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Baroness Carnegy of Lour: My Lords, before my noble friend sits down, can he tell the House whether rules of court are published so that noble Lords and others can obtain them? We have heard a great deal on this Bill about rules of court. Noble Lords are interested in how they come out in the end. I should be grateful to know whether that is possible.

The Earl of Lindsay: My Lords, it is my understanding that they are published, but if I have anything to add I shall write to my noble friend.

Lord Macaulay of Bragar: My Lords, it is probably my fault but I did not understand the point that the noble Earl, Lord Balfour, was making. If he wishes to reiterate it, I might understand it better, but it is probably my fault.

Subsection (1) of the amendment is not designed for the protection of the child—on one view of the matter this should not be in the Children (Scotland) Bill—but for the protection of the mother. I wonder whether the Government might consider accepting subsection (1) (a) because it has been carefully framed. It provides:



    (a) no earlier than three months from the date of the child's birth".

It is a protective device for the mother. As I understand it, in England there is the Infanticide Act which protects the mother within six months of the child's birth from anything she may do to a child, including killing it.

It appears to be a reasonable proposition in the circumstances outlined in the amendment that the mother, who may for a variety of reasons have the emotional and other pressures put upon her which I mentioned when I moved the amendment, should be protected at least for three months, subject to the father being able to go to the court to say, "I want to see my child"—provided of course that the mother accepts that the person who wants to see the child is the father of the child, but that is another matter.

On subsection (2) of the proposed new clause, I am basically at one with the Minister as to the difficulty of keeping knowledge of the mother's address away from the father. The provision is carefully worded. It says only that the court should not divulge the address to the father. As the Minister will have noted from the debate in another place, when the amendment was being debated on 1st May (col. 77 of Hansard) a case was quoted:


    "Sadly we learned while the Committee was sitting of a mother who killed her ex-husband while the young son hid in fear. The husband had obtained the address from the report of the children's hearing on three separate occasions".

So subsection (2) is merely an admonition to the court not to reveal the mother's address. The address may come out otherwise, and if the father is sufficiently

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determined to find out where his child is living he will do so. It is like burglars breaking into one's house; if they want to get in they will do so.

The amendment is carefully framed because it provides that the court shall satisfy itself and so forth. As regards subsection (3), I take the point about the unmarried father. Nevertheless, the point of principle is worthy of consideration. Having heard the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

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

The Earl of Lindsay moved Amendment No. 2:


Page 14, line 8, after ("order;") insert:
("(iia) whether to grant a warrant under section 66 of this Act;").

The noble Earl said: My Lords, during the Report stage an amendment was introduced which empowered the sheriff to issue a warrant under Clause 66 requiring a child to be detained in a place of safety. The amendment applies to the provisions of Clause 16(2) and (3) to the sheriff's consideration. I beg to move.

On Question, amendment agreed to.

The Earl of Mar and Kellie moved Amendment No. 3:


Page 14, line 19, after ("decision") insert (", provided that the best interests of the child concerned shall remain a primary consideration of the children's hearing").

The noble Earl said: My Lords, in moving Amendment No. 3 I shall speak also to Amendments Nos. 4 and 5, which are related. This is not a new amendment but it involves a most fundamental principle that has not yet been addressed. The amendments would definitely resolve the anxiety about the suspension of the paramountcy of the child's interests in Clauses 16 and 17. All three amendments propose the inclusion of the words:


    "provided that the best interests of the child concerned shall remain a primary consideration of",

the children's hearing, the court or the local authority. That inclusion would resolve the concern or fear that members of the children's hearing, the Bench or the local authority may view the child in a totally different light.

The exceptional circumstances are that the child has acted against other people or their property. While such actions certainly require to be dealt with firmly, and secure accommodation may well be necessary, I cannot accept that the paramountcy of the child's interests can be suspended completely. I strongly recommend that the reduced status of a primary consideration should be spelt out to measure and quantify the suspension.

The justification is clear. Although the child may have been a considerable nuisance, possibly committing several offences, that is only one aspect of his or her life. The whole child and all his or her relationships, attributes, character and interests are being considered for placement in a special situation.

While the child is being considered on account of his or her offending behaviour, he or she retains all the other aspects of character and life. Those other aspects

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do not merit complete suspension of the paramountcy of the child's interests. A qualified suspension is necessary to keep that in balance. The child is more than, for example, a house breaker.

The three amendments would clarify the extent to which the paramountcy was being suspended. The legislation must not go forward with such a procedural error within it. I beg to move.

The Earl of Balfour: My Lords, the amendment reminds me of an occasion when a children's reporter was explaining to the members of my old county council what their functions were. The headmaster of a school asked the reporter, "What procedures would you take to welcome back into the school the boy who had burnt it down?" I believe that the provisions of the Bill set an example as regards the welfare of the child coming first. However, as regards an arsonist, other steps must be taken because one cannot necessarily put the child first.

Lord Macaulay of Bragar: My Lords, during earlier stages of the Bill we agreed that to a certain extent we were dealing with semantics as regards the use of the word "paramountcy". I do not know where the word came from, but it is in the Bill and in earlier legislation. I am not sure what it means.

The noble Earl, Lord Mar and Kellie, is trying to focus attention on the child. That is what the Bill is all about. The example of an arsonist is extreme. Obviously, such a child would not be welcomed back into the school because the school would no longer be there. But the child must be dealt with. I understand that the philosophy behind the Bill is to rescue children from their evil doings. If a child has burnt down the school or whatever, the amendments tabled by the noble Earl will remind those dealing with him that while paramountcy is a provision of the Bill at the end of the day there must be a rescue operation in order to get the child back on to the straight track.

The three amendments would not harm the Bill. Indeed, it would be useful to accept them so that persons dealing with children can be reminded that the issue is not the evil that was done but whether we make the child who has done wrong a better child and a better person to live with in a civilised society. I support the amendments.

The Earl of Lindsay: My Lords, the exception to the paramountcy principle in Clause 16 (for the courts and children's hearings) and also in Clause 17 (for local authorities) has already been discussed at great length. It was discussed most recently when the noble Earl moved and subsequently withdrew the same amendments during the Report stage. As the noble Earl said, the amendment is not new. Perhaps I may remind him that at that time my noble and learned friend the Lord Advocate comprehensively set out the Government's firm view that the specification in the amendment was unnecessary. We are not talking about a complete suspension of paramountcy, to which the noble Earl referred. Nor are we suddenly taking the focus away from the child, as the noble Lord, Lord Macaulay, suggested. The focus remains on the child; we are looking at the response.

My noble friend Lord Balfour summed up our objection to the amendments. The Bill is essentially about the welfare and protection of children and it

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clearly establishes 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 the public 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; 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 their exercising 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 local authorities, 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 they would continue to have regard to the welfare of the child as an important consideration but not the paramount one. I hope that, with this further reassurance, the noble Earl will agree to withdraw his amendments.


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