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The Earl of Mar and Kellie moved Amendment No. 27:


Page 73, line 18, after ("a") insert ("direction or a").

The noble Earl said: My Lords, in moving Amendment No. 27, I speak also to Amendment No. 28. The amendments aim to ensure that children subject to a child protection order will only be subject to a medical examination if they consent or if they are judged incapable of giving that consent.

Clause 89, in conjunction with Clause 15(5), clarifies that a child who is considered capable of giving consent to a medical examination is also capable of refusing a medical examination. There has been confusion about that with court cases occurring over similar legislation in England. In Committee, a government amendment sought to clarify and safeguard the child's right to refuse in those circumstances. However, there remains a doubt among social workers as to whether a child can refuse to consent to a medical examination in the face of a direction on a child protection order.

It would be doubly abusive to subject an abused child to an intimate examination against his or her will. I hope that the noble Earl will be able to confirm that the child's right to refuse will be made clear. I beg to move.

The Earl of Lindsay: My Lords, I appreciate the intention underlying the amendments which would extend the provisions specifically mentioned in Clause 89 to include a direction made in a child protection order. I would suggest, however, that they are not necessary.

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A direction under Clause 57 only empowers a sheriff to make a direction in relation to the exercise or fulfilment of any parental responsibilities or parental rights in respect of the child concerned. Where a child is of sufficient understanding to consent to surgical, medical or dental procedure or treatment by virtue of Section 2(4) of the Age of Legal Capacity (Scotland) Act 1991, then the child is enabled to make such decisions in his own right. In such circumstances, the right to consent to medical examination is not a parental responsibility or right and so cannot be the subject of a direction given by a sheriff under Clause 57.

The wording of the provisions specifically mentioned in Clause 89 do not relate to the exercise of parental responsibilities and as such might have been seen as overriding the general provision in Clause 89. Hence the proviso that these provisions are subject to the child's capacity to consent. Such a clarification is not, however, necessary in respect of directions attached to child protection orders.

I hope that I have answered the noble Earl and that on that basis he will feel able to withdraw the amendment.

The Earl of Mar and Kellie: My Lords, the noble Earl has certainly answered my question. I am extremely grateful to him and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Clause 90 [Procedural rules in relation to certain applications etc.]:

The Earl of Lindsay moved Amendment No. 29:


Page 73, line 33, leave out ("by virtue of subsection (1) above") and insert ("under the said section 32").

The noble Earl said: My Lords, I spoke to Amendment No. 29 when I moved Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 92 [Interpretation of Part II]:

The Earl of Lindsay moved Amendment No. 30:


Page 78, line 12, at end insert ("granted the warrant or").

On Question, amendment agreed to.

Clause 104 [Extent, short title, minor and consequential amendments, repeals and commencement]:

The Earl of Lindsay moved Amendment No. 31:


Page 85, line 8, after ("transitional") insert ("and consequential").

The noble Earl said: Amendments Nos. 31 and 35 to 38 are small, clarifying, technical amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 32:


Page 85, line 27, after ("Sections") insert ("Duty of persons with parental responsibilities to notify change of address to local authority looking after child").

The noble Earl said: My Lords, I spoke to Amendment No. 32 when I moved Amendment No. 6. I beg to move.

On Question, amendment agreed to.

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Schedule 2 [Amendments of the Adoption (Scotland) Act 1978]:

The Earl of Lindsay moved Amendment No. 33:


Page 90, leave out line 15 and insert:
("(a) in subsection (1), the words from "Subject" to "certain cases)" shall cease to have effect; and").

The noble Earl said: My Lords, in moving Amendment No. 33, I speak also to Amendment No. 34 and related consequential amendments, Amendments Nos. 44 and 64 to 66. The amendments represent our promised response to the matters raised on Report by the noble Lord, Lord Macaulay of Bragar, about adoption and custody.

Amendments Nos. 33 and 34 seek to delete references to Section 53(1) of the Children Act 1975 from Sections 14 and 15 of the Adoption (Scotland) Act 1978. In a sense they are consequential amendments to the repeal of Section 53 which is given effect by Amendments Nos. 64 and 65.

Section 53 of the 1975 Act provides that a court, in considering the adoption of a child, may make a custody order should that appear to be more appropriate. The Bill allows for a range of orders to be made through Clause 11 and the Section 53 provision in the 1975 Act is therefore spent. The amendments effect the repeal and make the necessary consequential changes elsewhere. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 34:


Page 90, leave out line 22 and insert:
("(a) in subsection (1), the words from "Subject" to "certain cases)" shall cease to have effect; and").

On Question, amendment agreed to.

8 p.m.

Schedule 4 [Minor and Consequential Amendments]:

The Earl of Lindsay moved Amendments Nos. 35 to 38:


Page 107, line 7, at end insert:
("( ) In section 59(1) (provision and maintenance of residential and other establishments) after the word "Act,", where it occurs for the second time, insert "or under Part II of the Children (Scotland) Act 1995,").
Page 109, line 3, leave out ("and").
Page 109, line 6, at end insert ("; and
(k) for the definition of "training school" substitute-""training school" has the meaning assigned to it by section 180(1) of the Children and Young Persons Act (Northern Ireland) 1968;").
Page 109, line 7, leave out ("97(1)") and insert ("97").

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 39 and 40:


Page 109, line 22, at beginning insert:
("—(1) The Chronically Sick and Disabled Persons Act 1970 shall be amended in accordance with this paragraph.
(2) In section 18(2) (information as to accommodation of younger with older persons), for the words "having functions under the Social Work (Scotland) Act 1968" substitute ", in respect of their functions both under the Social Work (Scotland) Act 1968 and under the Children (Scotland) Act 1995,".
(3)").

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Page 109, line 22, leave out ("of the Chronically Sick and Disabled Persons Act 1970").

The noble Earl said: Amendments Nos. 39 and 40 will amend Section 18(2) of the Chronically Sick and Disabled Persons Act 1970. That section deals with information to be provided by local authorities where younger people suffering from certain specified illnesses or mental disorder are accommodated in accommodation with persons over the age of 65. The amendment recognises that local authorities may provide residential accommodation for children under Part II of the Bill. While it is thought unlikely that such children would be provided with accommodation in the same premises as persons over 65 years, that cannot be ruled out completely and the amendment would take account of that possibility for purposes of the information that local authorities would provide in terms of Section 18(2) of the 1970 Act. These are essentially consequential amendments and I commend them to your Lordships. I beg to move.

On Question, amendments agreed to.

Lord Macaulay of Bragar moved Amendment No. 41:


Page 109, line 43, after ("solicitor") insert ("but who satisfies the requirements set out in an Act of Sederunt in respect of—
(i) standards of training;
(ii) indemnification of loss suffered by any child represented by him; and
(iii) compliance with a code of conduct").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 58, which has the same effect. The amendment is put down to ensure that within the area of representation of the child there is a structure which can be dealt with by the courts. The amendment is not in any way self-seeking because I happen to be an advocate—and probably still a solicitor, although I am not sure. It is not a case of special pleading on behalf of the legal profession.

The reasoning behind the amendments is that, within the procedure in the relevant section, first, there should be a solid structure for representation on behalf of the child by people who are able to present the child's views. Secondly, within that structure there should be an indemnification policy which the person representing the child would take out. There should also be a code of conduct.

If that does not take place, then let us take the example of a child of 12 who is presumed on the basis of the legislation to understand what he or she is doing. If that child is represented by someone who does not fall within a reasonably structured representation system, what happens when the child reaches 16? What happens to him between the ages of 12 and 16 because of the representations made on his behalf? Those representations made on his behalf and with his understanding may have deprived him of the enjoyment of his youth. He may have been taken away from his home. At the age of 16 he may return to the court and say: "I did not tell that woman to say that on my behalf. I did not realise what was going on".

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These are two mirror amendments to reflect what should happen under Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which refers to solicitor advocates. There are detailed provisions for training, a code of practice, for indemnification and for investigation of complaints. The Law Society of Scotland supports the proposal, not out of self-interest but to prevent disasters taking place. Unless there is some structure for representation, who in the end will be the representative of the child? It could be his mother, father, grandfather, Auntie Nelly, or Uncle Willie in Scotland, anybody. Where do we stop? Six people could come in, all saying: "We represent the child". Considerable argument could take place as to whether what is being said is a true representation of the child's views. I am not being facetious, because it is important that, when major decisions are made about a child's future, there should be properly structured representations to the court on the child's behalf. The two amendments are put before your Lordships' House for those reasons. I beg to move.


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