. He undertook to consider an amendment which would allow the mother to apply to the court to have her details kept confidential.

As I have already said, the court could not be expected to control all the circumstances under which information could be made known to the father. However, it is our view that, in the preparation of rules of court, provisions might be made which, upon her application to the court, would allow the details of the mother to be kept confidential in relation to those parts of the process over which the courts have control. I would hope that the Sheriff Courts Rules Council and the noble and learned Lord, Lord Hope of Craighead, will take note of the noble Lord's concerns in the preparation of rules for the sheriff courts and the Court of Session. I understand that the Sheriff Court Rules Council has already begun work on the Sheriff Court Rules for Part I of the Bill.

Finally, in relation to subsection (3) of the new clause it seems discriminatory to deprive the unmarried father automatically of parental responsibilities and rights in the event of a conviction as described but to make no such provision in relation to the married father or indeed the mother. Arguably, any person with parental responsibilities and rights should be treated equally in relation to the possible risk to the child should he or she incur such a conviction.

The proposed new clause moved in another place and here is thought-provoking. I am grateful to the noble Lord for bringing these issues up. In answer to his

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concern that a mother who has just given birth may be vulnerable, she may be in a vulnerable state at any stage during the early years of her child's life. We have always stressed that any parent embarking upon an arrangement for parental responsibilities should, if they are unmarried, seek advice. For that reason and the other reasons I have given, I would ask the noble Lord to withdraw the amendment.


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