Children and Families Bill

Debate between Baroness Hughes of Stretford and Lord McNally

Tuesday 17th December 2013 Lords Chamber

[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 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.

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.

Prisons: Population

Debate between Baroness Hughes of Stretford and Lord McNally

Wednesday 27th October 2010 Lords Chamber

[Lord McNally]

My Lords, yes indeed. The Ministry of Justice is working with the Department of Health and the Home Office to ensure that front-line criminal justice and health agencies focus on identifying those people with mental health problems at an early stage of the criminal justice pathway, and is exploring ways of diverting into health and social services those for whom this would be the better option.

[Baroness Hughes of Stretford]

My Lords, the Minister will know that at long last the Youth Justice Board has had some success in reducing the very large number of young people whom we incarcerate in this country. Given the Government’s announcement that they will disband the Youth justice Board, who now will be responsible for continuing this very welcome downward trend in the number of young people in prison in this country?

[Lord McNally]

My Lords, I pay tribute to the work of the Youth Justice Board. As the noble Baroness said, during its time it has overseen a very welcome drop in youth offending. It is not disappearing: its work will be reabsorbed into a unit within the Ministry of Justice.