Children and Families Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 17th December 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My Lords, I supported this amendment in Grand Committee, and having added my name to it, I support it again today. I stress again today, as I did in Committee, that this is a threshold provision—that is fundamental. That provision dictates just when the court gets jurisdiction to deal with a case. The situation is identified in the proposed amendment and has been explained by the noble and learned Lord, Lord Lloyd. The question is, when an adult who is caring for a child is the possible perpetrator of the death of or serious injury to another child, does the court have the power to deal with the case? Has the threshold been crossed?

That is a very different question—and this is also crucial—from asking whether a care order or a supervision order should then be made. The noble and learned Lord, Lord Mackay of Clashfern, said in Committee that it would be “quite unfair” to take someone’s child into care merely because another person who has come to join that family is a possible perpetrator of another child’s harm. I entirely agree with him on that. But as the noble Baroness, Lady Howarth, noted in Committee:

“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”.—[Official Report, 21/10/13; col. GC 329.]

The noble Baroness had earlier explained that the result of the comparatively recent interpretation given by the courts to Section 31 was that the social workers,

“now … cannot move to the welfare principle quickly enough, which means that often they cannot gain access to the home where the perpetrator is living”.—[Official Report, 21/10/13; col. GC 326.]

She also noted that,

“social work organisations are extremely concerned about this situation”.—[Official Report, 21/10/13; col. GC 326.]

Indeed, Lord Justice McFarlane in the Re J case described it as,

“a cause of concern amongst child protection agencies”.

Apparently it is now suggested by some that there is no real need for this concern, and that social workers have no such concern. I do not pretend that I ever practised in the field of family law, so I can claim no personal experience of the problem resulting from Re J. But having read and reread more than once the very full counsel’s opinion by a Queen’s Counsel specialising in this area of work—an opinion to which the noble and learned Lord, Lord Lloyd, has already referred, and which he yesterday copied to many of those who were to take part in this debate—it is difficult to see how the present interpretation of the Children Act 1989 could be thought not to cause concern. It is all very well to say, as has been said, that Section 31 has stood the test of time. As has been pointed out, Section 31 only received its present interpretation in the 2009 case of Re S-B. It was that interpretation by which all seven members of the Supreme Court understandably felt themselves bound in Re J last year.

These comparatively recent decisions are the ones which counsel says,

“have caused such consternation amongst those working to protect vulnerable children”.

As to the suggestion that there is no problem in practice, counsel observed:

“This is certainly not my experience nor that of my colleagues working in the field of child protection”.

To the question whether there is the need to ensure protection of unharmed children, where another child has suffered harm or death commonplace, counsel answered with “an unequivocal yes”, having himself,

“acted in many cases involving an unharmed child living with a possible perpetrator of past harm to another child”.

He says:

“The working of the amendment would mean that the Section 31 threshold can be crossed on the basis of likely significant harm. This would then open the way for the full range of protective orders available to the court (the ‘welfare stage’ of the process). Once the threshold is crossed, the court would be in a position to account for all relevant factors”.

A little later he adds:

“It by no means follows that the unharmed children would be removed permanently. The amendment ensures a legal structure whereby the Section 31 threshold is crossed to enable that welfare balance to be conducted. If it is not crossed, then that stage is never reached”.

His opinion ends thus:

“The best solution to these cases is to find the threshold crossed but that the welfare decision must be made with it very much in mind that the parent is a possible rather than an actual perpetrator. The proposed amendment would achieve that balance and secure child protection”.

That is the question before us today. Should the threshold be lowered to where for the first 20 years of the Children Act’s operation it was understood to be, to enable the court to move to the welfare stage and allow it, with the help of the social workers, to investigate all the circumstances of the case and decide whether, in those circumstances, some care or supervision order should be made? No child could properly be taken into care merely—and I stress that word—because one of its carers was the possible perpetrator of past harm. I think that we all agree on that, but that fact alone must warrant a full welfare investigation. Surely we owe children at risk no less than that.