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Lord Falconer of Thoroton: I believe that it does but I would like to confirm that in writing to the noble Lord.

Clause 79, as amended, agreed to.

Clause 80 ["Sexual"]:

10.15 p.m.

Lord Northbourne moved Amendment No. 399A:

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The noble Lord said: I shall speak also to Amendments Nos. 400, 400A, 400B, 400C, 401A, 401B, 403A, 403AA, 403B and 403C. That is what is called the scatter-gun approach.

This group of amendments is about the definition of the sexual touching of children. The sexual touching of children must be considered separately, as a different offence, from the sexual touching of adults. In the case of adults the victim can consent, but with the sexual touching of children there is no question of consent.

The Minister emphasised repeatedly during earlier stages of the Bill the importance of getting the correct balance between the need to convict the guilty and the need to protect the innocent. I am a member of the advisory boards of Toynbee Hall and the Caldecott Community, both of which care for damaged children. I have a real concern for the welfare of children and I have no doubt, from my own experience of children who have been damaged, about how much harm can be done by sexual abuse. It is against that background that I make bold to say that in Clause 80, the Government are in danger of getting the balance wrong.

There is a substantial and increasing body of evidence that shows that children—especially boys—have a better life chance if they grow up with suitable male role models in their lives. In our society today, about 25 per cent of boys are growing up in a family without a resident father. Many have lost all contact with their father. In those circumstances, male teachers, youth workers and mentors have an important role to play in our society. They can help a boy to learn how to grow up into a decent man. Today, more and more good and decent men in the professions that care for children are becoming concerned about the risk of false accusations of sexual abuse, which can, at a blow, ruin their career, their families and their lives even if, in the end, the courts acquit them.

I hope that noble Lords accept that I do not for a moment suggest that we should relax our efforts to catch and punish paedophiles; I am saying that with a little more thought and care, we could do more to make it clear that we are concerned to protect the innocent. If we do not do that, we shall see an accelerating drain of men from the caring professions working with children.

Already, there is a chronic shortage of male teachers. I have with me a fax from the general-secretary of the NAHT confirming that statement. I also draw the House's attention to a Written Question that I recently tabled about the joint inspectorate review published by Ofsted in October 2002. It states,

    "that staff shortages in key social services, including schools and social services departments, are, in some local authorities, a problem seriously affecting the quality of the services they offer".—[Official Report, 28/11/02; col. WA 62.]

The amendments that the noble Lord, Lord Lucas, and I have tabled are probing amendments. They are intended to show that there are ways in which some comfort and reassurance could be given to ordinary, good, decent men and women who want to devote their lives—wholly or partly, and as professionals or

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volunteers—to helping children. People working with children need to know what they can and cannot do. Relevant situations arise when one is working with a child: restraining a child, helping a child, comforting a child and providing medical attention for a child. Those situations may arise on a mountainside or in a boat—wherever—and need an instant decision from the person who must make the choice.

In today's atmosphere of suspicion and doubt, parents and grandparents need reassurance. At any one time in England there are about 2 million parents of children under the age of 16. Children, depending on their age, as they make the journey from the protective environment of the womb through to adulthood and independence, need varying degrees of unselfish physical love and affection from their parents, or of course from surrogate parents.

Today, parents are increasingly uncertain what they should and should not do—what is and what is not permissible. In the United States, false accusations of sexual abuse in the family are becoming common. They are often associated with the ending of a relationship and an attempt to gain care of the children.

For all those reasons it is highly desirable that the new crime—and it is new—of sexual touching of children should be defined as clearly as possible by Parliament, so that people can know in advance and understand as far as possible what we mean when we make this law.

In order to suggest how this might be achieved I want to unwrap the parcel of ideas containing the phrase "sexual touching" in relation to children. In my view there is a spectrum of kinds of touching which, depending on the circumstances in which they occur, may range from the highly desirable to the criminally damaging. I am trying to suss out what the Government intend to criminalise and what they do not.

The Government's intention is that the crime of sexual touching should include two elements. I should be grateful if the Minister will tell me if I am wrong. The first element is touching from which the adult obtains or intends to obtain sexual gratification either for himself or for another. The second element is that it causes physical or emotional harm to the child, or creates a significant risk of such harm. Taken together, those two characteristics of an act of touching fully justify criminalisation.

I want to try to identify what other kinds of touching the Government think should be criminalised. Is it, for example, the Government's intention that even if there is no harm or potential harm to the child, the sexual arousal of the adult will in itself make the act of touching a criminal offence? Is it the Government's intention that even if there is no sexual arousal and no harm to the child there are some other kinds of touching which are none the less criminal? If so, what are they?

Many of us fear that this Bill will criminalise a whole variety of touching behaviours, simply because they give rise in some people's minds to the fear that they indicate the kind of person who might commit an act

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of sexual abuse at some time in the future. A great deal of thought needs to be given as to whether one can criminalise being a particular kind of person.

If the Government's intention is not clearly expressed in the Bill, the danger is that the damage will have been done. Parents will lose confidence in giving children the physical reassurance and love they need. Good men will no longer want to work in the professions. It is simply not good enough for the Government to say that the courts will decide. By the time the matter even gets to a police inquiry, the adult's career and reputation would have been destroyed. In addition, it will take the courts years to build up a body of case law on the subject. I believe that we in Parliament have the obligation to decide what we mean and to say it clearly.

Amendments Nos. 403B and 403AA seek to make clear that Parliament is primarily concerned for the safety and welfare of the child. The concepts of "harm" and "significant harm" that I have used are embedded in the Children Act and are clearly understood in law. Amendment No. 403B, includes touching which, although it does not actually cause harm, is "liable to cause" harm. Amendment No. 399 is a paving amendment. Amendments Nos. 400, 400A and 403C seek to define the parameters of sexual intent and sexual touching for the purposes of the Bill.

Amendment No. 403, interestingly, follows the formula used in Papua New Guinea. It has some merit because it is extremely clear. Amendments Nos. 400B, 400C, 401, 401A and 403 seek to reassure ordinary decent adults working with children that if they are accused of sexual touching, the reasonable person—if we must have the reasonable person test—who decides their fate will at least, as far as possible, not be biased or prejudiced.

I must say in parenthesis that I am profoundly unhappy about the concept of a reasonable person. People with so many different views can all be reasonable. I wonder what Sigmund Freud would have thought about various forms of touching.

Depending on the Government's response, I hope to withdraw the amendments and to bring forward something more carefully crafted at the next stage of the Bill. I beg to move.

Lord Thomas of Gresford: I speak to Amendments Nos. 401 and 403. I have great sympathy with everything said by the noble Lord, Lord Northbourne, but I remind him that many of his points were discussed at length in the leading case on indecent assault. The issue in the case of Court that came before the Judicial Committee of your Lordships' House was whether and in what circumstances a particular assault was indecent—as opposed to being a simple assault.

I appeared for the appellant. My noble friend Lord Carlile of Berriew appeared for the respondent—so one had two liberals disagreeing on the definition. The noble and learned Lord, Lord Ackner, who gave the leading judgment, disagreed with the two of us. Your Lordships will appreciate that this area is one that causes a great deal of difficulty.

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The formulation that the noble and learned Lord, Lord Ackner, and the other members of the Judicial Committee produced was to refer to the views of a right-minded person as opposed to a reasonable person. I have included those words in Amendments Nos. 401 and 403 to find out whether any specific or particular reason has caused the Government to move from the formulation that their Lordships, after three days of submissions, produced 10 or 12 years ago.

It seems to me that right minded is a concept that encompasses many of the noble Lord's points. For example, right-minded people will not think that the caressing of a child is an indecency or sexual act in any way unless there is something rather more. The Judicial Committee decided that the expression "right minded" was one that juries trying such cases—or magistrates in the case of indecent assault—would readily understand, which would allow them to determine the correct decision in light of the particular facts and circumstances.

I have great sympathy with the noble Lord. This is a fairly well-trodden path. I just happen to think that the more one tries closely to define things and box in the decisions that magistrates and juries have to make, the more likely one is to leave other things out. The use of "right-minded" was the considered view of the Judicial Committee. I want to know the reason for moving away from that expression.

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