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Baroness Sharp of Guildford: I was about to stand up when the Minister stood up and therefore did not get to say that I have some sympathy with the amendments in the names of the noble Lords, Lord Hylton and Lord Northbourne. We are returning to an issue that we have debated before, both in this Bill and others—the legal phraseology that is accepted does not actually cover the common sense meaning. I have some sympathy with the point of view put forward by the noble Lord, Hylton, that it would be quite nice if our legal language followed our common sense language.

Lord Hylton: I am grateful to the Minister for the sympathy that she expressed and I very much welcome what she said about both parents being involved in parenting orders or being called to court. I am also grateful for what she said about the variety of people who find themselves in loco parentis. That was very helpful. I also welcome the guidance that will be forthcoming on these matters. My noble friend and I will study the reply with care, but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 95 not moved.]

Lord Dixon-Smith moved Amendment No. 96:


The noble Lord said: The purpose of this amendment is to leave out certain words about parenting contracts. The Bill itself states:


    "A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort".

We want to explore exactly what that might mean. If a parenting contract is not a serious contract and if parents are in breach of their contracts when, to be frank, they are being rather foolish and it might actually cost them, the contract is not worth the paper it is written on. We are dealing with difficult parents who need help. It seems to me that the purpose of a parenting contract is that the education authority, through the school, accepts obligations to assist. The parents accept obligations to take up that assistance and, most important, to get their children to school or improve their behaviour. That has to be a serious contract.

I accept that a,


    "liability . . . in contract or in tort",

may well be a financial liability in which one party sues another. It may therefore have very restricted legal meaning: I am not a lawyer.

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I seek assurance from the Minister that these contracts are serious and that the consequences of either side breaching them—even though they may not give rise to a suit for damages—are none the less serious and will have serious implications for either side should there be a failure. It may be that I am revealing my ignorance in pressing this amendment in this way, but it is psychologically important for us to have an explanation on the record for anybody who wants to study the meaning of these contracts. I beg to move.

Baroness Sharp of Guildford: I rise to speak to Amendments Nos. 109, 112 and 138 and to say a few words about Amendment No. 96 as well.

My understanding of subsection (8) of Clause 19 is that it specifically seeks to exempt a parent who fails to meet his or her obligations under a parenting contract from any form of legal proceedings; namely, it reinforces the voluntary nature of the parenting contract. I shall be interested to hear what the Minister says on that point, because the voluntary nature of that parenting contract is one on which we on these Benches place a great deal of emphasis. We recognise the difference between the voluntary nature of the parenting contracts as distinct from the parenting order that is not voluntary and is imposed through the courts.

If the Committee will permit it, I shall group Amendment No. 137 with these amendments. It should have been grouped with them, and I missed the fact that it was not. I should have picked that up earlier; I apologise.

Amendments Nos. 109 and 137 would make the voluntary nature of the parenting contract doubly clear by removing the parent's record under any parenting contract from the consideration of a court that is deciding whether to impose a parenting order, which is compulsory. In that respect, the fact that a parent was asked to sign a voluntary contract and refused to do so should be irrelevant. If it is not, what should be a voluntary contract will be tinged with compulsion. In other words, someone who does not sign will have a parenting order forced on them. The key issue is that the court should approach the question with an open mind. If it does not, we will immediately shift parenting contracts from being purely voluntary to having an element of compulsion. We are concerned about that issue.

We are also concerned about the potential for interference with the right to respect for family and private life, set out in Article 8 of the European Convention on Human Rights. The clause engages particularly with the imposition of legally binding sanctions. The Joint Committee on Human Rights has highlighted the matter. It said:


    "in our view, the imposition of requirements on parents under a parenting order would certainly engage the right to respect for private and family life".

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In effect, the Bill makes parenting orders free-standing. The only condition on the court is that it should be satisfied that,


    "making the order would be desirable in the interests of improving the behaviour of the pupil"

in the case of an LEA application, or that the child has,


    "engaged in criminal conduct or anti-social behaviour, and that making the order would be desirable in the interests of preventing the child or young person from engaging in further criminal conduct or anti-social behaviour".

There is a significant difference between the granting of a parenting order under existing provisions and granting one under those proposed in the Bill in respect of the fact that the court must make a judgment about the nature of the offence for which the parenting order is made.

Amendments Nos. 112 and 138 relate to a slightly different issue: the penalties imposed by the court. As I understand it, the current position is that a parenting order can be made under Section 8 of the Crime and Disorder Act 1998 only in relation to court proceedings in which a child safety order, anti-social behaviour order or sex offender order is made in respect of a child or young person or a child or young person is convicted of an offence or a young person is convicted of an offence under Section 443 of the Education Act 1996. The Bill deletes the connection between the making of the parenting order and a related court process by giving powers to local authorities and youth offending teams to apply directly to magistrates' courts for a parenting order. The only condition on the court is that it should be satisfied that,


    "making the order would be desirable in the interests of improving the behaviour",

of the child. Clauses 21(3) and 27(3) make it clear that subsections (3) to (7) of Section 9 of the Crime and Disorder Act apply. Subsection (7) stipulates that the penalty can be high as 1,000, which makes a breach a criminal act. We seek to eliminate subsection (7) and leave it at subsections (3) to (6) because we wish to eliminate the element of penalty and ensure that the breach of a parenting order in respect of criminal conduct and anti-social behaviour does not become a criminal offence.

Baroness Scotland of Asthal: It may be helpful in responding appropriately to the comments of the noble Lord, Lord Dixon-Smith, and the noble Baroness, Lady Sharp of Guildford, if I say a word or two about how the two subjects fit together, so that we do not conflate them.

We envisage a continuum of measures intended to procure the engagement of parents when their children's behaviour causes concern. At one end of the scale, there is a wide range of voluntary involvement that parents have with schools and LEAs. We hope and expect that that will be the most effective approach with the vast majority of parents. At the other end of the scale are parenting orders for parents who refuse to engage and whose children's behaviour is causing the greatest concern. Parenting contracts are designed to

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sit between the two as a vehicle for engagement that, although voluntary and, hence, with no direct implications for failure to comply, sends a strong signal that action is needed and that more serious consequences are a distinct possibility. With regard to that bridge, it is important to remember that the alternative will sometimes be to go directly to a parenting order without passing through any other stage.

Amendment No. 96 would make it possible for legal proceedings to be pursued if a parent failed to comply with the requirements of a parenting contract made in the case of exclusion from school or truancy. Introducing legal proceedings would contradict our aim for parenting contracts. A parenting contract is a measure voluntarily entered into and designed to achieve a change in behaviour, in the spirit of co-operation. It is an opportunity for parents to engage with LEAs or schools without direct legal threat and with the minimum bureaucracy. That does not mean that, if there were a failure to take that opportunity, the evidential basis would not be used in proceedings.

In speaking to Amendment No. 137, the noble Baroness, Lady Sharp of Guildford, said that if the contract was voluntary, no reference should be made to it in any court proceedings thereafter. I have two things to say about that. First, the point of having the intermediate step is to make parents understand that a serious change is sought and that there will be consequences, if they agree to enter into the arrangement and do not comply. Conversely, the parents will be able to rely on the fact that they willingly engaged in a contract. If it is their case that any failure was the result of non-compliance by the LEA or the school, the parents can pray in aid the fact that they willingly entered into the contract.

On the other hand, it would be realistic for us to acknowledge that, if the provision did not exist, the authorities would, in any event, be entitled to call evidence about co-operation or lack of co-operation by the parents, in order to prove their case that a parenting order was necessary. We think that it is a helpful highlight for both parties; that is, that their behaviour in relation to how they pursued their agreement could be relied upon when the matter came before the court.

Amendment No. 109 would remove the requirement that courts should consider any previous refusal to enter into or failure to comply with the parenting contract in deciding whether to impose a parenting order in cases of exclusion from school.

Parenting is challenging; we recognise that. Parenting contracts will allow parents to access support through a formal arrangement where they can expect the school or LEA to work with them to improve their child's behaviour or attendance. We would prefer it if parents were engaged via this route. However, we remain convinced that should an application for a parenting order become necessary, there must be some recognition by the court of a parent's behaviour during the contract process.

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That is not to say that failure to meet the terms of the contract will automatically lead to an order. It will still be for the LEA to decide whether an application for an order is an appropriate next step. As I have already indicated, the court will be required to take into account all the evidence.

Amendments Nos. 112 and 138 relate to Clauses 21 and 27. They would remove the penalty, available on conviction, for failing to comply, without reasonable excuse, with requirements included in the parenting orders or specified in directions given by the responsible officer. In other words, the amendments would remove the teeth from the parenting order provisions. If made, there would be no consequence for a parent who refused to meet the requirements of an order. We do not think that that is right.

Parenting orders will not be sought lightly. In serious cases, where the parent is influencing—or failing to influence—the behaviour of their child so severely that it is resulting in that child's exclusion or that child becoming known to the youth offending team, and where they are refusing to operate voluntarily, it must be right for the parent to be made aware of the seriousness of their actions and to have the opportunity to do something to change them. The parenting order is such a mechanism, but without the possibility of genuine consequences for non-compliance, a parenting order would cease to be a credible sanction. I therefore hope that the noble Lord and the noble Baroness will not press their amendments.

6 p.m.

Baroness Carnegy of Lour: I have not contributed to the discussions on the Bill before. I hope that Members of the Committee will forgive me for asking a question now, but I am extremely interested in this particular proposal. I think that I am right in saying that in California everyone signs a contract when they send a child to school. That seems a very good idea. Asking for a contract to be signed only when their children are in trouble indicates to parents that it is not something that everyone should do; it happens only when there is trouble.

Have the Government considered that it might be better to take the voluntary contract out of the legal process and place it into normal education procedure? Thus, an obligation would be created for everyone. A voluntary contract, which can be used as evidence that a parent is trying to comply, seems to be unfair on everyone else. Have the Government considered a contract for the parents of everyone who goes to school? I see that the noble Baroness has her colleague from the Department for Education and Skills beside her, so she should be able to tell me. It is interesting that a parenting order is being used as part of the legal process, which I find quite strange.


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