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Lord Campbell of Alloway: Perhaps I may ask the Minister one question and thank her very much for her comprehensive explanation of the court's position. I am concerned with subsections (4), (5) and (6) of Amendment No. 12, which are wholly related to the police. Does the Minister agree that it is a matter for secondary legislation? It can be implemented—there are means of doing it but I shall not waste time on saying what they are. The Minister knows them perfectly well. Does she agree that it is a matter worthy of consideration?
Baroness Scotland of Asthal: I hear what the noble Lord says and I know the reason why he alights upon secondary legislation. It is because we are dealing with
changing practice as opposed to having something static. We, too, think a proper emphasis may be in changing practice, and therefore the protocols that are being brought out, the guidance that is being given and the inter-agency working are issues on which we will concentrate. But those issues need not necessarily be in secondary legislation.We need to have a good modus operandi—a good way of working together in partnership—which we all understand and can use to the betterment of the children and families we seek to serve.
Lord Ackner: The Minister in her tour d'horizon, or tour de force mentioned the issue of a child being made a ward of court. Am I right in thinking that the ex parte application does not automatically make the child a ward of court, but that it enables the judge then to consider the merits of that application before the child is made a ward of court?
4.30 p.m.
Baroness Scotland of Asthal: There are two routes, of course. There is the route through the 1986 orders, which we have talked about. If there is no order—the noble Baroness, Lady Walmsley, talked about situations in which there may not be an order—and a child is improperly removed from a custodial parent, the non-custodial parent, or the person from whom the child has been improperly removed, can go to court and say, "My child has been removed from me by the other parent without my knowledge and consent. I wish you to make the child a ward and oblige the child to be returned to me". That is under the inherent jurisdiction, as opposed to under the jurisdiction of the 1986 legislation or the Children Act. Those are separate routes but they are both available.
Noble Lords will know that Section 100 of the Children Act provided that the inherent jurisdiction under wardship will not be capable of being exercised once the Children Act rights have been exercised and in relation to local authorities. But I believe that subsection (4) provides that in exceptional circumstances, even where it is a public law case, it can be done. So the inherent jurisdiction remains; it can be used where a child is at risk but it is available to parents where there are no orders in being between them, and a child is wrongfully removed.
Noble Lords will know that the Child Abduction Act 1984 deals also with the issue of a child being removed outwith our jurisdiction, and that Act brought the Hague Convention into force. So there is a panoply of provision which can operate, dependent upon the nature of the removal and the family circumstances and on whether there have been orders in the past.
Lord Ackner: Thank you so much.
Baroness Walmsley: I thank the Minister for her recognition of the intrepid nature of the activities of the Science and Technology Committee in the Antarctic. I commend her and the rest of the Committee to the report on international scientific treaties, which we propose to publish in June.
I should like to give a view on Amendment No. 13 before I speak to my own amendment. I, too, very much support the spirit of what the noble Baroness, Lady Gould of Potternewton, is trying to achieve, but I have some sympathy with the concerns expressed by the noble Baroness, Lady Anelay. I am sure that the noble Baroness, Lady Gould of Potternewton, will be looking at other ways of ensuring that the spirit is fulfilled. It is important that fathers who may have had a very unfortunate relationship with a child and its mother in the past have the opportunity to rebuild it in a situation in which the child is safe.
On Amendment No. 12 and with regard to without notice applications, or ex parte applications—the noble Baroness, Lady Anelay teased me about this but I think the Latin is much more elegant in many cases, as is the French—the very speed of their implementation, as highlighted by the noble and learned Lord, Lord Donaldson, made us insert subsections (4) and (5) into the amendment. However, I thank the Minister for her exhaustive and complicated tour d'horizon through the jigsaw of legislation covering this issue. I hope that when the organisations which asked me to table the amendment look carefully at her answer in Hansard, they do not find a little blue bit or a little green bit missing. It would be tragic if the Government's intention, which is quite clearly expressed by the Minister and is very much in line with our own, were to be undermined by a little missing piece in the corner.
I will study the Minister's explanation very carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 13A:
- Page 2, line 28, leave out "or vulnerable adult"
The noble Baroness said: In moving Amendment No. 13A, I should also like to speak to Amendment No. 29A, grouped with it. We now reach one of the most innovative and, perhaps, controversial clauses in the Bill.
On Second Reading, the Minister made it clear that she was in listening mode with regard to amendments. That has been noted with keen interest not only by noble Lords but by voluntary organisations which have an interest in the Bill. I hope that we may prove persuasive with some of the amendments to Clauses 4 and 5 in particular in this part of the Bill.
I have grouped my amendments so that we can debate the main issues of the offence in Clause 4 in two major groups. I should like to give advance notice of how they fall; I have done a bit of grid to hand out to my noble friends, but it may assist other noble Lords if I give a partial explanation of the groupings. The group led by Amendment No. 15 will give us an opportunity, I hope, to have a general look at all the issues involved in holding somebody to account for the non-accidental death of a child in a household. In Amendment No. 25, I have imported a Law Commission definition of the household. Other amendments will tackle specific stand-alone questions. This group refers only to the position of vulnerable adults. It is right, at this stage, that I put on
the record my overall view about Clauses 4 and 5 so that I can save time in later groups and concentrate at this moment on Clause 4. It means I will not have to repeat views when debating either my amendments or those of other noble Lords.I made it clear on Second Reading that I support the objective of Clauses 4 and 5. We agree with the Government that it is unacceptable that a child's killer should go unpunished, that a way should be found of addressing the problem that exists where a child is killed in a household where more than one person is present, and it is not clear which of the carers has directly caused the death.
As the law stands, as a result of the Court of Appeal's ruling in Lane and Lane, it is likely that a trial would not proceed beyond a defence submission of "no case to answer". As a result, neither parent nor carer can be convicted and one or other parent or carer—or both of them—might well literally have got away with murder.
As the Law Commission points out in paragraph 1.2 of its consultative report No. 279 entitled Children: Their Non-Accidental Death or Serious Injury (Criminal Trials), even though one parent may not have struck the fatal blow or blows, he or she may be culpable through having participated in the killing actively or by failing to protect the child. In many cases of this type, it is difficult, or impossible, to prove beyond reasonable doubt who did what, and therefore neither parent nor carer can be convicted.
I agree that we need to take action, but I have serious doubts about the drafting of Clauses 4 and 5. We need to test the implications of the route the Government have followed and, in particular, ask them to justify why they have diverged from the Law Commission's proposals. This first group of amendments tackles the question of divergence from the Law Commission's proposals.
The offence created in Clause 4 relates to both children and vulnerable adults. My amendments remove the reference to vulnerable adults in order to ask the Government to explain why they departed from the Law Commission's proposals that were confined only to children. What was the genesis of the Government proposals? Which organisations were consulted and have those responses to consultation been published?
When I was writing my speaking notes over the past week and at the weekend, I took the chance to reread the briefing we received on Second Reading. I subsequently noted that the NSPCC briefing states that as far as it is aware, no consultation exercise equivalent to the work that has been done in relation to children has been conducted in relation to vulnerable adults. It therefore raises the question of whether this group has been given the attention it deserves prior to launching into legislation that does not appear to it to have been well thought out. Naturally and properly, the NSPCC adds that this is not its area of expertise; it leaves it to those who represent vulnerable adults to make their own representations. The problem is that, so far, I have received no representations either way from such groups, so I am rather in the dark.
I therefore thought it right that I should table this amendment to ensure that at least the matter receives some attention today. I shall certainly do my best to contact the relevant organisations to find out what has been going on behind the scenes and ask them for their views.
I can certainly understand the very good intentions behind trying to ensure that those who are unable to protect themselves as adults should be brought within the scope of Clause 4. But that would also be a good argument for ensuring that adult victims of domestic violence were covered by this defence to the offence. How far does the definition of a vulnerable person go in subsection (6)? Does the reference to "or otherwise" at the end of the subsection mean that all adults who are the victims of domestic violence are covered by that subsection? What do the Government intend the words "or otherwise" to cover?
In practical terms, how would the fact that somebody fell within the definition of "vulnerable adult" be verified after his death? What is the Government's expectation? Would medical records be required? Since the person is dead, what would be acceptable proof of his vulnerability, especially those who fall into the category of "or otherwise"? After all, children's details are easily verified by a birth certificate. There are simple physical records; one just has to prove age. But as soon as one enters the realms of vulnerable adults, I foresee difficulties in properly defining who should be protected by that definition. I beg to move.
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