Children and Families Bill

Lord Bishop of Chester Excerpts

Monday 21st October 2013 Grand Committee

[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.

[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.