Children and Families Bill

Lord Mackay of Clashfern Excerpts

Monday 21st October 2013 Grand Committee

[The Lord Bishop of Chester]

My Lords, at the risk of lowering the tone of this extraordinarily learned exchange, in the church we face a similar issue when trying to discern when someone poses a potential risk but nothing can be proved. It is a difficult line to establish. In the drafting of this amendment, my eye has been caught by the juxtaposition of the words “likely” and “possible”. I wonder whether there is a better way of phrasing it. The noble and learned Baroness, Lady Butler-Sloss, used the word “might” at one point, but interestingly then corrected herself and said “was likely to”. There is a real difference between someone being assessed as “might” be a threat and “is likely to” be a threat. I think that I come down on the side of the noble and learned Baroness. However, it is good to know that the lawyers have only two views in these situations.

If this comes back, I hope that we will be able to look at the phraseology. To deduce that something is “likely” from a certain level of possibility seems to carry a stigma that we should not attach unless we really have to do so.

[Lord Mackay of Clashfern (Con)]

My Lords, I had the responsibility of producing Clause 31 as it was, now Section 31, of the 1989 Act. It is extremely important and, as the noble and learned Lord, Lord Lloyd, has said, it has stood the test of time. It is important because it marks a threshold. That does not mean that it is an introduction or a preliminary, it means that it determines whether or not the court has the power to remove a child from the natural situation in which he or she is living. It is vital, on the one hand, where there is harm to the child, that the public authority, in this case the local authority, should be able to step in. However, it is equally important that the local authority should not be able to step in where the facts required for the threshold have not been demonstrated. It is that sort of position that the threshold occupies. It is not a question of having to do this in order to go on to welfare. It is that if the threshold is not satisfied, the court cannot remove the child from its natural parents.

--- Later in debate ---

[Lord Lloyd of Berwick]

Neither the noble and learned Lord nor I were Family Division judges, but another Family Division judge said that the type of case where it is not possible to tell on the evidence whether it is the mother or the father, but it is clearly one or the other, occurs very frequently. That is the kind of case that the amendment deals with.

[Lord Mackay of Clashfern]

The noble and learned Baroness, Lady Hale, made it perfectly plain that the case that was set up for the Supreme Court was a very special case that she certainly would not expect. She has vast experience of these matters, as has Lord Wilson. The noble and learned Lord, Lord Lloyd, said that I was not a Family Division judge. I certainly was not, but in the Court of Session in Scotland I had family cases. That was a very long time ago but some of the experience still stays at me.

[Lord Storey (LD)]

My Lords, I was not going to speak to this amendment. I have followed the debate with great interest. I am probably out of my depth in this discussion. I want to look at it from a different point of view.

I have heard about “likely”, “possible” and “thresholds”. I am always concerned about the protection and well-being of the child. In recent years we have seen children who have been physically and mentally abused at home, and no one has been able to help them. They have seen the abuse but they have not been able to go and do anything about it. Recently, there was a little boy who was emaciated; he was scrabbling around for food in the gutter and was allowed to be ill treated by his parents. If this discussion means that a social worker can knock on the door, get into the house and provide welfare and, presumably, safety for the child—not necessarily taking the child away—then that must be the right thing to do. It must not always be about a legal interpretation or a legal battle between two sides. We must always focus on what is the best for an individual child. Recently society has let those children down. We have to remember the case of Baby P to see where that happened.