Children and Families Bill

Baroness Butler-Sloss Excerpts

Monday 21st October 2013 Grand Committee

[The Earl of Listowel (CB)]

My Lords, I support Amendment 56 in the name of my noble friend Lord Northbourne, and regret that I failed to add my name to it. When I looked at the figures for the United States recently, I discovered that a third of boys, and two-thirds of black boys, were growing up without a father in the home, which is a pointer to where we might end up if we do not adopt my noble friend’s amendment. I have had the privilege of working with young people. I have worked with young people in hostels and boys have “adopted” me as their father. I have spoken with young men working in those hostels about what it was like for them to be brought up by their mothers on their own, and how guilty they felt about the burden they had put on them. The honourable Andrea Leadsom MP, who does such great work around early years provision, highlights the concern that when mothers bring children up on their own they risk feeling overwhelmed by that burden and withdraw their emotional support for their children.

I believe that this provision is already law in France and several other European countries. This is such an important issue that I hope the Minister will give a positive response. President Barack Obama grew up in a household without a father. Your Lordships may remember the speech he made as a senator in 2008.

He said:

“But if we are honest with ourselves, we’ll admit that … too many fathers … are … missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know how true this is in the African-American community. We know that more than half of all black children live in single-parent households, a number that has doubled—doubled—since we were children. We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it”.

That is the end of the quotation from his speech.

I hope that the Minister can give a very positive response to my noble friend’s amendment. Parents sticking together and sticking with their children is vital to the well-being of all our children. In my experience, children who do not have parents or carers who stick with them are unlikely to stick at friendships, at being husbands or wives or at jobs or difficult tasks themselves. I support my noble friend, and I look forward to the Minister’s response.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, support the principle behind the noble Lord’s amendment. In Section 3(1) of the Children Act 1989, “parental responsibility” means,

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

As has been said, one of the saddest things is that when parents separate, a substantial number of fathers walk out—very often for good reason—but in doing so they abandon their children. I regret that I have not checked the percentage but it is large, something like 60%. I believe that in the Children Act there should be something to remind the public that those rights, duties and responsibilities include that which the noble Lord has set out.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I support the overall aim of the noble Lord, Lord Northbourne, that the Bill should address the importance of engaging people in what parenting means before they become parents. When I was Minister for Social Exclusion I had the enormous privilege to have a look at some of the evidence-based programmes around parenting. I recommend that Ministers have a look at a programme called Teens and Toddlers, which I encouraged local authorities to adopt. Young people identified by their teachers as probably vulnerable to becoming young parents were put on to this programme, which lasted for about 12 weeks. The youngsters thought that the programme was quite good because they got out of school for one day a week. In the morning they would care for a particular child in an early-years setting, week in and week out, so they got to know that child and discovered that the process was not as simple and straightforward as it might have been made out to be. They found that some children were really quite difficult, even at that very early age. I met two or three groups of young people who were engaged in the programme, as well as some who had done it some years before, and they said things like, “It was very clear that no one else spent any time with this child, so the child never looked at me for weeks”. They learnt an enormous amount. They learnt that children need feeding regularly, that they make a noise, and that they are expensive. After the session with the children in the early years setting, there would be group sessions with their peers and the tutors who were running the course. They would explore what it was all about. Many of them had never been parented; they had been parented by siblings. In particular, some of the young women involved had to look after their own young siblings.

I loved, enjoyed and was fascinated by the sessions. I met some of the young people who had been on the first course to be run in this country around eight years earlier, in the London Borough of Greenwich. Of the dozen young people who had been on that course, not a single one had become a parent. They all said, “We have learnt so much from doing the course and we knew that we had choices. We made the choice to be sensible and that we would not have a child early”. I remember one young black woman saying, “I will be 24 before I have a child because I want that child to succeed and I want a life as well”. She had learnt that from this programme, and it is exactly what the Government should be encouraging. Young people should learn about the seriousness of being a parent. Yes, it can be joyful, but it is expensive, it restricts what you can do, and it takes real knowledge and understanding of what you are doing to be a good parent. When we do not take that seriously, we are colluding with the issue of children being born into dysfunctional families. We know what can be done, so it is about time that we took the steps to ensure that things are done so that fewer children are born into families where the parents are simply not ready or capable at that point of parenting.

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[Baroness Howarth of Breckland (CB)]

I may be a lone voice here but, much as I agree—who cannot agree?—with the essence of what the noble Lord, Lord Northbourne, has said, I do not view legislation as the answer. I am sure that the Minister will say that we have a plethora of legislation. I have worked in this field and I could list it but I will not do so because it would take all the time in the world. The important message that we should take from the amendment in the name of the noble Lord, Lord Northbourne, is how vital it is that we should do what the noble Baroness, Lady Massey, has been saying for so long. We still are not doing well in terms of PSHE and helping young people and children to understand as early as possible what it is to be a parent, to be part of a community and all that you have to do as a citizen. Teens and Toddlers is still going and the programmes through which young people learn at first hand about bringing up children are very important.

However, I believe we live with a myth that modern young men are all the same, which we need to face if we are to deal with some of these issues. The young men I deal with, and I am sure that the noble Lord, Lord Ramsbotham, deals with, who end up in prison or in serious difficulties certainly are not among those who see themselves as hands-on in childcare. They see themselves as at the football match, the pub or an alternative. Until we are able to get programmes that work directly with such young men, we will not make a difference to them while they are growing up. We should forget the myth that all young men are the same, particularly in understanding the wide range of cultures. The noble Earl, Lord Listowel, mentioned young men from certain cultures. There are difficulties in many different groups and we have to be sensitive to all that.

I say to my noble and learned friend Lady Butler-Sloss that I do not think that there are many good reasons for men walking out on their families. They do it because they have not been helped to face up to those issues. However, the courts are getting tougher in ensuring that they face up to their responsibilities, which I am pleased about. I know that CAFCASS has been working for a considerable time on trying to make parents face up to what they will do to their children if they leave them.

Although my heart is with what the noble Lord, Lord Northbourne, has said, we need to get on with the practical application and the proper support for good social work intervention that will make a difference, rather than have yet more legislation on the statute book.

[Baroness Butler-Sloss]

Perhaps I may say that I had no intention of saying that it was right for young men—or older men—to walk out on their families. They may be justified in walking out on their spouse or partner, but to leave the children behind, or not to look after them, is unacceptable.

[The Earl of Listowel]

May I, too, just say that while I agree that all my noble friend spoke of is vital if we are to change the culture, might not legislative change of the kind that he is proposing also be helpful? It may of minor assistance, but given that this is such a grave matter, might it not be worth pursuing?

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[Baroness Howarth of Breckland]

I rise very briefly to support this amendment, and to ask for it to be looked at in a broader context of social policy. The noble Lord, Lord Ramsbotham, talked of young men in prison. I want to give one example—something I heard last week—which relates to how young people can learn. I was told of a hostel for young women with their babies that was closed, probably for financial reasons. The young women and their babies were dispersed. Six of them were at university, and no consideration was given to this fact, to the support they received at the hostel or to what would happen to them in future. If we are thinking about how we can ensure that each generation gets the support they need, that story is a good example of how broader policy could make a difference.

[Baroness Butler-Sloss]

My Lords, for the reasons already given, which I will not repeat, I, too, support this amendment.

[Baroness Howe of Idlicote]

My Lords, I was intending to support Amendment 57 when we spoke earlier on Amendment 56. However, it is clearly essential that governors, sponsors, head teachers—those responsible for what goes on in the school—are alert to what is set out here. The point I make about this—others have made it too —is that there are a lot of amendments dotted all over this paper referring to different aspects of what we are discussing, so we are going to come back to this again and again. The ear-bashing and encouragement that the Minister has had will help to indicate the right way of making these important issues completely plain. It is crucial that what the school stands for is made clear to the pupils. I could not be more supportive of the importance of getting that principle across.

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[Baroness Butler-Sloss]

My Lords, I entirely support what lies behind what the noble Baroness, Lady Jones, has said. Amendments 58 and 59 may go most of the way. Amendment 60, to which I speak, was proposed by the Bar, which is why I have put it forward. It is important that the Government understand that there are difficulties. The Child Abduction and Custody Act 1985 incorporates the Hague convention of 1980. I have spent a great amount of time as a High Court judge and in the Court of Appeal on the Hague convention. Under Article 5,

“‘rights of custody’ shall include rights relating to the care of … the child and, in particular, the right to determine the child’s place of residence”.

I congratulate the Government on their bravery as regards arrangements. Having tried cases with mothers and fathers, I do not believe that the proposal will work any better than custody and access or residence and contact. It is not the words but what happens to the child who gets one or other parent, or sometimes both parents, absolutely up in arms.

The difficulty is that the decision under the Hague convention is not made in England if an English child has been abducted. There has been a particular decision, with which I will not bore the House, except to say that where the applicant’s right of custody is an issue the question should not be determined by the English court unless it is unavoidable. It is a matter for the court where the child is taken to, where the other parent goes to that court through the arrangements in this country and says that this parent has lost the child because the child, in respect of which he or she has a right of custody, has been removed from this jurisdiction. The court of the jurisdiction where the child is found makes the decision on whether the right of custody has been breached.

As the noble Baroness, Lady Jones, has said, these are complicated cases. It is very often difficult in some countries to get that country to accept that nationals of that country were resident in this country. Therefore, while they may have been in Germany, they may not particularly want to send their children back although they had been resident here. Guatemala is a country that I particularly have in mind. Under the Hague convention, they should come back but if there is some uneasiness about what is meant by “arrangements”, it is a marvellous opportunity for the foreign court to say, “We are not satisfied on rights of custody, so we will keep the child here”. That is exactly what the amendments of the noble Baroness, Lady Jones, and my amendments are intended to deal with.

I do not mind whether the amendment drafted for me by the Bar or any other amendment is preferable. I would like to see an interpretation of the words “rights of custody”. It should be stated that arrangements made in respect of either parent equal—but put, obviously, in more legalistic language—a right of custody. I hope that the Government will accept that both the noble Baroness and I have got a really important, highly technical point that may have an adverse, practical effect on English and Welsh children being taken unlawfully out of the jurisdiction.

[Lord McNally]

If there is anything likely to chill the marrow of a non-lawyer Minister, it is the noble and learned Baroness, Lady Butler-Sloss, saying that the amendment that she is proposing is highly technical and important. I have no doubt about that and will try to deal with it with due thoroughness, well aware that the noble and learned Baroness is far more well read in the Hague convention than me.

I am advised that the Hague convention gives a wide interpretation. It is intended to predict all the ways in which custody of a child can be exercised. It is not just orders concerning residence that count; it is also rights arising from the operation of law and agreements between parents which have legal effect under our law. The child arrangements order will make it clear that other jurisdictions will consider where a child lives and has contact as evidence in determining whether an individual has rights of custody.

I welcome the support expressed by the noble Baroness, Lady Jones, for the government amendment, which is purely consequential. Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a reference to contact and residence orders. The amendment simply updates that to refer instead to child arrangements orders.

The remaining amendments relate to the recognition of the child arrangements order at international level. I agree with noble Lords that we must ensure that the order is recognised and enforced at international level in the same way as existing contact and residence orders. I welcome the thought which has been given to this issue.

The introduction of the child arrangements order stems from a recommendation of the family justice review. It seeks to move away from language which reinforces the perception that one parent is more important than the other. In terms of content, the court will, as now, be able to set out clearly in an order the person or persons with whom a child lives, spends time or has other types of contact, and when.

While the amendments which have been tabled do not change the scope of the child arrangements order, Amendment 58 would increases the focus on its distinct elements. In doing so, it risks undermining one of the key aims of the order, which is to shift the focus away from parents’ perceived rights on to the rights and needs of the child.

Amendments 59 and 60 relate more explicitly to the recognition of the order under the 1980 Hague convention. “Rights of custody” are a key concept under the convention and include rights relating to the care of a child, in particular the right to determine a child’s place of residence.

In considering whether there has been an unlawful removal for the purposes of the convention, a court will first establish what rights the applicant had under the domestic law of the state in which the child was habitually resident. What matters is what rights are recognised by that law, not how those rights are characterised.

The specific content of relevant decisions and orders, such as child arrangements orders that specify with whom a child is to live, will provide evidence as to the rights that a person has in respect of a child. However, the question as to whether those rights are properly characterised as “rights of custody” is a matter of international law. The phrase “rights of custody” is not confined to any national meaning, and it would not be appropriate to try to dictate the meaning of an international concept such as this in our law. I assure the Committee that we will be making full use of existing international groups and channels to raise awareness of the new order and ensure that it is properly understood. For that reason, I urge noble Lords to accept the Government’s amendment.

I say again that what I say here is not plucked out of the air; it is the result of considerable thought and advice from government lawyers and is on the basis of advice from the Norgrove studies. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, suggested that we might possibly be causing confusion by what we are doing. I suggest that we meet between now and Report—I am getting a long list of engagements now, but it is important to get this right—and discuss this. If the Government’s expert lawyers persuade me that noble Lords are wrong, then on Report I shall try to persuade the House that they are wrong. However, if noble Lords convince them that there is confusion here, that is the last thing that the Government want out of this legislation. In that spirit, I hope that the noble Baroness will agree to withdraw her amendment.

[Baroness Butler-Sloss]

I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

[Baroness Jones of Whitchurch]

I have to say I was beginning to feel very disappointed in the Minister’s response until he said that maybe we could meet—and I am very happy to take up his offer—because I felt that he was not really addressing the concerns that have been raised. They are not just the concerns of non-lawyers like myself or my colleagues; they are the concerns of some fairly major players in this sector including, as I said, the Family Law Bar Association and the Children’s Commission for England, while obviously the noble and learned Baroness, Lady Butler-Sloss, is an expert in her own right. This is not a political point but a practical one: it is about what is in the best interests of children and what can best protect them in international custody disputes. As I understand it, “rights of custody” has a particular resonance and respect around the world, and I am not sure that the new phraseology that we are putting in its place does that. I still need to be persuaded of all that, but maybe we can do that in a meeting with the Minister. I will happily take up his offer to explore it further in that context. I therefore beg leave to withdraw the amendment.

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[The Earl of Listowel]

My Lords, the conclusions arising from the important research of Dr Julia Brophy are:

“(a) The needs of courts for skilled and experienced practitioners able to produce analytical, evidence based, forensically driven reports which meet the court’s timescale required, and … (b) The realities of resources limitations for some local authorities … In this context, utilising the skills and expertise of independent social workers both pre and within proceedings is likely to remain necessary if courts are to meet current challenges and move forward with appropriate speed and confidence and to do so in a manner which reflects a court practice which is without fear or favour”.

I want to ask the Minister whether the regulations now meet the recommendations made by Dr Brophy and, if not, what amendments he may be considering. Perhaps I may apologise once more to the Minister and the Committee for giving short notice of this debate. If the Minister would prefer to write to me, I will quite understand.

[Baroness Butler-Sloss]

Since this issue has been raised, I am going to jump on the bandwagon just to say that very difficult cases are tried by designated and senior judges and family judges of the High Court where expert evidence is absolutely crucial. I have to say that I have tried cases where I have ended up with 11 expert witnesses on shaken babies with subdural haematomas and so on, asking whether it was the parents or a parent, or whether it was an accident. These are extremely difficult cases. We were greatly assisted by CAFCASS and sometimes assisted by social workers, but even in these difficult cases, the social workers came and went. In some cases there was no consistent social worker to put in a consistent, high-quality report from their point of view. Again and again, High Court and senior circuit judges have asked for an independent social worker, which the local authority has been only too grateful to agree to. That is because the authority knows that in these difficult cases it has not actually been able to do the job itself.

In an ideal world, of course, independent social workers are not needed, but we live in a far from ideal world with children at extraordinary risk of physical injury as well as sexual injury. Here it is physical injury with which I am concerned. Again, as the noble Earl has just said, we need the doctors. I am not sure what the doctors are likely to be paid, but from the point of view of a senior consultant, it is derisory. There is a limit to pro bono, particularly if a doctor has to be in court for a day or two days. Quite simply, these really difficult cases will not be properly tried if they do not have the right experts.

Norgrove was absolutely right to want to cut it down. In the majority of cases it would be quite wrong to go in for the luxury of lots and lots of experts. I am concerned only about the small minority of extremely difficult cases, where the current system is not going to be just to the child, whose welfare, ultimately, is paramount.

[Baroness Tyler of Enfield]

My Lords, it is terribly important that this debate is kept in perspective. The noble and learned Baroness, Lady Butler-Sloss, has done that very well, making it clear that we are talking about a very small number of cases, involving very difficult issues, where of course an expert’s advice will be very helpful.

More broadly, I very much support the thrust of what David Norgrove said in the report of the family justice review and it is really important that we are seen to be limiting expert evidence to what is really necessary to decide, so that the judges narrow it down to the key issues where we need that expert advice and it does not add to yet more reports, with all of that adding to delay.

The noble Earl, Lord Listowel, quoted Anthony Douglas, the chief executive of CAFCASS. I declare an interest as chair of CAFCASS. In the intervening period I have had the opportunity to have a quick word with Anthony Douglas and the context in which he made those remarks is one in which we have done a lot of work to ensure that both local authority social workers and CAFCASS guardians are working up to the absolute limit of their professional knowledge and capacity, and that you need an expert report only in that very small number of cases which take them beyond their limits.

I have spoken recently to groups of CAFCASS practitioners who tell me that they now feel empowered and have renewed confidence because in the majority of cases their expert advice, analytical skills and the assessment that they can offer to the courts are being accepted as expert social work opinion and advice. Sometimes recently they have felt that their professionalism has been questioned, which is a danger when we have too many of these expert reports. So I hope that we can conduct this debate with a sense of perspective and balance, while understanding that we are talking about a small number of cases where we need those expert reports to deal with very specific issues.

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[Baroness Benjamin]

My Lords, I have put my name down to this amendment because the NSPCC has raised huge concerns with me. It feels that the implementation of a 26-week time limit could make the operation of evidence-based interventions that take longer than the specified time limit more difficult; for example, in situations where parents are seeking treatment for substance misuse or domestic violence or when family members come forward late in care proceedings when the real risk of a child being taken into care becomes apparent. The NSPCC believes that we must ensure there is sufficient time for the appropriate assessments to take place.

The noble Baroness has already mentioned programmes such as the NSPCC’s infant and family team. That programme is significant as it informs professionals and helps courts decide whether maltreated children can be reunited with their birth family or should be placed for adoption with their foster family. It also assists parents in addressing the problems that they might have had as children. However, this important and emotional work requires between 12 and 15 months before a final recommendation is made. Although the Bill provides for eight-week extensions, continually adding these on to the six months causes a large amount of uncertainty for parents whose own early traumatic experiences are being explored to help them reflect on the origins of their present difficulties, and ultimately may have an adverse effect, not to mention increased administration pressure.

When I was told the following story of a young mother, it showed me just how important the NSPCC’s infant and family team can be to the well-being and happy outcome of a family in difficulty. Two years ago, Kesha’s eight children, aged between one and 13, were removed from her on the grounds of neglect. The children were split among different foster carers and she saw them for only an hour every other week. Kesha says:

“When I first began working with the Infant Team I had a bad attitude, but soon, I loved it. We had parenting sessions that really helped me, and I watched videos of parents and kids which helped me understand my kids’ needs more and how to meet them and build a sense of security so they know they can come to me. The Infant Team also asked me about when I was young. It felt like my mum leaving at a young age meant I couldn’t trust people. They helped me to be myself more and start trusting people, and I began to open up to my kids more, and my relationships with them got better. The Infant Team want you to get your kids back. I didn't want my children to have to grow up without their mum like I did. I love them too much. I fought hard to get them back”.

It took Kesha a year and a half to get her children back, but by working hard and with the right support, they have been successfully reunited.

The NSPCC and others agree that there are lots of cases that need to be speeded up, but that should not be done at the expense of limiting interventions that could be effective in dealing with family problems, so that children can stay at home when it has been proved to be safe for their well-being. These cases cannot be forced into a prescribed timeframe, as the NSPCC believes that this could be damaging. It is seeking commitments as to how the Government will address this potentially negative impact and ensure that cases are not shoehorned into a structure that will not be beneficial. There needs be more flexibility and I believe that this, in turn, will not undermine the policy intention. The amendment will provide greater clarity about the length of care proceedings when longer timescales are needed to meet the needs of the child. I know that that is what all noble Lords here ultimately want.

[Baroness Butler-Sloss]

My Lords, I regret to say to the noble Baroness, Lady Jones, that I do not agree with her amendment. I have discussed this with the President of the Family Division and with Lord Justice Ryder, who has been leading the modernisation of the family courts over a number of years—even when I was there, which is now eight years ago. This is one of the major planks of the Norgrove report. The president and Lord Justice Ryder, together with other judges, are extremely concerned about the idea that the 26-week limit should be breached. They see it as an opening for some judges simply to take longer. Certainly until very recently, we know that decisions have been taking 48 to 50 weeks. For a child to have to wait for a year for a decision on whether it can stay with the family or should go into care is half a year too long. This is what Norgrove wanted: dramatically to reduce the time.

The NSPCC has been lobbying me as well and I have heard the touching story, but I am afraid that I sent an e-mail saying that in this particular instance I do not agree. If one looks at Clause 14, which is the subject of this amendment, one can see that under new subsection (5) onwards, there is an opportunity for extensions of eight weeks. However, if there is an open book, there will be judges who allow it to remain open, whereas if you have to be ready to go back after each period of eight weeks, that has a marvellous effect on getting on with what needs to be done.

I also notice that under new subsection (9) the Lord Chancellor can change the 26-week period, while new subsection (10) states that the rules of court may provide for changes. I have absolutely no doubt that the rules committee and the senior judiciary, particularly the Family Division liaison judges on each of the circuits, will check on the designated family judges in the care centres. If there are cases where the decision has been too speedy, I have no doubt at all that the system will be able to see that, which provides an opportunity to decide at that stage whether there needs to be an extension. But, for the moment, I ask the Minister to stand firm on this one.

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[Baroness Butler-Sloss]

My Lords, I am extremely sad to have to disagree with the noble and learned Lord, Lord Lloyd. I am also indebted to the noble and learned Lords, Lord Hope of Craighead and Lord Phillips of Worth Matravers, for what they would like to have said, but they are both unable to be here today.

It is important to realise that there are two views of the judiciary, of the academics and of the lawyers, not only the view put forward by the noble and learned Lord. The first view is that of seven Supreme Court judges. Normally in the Supreme Court they sit in a five-judge court. In this case, no doubt because it was either the seventh or eighth case, they sat as a seven-judge court. I have the highest possible regard for Lord Justice McFarlane, but two of the judges of the Supreme Court were family judges of even greater experience and expertise than him. Both those judges, both of whom are family practitioners and both of whom have worked with me, were absolutely unanimous with the other five that the decision to which the Supreme Court came was the right one.

There are two issues. One concerns a situation where there has been no significant harm to the child, or in Re J, the case with which we are concerned, three children. However, there was very significant harm to one child who died. In that case, the mother and the father were the only possible perpetrators. Under the current law, it did not matter which of them had killed or injured the child. The child may have died of asphyxia from being rolled on to in the bed—the child was lying in the bed with the parents, which is a terrible habit. This child had been seriously injured before it died. Those are the facts. The mother, during the time she lived with the father, was in that pool of perpetrators and it was clearly not safe for the older child, born while the parents were engaged in the process of care, to live with them. They then parted and went to live with different people. The mother eventually went to live with a man who was the divorced father of two children who lived with him, and with him she had two further children. The pool was then a different pool, not the pool of two perpetrators, one of whom was bound to have done it, but a different pool in which nothing had happened so far. The judges in the Re J case said that there had to be some evidence from which to infer the likelihood of significant harm in the new group, and it could not be said that the mother had injured or helped to kill the child when she lived in the other group, where she and the father were the obvious suspects. In Re J, the seven Supreme Court judges, who were unanimous, said that you had to have some evidence to cross the threshold. Unfortunately in that case the only issue that the local authority presented to the Court of Appeal and to the Supreme Court was the fact that the mother was in the area pool of perpetrators; no other facts were presented at all.

The alternative view put forward by the noble and learned Lord was one he put forward in the earlier case of Re H, where he was in the minority; the majority found against him. In that case, there was a girl of 16 who the elder sister of younger children. The girl said that she had been raped by the stepfather. In the criminal proceedings, he was acquitted. In the family proceedings, the judge said he was not satisfied as to the appropriate standard that the stepfather had raped this girl, but there was a strong suspicion. In that case the Court of Appeal and the Supreme Court held that they could not infer sufficient facts to say that the other children were at risk.

The noble and learned Lord referred to another judgment by that great judge, the noble and learned Lord, Lord Nicholls of Birkenhead, who gave a leading speech in a case called B, or A, which I was on in the Court of Appeal. It involved three people; namely, the mother, the father and the childminder. In that case, the noble and learned Lord said that in relation to those three in that pool where the child was injured—I think that the child died—clearly it was “grotesque” to say that because they could not prove which of the two, or possibly three including the childminder, had actually committed the injury, they should not take steps to protect the children.

However, that is not the present case. In that case, it was the pool of potential perpetrators, one of whom had done it. In this case, the mother had moved away. The noble and learned Lord, Lord Phillips of Worth Matravers, raised an interesting point. He asked whether there were any recorded cases where the only evidence was that the mother or father had moved from the pool of perpetrators into a subsequent pool where the current law meant that nothing could be done and the child had suffered. I have to say that I have not heard of such a case. I do not think that there is such a case because it would undoubtedly have been referred to in the later cases, particularly in Re J. I thought that the noble and learned Lord, Lord Phillips, made an extremely pertinent point that there was nothing to show that the current law has been to the detriment of children potentially at risk.

The noble and learned Lord, Lord Hope, pointed to the crucial fact that the mother in Re J was in a new pool. No one has suggested that the father of the other children had ever committed any offence. He was a totally respected man. In his note, the noble and learned Lord said that the fact that the mother was in the earlier pool of perpetrators was relevant, but by itself that was not sufficient. He went on to say that it could be relied on, together with any other facts or circumstances that might be relevant, to support the conclusion that the three other children in Re J were likely to suffer harm.

It is interesting that there are other important factors that neither the Court of Appeal nor the Supreme Court were allowed to deal with. The first factor was that the mother was very young when she was living with the man and the child died. Secondly, it was a new relationship with a totally respectable person. Thirdly, there were two further children and she was much more mature. There were factors against her which they did not take into account; namely, that she had colluded with the man in the first case. If they had taken that into account, they might well have crossed the threshold. Unfortunately, those facts were not taken into account.

Therefore, as I understand it, this is a sole issue that is unlikely and, as the noble and learned Lord, Lord Hope, said, it is extremely rare. The noble and learned Baroness, Lady Hale, who is one of the great family experts, and Lord Wilson, were both satisfied in this case that the threshold was properly not crossed. Lord Reed said in paragraph 98 of Family Law Week that if the current law as stated in this case was causing consternation, it would appear to be an overreaction because the one clear-cut point was not one that was likely to come up very often, if at all. I am extremely concerned that we maintain a balance between the right of children to their own family, the right of parents to family life and their own child, and the crucial importance of the protection of the child where there is danger to that child.

The very delicate balance in Section 31 has been studied and subject to the most careful judgments by the Supreme Court. I think it is a little unjust to the Supreme Court that while the noble and learned Lord, Lord Lloyd, spent a lot of time on what Lord Justice McFarlane said, he did not quote a single passage of what anyone in the Supreme Court said. They are worth reading and they have a very good point. I would say to noble Lords that we have to be careful to protect families from too ready an interference on the part of the state unless there is sufficient evidence to take the child or children away.

[Baroness Howarth of Breckland]

It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question.

[Baroness Butler-Sloss]

I have to say that in my experience as a family judge, speaking perhaps as the only family judge present, although of course the noble Lord, Lord Ponsonby, is a family magistrate, those judges would be issuing care proceedings immediately and removing the child while they debated whether the issue could be concluded in favour of the local authority’s view at the care hearing. On the interim care proceedings I have no doubt about the protection issues. Based on this, they would remove the child.

It is also interesting to note that despite some very strong attacks by two well known and respected family academic lawyers, another well respected family academic lawyer, Andrew Bainham, a reader in family law at Cambridge, has gone exactly the wrong way and has taken the view that the Supreme Court was right.

The last point I want to make is this: are we really right to change the point at which the threshold should be crossed, something on which seven Supreme Court judges have reached a conclusion with the greatest possible care? I urge the Committee not to do so.

[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.