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Lord Falconer of Thoroton: As far as the present law is concerned, it is for the courts to determine whether bail is granted. If they remit the child to the local authority, it is entitled to put the child into secure accommodation only if the conditions of Section 25 of the Children Act 1989 are satisfied. They set high tests before the court can make an order for secure

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accommodation. If an order for secure accommodation is not made, it is for each individual local authority to decide what to do. I hope that that meets the point.

Lord Harris of Greenwich: No.

Lord Falconer of Thoroton: As I understood it, the point that the noble Baroness, Lady Williams of Crosby, was making was, "Please take care to ensure that children under 18 are put in appropriate accommodation and, in particular, not in semi-gaols by local authorities". Children can be put into secure accommodation only if the conditions of Section 25 are satisfied, and that is a matter for the magistrates' court rather than the local authority. Does that meet the point?

Baroness Williams of Crosby: "Secure accommodation" is a term that can be interpreted in several ways. We are suggesting that secure accommodation should not be custodial accommodation; that is to say, it should not be a prison or a detention centre in any circumstances in which a local authority can provide accommodation more suitable for a minor--for example, local authority secure accommodation, which is not the same as a prison or a detention centre.

Lord Falconer of Thoroton: Such accommodation is still custodial. That very issue is dealt with in Section 25 of the 1989 Act. I am not sure what the noble Baroness is after on this point. The 1989 Act deals with the question of when local authorities can put a child into "secure accommodation", as defined by that Act. I do not see what more we can do in statutory terms to satisfy the point.

The second point made by the noble Baroness, Lady Williams of Crosby, was why we did not make it clear that it was for the immigration authorities to establish the position. First, there is a statutory presumption in favour of bail, so a reason must be given why--in the circumstances of the case and even if age is disputed--bail should not be granted. Secondly, the immigration authorities, as a matter of practice in cases of doubt, treat the person as being under 18. I should have thought that those two factors met the point.

Baroness Williams of Crosby: The evidence that we have received from the Refugee Council and others, including the Save the Children Fund, suggests that the immigration authorities do not always interpret the situation in the way that the Minister suggested. The noble Lord, Lord Cope of Berkeley, and others gave several precise examples. The noble Lord, Lord Alton of Liverpool, gave another, and we could give more. In such cases, the immigration authorities have insisted that someone appeared to be over the age of 18. Although it turned out that they were not over that age, they were detained for some time while the argument continued. The examples given (of a Tunisian girl and a Nigerian boy) did not match the Minister's description of how the immigration authorities proceed.

Lord Falconer of Thoroton: It will always be possible to give examples in either direction. I have

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cited--although I do not rely too heavily on it--the case in which someone asserted that they were under 18 and had paediatric evidence to support it, but they turned out to be 21. Where does either sort of example get us? There will always be cases on either side of the line. There will be many cases in which there is a genuine dispute about age and we must grapple with those cases in the statutory procedure we set out.

Baroness Carnegy of Lour: These are extremely important points. The Minister mentioned the Children Act 1989. What will be the position of children in Scotland under Scottish legislation? Is it the same? If the Minister has not ascertained that, I should be grateful if he could perhaps write to me. We have to keep an eye on such things these days.

Lord Falconer of Thoroton: The noble Baroness is absolutely right to raise the matter. I am afraid that I am not in a position to give her an answer and I shall write to her with the details.

Earl Russell: I shall attempt to be helpful. The Minister asked where all this has got us. That is a fair question and it deserves an answer. In relation to Amendment No. 114, the Minister gave the example of the child who absconds and is found late at night. There are much neglected powers in Section 51 of the Children Act 1989 to send children to a children's refuge, where they may stay for two weeks while their best interests are investigated. Those are important and valuable powers, about which the noble Earl, Lord Listowel, knows much more than I do in connection with his work with Centrepoint. I am glad to observe that he nods. Those powers would be one way to deal with the situation. They would meet the Minister's argument that there are cases in which detention might be in the child's best interests, and would meet also our argument that even if detention is in the child's best interests, it should not be detention under the immigration and asylum legislation, which is not necessarily the most satisfactory form of detention in our legal system.

On the point about proof of age, the Minister said that determination of age was an inexact science. I have already said as much myself. I understand and respect the doubts and hesitations of the medical profession, but there is sense in Aristotle's maxim that we should seek for no more certainty in any matter than the nature of the matter will admit. Paediatric examination is the greatest certainty available, no matter how small it may be. If the Minister will not accept Amendment No. 115, can he think of a better way to achieve our aim?

4 p.m.

Lord Falconer of Thoroton: The problem is that if one takes a child to a children's refuge, there is nothing to stop him running away immediately. Secondly, not all the country is covered by children's refuges. Thirdly, paediatric assessments will not always be the best means of determining age. It will depend very much on the circumstances. For example, in some cases, certain documentary evidence will be more compelling than

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paediatric assessments. We should be wrong in statute to focus on one particular method of proof which may be the most effective only in certain cases.

Lord Alton of Liverpool: The Minister will appreciate that there is concern not only on the Floor of the House, but among highly respected organisations outside, not least the Save the Children Fund. The organisations which have supported the amendments include UNICEF, Barnardo's, the Children's Society and the Refugee Council's Children's Panel. Would it not be helpful if between now and the Report stage the Minister would agree to meet representatives of those organisations in order to assess whether there is a way to address the paramount issue of the needs and interests of the children? The Minister has conceded that the children's interests should be paramount, which is what the organisations are calling for. The Minister shakes his head and indicates that the children's interests will not be paramount. I find that surprising--

Lord Falconer of Thoroton: I have set out the limited circumstances in which children will be detained. Of course we shall be willing to meet representatives of any organisation which has suggestions to make. The organisations which the noble Lord listed are of the highest repute and one would imagine that they do have specific suggestions to make.

In going through the amendments that have been made, I have tried carefully to analyse the problems and to see whether more needs to be done in the statute to deal with them. As the noble Baroness said, it is a narrow point which comes down to the question of whether the position is such that no child should ever be detained. While recognising that to do so should be exceptional, we realise that there are limited circumstances where it is necessary.

If I am wrong, please come and tell us. I accept the invitation and my noble friend Lord Williams will see such people. However, what has not been put forward in the debate is a reasoned argument as to why those limited circumstances are not preserved. If there is such an argument, tell us and we shall listen. As yet, it has not been put.

The noble Lord, Lord Alton, asked whether we should say that paediatric assessment will provide a way out as regards age. We thought very carefully about that and took advice from the Refugee Council and medical bodies. They tell us that that is not necessarily the most reliable way to determine someone's age; it will depend upon the circumstances.

If there is a better view, let us know, but that is the view that we have formed. We have not been told why it is wrong.

Lord Cope of Berkeley: I am grateful to the noble and learned Lord for his response and to Members of the Committee who have taken part in this short debate. The Minister was right to emphasise what the noble Baroness said; that the gap is relatively narrow. After all, the Minister's reply was in its tone sympathetic to the points which have been made. He gave two examples, among others, of exceptions of detention

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which did not appear to stand up. The first related to a child being kept overnight in a detention centre because suitable local authority accommodation was not available. It did not strike me that legal custody was required in that case. Clearly, a place for the child to stay was required and it might conveniently be a detention centre. That is different and I should have thought being detained in custody may not amount to much in practice if a child is sleeping in the same bed in the same room, but it is a legal distinction.

Another example he gave related to the period prior to removal. Amendment No. 114 was successfully framed so as not to affect that. As regards the assessment of age, I understand that sometimes documentary evidence will be available, but sometimes it will be unreliable. I gave an example of false documents, which is highly likely to be the case in the circumstances, particularly in relation to younger children. We recently saw the deliberate destruction of documents in the former Yugoslavia in order to make life difficult for those who would become asylum seekers. It was sometimes done by themselves, but sometimes by other people. The statutory presumption in favour of bail, which has been introduced into the Bill, is a safeguard in these circumstances, and that is helpful and welcome.

The Minister did not refer to young children or to those under 18 being detained in prison, which sometimes occurs. I am sure that he would deplore that, except in circumstances where it may be avoidable. We shall come to that in a later amendment.

Finally, the Minister seemed to say that Section 25 of the Children Act applies if a local authority is involved, but by implication it does not apply if the child is detained somewhere else; for example, in a detention centre or prison. I must read the Minister's reply carefully in order to make sure that I have understood it correctly. Clearly, these are matters of great concern not only to me but to others who have added their names to the amendments. We shall need to return to them at a later stage when we have fully digested the Ministers comments and considered them with others.

We are grateful to the Minister for volunteering the services of the noble Lord, Lord Williams, to receive representatives of the organisations concerned. The noble Lord has been extremely generous in giving such assurances on his own behalf so I am sure that he will not mind.

Subject to what those who have been kind enough to add their names to the amendment may say, I beg leave to withdraw Amendment No. 114.

Amendment, by leave, withdrawn.

Clauses 60 and 61 agreed to.

[Amendments Nos. 115 and 116 not moved.]

Clause 62 agreed to.

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Clause 63 [Limitation on further appeals]:


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