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The Lord Bishop of Winchester: I do not think I heard the Minister show any sign of having taken note of my point about Clause 9(4)(a).

Lord Falconer of Thoroton: I am afraid the right reverend Prelate is right; that got lost so far as I am concerned.

The Lord Bishop of Winchester: Will the Minister be prepared to think about it?

Lord Falconer of Thoroton: I am prepared to think about it. Perhaps I may consider the point when I have read Hansard. I am sorry that I did not mention it in the course of my speech.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Child safety orders]:

10 p.m.

Lord Thomas of Gresford moved Amendment No. 117:


Page 9, line 34, leave out ("a magistrates' court") and insert ("the High Court").

The noble Lord said: We come to the under 10s. The issue is whether they should be looked after by the magistrates' court or by family proceedings in the High Court.

There has long been a conflict between those who would wish to see the juvenile courts replaced by a more welfare orientated council in which youth offending is

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decriminalised with the goal being the care and protection of children, and those who deem it important to preserve the safeguards of due process, the finding of guilt and the awarding of punishment.

To make my point, it may assist if I take the Committee through a lightning survey of the way in which the legislation has developed and how the conflict has been seen over this century. The Liberal Government's Children Act 1908 provided for the separation of juveniles from adults in the summary courts and united in the new children's court which was then created the twin jurisdictional strands, one relating to young offenders, and the other to children in need of protection. The children's court took the welfare of children and the punishment of children together.

In 1927 the Molony Report advanced the concept that reformation and rehabilitation of the family was the keynote of the administration of justice. That report saw the juvenile courts as an instrument of reform. As a result, the Children and Young Persons Acts of 1932 and 1933 required the appointment of a juvenile court panel of magistrates for each petty sessional division and laid down the test that their decisions in criminal and care proceedings must have regard to the welfare of the child. That is a concept with which we have all been familiar--certainly as lawyers in our practising lives.

In the early 1960s the noble Earl, Lord Longford, chaired a Labour Party policy committee which perceived, rightly, that juvenile delinquency was caused primarily by a breakdown in the family for which the juvenile was not primarily responsible. The committee concluded that in the first place the child, the family and a social worker should try to agree what had gone wrong with the child and what measures were necessary to put it right. Only if the facts were in dispute, or there was no agreement, would the case come to court. So Lord Longford's committee said that juvenile courts should be replaced by a "family court". That philosophy was borne out in the White Paper, The Child, the Family and the Young Offender, published by the Home Office in 1965. It suggested that there should be a family council consisting of social workers, the children's service and other persons selected for their understanding and experience of children.

In England and Wales that was opposed by the vested interest of magistrates and magistrates' clerks and the Magistrates' Association overwhelmingly voted against those proposals at their annual conference. So far as concerned England and Wales, they were shelved. But in Scotland, a more enlightened jurisdiction, the children's panels were formed in 1968 and since that date have operated very much along the lines envisaged by the Labour Government of that day and Lord Longford's committee.

In that jurisdiction, the Children and Young Persons Act 1969 retained the juvenile courts. The Magistrates' Association won. The traditional approach of due process, proving guilt beyond reasonable doubt even of a 12 or 13 year-old child, was preferred along with the punishment that went with it. In the 1970s there was a dramatic increase in custody for juveniles, followed by a more enlightened regime in the 1980s to avoid the use

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of custody for juvenile offenders. Sentences of custody for males between the ages of 14 and 16, for example, dropped from 7,700 in 1971 to 1,400 in 1991. Within that period of 20 years, the emphasis on imprisonment for juveniles completely changed.

Then, of course, we entered a period when the cry was, "Prison works", and the enlightened trend was reversed. We entered the dark ages of the past six years, when competing Home Secretaries or spokesmen on home affairs have tried to talk tougher than each other. Helping the reversal of the trend that had reduced juvenile imprisonment was the transfer of the care jurisdiction from the magistrates' court to the High Court in October 1991--so the care of children went to the High Court--under the Children Act 1989. The juvenile court became the youth court, and 17 year-old defendants were transferred from adult courts to the youth court. The rhetoric of the past six years has increased public concern about youth crime and persistent young offenders. Policies that were well-established in the late 1980s were reversed. The policies that we, as recorders, part-time judges and so on were trained to follow, all went.

To give some examples, the guidance in Home Office Circular 18/94 limits the use of cautions to one for each offender. The Criminal Justice and Public Order Act 1994 offered the youth court an increased range of sentences for 10 to 17 year-olds. The Code for Crown Prosecutors was changed in 1994 so as to increase prosecutions for juveniles of 10 to 13 years of age, who, previously, were prosecuted only exceptionally. The ethos of the youth court has entirely changed. So the care side of the magistrates' court went to the High Court for family proceedings and the juvenile court became the youth court, with a completely different ethos and philosophy from that which the enlightened Liberal Government of 1908 had started.

So what is the child safety order aimed at the under-10s to be? Where are they to be dealt with? Will it be by way of the equivalent of a criminal prosecution, requiring due process, proof of guilt beyond reasonable doubt, leading to a form of restriction equivalent to a punishment? Or is it to be seen as a care matter, a family proceeding, a civil proceeding under the inherent jurisdiction of the High Court, which will lead to an order cast in general terms with maximum flexibility for adjustment as the circumstances change?

The Law Commission's purposes, as set out in its report No. 172, upon which the Children Act 1989 was based, sought to create a scheme of family proceedings which directed the court's attention to the issues that needed determining. There are four types of order provided for under Section 8 of the 1989 Act. A residence order settles the arrangements as to where the child is to live, including the imposition of conditions and directions upon the person concerned and the provision of medical care. There is considerable experience in the High Court in family proceedings; 24,900 such orders were made in 1994, and one cannot assume that there have been fewer in succeeding years. Another type of order is the contact order, allowing access to a named person or persons. There is a prohibited steps order, which guards the child; and a

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specific issue order, whereby the family proceedings court can determine any specific question that arises with regard to any aspect of parental responsibility for the child. There is even power under a different section for the court to grant a family assistance order in exceptional circumstances to enable a probation officer to be available for advice and assistance.

We therefore have the regime of the youth court--the due process, conviction beyond reasonable doubt, punishment, restriction. That is how this Bill is framed. Or we have now, and have had over the past eight years, the family proceedings in the High Court--a flexible order which enables various considerations to be taken into account, enables flexibility and adjustment to happen in the best interests of the child.

Surely, if we are to have these orders for the under-10s, the last thing we want to do is to put them into the existing criminal system. It is essential that the orders that are now proposed should be seen within the framework of those proceedings. It is vital that children under the age of 10 should not be labelled as potential criminals, nor should they come within the aegis of the criminal courts.

As the Committee will see in the Marshalled List, there is a whole series of amendments and those that we put forward do not quarrel with the circumstances in which the order should be made. However, they emphasise that, with the changed role of the youth court and the High Court, with its growing experience of how to look after children, it is the family proceedings court that should be used. The services needed by children under 10 for whom an order is deemed necessary are surely to be welfare-based services rather than those relating to the criminal justice system. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux): I must inform the Committee that, if Amendment No. 117 is agreed to, I cannot call Amendment No. 118.


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