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House of Lords

Tuesday, 17 December 2013.

2.30 pm

Prayers—read by the Lord Bishop of Derby.

Social Mobility: Public Schools


2.36 pm

Asked by Lord Lea of Crondall

To ask Her Majesty’s Government what assessment they have made of the degree to which those educated at public school disproportionately occupy senior positions in both public and private sectors in the United Kingdom; and whether they have plans to reduce any imbalance.

Lord Bates (Con): My Lords, improving social mobility is the principal goal of this Government’s social policy. The Social Mobility and Child Poverty Commission was established to monitor the progress of government employers, the professions and universities in improving social mobility. Current evidence shows that, while improvements are being made in some areas, there is still much work to be done.

Lord Lea of Crondall (Lab): My Lords, I thank the Minister for that reply, which I think means no. I have two supplementary questions. First, would he not agree with the recent and widely reported observation by Sir John Major to the South Norfolk Conservative Association on 8 November:

“In every sphere of British influence the upper echelons of power in 2013 are held overwhelmingly by the privately educated or the affluent middle class. To me from my background I find that truly shocking”?

Secondly, would he accept that to give tax relief to public schools as charities is also truly shocking? Charities are supposed to be about assistance from the rich to the poor, not from the poor to the rich.

Lord Bates: My Lords, I thank the noble Lord for his question. He quotes Sir John Major; let me offer him a quote from Alan Milburn in November. In responding to criticism about why the previous Government had not done more to advance social mobility under their 13 years in office, he said that it is,

“wrong … to argue this is the consequence of the actions of any one government. Deep-rooted … and flatlining mobility have been decades in the making”.

That is why this Government have introduced the pupil premium, which is targeted at disadvantaged pupils; free childcare; and an increasing number of apprenticeships. As for the noble Lord’s point about charity status, that is for the Charity Commission. Of course, it has to demonstrate that there is a public benefit to that status, and I know that many independent schools take that very seriously and forge many partnerships with schools in the state sector as well.

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Baroness Trumpington (Con): My Lords, I ask the Minister whether he agrees that this particular Question is a damned silly one.

Lord Bates: My Lords, the brief says that there are no damn silly questions in your Lordships’ House.

Lord Campbell-Savours (Lab): My Lords, the Minister and, indeed, the House and the whole country know that public schools are not charities. Their existence and treatment as charities brings charity law into disrepute. Why do we not end that arrangement, and if we need to subsidise private education—many might well want that; I do not know—transfer responsibility for subsidy from charity law to the Finance Act? Then we can have a full debate in Parliament, in the House of Commons when it is dealing with Finance Act issues, on what that level of subsidy should be.

Lord Bates: The noble Lord raises an interesting point which begs the question of why, if that was the key issue to be addressed, his Government did not tackle that over their 13 years. The point is that this is intergenerational; it stretches over a long time and the solutions will take a long time coming. The problems have been a long time coming, too, and this Government are focusing particularly on the work of people such as Graham Allen on early intervention in specialising and targeting the help at the poorer families to redress that balance.

Baroness Hussein-Ece (LD): Does the Minister agree that—

Baroness Hayter of Kentish Town (Lab): This side, my Lords.

Baroness Hussein-Ece: Does the Minister agree that until we tackle growing inequalities, we cannot hope to tackle social inequality? When you have a situation in which more than 60% of young black men in this country are unemployed, how on earth are we going to achieve social mobility?

Lord Bates: My noble friend raises a very important point, which is that the route back into social mobility comes through the place of work. That is why we are opening up 1.5 million apprenticeships and why bearing down on unemployment—it is a fact that we are now in the 17th month of falling unemployment among the young—is so critical to raising the prospects of the young people, as we so want to do.

Baroness Hayter of Kentish Town: My Lords, I apologise to the noble Baroness, Lady Hussein-Ece.

Even where two similarly qualified graduates attended the same university, what happens afterwards is that the privately schooled graduate is 8% more likely to get a top job than someone from the state schools—even at that stage. What are the Government doing with their own recruitment policies to make sure that that sort of unfairness does not appear within the Civil Service?

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Lord Bates: That is a very good question and I know that many people in government—principally the Deputy Prime Minister—are focusing on how to make that more accessible through the internship programme, through ensuring broader and fairer access and through the business compact programme, where more employers are encouraged to sign up and have fairer and more inclusive recruitment policies. It has to be said that it is not just the Government having this problem. It runs right across society and is in the media, in corporations, in medicine and in the judiciary, all of which need to act to make sure that their access policies are as fair as possible to all.

Lord Elton (Con): My Lords, if, as has been conclusively demonstrated, the private education system is better than the public one and provides a portal into all sorts of social and economic advantages, surely we should be trying to get more and more private education, and more and more people drawn into it from those classes which are at present excluded. The way to do that is not to cut off the funding but to increase it.

Lord Bates: My noble friend has great knowledge and insight in this area—and so do I. In my experience the greatest difference between our leading independent schools and the inner-city comprehensives, one of which I attended, is the level of expectations not only among the teachers or parents but, chiefly, among the pupils themselves as to what they can actually achieve. That is what we need to improve.

Lord Davies of Coity (Lab): My Lords, in 1999 the previous Government made sure that more than 700 hereditary Lords could no longer sit in this House. Now then, can the Minister tell me how many Peers on the Conservative Benches came from Eton?

Lord Bates: In this debate, which is about raising the opportunities of the poorest in our society, it does not help to have a vindictive or negative view of people who have had the privilege of great education in this country. We want to ensure that that quality of education and that level of ambition and expectation are spread to all, irrespective of school attended.

Independent Panel on Forestry Report


2.45 pm

Asked by Lord Clark of Windermere

To ask Her Majesty’s Government what progress they have made in implementing the recommendations of the report of the Independent Panel on Forestry.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, good progress has been made in implementing the commitments set out in January in the Government’s forestry and woodlands policy statement. An update report published in July highlighted progress in establishing a new body to

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manage the public forest estate, in maintaining forestry expertise in government, in supporting the forestry sector to improve its economic performance and in giving greater priority to plant health. A further update report will be published in the new year. I declare an interest as a woodland owner.

Lord Clark of Windermere (Lab): My Lords, I thank the Minister for his answer. Is he aware that there are suggestions that the new forestry body will be forced to sell some of its land almost from its inception? Will he assure the House that that is not the case, and that the Government’s new forestry body will be provided with sufficient finance so that it is not forced into land sales within its first 12 months of existence?

Lord De Mauley: Yes, my Lords. Although the new body will be able to buy and sell land in its role as a land manager, there are no plans for it to sell any part of the estate to raise revenue to support itself.

Baroness Parminter (LD): Do the Government intend to maintain transitional arrangements so that there are woodland grants until the introduction of England’s rural development programme in 2015, so that the Government’s welcome commitment to increase woodland cover can actually be achieved?

Lord De Mauley: Yes, my Lords. We have addressed the impact of a gap between rural development programmes by encouraging applicants who were originally considering applying for grants in 2014 to bring these forward to 2013. The Forestry Commission is presently considering applications to fund the planting of up to 2,600 hectares of woodland in 2014. The current RDP has seen over 12,000 hectares of woodland planted and funded through the English woodland grant scheme. Current applications for planting in 2014 therefore represent an annual planting rate above that in the rest of the current programme.

Lord Hylton (CB): My Lords, I declare my interests as on the register. Is the Minister aware that I have a children’s forest school in one wood and much used public access in another? However, this question is not just about greenery and fresh air. Do the Government accept the report’s point about the economics of our forestry and its supply chain? What resources will they provide for adding value to British timber, not just using it for firewood and biomass?

Lord De Mauley: That is an important point. The Grown in Britain initiative is genuinely making a difference. Early successes show that it is already delivering results, including gaining commitment from several major corporates to buy or stock more home-grown wood products. To date, 19 major UK contractors-group companies, with a collective turnover of over £24 billion, have pledged to look into ways of procuring more British timber. Grown in Britain is also forging partnerships with businesses in the construction sector to seek good examples of projects using British-grown

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timber to promote as case studies for other forestry supply chains to follow. There is a lot going on in that sector, and it is important.

Viscount Brookeborough (CB): My Lords, does the Minister agree that most landowners in this country who have forestry think that it makes a great contribution to their businesses? Can he explain why state-owned forestry in all parts of the United Kingdom has failed to make money over so many years?

Lord De Mauley: My Lords, I agree with the first half of the noble Lord’s question but the Government would not agree with the second half. The Forestry Commission is a dedicated and well run organisation. It has an important function to carry out, and the various functions that it carries out will continue to be carried out.

The Lord Bishop of St Albans: My Lords, as Her Majesty’s Government will be aware, there are several very serious diseases affecting trees in this country. What steps are being taken to ensure that, with the reorganisation of the responsibilities of the Forestry Commission, this important disease prevention, control and elimination work will not only continue but be strengthened?

Lord De Mauley: That is one of my department’s top four priorities, and we are making rapid progress in taking forward the implementation of the recommendations of the expert task force that the Secretary of State set up. In fact, this morning I attended our monthly biosecurity meeting and we are absolutely focused on both those plant health issues that are approaching us from overseas and those that are here already. We have established a prioritised plant health risk register, we are appointing a new chief plant health officer and we are engaged in contingency planning, among many other things.

Baroness Royall of Blaisdon (Lab): My Lords, I declare an interest as a member of the steering committee of Hands Off Our Forest. Primary legislation is clearly needed to set up a new management organisation for the public forest estate. The Forest Campaigns Network has been told by Defra that Ministers are committed properly to pre-legislative scrutiny, so I would be grateful if the Minister could tell the House when we will see a draft Bill and whether or not it will be in this Session of Parliament. Will the Minister also confirm that the organisation’s mission will be to protect and improve the public forests, woodland and other assets held on behalf of the nation and that, however the organisation is structured, it will not be in danger of future privatisation?

Lord De Mauley: My Lords, we have always said that we will legislate as soon as possible, subject to the availability of parliamentary time. That remains the position and we are serious about it. Yes, we intend to make draft legislation available for pre-legislative scrutiny, but it is important to understand that we have also been focusing on making progress on all 36 commitments, and not all of those need legislation.

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Ticket Reselling


2.54 pm

Asked by Lord Storey

To ask Her Majesty’s Government what plans they have to tackle the issue of ticket re-selling in the sport, music and entertainment industries.

Lord Gardiner of Kimble (Con): My Lords, the Government discuss issues of ticket resale with the sport, music and entertainment industries on a regular basis. While the Government have no plans to introduce new regulations on the ticketing and events market, we continue to encourage improvements so that all customers have an opportunity to purchase tickets and can do so in a secure environment. The Government believe that it is for event organisers, together with the professional ticketing organisations, to determine suitable arrangements for ticket sales to their events.

Lord Storey (LD): I thank the Minister for his reply. He will be aware that Operation Podium ensured that tickets to the Paralympic and Olympic Games were fairly distributed, and were prevented from falling into the hands of touts and criminals. He will also be aware that the Met’s operational report concluded that the lack of regulation in this area enables fraud and places the public at risk of economic crime. What action will the Government take to provide an open, transparent and above all fair market for consumers? Will the Minister host a round-table discussion to consider how to put an end to this crime?

Lord Gardiner of Kimble: My Lords, as the previous Government made clear, ticketing regulations for the London 2012 Games were exceptional and indeed a mandated requirement of winning the bid. It is a matter for the police to address cases of fraud and criminal activity while it is for event organisers, promoters and their ticket agents to find ticketing solutions; indeed, I think that Glastonbury is a very successful example of that. Of course I would be happy to arrange a meeting with the noble Lord to discuss these matters further.

Lord Clement-Jones (LD): My Lords, abuses by secondary ticketing sellers were made plain by the “Dispatches” programme earlier this year, which my noble friend may have seen. Campaigners for secondary ticketing reform go all the way from rock band Iron Maiden to the Rugby Football Union, which is worried about the World Cup, and the Society of London Theatre. If we could do it for London 2012, why can we not do it for other events? Are there no heavy metal fans or rugby fans at DCMS, let alone theatre-goers? Is DCMS completely immune to representations from all these bodies?

Lord Gardiner of Kimble: I am sure the DCMS has aficionados of all those disciplines. Only today, officials were talking to the Rugby World Cup organisers about arrangements for the event. Those will include using bar coding, named tickets, staggered ticket release and

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reward to fans with a history of support. The Government are engaged in this matter, but all successive Governments, and indeed Select Committees that have looked into this in the past, have concluded that regulation is not the best way of achieving what we all want to do.

Lord West of Spithead (Lab): My Lords, after our performance in the past three tests, does the Minister think it will be almost impossible to give away, let alone resell, tickets for the final two?

Lord Gardiner of Kimble: I very much hope that England will win the last two matches and make it 3-2. The important thing we need to remember is that very often people buy tickets and wish to have a secondary sale because someone cannot go or their team does not win into the quarter-finals or semi-finals, so there are practical difficulties. When a Select Committee looked at this in detail, it concluded that regulation was not the way to achieve what we want.

Lord Stevenson of Balmacara (Lab): I return to the original Question. The report from Operation Podium makes it very clear that ticket crime has links to other serious and organised crimes, that criminal networks benefit from ticket fraud by about £40 million per year and that the proceeds are very rarely recovered. Given that the recommendation from Operation Podium was that consideration must be given to introducing legislation to govern the unauthorised sale of event tickets, why are the Government not prepared to move on this?

Lord Gardiner of Kimble: My Lords, it is not a case of the Government not wanting to move on the situation; it is that we have concluded, as did the previous Government and Select Committees, that there is a better way of resolving this. The noble Lord mentioned fraud, but the Fraud Act 2006 is readily available. Local authorities have by-laws already in existence, and those are precisely the by-laws that we need event organisers and the police to work within in conjunction with local authorities.

G8 Summit on Dementia


2.57 pm

Asked by Lord Patel

To ask Her Majesty’s Government what was the outcome of the G8 dementia summit.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the G8 agreed to work together to tackle and defeat dementia. The declaration announced the G8’s ambition to identify a cure or a disease-modifying therapy by 2025 and to increase collectively and significantly the amount of funding for dementia research. The G8 also welcomed the UK’s decision to appoint a dementia innovation

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envoy who will work to attract new sources of finance, including examining the potential for a private and philanthropic fund.

Lord Patel (CB): My Lords, I thank the Minister for his reply. Dementia is the dreaded diagnosis, particularly for the elderly, as it affects more than 5% of people over 65 and between 20% and 40% of those aged over 85. Because of the increasing number of elderly people, an increasing number of people are affected. I commend the Government and congratulate them on taking the initiative at the G8 and particularly on involving the WHO, because now it will become a global initiative. I have two questions. The first is about the funding that the Government announced. There is a great deal of confusion. Is it new money, money that has already been allocated to research or money that the Department of Health is giving for better diagnosis of dementia? Research on dementia must also focus more widely on understanding the biology of the disease, the inflammatory process and the epidemiology. Ring-fencing around a disease will not necessarily get to the point that the Government wish to get to. Secondly, what impact do the Government think the EU regulation on data protection will have on dementia research?

Earl Howe: The noble Lord asked a number of questions. The Government have stated an ambition to double research funding in dementia. That will depend on the quality of the proposals that come forward and on the rate of scientific progress. We very much hope that arising out of the summit, momentum will be gained, not only in this country but internationally. As regards the noble Lord’s second question, we recognise how important this is for future dementia research and I can tell him that the Government, through the Ministry of Justice, are negotiating with member states in Europe and are aware of the impact that the proposal would have on research. It is likely to be some months before there is an agreed approach between member states and the Commission, and the Parliament is unlikely to vote on the proposal before 2015.

Lord Warner (Lab): The Minister will no doubt be aware that there is growing interest in this country in assessing whether drugs used for conditions other than dementia might be useful in tackling dementia. Will the Minister say what efforts the Government are going to put into this area as a result of the G8 summit?

Earl Howe: My Lords, we certainly hope that the private and charitable sectors will respond to the call, but at the same time the Government are not dictating to the research funding bodies which projects they should support. The Haldane principle is very important. The noble Lord makes an extremely powerful point, and we would hope that the pharmaceutical companies will wish to step up to the plate.

Baroness Hanham (Con): My Lords, will the Minister be kind enough to explain exactly what is going to be achieved by training public servants such as bus drivers in dementia, what is the purpose behind it and what we hope those public servants will be able to do?

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Earl Howe: My noble friend raises an important issue, because it is going to be increasingly necessary for not only health and care professionals but members of the public to be properly attuned to dementia and the needs of those who have the condition. We want to see all those who deal with the public trained in dementia, at least to a basic level, in a way that is appropriate to their level of engagement with those who suffer from dementia. Dementia training is now a key part of Health Education England’s mandate.

Baroness Greengross (CB): My Lords, I would like to add my congratulations to the Government, and in particular to the Prime Minister on his personal commitment and on securing the summit focusing on dementia. I ask the Minister whether there are any commitments from other G8 countries, both for research and for the other side of this, which is care and how we help the growing number of people—it will be one in three of us in the near future—who are going to experience dementia, in all the G8 countries and beyond.

Earl Howe: My Lords, it is perhaps too soon to expect concrete proposals from other G8 countries, but I can tell the noble Baroness that the summit was not the end of the story. The G8 countries will be meeting throughout 2014 to build on and develop further agreements. We have agreed to host the first legacy event on social-impact investment in March next year. That will be followed by an event in Japan on what new care and prevention models could look like, and by an event hosted by Canada and France on how industry can harness academic research. There will then be a meeting in the United States in February 2015. We hope that the momentum generated by the summit will elicit the kind of commitments that the noble Baroness rightly seeks.

Lord Foulkes of Cumnock (Lab): Is the Minister aware that after the very brief exchange about dementia yesterday, I heard it suggested that dementia should not be grouped in any way with mental illness because of the stigma involved? Surely the solution to that is that we must all work to remove any stigma from all kinds of mental illness.

Earl Howe: The noble Lord is absolutely right, but he will recall that the question yesterday dealt with the WISH summit, which was focused specifically on mental health and not on dementia. I did not mean to imply that there should be any less emphasis on tackling stigma in both areas.

Baroness Brinton (LD): My Lords, I, too, welcome the result of the G8 dementia summit, but what progress is being made in appointing nurses who specialise in dementia in the same way that there are nurse specialists for cancer, rheumatology and epilepsy? Dementia UK’s admiral nurses are wonderful and provide real help to patients and families, but there are a mere 103 for an estimated population of 800,000 dementia patients.

Earl Howe:My noble friend raises a very important point. I come back to the point that I made a short while ago: people with dementia in practice access all

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parts of the health and care system. We want all staff who care for people with dementia to be trained to the level of their engagement so as to deliver high-quality care for people with dementia. I mentioned that dementia training was a key part of Health Education England’s mandate. Already, 100,000 NHS staff have received dementia training. As my noble friend will know, decisions on the commissioning of admiral nurses are made locally, but I recognise the work that they do.

Lord Walton of Detchant (CB): My Lords—

Lord Davies of Stamford (Lab): My Lords—

Lord Walton of Detchant: Does the Minister accept that much of the increased incidence of dementia is a result of the fact that many of us are living much longer than was the case in the past? Does he further agree that there is clear research evidence to suggest that continuing intellectual and physical activity, care and attention to diet, and control of blood pressure can delay the onset of dementia in many individuals, and that, as a consequence, once early dementia appears, programmes to promote such physical and intellectual activity are very valuable? In such programmes, volunteers play a very important part across the country. What are the Government doing to promote these projects?

Earl Howe: The noble Lord, as ever, makes some extremely good points. My department is looking at the role of volunteers in a number of areas. He is right that increased age is the greatest predictor of dementia. It has been estimated that delaying the onset of dementia by two years could decrease the global disease burden by 22.8 million cases by 2050. The point that the noble Lord makes is therefore well made, and I have no doubt that there will be an increasing focus on this over the coming years.


3.07 pm

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, like me, noble Lords will have been completely dismayed to read the reports in the press this morning about the behaviour of a Member of our House. They will have been dismayed about the behaviour and dismayed about the shadow that it casts over the whole House. On behalf of the party leaders and the Convenor, whose collective views I know I reflect, I thought that I should briefly remind the House of steps that are already in train for us to deal with the small number of Members whose behaviour falls below the standards that we rightly expect.

First, I have recently taken proposals through the House Committee to adopt a new sanction which would in future enable us to withdraw financial support and access to facilities from Members who breach the Code of Conduct. This would enable us to broaden our range of sanctions and I hope that it will be welcomed when it comes before the House in the new year. Secondly, a Private Member’s Bill being brought

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forward by Dan Byles MP would enable us to expel permanently Members who commit a serious criminal offence. The Government support this Bill and I look forward to it making progress. Thirdly, it is my view and one that I know is shared by all the group leaders that we should be looking to amend our Code of Conduct to make it possible for us to have more discretion to take action against those who in future bring the House into disrepute.

Despite stories like today’s, I am extremely proud of the work that we do in this Chamber of legislating, scrutinising and holding the Government to account. For our part, the leaders will take forward in the new year the steps that I have outlined, but, ultimately, the reputation of this House rests in all our hands, which is why I believe that noble Lords will want to support steps to strengthen the sanctions available to us next year.

Unsolicited Telephone Communications Bill [HL]

Third Reading

3.09 pm

Bill passed and sent to the Commons.

Children and Families Bill

Report (2nd Day)

3.10 pm

Clause 11: Welfare of the child: parental involvement

Amendment 14

Moved by Baroness Butler-Sloss

14: Clause 11, page 11, line 5, at end insert—

“(2B) Involvement is any kind of direct or indirect involvement that promotes the welfare of the child; it shall not be taken to mean any particular division of a child’s time.”

Baroness Butler-Sloss (CB): My Lords, it is with some regret that I have not sought to remove the presumption from the wording of Clause 11, although I still think it is unfortunate. I recognise the good intentions of the Government and their genuine desire to involve both parents, and more often the father, in a continuing relationship with the children after the separation of the parents. I entirely support that important aspiration. A serious part of the parting of parents is the failure of one parent, often the father, to have any future relationship with his children, who are then brought up in a one-parent family without the advantages of knowledge of and support by the absent parent.

I am, however, concerned about the message that separating parents may receive from the current wording of Clause 11. Originally the heading for this clause was “Shared parenting”. That heading, thank goodness, was removed, but it had been picked up by the press, and this clause may be seen by some as containing the right to equal access to children. There is concern, not just on my part but on that of many of the agencies, including the NSPCC, Barnardo’s and Coram.

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The department has issued excellent guidance for those who choose to read it. I have no concern about the courts, judges and magistrates doing their best with litigants in person, in the absence of legal aid, to come to the least detrimental decision about the arrangements for the children. Most parents will be sensible about arrangements. However, there is a small percentage of parents—sometimes one parent, male or female, and sometimes both parents—who are utterly unreasonable, and no arrangements will be easy to achieve; sometimes it will be impossible to achieve any arrangements.

The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children. We know from the Norgrove report of the fine line between children at risk in the private law sector and those seriously at risk in public law. The parents of some of those children at risk may well make their decisions outside court. I want the weaker parent to have something in statute to hold on to if browbeaten.

I also worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first. I beg to move.

3.15 pm

Baroness Howarth of Breckland (CB): My Lords, I support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. As she said, we all know that when parents are in conflict they become engrossed in their own battle and lose sight of everything else of value, including the children. I apologise for my voice; I have just had the flu and therefore missed the first day on Report—some noble Lords will have been relieved about that.

I have talked to many children over the years, through my work at Childline and CAFCASS, who found themselves in that situation. They often feel that they are at the centre of that battle and not individuals themselves. I remember another famous quote that the noble and learned Baroness made at another time: we should never see children as objects of concern but as subjects in their own right. When parents haggle over children as property, it is our responsibility to ensure that their welfare is seen to. What has happened in the outside world is that in our attempt to focus, mainly on fathers, I have to say—there is not a balance between mothers and fathers, but a particular focus on the needs of fathers—we have lost some of that understanding of welfare, and the press really believe that fathers have had a bad deal.

I draw attention to a piece of research that was carried out recently by the University of Warwick under the auspices of the Nuffield Foundation. It looked at a large number of cases—197 were analysed—

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and determined how the county courts used a number of orders. It found that in contact orders,

“the courts are actively promoting involvement with the non-resident parent under the welfare paramountcy principle without the need for any further additional legislation. In 50% of all parental disputes studied, the post court care arrangement included regular, overnight contact allowing both parents to have involvement in the child’s day to day routine. 25% of cases ended in daytime only contact with the non-resident parent. Contact is often built up gradually by the courts using interim orders. This allows the courts to find an arrangement that works for the parent and the children”.

However, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, our great concern is for the families who do not go to court. Courts will often find a good solution and be able to work through it. However, there is sometimes a perception among families that there is a presumption that children will be shared. I sometimes think of that picture from the Old Testament of the child being held up by one leg with the sword of Damocles held over it; it was the good parent who said, “No, I don’t want my child to be shared”. That is often what you find: it is the good parent who gives in and gives the child to the other parent, because they want the best for their child. It is therefore on that basis—and before my voice gives out—that I support the noble and learned Baroness’s amendment.

Baroness Deech (CB): My Lords, I will speak briefly in support of the noble and learned Baroness, Lady Butler-Sloss, who knows more about children’s law than practically anyone in this House. There is one real problem after divorce, which is that fathers, for whom the door is open, do not come and visit their children. We cannot do anything much about that. The clause may give such absent fathers the notion that they have rights but no responsibilities. If there is one thing that our family courts have got right in recent years, it is the welfare of the child. I very much hope that the House will listen to the wisdom of the noble and learned Baroness, Lady Butler-Sloss, and will let the courts get on with the good job that they have been doing without resorting to a rather artificial notion as set out in the clause as it stands.

Baroness Hughes of Stretford (Lab): My Lords, I, too, support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. We had a very good debate in Committee on Clause 11 about the status of the presumption that is enshrined in that clause. Concerns about preserving the overriding status of the presumption of the best interests of the child in the Children Act have been largely assuaged.

By definition it is very difficult for both parents and children when a family breaks up, and as the noble Baroness, Lady Howarth, has underlined, things can get very heated and parents can get very focused on coming out of that conflict with what they regard as the best arrangements for them.

As I made clear in Committee, I start from the position of sharing the Government’s desire to enshrine in public policy the principle of joint parental involvement in a child’s life, including after separation. I argue that for most children, the paramount principle of the

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child’s welfare, as enshrined in the Children Act 1989, cannot be fully met unless both parents are fully involved in the child’s life and have a continuing relationship with the child. Perhaps slightly differently to the noble Baroness, Lady Deech, I think that there is an issue to be addressed here, particularly for fathers. I agree with the Government that the principle of parental involvement needs strengthening.

However, if we agree—as I think we all do—that the paramount consideration is the welfare of the child, and that this principle should not be jeopardised or diluted, then we must also ensure that the presumption in Clause 11 is not misinterpreted and applied in ways that can be detrimental to children. Specifically, Clause 11 must not send the signal that parental involvement, which regrettably the Government initially called “shared parental responsibility”, is taken to mean that the child is divided according to some a priori formula, whether that is 50-50 or something else. Clause 11 gives a right to the child to expect continued meaningful involvement by both parents after separation. It must not be interpreted as giving a right to both parents for equal—or near equal as possible—time with the child. I know that the Government’s Explanatory Notes make clear their intentions. But there are a number of reasons why the Minister must take seriously the possibility, indeed the likelihood, of such misinterpretation.

First, the experience in Australia is that 65% of fathers interpreted “shared parental responsibility” to mean equal time. Litigation between parents increased as a result, and they had to change the system. Secondly, as touched on by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth: the clause, unless it is qualified on the face of the Bill in the way that this amendment seeks, could inadvertently increase the risk of harm to children, because only 10% of separating couples resort to the courts to resolve their contact disputes, with the majority of parents reaching agreements privately. There is concern that if it is the expectation of those parents that the law now says that the child’s time has to be carved up, then some parents may seek to use the new changes as a bargaining tool and put pressure on the other parent into making contact arrangements which are not in the best interests of the child.

Again, evidence from Australia suggests that similar reforms resulted in an increased reluctance for mothers to disclose abuse, for example, with many feeling that if there is a legal presumption of shared contact, there was little point in disclosing problems in the family. Given that the vast majority of cases do not go to court, if as a result of Clause 11 there is a common perception that having the child’s time shared out will be the norm in future, then even in families where there is no abuse or there are not problems we may still see the unintended consequence of nomadic arrangements, with a child moving between homes in a way that we would all want to avoid for obvious reasons. This would not be in the interests of most children.

Finally, and very significantly, we have to respond strongly to those parts of the media, which have promoted the interpretation which we are discussing now, despite the best efforts of the Government. I do not believe that any amount of communication or

17 Dec 2013 : Column 1147

clarification can shift this now. This is why Amendment 14 is so necessary—the Government’s intention and interpretation would be quite clearly on the face of the Bill, and enshrined not in guidance but in law.

Last night we received a policy statement from the Government about Clause 11 and Amendment 14. This makes clear the Government’s intention—it is not to promote a particular division of time, but they feel that the most effective way of dealing with this is through a wider communication strategy to explain to parents what the interpretation is. This is wholly inadequate, for the reason I have just expressed; this view is already well entrenched, partly because of the initial nomenclature of shared parental responsibility and partly because parts of the media have triumphantly proclaimed that this means an equal proportion of the child’s time is to be spent with father and mother. That view is now so well entrenched that I am very concerned about the impact on expectations and, therefore, on negotiations between parents, particularly those not going to court. The most emphatic and unambiguous way of disabusing people of that false impression is to put the amendment alongside Clause 11 into the Bill. The Government will then have something in law that they can go to town about in communications, explaining Amendment 14 if it became part of the Bill.

Baroness Walmsley (LD): My Lords, I believe that there is only one a priori formula, as the noble Baroness puts it, that we should have in our mind today, and that is the UN Convention on the Rights of the Child, which gives children the right to be safe and protected and the right to a family life. We all agree that that right to a family life, where it is in the child’s best interests and safe to do so, should include an ongoing relationship with both parents. Unfortunately, in many cases the parents themselves feel that they cannot continue to do that within the same home, so they separate. I believe that it is the Government’s intention in this clause to give the child that right back and ensure that the child continues to have a relationship with both parents where it is safe to do so and in the child’s best interests.

Governments make their intentions clear in more than one way. The wording of legislation is one thing, but Pepper v Hart is another. I am hoping that, in his reply, my noble friend the Minister will make it very clear that what the media have been saying is not the Government’s intention. Indeed, my noble friend has made that very clear to probably all of us in this Chamber now in private meetings, but of course it has to go on the record for people to be able to rely on it, and I am very much hoping that he will be able to do that.

The noble Baroness, Lady Hughes, mentioned the media. I call on the media—indeed, I challenge them—to give just as much space and just as large headlines after today’s debate to the Government’s real intentions on what this legislation and any surrounding regulations really mean, rather than what they mistakenly thought that they meant, which caused an awful lot of concern and worry to families who can really do without that sort of worry when they are going through the stress of breaking up and wondering what they can do to

17 Dec 2013 : Column 1148

cause the least possible damage to their children’s lives while they do so. I very much look forward to my noble friend’s reply.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, I am very pleased to follow my noble friend in this debate, not least because well over two years ago, when this legislation was first mooted, I went to see her as the oracle on matters to do with the welfare of children. I said that the Government were thinking of legislating in this area, and I remember that she gave me very clear marching orders—whatever else the Government did, it must be clear that the paramountcy of the welfare of the child should be ingrained in this legislation. I have certainly taken that to heart as this legislation has passed through.

It is also true, as has been indicated and as the noble Baroness, Lady Hughes of Stretford, referred to, that we learnt lessons from the Australian legislation and we have listened to what has been said as this Bill has moved through both Houses. We have been trying consciously to get the balance right. When we were talking about the misrepresentation in the press, there was an opinion that the legislation as it stood was biased in favour of the mother. What we have been trying to do in this legislation is to have wording that gives a very clear guide that, where possible, and as my noble friend Lady Walmsley has just indicated, it is in the interests of the welfare of the child that both parents should be involved.

3.30 pm

I would like to make a very clear statement for the official record of the House that this change is absolutely not about any particular division of a child’s time. The Explanatory Notes to the Bill state explicitly that:

“It is not the purpose of this amendment to promote the equal division of a child’s time between separated parents”.

The Government have made this very clear in previous debates. There is nothing in this clause that could be read to give that impression. I fully accept that separating parents, particularly at a time of great emotional stress, are hardly going to consult Hansard or the relevant clause of a parliamentary Bill. I therefore accept that my noble friend is right; the media have a responsibility to report the intentions of this Bill properly and not to present it in a way that would give either parent a belief that this is equal-time parenting or anything else. It is still an attempt to encourage both parents to be involved in the future of their children, but in a way that safeguards the welfare of those children. As noble Lords know, part of the aim of this policy is to address this perception that the courts are biased against one parent, generally fathers.

Baroness Howarth of Breckland: I apologise for interrupting but, just so that the record is absolutely straight, the Minister has mentioned on two occasions the perception that fathers were not getting the same sort of attention as mothers. Does he acknowledge that the research carried out by CAFCASS and by Nuffield shows that that is a perception and not an accurate procedure? If the noble Lord continues to repeat that perception, it will be picked up again. It is not a fact.

17 Dec 2013 : Column 1149

Lord McNally: I hope that the noble Baroness takes what she has said to heart; what I am trying to avoid is replacing one perception with another. There is equal danger that, after a debate such as this, another perception gets flagged. What I want is to emphasise what is in the legislation and what is intended by the legislation and to use all the means at our disposal to make sure that that is fully understood by all the agencies involved and the widest range of public opinion as possible. As my noble friend has indicated, that also means that there is a certain sense of responsibility on the part of the media in reporting the intentions of Parliament.

When a case is before the court, neither parent has a right to any specific level of contact, direct or otherwise. The court must consider the child’s welfare above all else and make its decision on that basis, weighing up the evidence before it. That will continue to be the case, and nothing in Clause 11 changes that. The wording of the clause is deliberately neutral; it does not seek to pre-empt court decisions and, as now, it gives courts the flexibility to determine the arrangements that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach.

However, I agree wholeheartedly with those who have highlighted the need for a clear understanding of the policy. The reality is that any provision which impacts on parents and their private family relationships is extremely sensitive. Even the wording of the amendment could be misinterpreted in the media and give rise to unintended consequences. There is no guarantee that it would not. For example, as I said, a parent who already has very limited contact through no fault of their own may interpret the wording as endorsing that position. Our priority must be to draft legislation which achieves our intended effect and to take other steps to communicate to society more widely what that effect is. As I said, it is unlikely that separating couples will look to the Children Act 1989 to try to predict the outcome of their dispute. They will look for information online or talk to their friends and family, to organisations which they trust or their legal advisers.

The Government’s “Sorting out Separation” web app will be the first port of call for many parents looking for information about any aspect of separation and it will then signpost them to further sources of help. The app itself will set out clear information for parents about the law, and this information will make it plain that the change is not intended to be about the division of the child’s time. We will also ensure that organisations with the Help and Support for Separated Families kitemark have clear and accurate information about the changes. The web app will be embedded on the sites of organisations that have this kitemark, including, for example, Relate. This means that people accessing these websites will be able to click on a link and access information on the web app. In addition, the minority of separating parents who turn to the courts will need, first, to have attended a MIAM, and they will be encouraged to find a different way of resolving their dispute. Parents will be given information through all these routes and through other services that they may engage with.

17 Dec 2013 : Column 1150

The way to ensure an accurate understanding of the policy is for the Government to work with organisations in the sector to develop clear information which can be disseminated through these routes, not to reword the clause in an attempt to prevent inaccurate reporting of what we want to achieve. Officials have already begun discussions about the information to be developed and these will continue. We want to work with relevant voluntary organisations so that we are confident that we can address the concerns.

Right from the beginning I have never been in any doubt about the intentions of the various—in this case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am asking for the House’s support this afternoon for the Government’s position. I have thought long and hard about how we can address the problems of misperception and misrepresentation, and I honestly believe that the solution put forward by the noble and learned Baroness, Lady Butler-Sloss, may lead us into the same problems but via a different route. We have tried very hard to get the balance right and, even at this late stage, I ask her to withdraw her amendment.

Baroness Butler-Sloss: I thank all noble Baronesses for their contributions and I hope that the Minister will forgive me for not thanking him. I am particularly grateful to my noble friend Lady Howarth, who has put right the perception that in some way the courts are unfair to fathers. It is a perception which has, from the beginning, been inaccurate. When I was President of the Family Division, I went round the courts and made a lot of inquiries. After I had retired, I was very grateful for the CAFCASS report, which absolutely clarified what I had understood to be the case from judges right across the country—that they try cases fairly and that there is no prejudice against fathers.

I find it difficult to understand why the Minister thinks that what I think is a very modest amendment for clarification is going to be widely misinterpreted and somehow bring back the situation before Clause 11 was put forward. I take issue with him on one point. He talks about going to legal advisers. How many people in this country have the money to go to legal advisers if they do not have legal aid? It is this Government who have taken legal aid away from private law cases. When he talks about going to legal advisers, it will be a very small minority of that very small minority who actually fight cases who will get to lawyers at all. They may or may not go on the web and they may or may not read what I consider to be the excellent advice that the Government give. They will look at what the press has said and, despite the wonderfully impassioned suggestion of the noble Baroness, Lady Walmsley, may or may not choose to take any interest in this particular debate, and may perpetuate a very dangerous perception.

I must say that I worry about ordinary people on the ground who cannot get on and decide to separate. I sometimes used to say to warring parents, “You are the last people who should be making decisions about your own children because you cannot think straight about what is happening next”. Those are people—without legal advice, lawyers in court or probably ever going to court—where one of them will be dominating the

17 Dec 2013 : Column 1151

other and the arrangements for the children will be unsatisfactory and, in some cases, positively dangerous. All I am asking for is some clarification, particularly for a mother because there may well be a more dominant father, although there can be a dominant mother. I have certainly seen dominant mothers and not only in the American press. It is possible that the mother or father who is not the dominant parent will look at the law and see that there is an explanation of what is in Clause 11 with this amendment.

I am truly sad that the Minister thinks that that will create some misinterpretation. Speaking for myself, I cannot see it and I rather hope that noble Lords will not see it either. I would like to test the opinion of the House.

3.42 pm

Division on Amendment 14

Contents 225; Not-Contents 221.

Amendment 14 agreed.

Division No.  1


Aberdare, L.

Adams of Craigielea, B.

Ahmed, L.

Allen of Kensington, L.

Anderson of Swansea, L.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Best, L.

Bichard, L.

Billingham, B.

Blackstone, B.

Blood, B.

Boateng, L.

Borrie, L.

Bradley, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Butler of Brockwell, L.

Butler-Sloss, B. [Teller]

Cameron of Dillington, L.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Condon, L.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Deech, B.

Derby, Bp.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Fellowes, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Glasman, L.

Goudie, B.

Gould of Potternewton, B.

Graham of Edmonton, L.

Grantchester, L.

Greenway, L.

Grenfell, L.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harries of Pentregarth, L.

Harrison, L.

Hart of Chilton, L.

Haskins, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hilton of Eggardon, B.

Hollis of Heigham, B.

Hope of Craighead, L.

17 Dec 2013 : Column 1152

Howarth of Breckland, B.

Howe of Idlicote, B.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Judd, L.

Judge, L.

Kakkar, L.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

Kilclooney, L.

Kinnock of Holyhead, B.

Kinnock, L.

Knight of Weymouth, L.

Krebs, L.

Laming, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Lloyd of Berwick, L.

Luce, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mandelson, L.

Martin of Springburn, L.

Masham of Ilton, B.

Maxton, L.

May of Oxford, L.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Moran, L.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Murphy, B.

Nicholson of Winterbourne, B.

Northbourne, L.

Norwich, Bp.

Nye, B.

O'Loan, B.

O'Neill of Bengarve, B.

Ouseley, L.

Palmer, L.

Parekh, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patel, L. [Teller]

Pendry, L.

Phillips of Worth Matravers, L.

Pitkeathley, B.

Plant of Highfield, L.

Prescott, L.

Prosser, B.

Quin, B.

Quirk, L.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

St John of Bletso, L.

Sandwich, E.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Slim, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Soley, L.

Stair, E.

Stern, B.

Stevens of Kirkwhelpington, L.

Stevenson of Balmacara, L.

Steyn, L.

Stirrup, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Triesman, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Walker of Gestingthorpe, L.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Wright of Richmond, L.

Young of Hornsey, B.

Young of Norwood Green, L.


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B. [Teller]

Arran, E.

17 Dec 2013 : Column 1153

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Astor, V.

Attlee, E. [Teller]

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bates, L.

Bell, L.

Benjamin, B.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Crickhowell, L.

Curry of Kirkharle, L.

De Mauley, L.

Dear, L.

Deben, L.

Deighton, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glentoran, L.

Goodlad, L.

Grade of Yarmouth, L.

Greaves, L.

Green of Hurstpierpoint, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Hooper, B.

Horam, L.

Howard of Rising, L.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

King of Bridgwater, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Livingston of Parkhead, L.

Loomba, L.

Lucas, L.

Luke, L.

MacGregor of Pulham Market, L.

MacLaurin of Knebworth, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mancroft, L.

Manzoor, B.

Mar and Kellie, E.

Mar, C.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mayhew of Twysden, L.

Methuen, L.

Miller of Chilthorne Domer, B.

Miller of Hendon, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L.

Noakes, B.

17 Dec 2013 : Column 1154

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Razzall, L.

Redesdale, L.

Rennard, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Roper, L.

Ryder of Wensum, L.

Sassoon, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Spicer, L.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Suttie, B.

Swinfen, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tonge, B.

Trefgarne, L.

Trimble, L.

Trumpington, B.

Tugendhat, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verjee, L.

Verma, B.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wheatcroft, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

3.57 pm

Amendment 15

Moved by Lord Northbourne

15: After Clause 11, insert the following new Clause—

“Children’s welfare: duties of parents

For the purposes of section 3(1) of the Children Act 1989, the duties of the parent to their child are—

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide in a manner appropriate to the age and development of the child—

(i) direction; and

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and contact with the child on a regular basis,

but only in so far as compliance with this section is practicable and in the best interest of the child.”

Lord Northbourne (CB): My Lords, in Grand Committee my Amendment 56 attracted a good deal of support; there was a strong response from nine Members. That is why I am bringing it back on Report as Amendment 15.

On 9 December the Daily Mail carried an important article by Sir Paul Coleridge, a senior High Court judge with 42 years’ experience in the family and criminal courts. He drew attention to what he called the “social revolution” that has taken place in our society. Marriage, he says,

“has come to be seen as unfashionable, serial fatherhood is widespread and an ever-growing number of children are no longer brought up in stable households”.

17 Dec 2013 : Column 1155

The statistics about families that we have heard today seem to confirm that. For example, the Centre for Social Justice has recently calculated that family breakdown is now costing this country £46 billion a year—more than the defence budget. According to the Office for National Statistics, the proportion of children born to unmarried mothers last year hit a record 47.5%: that is, very nearly half. Almost half of all marriages, as well as a huge number of informal parenting partnerships, now end in divorce or separation. According to the Marriage Foundation, only 50% of children born today will be living with both their parents on their 16th birthday. What are known as “four-by-four families” are increasingly becoming a problem for schools in some disadvantaged areas. In case any noble Lords do not know what a “four-by-four family” is, it is a mother with four children by four different fathers.

Every society needs to be concerned about the way in which its children are brought up and about how they are being prepared for adult life, for citizenship and for their probable role as parents. In our society today, unwanted children, family breakdown and failure to provide a stable and supportive family for too many of the nation’s children as they grow up are seriously damaging the life chances of future generations.

4 pm

My Amendment 15 simply suggests that the Government should be more transparent in the way that they define the responsibilities of parenthood—and, perhaps more particularly, the duties of fathers. It may be that marriage as we know it has or will become optional, but I suggest that parental commitment cannot be optional, because it is a duty to the child. It can be avoided only by providing adequate alternative stability and loving care. To provide non-parental alternative stability and loving care for a child is not easy. It can be expensive unless the family is prepared to step in. A much better solution must surely be to help more parents to find fulfilment in raising their own child and to help parents do the job well by adequately preparing them for it before they start having children. Not having children may become a desirable option for some, but these things are not going to happen unless all young adults are aware of how much their child needs their love and care, and of the stability of growing up in a supportive family.

Amendment 15 suggests that a change in the wording of the law could make it clearer to all parents how important they are to their children. Since Grand Committee, I have had a very helpful meeting with the noble Lord, Lord McNally, on this subject. I also want to thank Relate, which has kindly prepared for me a very useful report on the current position of the definition of parental responsibilities and duties in the law, in this country and in other European countries. I think that all 29 countries that it examined realise that it is a difficult area for law, but few if any European countries have a less helpful definition than ours.

Undoubtedly, there is a need somehow to make it clear to parents and prospective parents that, whether they like it or not, all parents have an onerous responsibility to provide for the well-being of any child whom they bring into the world. During our meeting the noble Lord,

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Lord McNally, suggested that the Government may be able to come forward with other proposals to encourage responsible and committed parenting that might be even more effective than changing the law as it defines the duties of a parent. If the Government are able to achieve that objective without changing the law, I accept that that may be the best way forward. I look forward to hearing the Government’s proposals. I beg to move.

Baroness Butler-Sloss: My Lords, I declare an interest as a trustee of the Marriage Foundation. I express my admiration for the tenacity of the noble Lord, Lord Northbourne, in pursuing this difficult, worrying and extremely important issue. Parenting must be a matter of responsibility rather than rights; that point needs to be put forward again and again in every single place where it can possibly be put. The admirable proposals that the noble Lord, Lord Northbourne, put in Amendment 15 ought to be placed somewhere by the Government. Whether they should be in primary legislation, I am not convinced, but certainly they should be in guidance and, possibly, in part of the pack given to parents when they separate so that they can recognise their responsibilities after separation. I should like to see this sort of thing in libraries, as part of the school pack in the sixth form and in sixth form colleges, and in universities and colleges of further education. The duties of parents that the noble Lord, Lord Northbourne, has set out here should be part of what all young and not so young people who are of an age to be parents should have in their minds.

We ought to stop talking about the rights of parents and start talking about the responsibilities referred to in the Children Act, and also about duties. It is interesting that the word “duty” is almost never used, but it is as important today as it was in the 19th century. It is time we started to use it again. I express again my admiration for the noble Lord, Lord Northbourne, and I hope that what he has said will be taken further.

Baroness Tyler of Enfield (LD): I declare an interest as a vice-president of the charity Relate. I have great sympathy with what the noble Lord, Lord Northbourne, is trying to achieve through this amendment, although I feel that primary legislation is probably not quite the right place to put across this very important message. I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is important to emphasise at every opportunity that this is about parental responsibilities rather than rights. That must flow through all the messaging and communications that we talked about when we discussed the earlier amendment.

I, too, should like to see this guidance offered at many different opportunities. I should like to see this sort of guidance as an integral part of relationship education. We talked about the importance of relationship education in Committee, and I suspect that we shall return to it later. I should also like to see it included in the various pilots for birth registration in different venues. It would be good to see it included there, and in the various packs—Bounty packs and others—that are prepared for new parents. I should like to see it at the new-parent stage, at the education stage and especially in the various advice and guidance packs that are

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available for separating parents. It has a lot to offer. It is a very important set of messages. I just happen to think that primary legislation is not quite the right place for it.

Lord Hope of Craighead (CB): My Lords, since the Minister may be looking at this matter more fully, I suggest as a footnote to this discussion that he might look at the Family Law (Scotland) Act—I think I have the correct name of the Act, although I cannot give the date. The introductory text to that Act makes exactly the point the noble Lord, Lord Northbourne, is making. It talks about the responsibilities of the parent to the child. The following section I think uses the word “rights”, but it is talking about the child’s rights rather than those of the parents. It is the counterpart to responsibilities. It has been set out in primary legislation, I think on the recommendation of the Scottish Law Commission, that it is a useful checklist of the corresponding rights of the child, but particularly of the responsibilities that rest upon the parent throughout the child’s childhood. The Minister might find this piece of comparative law helpful.

Baroness Howe of Idlicote (CB): My Lords, I will add a brief note. While I probably agree that the Bill is not the right place for these proposals, I remember the excitement of the early days when I appeared in your Lordships’ House and what was then the new Labour Government had brought in something called citizenship. It generated a lot of excitement because it would obviously have been a good place in which to put over the responsibilities of parents. Alas, it never happened, because citizenship got whizzed all over the place.

I have somewhat changed my views over time on PHSE. That also could be used rather more effectively in schools in the future in these areas. Above all, I emphasise the point that the earlier you can work with children on what their own children are going to need, the better. Hopefully, not only will it prepare them for being better parents but it might also help them be rather better sisters and brothers, if they are living in households where they need that extra guidance.

Lord Ramsbotham (CB): My Lords, yet again one finds oneself rising in admiration for my noble friend Lord Northbourne’s persistence in pursuing these matters over and again. I always listen with great care to the good sense that he exposes on these occasions.

Recently I had to inspect prisons in Kenya on an extradition case. I was very struck that as we went inside each prison, there was a large board that was published by the Human Rights Commission of Kenya, listing the rights of prisoners and, underneath them, a list of their responsibilities. Reflecting on what my noble and learned friend Lady Butler-Sloss said, I remember seeing in a young offender establishment in Belfast the most imaginative course that I have seen for young people, which was called “Learning to live alone”. In addition to all the practical things that it taught them, parenting skills were in there. I remember being very taken by the fact that the question of rights and responsibilities was used in that course to educate them in their responsibility as parents. It was very well and admirably done, because it was not overdone; one

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has to be terribly careful about preaching to the young. The sooner that one can start getting the idea of parental responsibility out while people are at school, rather than waiting until they become parents, the better.

Lord Elystan-Morgan (CB): My Lords, there is very little that I wish to add, or indeed properly could, to what has been said so splendidly by everyone who has taken part. I join in congratulating my noble friend Lord Northbourne. He has been dedicated, committed and consistent in his campaign, and I am sure that it does not end today.

The one point that I wish to make, which follows on from what has already been said by more than one contributor to this debate, relates to fathers. We hear so often of fathers who have been deprived of custody of their children, and indeed of contact with them. A huge campaign, which I think is very misinformed, has been fought over the years, and I know many judges who have suffered considerably on account of the malicious attitudes of people in that connection. The point that I wish to make is the obvious one: we should be thinking all the time of those hundreds of thousands, possibly millions, of fathers who have no interest whatever in maintaining any relationship with their children. As a circuit judge sitting in family matters, I felt that if there was a magic wand that one could wave to bring about a better situation in the family context, it would be someone to inculcate those people with a feeling for their responsibility.

Lord McNally: My Lords, all the contributions that have been made share the view of the noble Lord, Lord Northbourne, that it is important that children have appropriate support and guidance as they go through life, and as they themselves become parents. I do not think that there is disagreement here, although I think that a number of noble Lords caveated their support for the noble Lord with the same doubt that I have over whether what he seeks to do is necessarily best done in primary legislation.

Still, a number of the points that have been raised colour this debate. I fully agree with the noble Baroness, Lady Howe, and the noble Lord, Lord Ramsbotham, among others, that the earlier we start educating children about the responsibilities they will one day have as parents, the better, and I think that sometimes we have been afraid of taking those messages into school and the mainstream of our education.

4.15 pm

I will certainly take the suggestion made by the noble and learned Lord, Lord Hope of Craighead, about looking at family law in Scotland and how it deals with the matter. In my period in this job, I have been advised that “They do this better in Scotland” on a number of occasions. I must be careful that I do not influence decisions yet to be made, but a useful benefit of our union is that we can look at each other’s experiences, and I will certainly do that.

The running theme is getting the balance between rights and responsibilities and duties right. This House may perhaps sometimes seem fuddy-duddy to a younger

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generation, but one of its jobs is to remind our citizens about their duties as well as their rights and responsibilities and it is in that mood that I respond to this debate. No one would disagree with the aim of this amendment, but there may be differing views on how best to respond to the challenge. Parental responsibility is a fundamental concept in the Children Act 1989 and refers to all the rights, duties and responsibilities of parents towards their children. Case law has established a clear understanding of what that means. A parent’s responsibility for protecting and maintaining their child is considered to be among the most important components of parental responsibility. So, too, is having contact with the child.

However, what parental responsibility means in practice, and how it is exercised in practice, will be linked to the circumstances of the individuals concerned. For example, a parent who for many possible reasons does not have contact with a child is unlikely to be able to exercise parental responsibility in the same way as the parent who lives with the child. Any further definition of what is meant by parental responsibility would erode the courts’ flexibility to determine what parental responsibility amounts to in individual cases in a way that moves with the times. No evidence has been put forward to suggest that the existing definition is problematic, and we have had no indications from the judiciary, which applies the definition routinely in family proceedings, that change is needed.

So, while I sympathise with the noble Lord’s objective, I am not persuaded that this is the right way to achieve it. Instead, I believe that the role of government is to provide information, support and advice to those who need it to help them to fulfil their role as parents and to understand beforehand what parenthood entails.

There are a number of ways in which we are doing this. I summarised them in a recent letter to the noble Lord, which was copied to others who spoke on this debate in Grand Committee. For example, we are providing grant funding to a number of organisations whose projects support parents and families in a variety of ways. As part of this, we are funding One Plus One to run a series of campaigns to promote relationship support targeting young people and new parents in particular so that they see accessing relationship support as a normal thing to do to strengthen their relationship, rather than at crisis points. The family nurse partnership programme, funded by the Department of Health, is a licensed programme for vulnerable first-time young mothers. It works with young parents on attachment, relationships and psychological preparation for parenthood through intensive and structured home visiting delivered by specially trained nurses from early pregnancy until the child is two.

I agree entirely with my noble friend Lady Tyler about the important role of schools. All schools are required to provide a balanced and broadly based curriculum which prepares pupils at the school for the opportunities, responsibilities and experiences of later life. In teaching sex and relationship education, it is a statutory requirement for schools, including academies through their funding arrangement, to have regard to the Secretary of State’s Sex and Relationship Education Guidance of 2000. That guidance states that secondary

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schools should, among other issues, teach relationships, love and care and the responsibilities of parenthood as well as sex, to teach the taking of responsibility and the consequences of one’s action in relation to sexual activity and parenthood. As noble Lords may know, amendments have already been tabled to be debated later in the Bill on personal, social, health and economic education, PSHE, and on sex and relationship education —I think the noble Baroness, Lady Howarth, has those amendments. That will come up on the fourth day of debate, so we will have a chance of discussing those aspects of it later in this Bill.

As I said, I think it is well apposite that the noble Lord, Lord Northbourne has raised these matters. I hope that, both in our one-to-one meeting and in what I have said today, he can see that the issue that he is raising is very much on the Government’s radar. I think there is cross-party support and support around the House for his objectives; the only doubt is whether his amendment meets the needs of such a broad-based response to this issue. I hope that, in the light of this response, he will agree to withdraw his amendment.

Lord Northbourne: I am of course most grateful to the noble Lord for a very full response. I hate to say this, but I think that the statistics which I disclosed in my earlier remarks show that those well intentioned things which the Government are doing are, alas, not achieving the objective we hope. I wonder if we could not perhaps rethink how we approach this issue. Instead of telling young people what they should not do, why do we not make them feel good about doing what they should do—proud to be a father, proud to be a good parent? I do not know, but it is just an idea.

Anyway, I think I have to accept that primary legislation is not the answer now. I believe one day we will find it will improve the law in the 1989 Act because it is currently too vague for words to be of the slightest use, but that is another matter. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by Lord Lloyd of Berwick

16: After Clause 14, insert the following new Clause—

“Care proceedings: standard of proof

(1) The Children Act 1989 is amended as follows.

(2) In section 31 (care and supervision), after subsection (2) insert—

“(2A) Subsection (2) above shall be interpreted so as to permit a court to infer that a child is likely to suffer significant harm from the sole fact that the child is, or will be, living with a person who is a possible perpetrator of significant harm to another child.

(2B) For the purposes of subsection (2A), a person (the person concerned) is to be treated as a “possible perpetrator” if—

(a) a child has suffered significant harm;

(b) the court is unable to identify the actual perpetrator of the said harm but identifies a list of possible perpetrators by finding (in relation to each such person) that there is a real possibility that he caused significant harm to the child; and

(c) the person concerned is one of the persons on the said list.””

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Lord Lloyd of Berwick (CB): My Lords, I imagine that most of your Lordships have some experience of the procedure for taking children into care, probably more experience than I have. For those who have no such experience, perhaps I should say a few words of explanation.

We are concerned with the interaction of two sections of the Children Act 1989, Section 1 and Section 31. Section 31 provides that a child may be taken into care only if it,

“is suffering, or is likely to suffer, significant harm”.

“Likely to suffer”, in that context, does not mean more probable than not. It means only that there is a real possibility that it will suffer significant harm, a possibility, as it was put by one learned judge, that cannot sensibly be ignored.

Section 31 is usually referred to as the threshold provision. Section 1 sets out the welfare principle, and it is at the welfare stage that the court decides, after a full hearing on all the facts, what is in the best interests of the child in question. The fact that the threshold stage is satisfied in any particular case does not mean that a child will necessarily be taken into care. Conversely, if the threshold test is not satisfied, the court has no power to make an order under Section 1 and the child will remain at risk, if there is a risk.

Those are the relevant provisions. How then have they worked in practice? Where a child has been seriously injured while in the care of its parents, it may be taken into care without the court having to decide whether it was the father or the mother who inflicted the injury—let us call that child, child A. The difficulty arises when the father and the mother split up. Let us suppose that the father goes to live with another woman who already has a child—let us call it child B —about the same age as child A. If the local authority has proved on a balance of probabilities that it was the father who injured child A, child B may be taken into care, depending on what is in the best interests of that child. The threshold in that case will have been passed. However, it often happens that the father and the mother each blame the other for the injury to child A and, as a result, the court cannot decide at the threshold stage where the truth lies. One very experienced judge, Mr Justice Wall, later to become President of the Family Division, described this as a commonplace occurrence. In a very recent case, Re J, the Supreme Court has decided that if at the threshold stage it cannot be decided whether it was the father or the mother who injured child A, child B will remain at risk in those circumstances.

The noble and learned Baroness, Lady Hale, who gave the leading judgment in that case, went on to say that such cases are of “vanishing rarity”. I am not sure why she should have made that point. She cannot surely have been saying that because such cases are so rare it does not matter if an occasional child is left at risk. But, whatever the reason, it is on this point that I would respectfully disagree with her and for a number of reasons.

In the first place, if cases in which the court cannot reach a decision at the threshold stage are as rare as all that, why have they caused so much concern? That they have caused concern is not, I think, in doubt.

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That concern first came to the surface as a result of an earlier observation made by the noble and learned Baroness, Lady Hale, in a case called S-B, a case on very similar facts in which she held that the threshold had not been crossed. Once again, the noble and learned Baroness described that case as being one of “vanishing rarity”. Again, if that be so, why did the local authority in the more recent case, Re J, go to the length of constructing an artificial case, which it did, in order to challenge the decision in S-B? Why did it take that case all the way to the Supreme Court to test that very point? It simply does not make sense. The answer must surely be because cases such as S-B and Re J are not as rare as the noble and learned Baroness, Lady Hale, had in mind and because the decisions in S-B and Re J have caused real concern among local authority social workers.

Secondly, I turn to the Government’s approach. On 25 November the three of us—one of whom cannot be here today—had a useful meeting with the Bill team, for which we are very grateful. In a letter dated 29 November it was said that the Government could find no evidence that social workers were in any way concerned about the present state of the law. That letter was followed up by a letter of 4 December, in which the Government quoted the views of the Association of Directors of Children’s Services that it does not recognise Re J as having caused concern among social workers and it is unaware of any problem in this field.

4.30 pm

The Government’s case in response to the amendment —so far as I know, it is the only response—is that there is nothing here to worry about. That approach is impossible to reconcile with the evidence of John Hayes QC, leading counsel specialising in the field of child protection. I have a copy of the opinion dated 12 December in case anybody would like to see it. He describes the views expressed in the letters written on behalf of the Government as very surprising. In his experience and that of his colleagues working in the field, the two decisions to which I referred have indeed caused considerable concern to local authority social workers. He quotes chapter and verse, which I shall not do this afternoon.

Thirdly, I must refer to the judgment of Lord Justice McFarlane in the Court of Appeal in Re J. As the House will know, he is a very experienced judge in the Family Division. He gave the leading judgment in the Court of Appeal in Re J, with which the noble and learned Lords, Lord Judge and Lord Neuberger, both agreed. The judgment is 30 pages long, so I will not read it to your Lordships—but I have read it myself, and I have reread it many times, with increasing admiration. There is no doubt that, unlike the Association of Directors of Children’s Services, Lord Justice McFarlane does see a real problem here. There is no doubt that he would have allowed the appeal of the local authority in Re J if he had not been constrained, as he was, by the decision of the Supreme Court in S-B, the case to which I have already referred.

Lastly, on the evidence, I have made such inquiries as I can of the judges who decide such cases at the threshold stage. How often does it happen in practice that, on the evidence available at that stage, it cannot

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be decided whether it was the father or the mother who inflicted the injury? The answer I get is that it is by no means uncommon. It is certainly not vanishingly rare. I accept, of course—indeed, I am greatly reassured—that in most cases the judge will be able to decide, by taking other factors into account, whether it was the father or the mother. But there will undoubtedly be some cases in which the judge simply cannot decide at the threshold stage. It is the purpose of this amendment to cater for those cases and it does so by enabling the case to proceed as smoothly as possible to a full hearing on the facts at the welfare stage.

I must now refer, as briefly as I can, to some of the points made in Grand Committee. In replying to the debate the noble Lord, Lord McNally, was concerned that the amendment would enable the local authority to make a case on the ground that the father might have inflicted the injury—in other words, on the ground, as he put it, of unsubstantiated suspicion. I cannot stress strongly enough that that is not the object of this amendment, and nor would that be its effect. The amendment would apply only where the father was one of two people who did inflict the injury, which is a very different thing.

The noble and learned Lord, Lord Mackay, made the point that Section 31 has stood the test of time, and I agree. But why has it stood the test of time? The answer is because, until very recently, courts up and down the country have followed the guidance given by Mr Justice Wall, as he then was, in 1998, before he became President of the Family Division, in a case called CB. That guidance was approved by the noble and learned Lord, Lord Nicholls, in the House of Lords in a case called Re O that was decided in 2004. That guidance worked very well until very recently when the noble and learned Baroness, Lady Hale, threw doubt upon it in Re S-B and until in Re J the Supreme Court went further and disapproved that guidance. The purpose of this amendment is to restore the position as it was before Re J. It is therefore in no sense a leap in the dark. If John Hayes, the learned Queen’s Counsel, is right in paragraph 19 of his opinion social workers will breathe a sigh of relief if this amendment is accepted and will know definitely where they are.

Finally, and with apologies, I must refer to the speech of my noble and learned friend Lady Butler-Sloss. She made much of the point in Re J that it was a decision of seven judges, two of whom have great experience in this field, and that they were all, as she put it, absolutely unanimous. I agree of course that they all reached the same result. However, the point would perhaps have somewhat more force if they had all given the same reasons. They did not. One of the judges, Lord Wilson, who has great experience in this field, disagreed with the others, and three of the judges, led by Lord Reed, expressed their concern that the law in this field had become so complicated but said that it was now too late for the Supreme Court to do anything about it. It cannot, I think, be said that the trumpet in Re J has given a very certain sound. Be that as it may, what is certain is that there is a real problem here which needs to be solved, and solved urgently. The purpose of this amendment is to do just that. I beg to move.

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Lord Brown of Eaton-under-Heywood (Non-Afl): My Lords, I supported this amendment in Grand Committee, and having added my name to it, I support it again today. I stress again today, as I did in Committee, that this is a threshold provision—that is fundamental. That provision dictates just when the court gets jurisdiction to deal with a case. The situation is identified in the proposed amendment and has been explained by the noble and learned Lord, Lord Lloyd. The question is, when an adult who is caring for a child is the possible perpetrator of the death of or serious injury to another child, does the court have the power to deal with the case? Has the threshold been crossed?

That is a very different question—and this is also crucial—from asking whether a care order or a supervision order should then be made. The noble and learned Lord, Lord Mackay of Clashfern, said in Committee that it would be “quite unfair” to take someone’s child into care merely because another person who has come to join that family is a possible perpetrator of another child’s harm. I entirely agree with him on that. But as the noble Baroness, Lady Howarth, noted in Committee:

“It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question”.—[Official Report, 21/10/13; col. GC 329.]

The noble Baroness had earlier explained that the result of the comparatively recent interpretation given by the courts to Section 31 was that the social workers,

“now … cannot move to the welfare principle quickly enough, which means that often they cannot gain access to the home where the perpetrator is living”.—[

Official Report

, 21/10/13; col. GC 326.]

She also noted that,

“social work organisations are extremely concerned about this situation”.—[

Official Report

, 21/10/13; col. GC 326.]

Indeed, Lord Justice McFarlane in the Re J case described it as,

“a cause of concern amongst child protection agencies”.

Apparently it is now suggested by some that there is no real need for this concern, and that social workers have no such concern. I do not pretend that I ever practised in the field of family law, so I can claim no personal experience of the problem resulting from Re J. But having read and reread more than once the very full counsel’s opinion by a Queen’s Counsel specialising in this area of work—an opinion to which the noble and learned Lord, Lord Lloyd, has already referred, and which he yesterday copied to many of those who were to take part in this debate—it is difficult to see how the present interpretation of the Children Act 1989 could be thought not to cause concern. It is all very well to say, as has been said, that Section 31 has stood the test of time. As has been pointed out, Section 31 only received its present interpretation in the 2009 case of Re S-B. It was that interpretation by which all seven members of the Supreme Court understandably felt themselves bound in Re J last year.

These comparatively recent decisions are the ones which counsel says,

“have caused such consternation amongst those working to protect vulnerable children”.

As to the suggestion that there is no problem in practice, counsel observed:

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“This is certainly not my experience nor that of my colleagues working in the field of child protection”.

To the question whether there is the need to ensure protection of unharmed children, where another child has suffered harm or death commonplace, counsel answered with “an unequivocal yes”, having himself,

“acted in many cases involving an unharmed child living with a possible perpetrator of past harm to another child”.

He says:

“The working of the amendment would mean that the Section 31 threshold can be crossed on the basis of likely significant harm. This would then open the way for the full range of protective orders available to the court (the ‘welfare stage’ of the process). Once the threshold is crossed, the court would be in a position to account for all relevant factors”.

A little later he adds:

“It by no means follows that the unharmed children would be removed permanently. The amendment ensures a legal structure whereby the Section 31 threshold is crossed to enable that welfare balance to be conducted. If it is not crossed, then that stage is never reached”.

His opinion ends thus:

“The best solution to these cases is to find the threshold crossed but that the welfare decision must be made with it very much in mind that the parent is a possible rather than an actual perpetrator. The proposed amendment would achieve that balance and secure child protection”.

That is the question before us today. Should the threshold be lowered to where for the first 20 years of the Children Act’s operation it was understood to be, to enable the court to move to the welfare stage and allow it, with the help of the social workers, to investigate all the circumstances of the case and decide whether, in those circumstances, some care or supervision order should be made? No child could properly be taken into care merely—and I stress that word—because one of its carers was the possible perpetrator of past harm. I think that we all agree on that, but that fact alone must warrant a full welfare investigation. Surely we owe children at risk no less than that.

4.45 pm

Baroness Butler-Sloss: My Lords, this amendment raises an issue that has engaged academic legal discussion for about 18 years. I hear with some surprise the fact that some dramatic change was made in the case of Re J. That is not my impression.

There are, of course, two schools of thought, as there are in so many issues, even in family law. During the many years when I was a family judge, I heard many child injury and death cases and agonised over where the line was to be drawn between the protection of a child from significant harm and the importance for the child and the rest of the family of not removing that child from the family home on insufficient evidence. In the case that precipitated this amendment, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, the seven members of the Supreme Court were in fact unanimous on this issue although they disagreed on some less important points, as I would respectfully call them. They decided on the balance of the bare facts of the case that they were against the removal of the children and that the threshold had not been crossed. Put at its simplest, this is a question of whether you remove a child on suspicion or go to the welfare stage on suspicion or whether you have to have evidence before you cross the threshold.

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I was never a Supreme Court judge, but I respectfully agreed with the seven—

Lord Elton (Con): I have one difficulty. I understood that it was not at this stage a question of removing the child—I thought that it was a question only of moving to the welfare stage. The noble and learned Baroness has just said the contrary.

Baroness Butler-Sloss: I am sorry—I was talking about the removal of the child or looking at other aspects of the welfare stage. I am sorry if I conflated that, but the noble Lord is absolutely right. It is a question as to whether the court can make decisions which include the removal of the children or the removal of the parent or putting in place supervision orders or various other intrusive orders into the family.

I suggest that this House should be cautious, when seven judges have said that the threshold has not been reached and crossed, about passing an amendment to the contrary effect. I was going to go through at some length the two cases that I think are relevant, because we go back to 1996—we do not start in 2009—but it is probably unnecessary. However, it was unrealistic for the Supreme Court to be given the one bare fact and not the surrounding circumstances, although it was undoubtedly intentional. In my experience of 26 years sitting as a family judge, 15 of them spent hearing this sort of case—many children who died and many who were seriously injured—as well as eight years spent hearing them on appeal, then going back to hearing them again as a first-instance judge, I do not remember a single case where this bare fact was the only point that the court had to deal with. So I believe that the cases are rare, although I entirely accept what the noble and learned Lord says—that even the rare cases, naturally, have to be protected. But if there is nothing but suspicion, I would suggest to your Lordships’ House, as the Supreme Court judges said, that you should not remove the child on suspicion.

The court has the jurisdiction to look at the entire case, although it is not able to make a decision on welfare in looking at the threshold point. There may have been some degree of confusion in Grand Committee as to what in fact the local authority and the court could do. I hope the House will forgive me if I go through briefly what I understand the situation to be. I would be astonished if it has changed from the days when I was sitting as a judge.

If you have a person, whom I will call P, who has been in a pool of possible perpetrators but not identified as the actual perpetrator of the injury or death of a child, the social workers are not precluded from investigation. I respectfully disagree with my most experienced noble friend Lady Howarth in saying that the social workers might not be able to enter the house or make the proper investigations. With the person, P, having been in a pool of possible perpetrators of the death or injury of a child—in the particular case of J, the child aged, I think, three weeks died of asphyxia but also had terrible injuries—the social services, if they had been alerted that P was in a new family, would see that as a highly relevant factor and naturally very worrying. The local authority has a duty under

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Section 17 of the Children Act 1989 to safeguard and promote the welfare of children in the area who are in need. It is almost certain that the sole fact available, that P had been in a pool of perpetrators, would trigger immediate action by a local authority.

Under Section 47(1)(b), a local authority in circumstances such as these would have a duty to make inquiries. A social worker would investigate and be likely to visit the family. If the inquiries are frustrated by access to the children being unreasonably refused, there may therefore be grounds for seeking an emergency protection order under Section 44(1)(b) or (a), for possible removal of the children from the home because of what is going wrong if they are not being allowed to see the children.

The local authority could also seek a child assessment order under Section 42(3). In any event, the local authority would be likely to seek an interim care order from a family judge under Section 38(2) in respect of the children. It would not look well to the judge if the parents refused access to the children; that would be a major marker against what was going on in the family. The children might be taken into interim care but, in the case of J, the mother very properly left the home so that the children could continue to live with the father. She moved out.

There would be a directions hearing by the judge of the care application and a CAFCASS guardian would almost certainly be appointed. During the period leading to the substantive care hearing, the family would no doubt be examined in depth. At the main hearing, P would clearly have to give evidence and be cross-examined as to what happened in the first family when the child was injured and died. She—it was a woman in that case—and J would be cross-examined up hill and down dale as to why she had not protected the child, whether she was actually the perpetrator, why she had not seen the injuries to the child, what she was doing while this child was being hurt, and whether she covered up for the other parent. Those are terribly relevant factors and, I would suggest, relevant factors to crossing the threshold if she gave unsatisfactory answers and if she was not believed by the judge. There would be assessment reports from the social worker, and of course the guardian would give his or her own report on the family’s position. All the circumstances would be very carefully considered by the judge in deciding whether the evidence available to him or her was sufficient to cross the threshold barrier.

Clearly, how well the new family were getting on and the care given to the new family by P and by the other partner were relevant to identifying whether there were other concerns that might tip the evidence over the threshold. Only if there were no evidence at all other than the bare fact of P having been in the pool but not having been proved to be the perpetrator would the evidence be insufficient to cross the threshold, and the judge would not make a care order or some other order excluding P from the care of the children. That is the point at which, if you do not cross the threshold, you cannot make a decision about removing the children or putting in a supervision order or any other sort of order.

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I am very grateful to my noble and learned friend for giving me the opportunity to read the opinion of John Hayes. Of course, I respect his experience as an advocate in care proceedings but I disagree with his conclusions. Perhaps I may make a number of points on his opinion. He talks about a case of twins where the unharmed twin would be in danger if not removed from the family where the first child had been injured. In that case, the unharmed child would certainly be removed. However, we are considering a new family where one adult member is a possible perpetrator but there is now a new family unit with an adult against whom there are no allegations at all. It may also be relevant that in the J case the injuries perpetrated on the child took place seven or eight years before, and undoubtedly P would have matured. I believe that in that case she was extremely young—16 or 17 years old. She was in a much more stable and supportive environment and therefore might not pose a threat.

Taking the other points made by Mr Hayes, if a local authority becomes aware that a possible perpetrator is in the new family, I have no doubt that it will issue the proceedings even if there are no other concerns, and I am surprised to hear John Hayes say something to the contrary. I do not believe that the judge at the interim care stage would dismiss the proceedings before having the opportunity to see all the reports and examine all the evidence. If counsel for the parents applied at the interim directions stage to have the case dismissed, I would be equally surprised if the judge dismissed the case before the full hearing. I certainly would not have done that because I would have been worried. Of course, you would be worried until all the facts were in front of you. I would hope that the child’s guardian would look at the best interests of the child in the broadest sense and take into account the need for a balance between protection and the right of the child to have a normal life with the natural family. Interestingly, Mr Hayes talks about the balance between protection of the child and the rights of the parents to have a family life. For goodness’ sake, the right of the child to have a family life is much more important than the right of the child’s parents. What we have here is a balance between protection and the right to family life.

It seems to me that there has been an overreaction by academics, some social workers, some lawyers and some judges. The other side of the coin is the real danger that, if this amendment is passed, children may be permanently removed from their parents, their homes, their schools and their friends on a suspicion that the person concerned was in the pool of perpetrators, although he or she cannot be proved to have done the harm. That would be a great injustice to children, it would cause significant harm where there was no serious threat to children’s well-being and it would tilt too far towards intrusion by the state into family life.

5 pm

Baroness Deech: My Lords, I have grappled long and hard with this tricky issue. I should like to reduce it to three brief propositions, which have led me to agree with the noble and learned Lords, Lord Lloyd and Lord Brown. First, it is sadly too frequent that we do not know which of two parents may have harmed

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a child. Each blames the other; it is not provable; and one of them goes on to form another family. There must, therefore, be some danger because the parent either did it or stood by while it happened. Secondly, we are talking about only reaching a threshold. It is not a question of leaping to the conclusion that the child must be removed. It simply triggers the ability of the courts and social workers to investigate what is going on. Thirdly, there is absolutely no possibility of harm ensuing from the amendment put forward by the noble and learned Lords, whereas there is a distinct possibility of harm if this amendment is not agreed. A number of distinguished academics have written with great alarm calling for a change in the current situation and in support of the amendment moved by the noble and learned Lord, Lord Lloyd, with which I hope that the House will agree.

Baroness Howarth of Breckland: My Lords, I find myself in a maelstrom of lawyers with no voice. My position is that we been asking two questions which do not necessarily have the same answer. When I read the response from the department about this proposal, it became clear that we are considering two different issues. One is whether a local authority has enough powers to move into a family and take action if it believes that there is significant harm or the likelihood of significant harm. Of course, the ADSS and everyone else will say that they do have enough powers because that is clearly so. The criticism comes when local authorities do not move when they have that capacity.

The question we are considering is when two people have been in a situation where a child has been harmed. Perhaps I may put a bracket around that thought for a moment while we remind ourselves of the time when, if a child was murdered and you could not prove which of two people had done it, both were acquitted. There was a huge campaign by the NSPCC to ensure that that could not happen; that is, if a child was dead and clearly it was one person or the other, both people involved were likely to find themselves found guilty until such time as there was greater clarification. We can close the bracket there and say, “Here we are: we find ourselves in a situation where there are two people involved, someone has committed harm and maybe killed the child”. Recently, I spoke to a serious lawyer and a previous Attorney-General, who I probably should not name at the moment, who said, “If there is the slightest margin that there is a risk that the child might end up dead, what action do you take?

My noble friend Lady Deech has made the speech which I would have liked to have made. She has made important points. This amendment will do no harm. This afternoon, your Lordships have had a real seminar on Section 31 of the Children Act and the level of thresholds. It is important that we take action that protects children if it does no harm. I am more concerned that action is not taken by local authorities than that they are likely to whip children into care. To use a word we heard earlier, the “presumption” that local authorities take children into care wantonly is just not true. In fact, it is very difficult to get your child into care if you want to. A great deal of work and assessment thresholds should be considered.

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All we are saying is that to get to the threshold of Section 31 where there has been this risk and there is possible danger, the local authority should be enabled to take some action, which will not necessarily, as mentioned by the noble Lord, Lord Elton, result in the child being removed from home. In fact, it is unlikely, unless there are serious risks, that the child will be removed from home. The amendment will clarify this bit of law. Do not worry if you feel confused: sometimes I find it extremely confusing and, despite what their bosses say, quite a lot of social workers on the ground find it confusing, too.

Lord Walker of Gestingthorpe (CB): My Lords, the spectacle of a succession of retired senior judges re-arguing the law in your Lordships’ House may be a relatively novel and possibly relatively unwelcome experience for those noble Lords who are not versed in the technicalities, but I nevertheless rise very reluctantly to oppose the amendment. No one could be fuller of admiration and respect for my noble and learned friend, Lord Lloyd, who moved the amendment, but it is right to say a few words because this is not just a point for lawyers. It is a point of enormous importance. It is a terrible thing if a child is taken by the state away from his parent or parents on inadequate grounds on the basis of suspicion that is unfounded. It is also a terrible thing if the child is not protected against abuse in the home. There will always be cases in which it is hugely difficult for the courts to determine which of those is the more important, because it is often a question of balancing one risk against another.

As my noble and learned friend Lord Mackay said on an earlier occasion, I believe that the threshold test in Section 31 of the Children Act has stood the test of time. In one form or another, this point has been considered on at least six occasions since 1995 either by your Lordships’ House in its judicial capacity or by the Supreme Court. It is not correct that the case of Re J has suddenly plunged the whole of the law into uncertainty. Re J was a remarkable, unusual and sad case, as so many of them are. I will say a word about that and about what the Supreme Court decided. I will do that as briefly as I can.

My noble and learned friend Lord Lloyd gave us child A and child B. In fact, in Re J they went from child A to child F. We start with the mother. She is ultimately the wife in a stable marriage. The wife, in a relationship with another man, had child A and child B and child A died of serious non-accidental injuries at the age of only three weeks. That led to proceedings in relation to child B, who was the other child of that relationship. Child B was then adopted and disappeared from the scene.

Child C was in fact a child of the same mother and father but was believed to be the child of another father, and it was only later that a DNA test established the true paternity. Child C was one of the children who formed the later stable relationship between the wife and her husband. They had one other child, who was not the subject of care proceedings, child D, and children E and F were the children of the husband through another relationship.

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So it was a very complicated situation indeed, and it was children C, E and F in relation to whom the care proceedings were taken out. By then, the mother, who was, as my noble and learned friend, Lady Butler-Sloss, said, very young at the time that child A and child B were born, appeared to be in a stable relationship, but in the proceedings relating to the death of child A and the future welfare of child B, the family judge said, almost in terms, that it was unnecessary to decide whether it was the mother or the father who perpetrated the injuries, because both were involved. Each covered up for the other and failed to see that the children received proper medical care.

That was the background to the later child proceedings in relation to child C, child E and child F, and those are the proceedings that ultimately came to the Supreme Court as Re J. They took an extraordinary course, as my noble and learned friend Lady Butler-Sloss mentioned, in that the local authority, for reasons best known to itself for which it no doubt sincerely thought good, decided that the case should be tried solely on the fact that the mother had been a possible perpetrator of the fatal injuries to child A, without letting in any other facts at all. That was the remarkable feature of Re J, which was the subject of considerable adverse comment in the Court of Appeal, in which my noble and learned friend Lord Judge sat, together with Lord Justice McFarlane and another Lord Justice. That, I suggest, is what made Re J truly a rare case, although the sort of problem that it raised is, sadly, by no means rare.

As to what the Supreme Court decided, it is correct to say that the noble and learned Baroness, Lady Hale, said, in effect, that membership of a pool of possible perpetrators is not enough unless the judgment goes as far as to say that, on the balance of probability, this was the perpetrator. My noble and learned friend Lord Lloyd said that Lord Wilson disagreed. He did, but he went further. He said that not only is it not enough, it should not be taken into account at all. Lord Sumption agreed with Lord Wilson, so they both went further than the noble and learned Baroness, Lady Hale, in saying that membership of a pool is not enough. The other three members of the court indeed expressed the view that the law was over- complicated, a view that one can readily agree with, but, nevertheless, concurred without hesitation in the result.

Since the original case in 1995, in which the House of Lords in its judicial capacity was split 3:2—a case in which my noble and learned friend Lord Lloyd was a member of the Court—there have been five unanimous decisions by the House of Lords in its judicial capacity or the Supreme Court which have reached the conclusion that this is how Section 31 should be applied.

My noble friend Lady Deech said that the amendment would do no harm. I respectfully suggest that it would, at least in this respect. It would introduce the phrase “a real possibility”, which is the judicial gloss that has been put on “likelihood, looking to the future”, to describe something that lies not in the future but in the past. If I may say so, that is a very unlawyerly way to express oneself.

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I apologise: I have gone on at much greater length than I intended. Those are my reasons—with huge respect to my noble and learned friend Lord Lloyd—for opposing the amendment.

5.15 pm

Lord Judge (CB): My Lords, to add to a maelstrom of lawyers is not a particularly bright idea at this time in the afternoon, but I declare an interest as I was a member of the Court of Appeal that decided, when we decided it, the case of J. The case was brought to us so that the threshold test could be clarified: that was the only purpose of it. It was brought by a local authority, deliberately focusing on the single fact of possible perpetration and omitting any other consideration, so that the issue could go to the Supreme Court and that five previous decisions of the House of Lords could be analysed once more. We followed the previous decisions of the House of Lords and immediately gave leave for appeal to the Supreme Court—a very unusual step for the Court of Appeal to take—because it had to be addressed in that court.

Once it is established that an individual living in a household in which a child or children have been killed or seriously injured was one of the possible perpetrators of the injuries, but the evidence is not sufficiently clear for the court to identify who is actually responsible, where does that leave us? It leaves us with the possibility that the individual was, indeed, responsible for the death or those injuries or some of them. That seems to me to be a stark fact, but there is a further consideration. Often the ill treatment has been repeated; these awful occasions are not, generally speaking, a one-off. Generally, what you have is a series of repeated assaults on the child that culminate in an attack in which the child sustains fatal injuries. J was such a case. What that little baby had gone through in three weeks is beyond description.

Therefore, in many of these cases, although not all of them, the person who has not actually caused any injury has undoubtedly been aware of the fact that the child has been suffering. It is not just that the child cries—we all know that babies whinge and cry, some more than others—but this was a child with evidence on its little body of injury. Indeed, although these cases are largely confined to the family court, one needs to stand back and wonder why on earth criminal prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish who is guilty of the murder or manslaughter, but, where the evidence is uncertain, to demonstrate that both, on any view, are culpable in the sense that they have allowed the child to be bullied and abused in the way that has culminated in its death. If there had been a criminal prosecution and a conviction, it would not have occurred to anyone to say, “Oh well, that conviction is irrelevant to the threshold test that the family court has to ask in relation to another case”.

If there are combinations of events like those that have happened, it seems to me that they raise issues of great relevance to the threshold test in family proceedings. It is not a question of removing a child from a family on the basis of suspicion alone; it is that the threshold test should be allowed to be tested by reference to all

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the relevant evidence. If all the relevant evidence reveals that the threshold test should be passed, then you move on to care proceedings. For me, the idea that we should exclude from the threshold test possible relevant material is not how justice is done.

Lord Hope of Craighead: My Lords, I hope that I may be forgiven for adding one more lawyer’s speech to those which have already been given, and particularly that the noble Baroness, Lady Howarth, will forgive me for doing this. My reason for wanting to speak is that I presided over the case of In re J in the Supreme Court. I think that the noble and learned Lord, Lord Judge, expressed great concern that the issue was being brought before the courts on a hypothesis; I think I am right in saying that he said that it is not the business of the court to judge hypothetical cases. We took the view that we should decide the case on the material that we were given, but it is right to stress, as the noble and learned Baroness, Lady Hale, stressed, that the situation we were presented with was highly artificial in order to test one particular point: whether the “sole fact”, as it is put in the noble and learned Lord’s amendment, was enough to cross the threshold.

I do not want to add anything to the clear description which the noble and learned Lord, Lord Walker of Gestingthorpe, gave us as to what the case of In re J was all about, but I should like to say briefly why I join with the noble and learned Baroness in resisting the amendment. In my case, it is particularly on account of its wording, given the use of “sole fact” and the reference to “real possibility”. My objections can be summarised on three simple grounds: first, the amendment as it stands is wrong in principle; secondly, when you look at the structure of the statute it is unnecessary; and, thirdly, from the point of view of family life in circumstances that are quite likely to occur, it could indeed be damaging.

First, on the principle, I respectfully suggest that the golden rule is that a prediction of future harm has to be based on facts which have been proved on a balance of probabilities. It is only then that the state would be justified in removing a child from the family; in our democratic society, it is not enough that there should be suspicion. It has to be based on proof, so the state should be required to demonstrate that it has real and current concerns about the child’s safety before the child is taken into care. I appreciate that I am moving through all sorts of stages in making that proposition, but that is the background to the point I wish to make. I stress that if we look at the wording of Section 31(2) of the Children Act, which we do not have on the paper before us, when it states that a child may be taken into care only if,

“the child … is suffering, or is likely to suffer, significant harm”,

it is using the language of proof, not of possibility. That was a point made by Lord Nicholls some 18 years ago in the case of In re H.

As I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, accepted, the amendment has the effect of lowering the threshold to some degree. It assumes that the state cannot prove that the carer in question was the perpetrator—that all it can prove is that she was a possible perpetrator—and that that bald fact is all that can be done. Even allowing for the

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point at the end of the proposed amendment, that this is a “real possibility” and something that cannot sensibly be ignored, I suggest that we are still below the threshold which Section 31(2) sets.

Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was not saying that the problem which the amendment is addressing is rare in itself. She was not saying, I think, that it is rare for two people in the situation in which the carer in this case was placed to blame each other, so that the court is unable to decide between the two. What she was saying was extremely rare was the situation which the court was being presented with: that this was the sole fact. As she put it in her judgment, the issue hardly ever comes before the court at the threshold stage packaged in that way. The point which she was making, and which one can see by studying the structure of the Children Act, is that in Part V, and in particular in Section 47, powers are available to the local authority to make inquiries and, if it is thwarted, to take further steps which may ultimately lead to an emergency protection order being applied for and so on, as the noble and learned Baroness, Lady Butler-Sloss, explained to us.

In the case of In re J, there was a difference of view as to whether the sole fact which has been referred to was relevant at all. In my judgment, I used the words “relevant” and “sufficient” to try to explain the difference of view. Lord Wilson and Lord Sumption said that it was not relevant at all; the rest of us said that the fact of the possible perpetration was relevant and could not be ignored, but it is not enough and is not sufficient to cross the threshold and therefore something more must be found.

The problem with the amendment is that it has absolutely no context attached to it. The sole possibilities are stated in the amendment in the starkest possible terms. However, as soon as you start to examine a particular case—as the noble and learned Lord, Lord Judge, did when he talked about the number of injuries inflicted in that tragic period of three weeks—you are adding something that is not in the amendment. Indeed, the noble and learned Lord, Lord Lloyd, said that the amendment is dealing with the situation of two possible perpetrators only, but it does not actually say that. It just says “a possible perpetrator”. As soon as you begin to make inquiries and search around, you are going to add things in which begin to build up a context which the social worker will be able to put together before the threshold stage has to be crossed when the case is brought into court. My objection to the amendment is really that: that it does not give you any context at all. Surely, that is taking the matter too far.

The third and final point is the risk of damage. Let us contemplate a situation which is not far removed from the situation of In re J, where the woman—and let us take the woman because it was the woman in In re J—is living in an abusive relationship. That was indeed the case here because she had separated from the previous partner because he was violent to her repeatedly and eventually she left him. All sorts of reasons can be imagined why she did not blame him. She may have been under pressure from him. She decides to create a new life for herself, as indeed she

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was doing in In re J, making a relationship with somebody who is absolutely blameless, who has children of his own already. There she is, now in family with him with a further child of their own.

My concern is that, if the amendment is passed in its stark form, it holds a threat over that relationship from the very beginning. There must be a question about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of what happened in the past?” The amendment pays no regard to the length of time that may have elapsed between the incident when the perpetration occurred and the moment at which the inquiry is being initiated. Without elaborating further, it is the starkness of the amendment, which lowers the threshold, that is a cause for real concern.

I wrote to the noble and learned Lord, Lord Lloyd, with a suggestion about how one might approach the problem—because I do appreciate that there is a problem—by suggesting that, without using the word “sole”, one might be able to reassure social workers that this factor is relevant, which I believe firmly would be the case. If an amendment were to be framed which made that point and put it beyond doubt, then I would be entirely happy and I hope very much that it would reassure social workers. However, the amendment as phrased goes far too far and is too stark and for that reason I support the noble and learned Baroness, Lady Butler-Sloss, in resisting the amendment.

Baroness Kennedy of The Shaws (Lab): My Lords, I, too, oppose the amendment. I am glad that the noble and learned Lord, Lord Hope, has mentioned the difficulty where there is background of abuse against the mother of the child. I have been involved in cases where that has been the situation. That can often be the reason why a woman at trial does not testify, or at the police station does not give an account, of what has happened at the hands of her abusive partner who has also abused her child.

I was glad to hear the discussion that has just taken place, but my concern is the narrowness of the drafting. Before any judgment was made, I would want to be sure that one was able to explore the context and the situation that the mother was in at the time. Very often, battered women are frozen into a situation where they do not act to protect their child, and we should be very careful about not letting someone have a chance to make a new life with a new partner in very different circumstances where they would be perfectly good as a parent.

5.30 pm

Lord Elystan-Morgan: I certainly had not intended to take part in this debate, which has been at a very exalted level. However, the speech from the noble and learned Lord, Lord Hope, reminded me of another point that has not been touched upon. If one reads the amendment as it is worded, one has the impression that the test should very probably be on the balance of probability. The noble and learned Lord, Lord Hope, referred to the judgment by Lord Nicholls in Re H 18 years ago. The judgment as I remember it, and

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correct me if I am wrong, was to this effect: normally the test will be on a balance of probability—less or more likely. However—I believe that these were his words—the more serious the accusation, the more cogent must be the evidence to establish that accusation. If I am right about that, and I believe that I am, it means that this amendment would undermine that principle in Re H completely.

Baroness Hughes of Stretford: My Lords, this has been a very long debate and I do not intend to extend it much longer, but I want to join the noble Baroness, Lady Howarth, as another non-lawyer in redressing the balance slightly. I have listened very carefully to all the excellent contributions. I say at the outset to the Minister that this situation presents a challenge to the Government and I hope that they will rise to it constructively; I am sure that he will try to do so.

We have heard from people across the House today, all of whom are very experienced in one way or another and absolutely committed to the welfare of children, yet this is a highly contested issue with at least three separate points of view being expressed during the course of today’s debate: those who think that there is an issue to be addressed and that the amendment from the noble and learned Lord, Lord Lloyd, attempts to address it; those who do not believe that there is an issue to be addressed; and those who believe that there may be an issue but this amendment is not the way to do it. I think there is an issue but, although we will wait to see how the noble and learned Lord sums up, I do not think it is one that the House could resolve by amendment to this Bill. However, I hope that the Minister, having heard the debate tonight, will be prepared to examine it further before Third Reading and come back with some proposal to try to reach a resolution.

It is clear from the debate that there has been a change in the way in which courts, rather than social workers, can apply the Children Act. That change was as a result of the intervention of the noble and learned Baroness, Lady Hale. In those situations where a child is living with someone who is a possible perpetrator of proven abuse to another child, whereas previously the court could have said, “That’s enough, that’s the threshold; we will now consider the welfare issues”, the noble and learned Baroness has said, “No, that is not enough”. Now the court cannot even consider the welfare issues to the child in the round. That is the crucial change.

I will not go through the arguments that have been put forward, but I shall just make one or two comments. The noble and learned Baroness, Lady Butler-Sloss, for whom I have the most enormous respect, said that there ought not to be the possibility of court intervention on the basis of suspicion. Normally that would be right, but the problem in this case is that it is not just suspicion; there is a proven fact of harm or death to a previous child by one or other, or more, of the parties. The difficulty is that we do not know which one.

The noble and learned Lord, Lord Walker, said that it is a terrible thing if a child is removed from its home on unfounded evidence. Yes, it is, but it is also a terrible thing if we learn only with hindsight that that child was actually living with someone who was the

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perpetrator and who was a danger to that child and injured or killed that child. Those are the very difficult judgments. I feel that, faced with that very difficult situation, I would be more comfortable—I am entirely with the noble and learned Lord, Lord Judge, on this—if a court were considering those issues rather than it having to say, “No, we can’t look at it, because we’re not allowed to any longer because the threshold can’t be met and that is the current ruling”. That is a great concern. As I say, I hope that the Minister will rise to the fact that we have a hotly contested issue on a very serious matter on which people whom we respect across the piece have come to different judgments. This needs to be resolved, and I hope that the Minister will set out a pathway by which that can be achieved.

Lord McNally: My Lords, I will certainly try to rise to the challenge. It would be a lot easier to rise to if the Titans who have clashed today had come to anything like a conclusive agreement about how it should be met. I have never been one to think that Parliament should never challenge the views of our courts, or vice versa. I have said before that I think a little friction between the two is sometimes quite useful. On the other hand, we have a separation of powers where we entrust our learned judges with making wise decisions.

I am therefore a little tremulous about suggesting that we accept an amendment that, if the noble and learned Lord, Lord Walker, is to be believed, and I am sure he is, flies in the face of six separate judgments by either the House of Lords in the old days or the Supreme Court. We have to think very hard before we pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an artificial case aimed at clarifying the law—I have to say that the words you usually use are, “With the utmost respect”—it did not work.

I cannot make commitments to the noble Baroness, Lady Hughes, that we can solve this between now and Third Reading. Of course I shall take back the debate that we have had and the considerable arguments that have been made. It would be impertinent of me to try to encapsulate those; those who have been in the debate have heard cogent arguments on both sides.

All of us, whether we have had these responsibilities or are just ordinary citizens, know that when these things go wrong and a child is murdered, the media pack descends on, usually, a social worker and the consequences are extremely grave. On the other hand, as we also know, voices are raised saying that we are too casual in our willingness to take children into care. Accusations have been made at the other end of the corridor that local authorities can be cavalier. I fully take the point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Hope, that if you are going to take a child from its family you must have proof as well as suspicion.

These are very weighty matters. I put it to—I was going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I would ask the House, in all sense of responsibility, to vote against him.

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The Government believe that Section 31 is robust enough. The point was made that it is not a threshold for social workers to make child protection interventions. That has been made very clear. The rarity of the case was dismissed. The noble and learned Baroness, Lady Hale, rightly said that so artificial a case on such a single issue is the rarity. That is where some of the confusion has arisen.

We have had some very strong arguments. In the light of the very full debate held in Committee, we have discussed this further with the chief social worker, the Association of Directors of Children’s Services and the College of Social Work, and they have all confirmed that they do not support this amendment.

If the noble and learned Lord, Lord Lloyd, does not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. I do not think it would do a service to the House or be the way to make a very important law. This will have to stand for a very long time. If there are initiatives or suggestions that can get some unanimity across the Chamber—and, perhaps even more helpfully, on the Cross Benches—there may still be some time for movement, but as it stands now, and in the light of the advice that the noble and learned Lord, Lord Walker, gave us in a considered and thoughtful speech that Section 31 has stood the test of time and has been examined six times during that period, it would be impetuous of this House to back the amendment moved by the noble and learned Lord, Lord Lloyd, this evening. If he wishes to press it, I will urge the House, with the proper sense of responsibility, to reject it.

Lord Lloyd of Berwick:My Lords,I am very grateful for the Minister’s careful response to this amendment. I am also very grateful to all those who have spoken in support of it. Of course, I am also very aware of those who have spoken against it. Even if I had thought that we would win tonight, I would not want to divide the House. It would be highly irresponsible to make a snap decision on such an important and difficult area as child protection.

The one thing that the debate has established beyond any doubt is that there is a problem here that needs to be solved urgently. As I have said from the very start of this amendment, this should be a non-party matter. It is purely a matter of law reform. That is why I was so very glad to hear the noble Baroness, Lady Hughes, suggest in her excellent speech that there is an opportunity between now and Third Reading to hold some sort of discussions on an all-party basis to see whether there is some way in which we can find a way forward which would satisfy all the lawyers here as well as the public at large. If we can find such a way forward, that would be by far the best solution. If we cannot, I respectfully suggest to the Minister that this is a case for a reference to the Law Commission for an urgent hearing about what is best to be done in this situation.

5.45 pm

Lord McNally: As I said before, I am worried. We have very strict rules about bringing matters back at Third Reading, and I do not want to lure the noble

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and learned Lord into thinking that by withdrawing he can be guaranteed a Third Reading debate. On the other hand, the point he has just made may be a way forward on this. I do not know. I swear I have never said this before across the Dispatch Box, but I am not a lawyer. If the lawyers can help us in this, we will consult, but I do not want to inflict on the House a Third Reading debate of this complexity, which would not be very popular with the House.

Lord Lloyd of Berwick: I fully understand and accept the position which the Minister has taken. It would be admirable if we could organise some sort of cross-party discussion, perhaps with outside assistance. Lawyers need assistance from social workers to find out the best way of finding a solution. If we can find one before Third Reading, so much the better; if not, then clearly it ought to go to the Law Commission for a quick hearing. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Clause 19: Local authority functions: supporting and involving children and young people

Amendment 16A

Moved by Lord Low of Dalston

16A: Clause 19, page 19, line 20, at end insert—

“( ) the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.”

Lord Low of Dalston (CB): My Lords, we now come to Part 3. I shall move Amendment 16A, and speak briefly in support of Amendment 34A in the name of the noble Baroness, Lady Howe.

In 1978, the noble Baroness, Lady Warnock, described inclusion, or integration, as it was known at that time, as,

“the central contemporary issue in special education”.

It has not lost much of its salience in the time that has elapsed since then. It refers to the opportunity, or even the right, for disabled children to be educated in mainstream schools alongside their non-disabled peers as an expression of their right to take their place in the community as fully equal members of that community. It is a right that many disabled people feel has been too long denied and which is accordingly all the more highly prized, especially by many parents so far as the education of their disabled children is concerned.

The right to inclusive education is contained in Article 24 of the UN Convention on the Rights of Persons with Disabilities, which the UK ratified in 2009. In relation to the right to education, states are also under an obligation to take measures to achieve the progressive realisation of the right. When the UK ratified the convention, it entered a reservation and interpretative declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of the progressive realisation of the right to inclusive education.

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This amendment was recommended by the Joint Committee on Human Rights to place the principle of inclusion in the Bill among the general principles set out in Clause 19, in line with the rights contained in the UN convention and in terms which closely follow the language of the UK’s interpretive declaration.

In Grand Committee, the Minister outlined steps which the Government were taking to promote the principle of inclusion, which he considered made it unnecessary to amend Clause 19. He referred to duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to policies and practices. For the most part, however, the measures he referred to were what I might call “soft measures”, such as continuous professional development of staff and development of expertise in supporting children with SEN. He also relied on the fact that guidance on inclusion would be given in the SEN code of practice.