Children and Families Bill

Debate between Lord Storey and Lord McNally

Monday 21st October 2013 Grand Committee

[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.

[Lord McNally]

My Lords, perhaps I may follow my noble friend Lord Storey because he encapsulates a lot of why this is a very difficult debate. Earlier today we heard strong appeals to ensure that local authorities did not rush to judgment and deprive a child of staying at home and being brought up by their natural family. I have colleagues in the other place who are extremely critical of what they think is a tendency by authorities in Britain to too readily take children from their natural parents and from their kinship carers and family. Yet, as my noble friend says, every so often we get these horrific cases, and not just the media but everyone asks, “How could it happen? Where were the teachers, the social workers and the neighbours? How was it allowed to happen?”. The question of that balance has kept on coming up throughout the debate—the importance of the threshold that has to be cleared before we can intervene.

Again, I am not pretending to the Committee that these things are coming from the top of my head, but I say to the noble Baroness, Lady Howarth, that I am told Section 47 would allow statutory intervention in a child’s life if the child’s life warranted it. Under that section the local authority has a duty to investigate and can gain access to the child’s home if it deems the child to be at risk of significant harm, and then move for an emergency protection order. It may not be the barrier that the noble Baroness was suggesting.

I thank the noble and learned Lord, Lord Lloyd of Berwick, for raising this important issue and for meeting me and my officials last week to explain his concerns in more detail. This is clearly a complicated issue, and I welcome the opportunity to hear the views of noble Lords who have such expertise and experience in these difficult matters, even if that expertise causes them to come to different conclusions.

As noble Lords will appreciate, Section 31(2) of the Children Act, which the noble and learned Lord proposes to amend, has to balance the need to protect children from harm with the need to protect the child and family from unwarranted state intrusion—the balance that the noble and learned Lord, Lord Mackay, the author of that Act, has explained to us. Any amendment to this carefully worded section, which has stood the test of time, therefore should not be taken lightly.

The amendment would allow a court to infer that the threshold for making a full care or supervision order has been met solely on the basis that someone living with a child might—but was not proven to—have significantly harmed a child previously. This is a departure from the current balance in the Act. Currently there must be a factual foundation for the state’s removal of a child. Reasonable suspicion is a sufficient basis for authorities to investigate and even take interim protective measures in order to gather evidence, but case law has outlined that it cannot be a sufficient basis for long-term intervention.

The threshold for being able to intervene under Section 31 is there not only to protect the family but to protect the child, as unjustified removal can in itself result in significant harm to the child. This is the very reason why Section 31 was included in the Children Act 1989. It is possible that such protection would be eroded if it could be inferred on the basis of unsubstantiated suspicion that there was a basis for making a final order such as a care or supervision order.

I know that the noble and learned Lord has tabled this amendment following concerns about some specific judgments. But it is important to note that in most cases the court would be unlikely to a make a decision based on the sole fact that a person might—but was not proven to—have significantly harmed a child previously, as was the case in re J. The noble and learned Lord, Lord Mackay, made the point that it was a unique case.

It is important to bear in mind what happens in the build-up to care proceedings. Where there are child protection concerns, the local authority is under a duty under Section 47 of the Children Act 1989 to make inquiries and decide whether any action must be taken to enable the local authority to safeguard the child’s welfare. A Section 47 inquiry should assess the needs of the individual child. The statutory safeguarding guidance, Working Together to Safeguard Children, issued in 2013, is clear that assessment is,

“a dynamic and continuous process which should build on the history of every individual case”.

A good assessment investigates,

“the child’s developmental needs … parents’ or carers’ capacity to respond to those needs; and the impact and influence of wider family and community and environmental factors”.

Research shows that taking a systematic approach,

“is the best way to deliver a comprehensive assessment for all children”.

This should mean that, when the court hears an application for a care order, the court is presented with a full range of factors and evidence for it to consider. For example, the court may consider the child’s assessed development and needs, whether drink and drugs were present in the previous household and whether they are a factor in the new relationship, along with the factors surrounding any previous incident that may have occurred.

The judgment of the noble and learned Baroness, Lady Hale, has been quoted a number of times. What she actually said is:

“There are usually many readily provable facts upon which an authority can rely to satisfy the court that a child is likely to suffer significant harm unless something is done to protect him. Cases in which the only thing upon which the authority can rely is the possibility that this parent has harmed another child in the past are very rare. As the Court of Appeal pointed out, this case has itself been artificially constructed by the decision to treat the issue as a preliminary question of law”.

A real possibility of harm having taken place in the past will not be ignored by the local authority carrying out the investigation and would form the body of evidence presented to the court as part of care proceedings. We are therefore satisfied that the court would give appropriate consideration to those matters related to the child’s history that are relevant to whether the threshold test has been met.

Community Justice Centre: North Liverpool

Debate between Lord Storey and Lord McNally

Wednesday 30th November 2011 Lords Chamber

[Lord Storey]

To ask Her Majesty’s Government to what extent the North Liverpool Community Justice Centre has met its intended objectives, what plans they have for this centre, and what improvements they would envisage to this model if it were to be further replicated.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, we are evaluating the impact of the centre on reoffending, and on the efficiency of court processes and use of resources. The result will be published by the Ministry of Justice. The centre is continuing to operate and we continue to share its learning across the criminal justice system and court estate.

[Lord Storey]

I am grateful for my noble friend’s reply. He will know that there is little real hard evidence of this pioneering community court’s work, particularly its involvement in the community itself. What criteria will be used and will those criteria involve the community court itself?

[Lord McNally]

My Lords, the inquiry is looking at the impact on reoffending and the efficiency of process. Its findings are not yet available for release because that work is not yet completed, but I would find it inconceivable that the court itself and those who work in it had not fed into that inquiry.

Justice: North Liverpool Community Justice Centre

Debate between Lord Storey and Lord McNally

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

Indeed, Judge Fletcher describes his approach as gripping—meaning that he is able, through this system, to deal holistically with the problems. The noble Lord, Lord Alton, is right about restorative justice, which is not unique to the Liverpool experiment. Much of the evidence that we have received shows that there is benefit both to the victim, who gets some closure in the trauma they have gone through, and to the defendant, who receives a form of punishment that points in the direction of rehabilitation as well. I also have to say that in the experiments we are conducting, we have to look at the cost of the facilities as well as the various benefits they bring.

[Lord Storey]

My Lords, I am delighted to hear about the robust appraisal of the North Liverpool Community Justice Centre. As the right reverend Prelate the Bishop of Liverpool said, the speed with which cases are handled is phenomenal, as is the high rate of guilty pleas. Another important consideration is the need to have a member of the judiciary at the heart of a deprived community, with all the strength that that person brings. Could that be part of the appraisal, please?

[Lord McNally]

It certainly is part of the appraisal. One factor that has played very heavily is the fact that the centre is in a deprived community and has a permanent judge of very high rank who is able to hear a wide range of cases. These factors come into effect, but we also have to weigh other factors. The study so far does not show a great impact on reoffending rates, but that has to be a factor. The overall cost of the facility also has to be taken into account in present circumstances. However, we are looking across the board and later in the summer we will be able to draw lessons from the study.