Children and Families Bill

Lord Walker of Gestingthorpe Excerpts

Tuesday 17th December 2013 Lords Chamber

[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.

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.

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.

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.