Children and Families Bill

Lord Lloyd of Berwick Excerpts

Tuesday 17th December 2013 Lords Chamber

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.””

--- Later in debate ---

[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. 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.

--- Later in debate ---

[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.

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.

[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 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.