asked Her Majesty's Government:

My Lords, following much discussion with government, the insurance industry recently announced that for high risk properties where defences are in place or planned by 2007 up to a minimum standard of one flood in 75 years, it would maintain current flood insurance for domestic policies and that, were those properties to be sold, it would continue cover, provided other information about the new owners, especially their previous claims record, is satisfactory.

My Lords, I thank the noble Lord for that Answer. I have the press release put out by the Association of British Insurers. I point out to the Minister the key words in the press release—which he did not mention—which concern the ABI's new Statement of Principles:

"It will ensure that there is a competitive market for insurance based on the actual risks of flooding".

In my part of Sussex, Lewes—I do not have to declare an interest as my property was not flooded—because of the amount of money that it is intended to spend on flood prevention, the risk of flooding will diminish to one in 75 years or one in 100 years, and household insurance will be available. But in neighbouring Uckfield—a mere seven miles away—the amount of money that it is intended to spend on flood prevention at the moment is much less, despite the flooding of two years ago and, in consequence, the risk of flooding will be one in 30 years—that is, a three per cent risk every year—and on that basis household insurance will not be available. Without household insurance no one can sell their properties as new purchasers cannot obtain mortgages without household insurance. Does the Minister consider that that is unjustifiably unfair?

My Lords, I am aware of the particular problems of Lewes and Uckfield. I believe that the noble Lord is aware that the Environment Agency has recently submitted a strategy dealing with the whole Ouse basin. My interpretation of the ABI position is that those premises which have a better risk than the once in 75 years flooding incidence will continue to be insured in the normal way. Properties with a worse risk factor would be judged on a one-by-one basis. It is not that insurance would not be available, but, clearly, it would be more expensive and there would be a premium attached to it. Therefore, there would be some disadvantage for those who are more vulnerable to floods. However, that is the nature of insurance. Neither the insurance industry nor the Government can devise a system where there is no risk. If there is a risk, the insurance industry must judge what premium it charges for that risk.

My Lords, is the Minister aware that in some areas such as Northamptonshire the Government have not provided proper flood defences? In those circumstances will the Government not take on some responsibility as regards the poor people whose properties are flooded because of the lack of defences?

My Lords, the Government have a major responsibility in relation to flood defences and dealing with floods. It is not, however, the Government's job to be the insurer of last resort in those or any other circumstances. In the recent spending review the Government committed to flood defences the sum of money which the ABI, on behalf of the insurers, indicated was the amount that was needed for them to be able to make the kind of statement to which I referred which covers the vast majority of properties in the flood plain.

My Lords, is the Minister aware that the Environment Agency's maps could be misleading? The maps detailing areas at risk from flooding rely only on topographical data. Because they take no account of precedent and the way in which flood plains work, they have included many houses which are now on the at-risk list that have not been flooded for hundreds of years.

My Lords, the maps are misleading only if they are taken to mean something that they were not intended to mean. As the noble Lord says, they take account of topography and, to a limited extent, flow, but not flood defences or history. The Environment Agency is working on establishing more detailed maps but that will take some time to complete. The number of properties which are vulnerable, and on which the insurers are basing their calculations, include some which have not been flooded—and are unlikely to be flooded—for a number of years. The figures are a little flexible. Nevertheless, they give an indication of the totality of an area where flooding might be a problem.

My Lords, the Minister has brought good news in relation to the availability of insurance for properties in areas at high risk of flooding. Can he tell us what proportion of the approximately 2 million properties in this country which are thought to be at risk of flooding will still not be able to get insurance either as regards existing occupiers or new occupiers?

My Lords, as I indicated earlier, it is not necessarily a question of not being able to get insurance but it would not be on the same basis on which the ABI is effectively making a commitment. About 180,000 premises of the 1.8 to 2 million to which the noble Lord referred seem to fall in a worse category that that of one flood every 75 years.

My Lords, can the Minister tell us whether he regards flooding as an act of God or an act of man?

My Lords, that is probably a question for the Bishops' Bench rather than the Government.

My Lords, it is a question for the Minister—he is god, not me!

My Lords, what is the responsibility of man is the responsibility of the Government in this regard. We have signalled our responsibility by providing in the previous spending review that very significant additional resource for capital development on flood defences.

My Lords, does the Minister accept that the present system for deciding on flood control measures is archaic? There are too many people involved: the Countryside Agency, the Environment Agency, district councils, county councils, DEFRA and local flood committees. Can the system be simplified as soon as possible so that decisions—they must be the right decisions—can be arrived at much more quickly?

My Lords, there is an issue in relation to the structure of responsibility for flooding. The Environment Agency effectively takes on the strategic role, but a number of different bodies are involved. As the noble Lord will be aware, there is a review of the institutional and funding side of flood defences. We have had the response to the consultation exercise, which we are now assessing. We will be able to give further details on any changes in that regard within a few months. We are aware that there is a problem.

On a question relating to an area that was previously the responsibility of the Ministry of Agriculture, it would probably be remiss of me to sit down without mentioning to the House that today is the 80th birthday of the noble Baroness, Lady Trumpington.

Hear, hear!

My Lords, it is very nice to be remembered for floods!

My Lords, are the Government considering any process that seeks to inhibit the granting of planning applications on flood plains and areas liable to flooding?

My Lords, planning authorities are well aware of the problem in relation to new developments. There have undoubtedly been some perverse planning decisions in the past. The Government and my colleagues in the Office of the Deputy Prime Minister have made sure that planning authorities take that issue seriously.

asked Her Majesty's Government:

My Lords, the Government are making steady progress towards implementing the investment plans set out in the 10-year plan. A report on the plan, which will set out progress to date, will be published in due course.

My Lords, I thank the Minister for that Answer. Bearing in mind that outside London the numbers of people travelling on the railway are falling, that the bus industry is facing a crisis of reinvestment because profits in the industry are falling so dramatically, that the road safety targets are moving the wrong way rather than the right way and that congestion is a problem that affects everybody throughout the country, will the Minister please point to some areas of success to which the Government adhere?

My Lords, I acknowledge the truth of the first few words of the question of the noble Lord, Lord Bradshaw. Yes, it is certainly true—partly because of the effects of the Hatfield disaster and partly because of the known shortcomings of Railtrack—that there are grave difficulties in the rail area. However, contrary to what the noble Lord said, bus ridership is up and London Underground is carrying more passengers than ever before. As for road safety, the numbers of people who died or were seriously injured have declined by 15 per cent since the average for 1994–98 and the numbers of children who died or were seriously injured have declined by 27 per cent, which is well on the way to meeting our targets.

My Lords, what are the Government doing to reduce traffic levels? In the 10-year plan, they said that they wanted to reduce traffic levels by 5 per cent by 2010. In the first two years of the plan, traffic levels have probably gone up by more than 1 per cent a year. Can the Minister tell us of a single government project or initiative to cut traffic levels?

My Lords, there is always a conflict in this regard because successful economic policies, for which the Government are very distinguished, have the unfortunate tendency of increasing traffic levels. The programme to reduce traffic levels, which was rightly identified by the noble Viscount, Lord Astor, is a long-term programme and we shall report on it in our next review of the 10-year plan.

My Lords, is not the problem with long-term planning in the public sector the simple fact that no government can bind their successor and that no attempt ever seems to be made to get parties to underwrite a policy outlining the way forward? They are just meaningless.

My Lords, the Government intend to stay in office for at least the next 10 years. It is true that we do not commit ourselves to financial expenditure over the full 10-year period but the introduction of the three-year spending reviews, with updates every two years, means that there are expenditure commitments ahead for at least two years. So far as the transport plan is concerned, we have a clear commitment over the next three years to increase spending on transport by 12 per cent a year in real terms. I call that a very significant improvement on previous governments' achievements.

My Lords, while I congratulate the Government on meeting the target for rail freight—I declare an interest as chairman of the Rail Freight Group—does the Minister agree that leadership from the Strategic Rail Authority is possibly concentrating too much on inter-city rail services, particularly those painted red, to the detriment of some of the regional services, such as First North Western and Arriva? They have suffered serious industrial relations problems for several months, probably causing severe loss of traffic and consumer lack of confidence. Given that all of those services are now virtually funded by the Government—they are certainly directed by the Government—should not the Government be seeking to resolve that?

My Lords, I do not think that one keeps a dog and barks oneself. The Strategic Rail Authority is responsible for relations with the train operating companies. If there had been the kind of systematic distortion which the noble Lord, Lord Berkeley, described, I am sure that we would have heard more about it.

My Lords, can the Minister be more precise? What stage has the 10-year plan now reached and does it cover coastal and canal traffic?

My Lords, the 10-year plan covers the period from 2001 to 2011. Therefore, there is only one complete year of the plan on which to make a progress report. My understanding—I may be wrong—is that it covers coastal and canal traffic.

My Lords, does my noble friend recall that, contrary to what was implied, I believe, by the noble Lord, Lord Marsh, when the 10-year plan was introduced following primary legislation more than two years ago, there was all-party support for it? All sides of the House welcomed the fact that we were trying to look ahead over 10 years. Whether or not a change of government would take place during those 10 years was another question. But, for the first time, an attempt was being made to examine the investment figure of £180 billion over the 10 years. Is it not the case that, even now, despite all the setbacks and difficulties—events, dear boy, events; there have been events!—it is nevertheless important to attempt to sustain credibility and all-party support for the concept of the 10-year plan?

My Lords, I am grateful to my noble friend Lord Lea. He is right. We have not resiled in any way from the £180 billion commitment which we made at the time of the 10-year plan. I remind the House that that represents a 42 per cent real-terms increase in transport expenditure compared with that of the previous 10 years.

My Lords, does the Minister accept that it is not simply expenditure of money that is needed but a little common sense? Many of the problems that exist today, and which have reached crisis point in London and other parts of the country, could be solved without great expenditure, without penalising drivers and without penalising people on public transport. Will the Government please get rid of the traffic consultants, who cost a fortune and exacerbate every problem?

My Lords, I hate to say this, but at the time that the railways were privatised, some of us in the Labour Party thought that there was a certain lack of common sense in the then government's proposals. Have we not been proved right? Traffic consultants are in the private sector, and their employment is a matter for the individuals who hire them and not for the Government.

My Lords, is the Minister mindful that the railway network in England is Scotland's access to Europe and to the rest of the United Kingdom? Will he ensure that Scotland's strategic rail links, by which I mean the East Coast and West Coast Main Lines, are redeveloped more speedily so as to prevent over-reliance on airlines and the air pollution which they cause?

My Lords, I congratulate the noble Earl, Lord Mar and Kellie, on the way that he framed his question so that it did not fall foul of the devolution prohibition. What he says is extremely important, and the upgrading of the West Coast Main Line to a speed far greater than has been achieved in the past is a significant contribution to that. But I am sure that there is far more to be done.

My Lords, is the noble Lord aware that at certain points on the motorways traffic congestion has more than doubled over the past five years? Can he confirm, or otherwise, the announcement in the Sunday Times of 13th October that the Department for Transport has a programme to tackle what are known as "pinch points" in the motorway network?

My Lords, within the past two weeks the Secretary of State has announced a programme of 92 projects which are designed to tackle pinch points. A number of those are on motorways.

My Lords, the original Question, which the noble Lord did not answer, was whether the progress of the 10-year transport plan was, in the Government's view, satisfactory. Do I take it from the extent of his defensive remarks that the answer is: not entirely?

No, my Lords. That does not follow at all. I said that the progress is steady. But, in answer to another question, I said that, as only one year of the 10-year plan has been completed, clearly it would be premature to pass judgment on it as a whole.

My Lords, perhaps I may assure the Minister that, in asking the Question, I was in no way departing from my general support for the principles of the 10-year plan. I was expressing disappointment with what has been achieved so far. I hope that he will concur that a great deal of work remains to be done.

My Lords, the commitment of the noble Lord, Lord Bradshaw, to integrated transport and his distinguished service on the Commission for Integrated Transport are well known. I am grateful for his support and, of course, I agree that there is a great deal more to be done. There is bound to be in eight-and-a-half years.

asked Her Majesty's Government:

My Lords, the Government's policy on accounting for all liabilities is, in accordance with the Government Resource and Accounts Act 2000, to follow generally accepted accounting practice in the United Kingdom, in particular, financial reporting standards issued by the Accounting Standards Board, adapted as necessary for the central government context. With regard to accounting for liabilities, two financial reporting standards are particularly relevant: FRS 12, Provisions, contingent liabilities and contingent assets; and FRS 5, Reporting the Substance of Transactions, which is particularly relevant for private finance initiative and other complex transactions.

The detailed requirements are set out in the Resource Accounting Manual, which is the authoritative statement of how departments should account for transactions in their resource accounts.

My Lords, I thank my noble friend for that Answer. In case some people outside do not have the intellectual capacity of your Lordships, perhaps I may ask him whether it would be better to express it more simply and to concede, honestly, that borrowing off-balance sheet is likely to be more expensive than borrowing on-balance sheet? Does he agree that, equally, it would be perfectly honourable for the Government to say conclusively that the reason they are borrowing in this way is that the Treasury understandably wants to take the percentage of borrowing as a percentage of GDP to a lower level than the Chancellor would otherwise like to do? Is that not the case and does my noble friend agree with that?

My Lords, I do not believe that the House would thank me for giving simplistic rather than accurate and detailed Answers. As to the question of the difference in private sector interest rates and their increased cost, our calculation is that the additional interest cost involved in going to the private sector is approximately 0.25 per cent of the total cost of construction and maintenance in PFI projects. I entirely resist the notion that the Government have any incentive to take liabilities off-balance sheet. We have no need to do so. Our only criterion in these matters is value for money.

My Lords, does the Minister's acceptance of generally accepted accounting principles for liabilities also apply to FRS 17, which applies to pension liabilities? Does he accept that last year the Government Actuary estimated the liability for future payment of the standard pension to be more than £1,000 billion? In accordance with accepted accounting principles, will the Minister be willing to include that in the Government's financial report and, indeed, to update the nation every year on how much it has increased?

My Lords, behind the question posed by the noble Lord, Lord Blackwell, is a good but rather shocking revelation that the amount being put into private pension funds is not as great as we had believed. We thought that the figure was higher than it actually is and we are grateful to Mr David Willetts for pointing that out. As for FRS 17, I do not believe that we have a formal view on it, but my personal view is that it would be a great mistake for companies to make a precipitate judgment on the change in their balance sheet in any year when they have no urgent need to realise the assets concerned.

My Lords, the Minister speaks of minuscule extra costs, but have the Government made any calculation of what the costs would be if one of the PFI contractors went bust? Is he aware of the widely reported concern about the financial standing of Amey plc; which is one of the largest off-balance-sheet contractors for the Government in health, education, defence and transport? On the London Underground PPP, is it now prudent to sign a 30-year contract with the tube lines consortium, in which Amey has a one-third share, to modernise and to upgrade the Piccadilly, Jubilee and Northern lines?

My Lords, it would be entirely inappropriate for me to comment on the finances of an individual contractor.

My Lords, is the Captain of the Queen's Body Guard aware that people of limited intellectual capacity are not confined to those outside the House, as the noble Lord, Lord Barnett, said, but can also refer to some inside it? When the Minister is kind enough to provide answers it would be helpful, while not compromising accuracy, if they were phrased so that some of us could understand them.

My Lords, I was asked a precise and serious Question by the noble Lord, Lord Barnett, which I do the House credit by taking seriously. I answered with facts, not with speculation and I answered with detail, not with generalisation. I hope that that is what the House wants.

My Lords, does the Minister appreciate the extreme sensitivity of the Question posed by the noble Lord, Lord Barnett? Is it not the case that in a few weeks' time the Minister will come before your Lordships' House to explain that the Government's figures for the public finances are wrong? He will go on to say that the Government will borrow more and add that as they are well within their borrowing limits they can afford to do so. If the line of questioning of the noble Lord, Lord Barnett, is correct—it usually is—he is driving at the fact that the level of borrowing stated in the public accounts is inaccurate because it is understated. The Minister will be well aware that there are many critics, apart from the noble Lord, Lord Barnett, who take that view.

To settle the matter between the critics and the Government, ahead of probably the most sensitive economic announcement for years, will the Minister undertake to publish on that day, or before it, a full analysis of the Government's liabilities in relation to PFIs, PPPs or other allegedly understated liabilities in the public accounts, so that when the Chancellor describes the Government's debt situation people will know that the figures at which they are looking are correct?

My Lords, the noble Lord, Lord Saatchi, would hardly expect me to anticipate the Pre-Budget Report. In regard to what we publish, perhaps I may take the example of the Strategic Rail Authority (SRA), which is one of the most controversial. The credit facilities given to the SRA are reported to Parliament as contingent liabilities and they are listed in statements of the Consolidated Fund and the National Loans Fund accounts. Those matters are reported fully. There is no concealment.

My Lords, while helping the noble Earl, Lord Ferrers, with his intellectual capacity in these matters, perhaps my noble friend can tell the House how much of the off-balance-sheet borrowings are fully guaranteed rather than effectively guaranteed?

My Lords, I may be able to give a precise answer, but not within the time-scale available for Starred Questions. The figures are certainly available. Taking the example of London Underground, the guarantees given for that public/private partnership are the guarantees of third-party debt rather than of shareholders' funds. That is a characteristic of the private finance initiative and reflects the proper transfer of risk that is an essential feature of such initiatives.

My Lords, perhaps the Minister can help those in this House who cannot believe that it is cheaper to give a company profit rather than to borrow on bonds at 6 or 7 per cent. Can he place in the Library a detailed analysis of one of those schemes, say, a hospital?

My Lords, I shall see whether that can be done. There are very detailed reports of PFIs. The PFI accounts are analysed by the National Audit Office. All those matters are in the public domain. There has been no concealment of them at all.

My Lords, I beg to move that the Bill be now further considered on Report.

moved Amendment No. 89:

Page 91, line 42, leave out paragraph 4.

My Lords, I rise to support the amendment. There is a hint of retrospection in paragraph 4 and it has a restrictive element. What is the purpose of that paragraph as it stands? I shall of course listen to everything that is said by the Minister. At the moment, it seems to me that the amendment should be supported.

My Lords, I am grateful to the noble Baroness, Lady Noakes, for her support of counselling. I am sure she is right that it is widely welcomed. My understanding is that where counselling is voluntary, two out of three who are offered it take up the offer, which confirms the view that she has taken.

The noble Baroness describes this as a modest amendment. I suppose it is. But it is not quite as modest as the amendment she moved in Grand Committee. That amendment—Amendment No. 86—would have replaced the current mandatory requirement for an adopted person to undergo counselling. It would have put persons adopted before 12th November 1975 on a similar footing to those adopted after that date. The amendment then would have required the registrar-general to inform the applicant that counselling services are available and to recommend strongly that the applicant use them. That is in line with her speech today.

The amendment before us today completely removes the requirement for an applicant adopted before 12th November 1975 to receive counselling before the registrar-general provides the information—primarily his birth name, but it is necessary for the applicant to obtain a certified copy of the record of his birth. My problem is that the amendment would overturn a scheme that is based on a clear commitment made by Parliament in 1997, not to legislators, but to adopted persons and to their relatives.

The requirement for compulsory counselling was introduced by Section 26 of the Children Act 1975 that was enacted in the Adoption Act 1976. Section 51 of the 1976 Act gave adult adopted persons a right to obtain the information necessary to access their birth records. For adopted persons living outside the United Kingdom, the Children Act 1989 amended the 1976 Act to allow the registrar-general to approve counselling services overseas. That was enacted in 1991.

Individuals who do not know their birth details and were adopted before 12th November 1975 are required to see a counsellor before they are given access to their birth records. Individuals adopted on or after 12th November 1975 are informed of the counselling services that are available to them, but counselling is not a pre-condition to disclosure of the birth record information.

The reason for the distinction is that until 12th November 1975 adopted people did not have a right to access their birth records. When Parliament provided the new right, it gave it to individuals prior to 12th November 1975. That was the time of the retrospection. There is no retrospection now. It was to balance the concerns of birth parents who had previously had anonymity. The concern we must have is that it was the birth parents who had had anonymity before who had to be protected. Parliament decided that counselling would be compulsory for those given the retrospective rights. An adoption that took place before 1975 could have done so in the expectation that there would be little prospect of the birth parents' identity being revealed to the adopted person.

Many adoptions before that time happened in an atmosphere of secrecy. The noble Baroness, Lady Noakes, is quite right about that. Parliament considered this issue carefully before deciding to allow the adopted adult access to his birth record. In recognition of the fact that it would be changing the position of adoptions after the event, Parliament decided that because of the potentially sensitive situations that might arise the adopted adult should have counselling before being able to have access to the sensitive information about his birth parents.

As I have said today and in Grand Committee, Parliament made this clear commitment in 1975. It was that persons adopted before 12th November 1975 would be required to discuss the circumstances of their birth, their adoption and their intentions with a trained counsellor before they could receive their birth record information.

I hope that noble Lords will see from that explanation that this is a long-standing obligation which we have to people who had expectations of anonymity in the past. We are maintaining these conditions. This amendment would do serious damage to that.

My Lords, I thank the Minister for that reply. I am of course aware that the amendment I have tabled for Report stage is different from the one I tabled in Grand Committee. That is because on reflection I could see no reason why the intermediate stage of giving a strong recommendation as to counselling should be preferred to the position that obtains for all those adopted adults after the 1976 Act.

It is somewhat illogical that in order to protect the birth parents the adopted person has to go through counselling. There is no logical connection between the two.

My Lords, it is because the information that is being given, which is the birth record, gives information about the birth parents. That is why.

My Lords, yes. But the purpose of counselling is to prepare the adopted person for the difficulties that may flow from attempting to seek a reunion with the birth parent. I am disappointed in the Minister's reply. Those adopted adults, as I said earlier, must be over 27 years of age and many considerably older—their parents even older still. I had hoped that after this period of 27 years and in a completely different social environment we could have updated the law and not fallen back on the social position of 1975. However, I shall consider carefully what the Minister has said. I beg leave to withdraw the amendment.

moved Amendment No. 90:

Page 45, leave out lines 37 and 38.

My Lords, I rise briefly to support the amendment. Again, it is restrictive. It relates to a concept of such information which is totally at large. That is an unsatisfactory manner in which to legislate. I hope that it will not be said, as was said about the previous amendment, that because way back in the past a retrospective measure was adopted by Parliament, it must be perpetuated in an amending Bill such as this.

My Lords, we have tabled an amendment in this group: Amendment No. 91. Its effect is broadly the same as that of the amendment moved by the noble Earl, so I shall not prolong the discussion further.

My Lords, Clauses 80 and 81 are concerned with supplementary provision for the adoption contact register. I was a little puzzled by the noble Earl's reference to overseas adoptions because, strictly speaking, the part of the Bill concerned with adoptions with a foreign element commences with Clause 83 and Chapter 6. But of course he is right in that the contact register is available to any person who can satisfy the conditions in Clause 80. That means that a birth relative of a person subject to intercountry adoption could apply to go on the register. If that is what the noble Earl meant, I understand his point more clearly.

Clause 80(5) sets out the conditions under which the registrar-general may make an entry for a birth relative in part 2 of the adoption contact register. The register provides a framework designed to facilitate contact between adopted persons and their relatives where that is what they both want. There are two parts of the register. Part 1 contains the names of adopted persons who have given notification that they want—or do not want—to contact all or some of their relatives. Part 2 contains the names and addresses of persons related to an adopted person who have given notification that they want—or do not want—to make contact with a specified adopted person.

Amendment No. 90 omits part of Clause 80(5)(b), which provides that the registrar-general can make an entry in part 2 of the register only where the applicant has such information as could enable him—that is, the registrar-general—to obtain a certified copy of the record of the adopted person's birth. The amendment would remove the means by which the registrar-general is satisfied that the person who claims to be the relative of an adopted person is in fact related to him and would be able to obtain a certified copy of the record of his birth.

Amendment No. 91 amends Clause 81, which sets out supplementary provisions for the adoption contact register. If it were correctly placed in Clause 80, rather than in Clause 81, it would merely repeat the existing provision in the Bill.

Without the essential details needed to establish a relationship between the adopted adult and the applicant, the registrar-general cannot be satisfied that a birth relationship exists, because there will be no evidence. Without that safeguard, a person claiming to be a relative could expect to be registered on part 2 of the contact register regardless of whether or not they were genuinely related to the adopted person.

The amendment would weaken the safeguards of a facility intended by Parliament to assist genuine contact between members of the same birth family—when, as I said, they both wish to make such contact. It could allow the register to be misused. For example, if an adopted person were led to believe that the other person was a relative with whom he wished to have contact, that could lead to emotional entrapment of the adopted person.

Where applicants are unable to satisfy the statutory requirements for entry to be made on the contact register, the registrar-general has referred individuals to the National Organisation for the Counselling of Adoptees and Parents, which operates its own contact register. Such applicants are advised that the threshold for proof of a relationship between the two parties is lower on NORCAP's register.

In the light of my explanation that the amendment could cause serious difficulties with the proper operation of the adoption contact register, I hope that it will not be pressed. Before I sit down, perhaps I may correct something that I said a minute ago. When I said that the applicant can make an entry in part 2 of the register where the applicant has such information as could enable the registrar-general to obtain a certified copy, I should of course have said "enable the relative to obtain a certified copy of the adopted person's birth".

My Lords, I am grateful to the Minister and take on board his points about the effect of my amendment if accepted. As I am sure that he appreciates from my earlier remarks, the amendment was designed as a device to tease out a little more information about the Government's thinking on how the system will work in practice—in particular, on the major question, which I know puzzles and worries many people at present: what will constitute sufficient information in that context? We may each have our own ideas about what may constitute sufficient information, but it would be useful to have at least a broad idea about that placed on the record. However, I realise that that request may not be reasonable at this stage.

I had also hoped that the Minister would say something about fees, which are another worry to those who specialise in adoption. As I said, they will impact especially on those from overseas who come to the United Kingdom and are confronted with an expensive system.

My Lords, I apologise to the noble Earl for not referring to fees, which he indeed raised in his opening speech. I can either give him an answer now or write to him and other noble Lords.

My Lords, I should be most grateful if the Minister would write to me in due course on the matter. I am grateful for that offer. Nevertheless, this has been a useful exchange. Once again, I thank the Minister and I beg leave to withdraw the amendment.

moved Amendment No. 96A:

After Clause 96, insert the following new clause—

moved Amendment No. 102:

Before Clause 111, insert the following new clause—

My Lords, I compliment the noble Baroness, Lady Thomas of Walliswood, on a bravura performance, even though she had no prior notice that she was about to move the amendment.

I know that the Minister will give a detailed résumé of the legal position on the representation of children and will say that what is sought in the amendments is already covered by existing rule-making powers and/or the practice of the courts. I, for one, would not dream of challenging the Minister whose expertise in that area of the law is widely famed. But—it is a big "but"—the fact remains that the Government have not implemented Section 64 of the Family Law Act 1996 and have no intention of so doing. Concerns remain about the effectiveness of measures to allow the child's voice to be heard, particularly in private law cases.

I thank the Minister for the useful briefing note that was circulated on 4th October. It referred to messages from a scoping study and possible areas for further consultation. However, the note gave no timescales and did not identify any particular areas that the Government were committed to pursuing. I hope that, if the legal framework is to be accepted as perfect, the Minister will accept that something must be done about implementation in practice. It should be clear that the need for the representation of children's views about their future is beyond question. If further consultation is required, it must be timetabled.

I hope that the Minister will be positive about the matter. If she is not, the case for the amendments will become compelling.

My Lords, I shall speak to Amendments Nos. 102 and 117, which stand in my name. Before doing so, I sincerely thank the noble Baroness, Lady Thomas of Walliswood, for stepping into the breach. I apologise to the House for being detained. I was trying to perfect what I was going to say, so I hope that I can do it justice now.

The Minister has been a well respected practitioner in this area, as the noble Baroness, Lady Noakes, said. The Minister has said that there should be a change in the culture of private law proceedings involving children, and she has helpfully provided briefings on the many steps she is taking to bring about that change. She has argued that it is practice that must be addressed and that that would be best done through training. She has argued that there is already an adequate framework in private law to protect children.

I have weighed carefully what the Minister said. I have paid close attention to what she said about the problems that could arise in providing equality of arms for children in private law cases. The Minister said that that could lead to the prolongation of cases and could mean that the child would have to take the side of one parent or the other. The indiscriminate use of separate representation for children in private law cases is not desirable.

I took a pause for thought and consulted children and family court reporting officers and children's lawyers working in this area. The consensus was that the framework is not as it should be. There is a lack of means for courts to appoint separate representation if it is felt that that is necessary for the child. The courts would appreciate more guidance on when to consider the introduction of separate representation for children.

There are two main pathways into separate representation for a child. There is Section 9(5), which provides for the assistance of a Children and Family Court Advisory and Support Service officer. The officer is empowered to appoint separate representation for the child. However, it can be a long-drawn-out and, possibly, fruitless process. Such provision depends on the discretion of CAFCASS. As that organisation is in disarray, there is a consensus that it may not achieve what the court wishes for the child. The second main approach is to use Section 37 of the Children Act 1989. However, it can be used only in extremis when the child is suffering abuse.

Amendment No. 102 seeks to allow the Lord Chancellor to establish rules that will enable the courts to give particular regard to whether a child should have a guardian appointed and should be empowered to have separate representation. For instance, if the parents are in court for the 24th time litigating against one another, the courts in the new circumstances will be empowered to appoint a guardian for the child. The court may be the only means, through considering the needs and wishes of the child, to end such prolonged and protracted litigation.

Where there is disputed contact, the courts can more easily obtain a thorough investigation of the children's circumstances and ensure that the voice of the child is heard by appointing separate representation.

A model already exists in statute; Amendment No. 102 is modelled closely on Section 64 of the Family Law Act 1996. My noble and learned friend Lord Simon of Glaisdale spoke eloquently at the time of passing that law for the need of such provision.

I should be grateful if the Minister could say why the Government are choosing not to reinstate a provision already accepted under the Family Law Act 1996. This is an important new means to support and protect children in private law proceedings.

My Lords, I support all the amendments in the group for reasons that I have given at some length previously, both in Grand Committee and on Report. I support both their spirit and substance. The problem is, what is to be done? The Lord Chancellor is concerned that adequate regulations should be made. I am not certain he is totally satisfied that on an objective review they could not be improved.

Few regimes cannot be improved if one takes another look at them in the light of these amendments. Without being at all critical, I would not say that the present structure of the regulations is perfect or that it ever could be, but it could perhaps be improved.

Once it has been improved, there is still the question of whether the regulations are being applied. That is a problem under the existing structure. It is possible that the Lord Chancellor could take steps to seek to ensure, when he has revised the regulations, that they are more regularly applied in the courts. I look for a sympathetic response from the Minister.

My Lords, I too support the amendment. I have listened with care to the arguments put by the Minister, whom I respect greatly. I understand her wish to change cultures, to increase training and to use other methods to achieve those ends. Despite that, I am still convinced that it is important that the amendment is accepted.

I have a list of legal precedents in relation to the position in Europe and how we stand in relation to the various conventions. They have been outlined and I do not intend to go through them again. The other legal arguments have been made clearly. I speak on behalf of children to whom I have listened in their dozens over the lines at Childline; families I have met; and CAFCASS officers and others to whom I have spoken in recent years.

Many children feel that whatever is happening to them in court, they are simply not being heard. They often feel that they do not want to choose between parents; the Minister has made that point on a number of occasions. But if one talks to them on the telephone about that choice, it is clear that whatever help they are receiving in thinking through it, they need legal advice to sort out the issues and the pros and cons of how they take forward the issues through the courts.

They know emotionally how they feel, but they do not necessarily know how to interpret that emotion in relation to the arguments that will be put in an adult forum. I was involved in the discussions about Section 64 of the Family Law Act 1996. During the passage of that Act through the House of Commons, great emphasis was placed by the government—then in opposition—on the need for separate representation of children involved in private law proceedings. They were listening carefully to what various organisations were telling them about children's voices.

At that time, there was consensus. I am interested to know why that consensus is no longer accepted. If the debate at that time was supported by those involved in the debate now, why is it now not possible to accept the amendment? The non-implementation of the Family Law Act has effectively halted development in this area. The Bill provides an opportunity to implement those long overdue changes and to make sure that we hear children. Many of them feel that their voices have not been heard, and indeed, in difficult cases, that they have not been protected.

My Lords, I thank all noble Lords who have participated in the debate; they feel like old friends. I compliment the noble Baroness, Lady Thomas, on her sterling heroic effort. The whole House was urging her on.

I greatly sympathise with the spirit of the amendments and agree that the wishes and feelings of children must be heard when important decisions are being made about their future. The noble Baroness, Lady Howarth, spoke about the need to listen with acuity to what children have to say; that is very important. The question of how we carry out that listening is of equal importance.

The amendments seek to provide the power to extend the definition of specified proceedings so that children can automatically be separately represented by children's guardians and solicitors either in cases identified by the courts as requiring such a level of representation or in classes of proceedings to be defined by rules of court.

I hope that I can reassure noble Lords by saying as clearly as I can that these amendments are unnecessary. I am grateful for the compliments that have been showered upon me about my erstwhile participation in these cases on the ground. Having looked at the legislation, I was most careful to assure myself that that which needed to be on the statute was in fact there. I can assure the House that if it were not, I would have been as discontent as others who have spoken.

Section 41(6) of the Children Act 1989 already provides the definition of "specified proceedings" to be extended by rules of court, and the Family Proceedings Rules 1991 provide that any child in any family proceedings can be made a party to proceedings and be separately represented. The welfare check list in Section 1(3) of the Children Act requires the court to have regard to the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding. That is not an optional consideration; it is mandatory. Therefore, the issue for the court is how best to meet that obligation in the best interests of the child.

The court has a number of options. It can make the child a party to proceedings. As I have said, it can already do that in any family proceedings It can appoint a guardian, who will now be a CAFCASS officer, for any child in any family proceedings. The court can ask a CAFCASS officer to report to the court on the welfare and best interests of the child. The Family Proceedings Rules specifically provide that the report must cover the matters in the welfare check list, which includes the child's wishes and feelings.

Only last year, we amended the rules to place an additional duty on any children and family reporter; namely, to notify the child about the contents of the report, including any reference to the child's own views and the recommendations. It is right that we would anticipate that CAFCASS officers would take that responsibility very seriously and would do exactly what the noble Baroness, Lady Howarth, outlined in helping the children to understand the proceedings and ensure that they know their views have been listened to and will be properly represented and reflected.

When decisions are being made about the state intervening in a family life, such as in a case with care proceedings or in placement proceedings under the Bill, it must be right that children are separately represented. However, it is less clear that a formulaic approach works in private law family matters. As I said earlier, and as others foreshadowed, not every child will want to be a party to proceedings. Some children may specifically not want to be drawn into a dispute between their parents. For some children, this could feel like being asked to choose between two parents both of whom they may love very deeply.

In other cases, the child may actively want to participate and have a view that either of the parents may be incapable of putting dispassionately on his behalf. We need a flexible child-centred approach that meets each child uniquely and the court must be allowed to consider what is right for each individual child. The noble Baroness, Lady Thomas, inquired about making placements in adoption cases and asked whether that would be a specified proceeding. Subject to further consultation, we do not intend to make adoption proceedings specified proceedings because under the Bill the majority of issues will be resolved before the adoption hearing.

While the amendments add nothing to existing legislation, I agree that we must consider whether the existing arrangements are operating consistently and effectively in practice. Noble Lords who highlighted that point are right and the noble Earl, Lord Listowel, was right in saying that it is an issue. That is the essence of the debate.

That point was also made in this year's concluding observations of the Committee on the UN Convention on the Rights of the Child about the representation of children in family proceedings. The committee expressed disappointment about the extent to which the provisions already contained in the Children Act were being consistently used, but were not disputing the merits of the legislation. That is precisely the point that we intend to address in consultation. We want to ensure that the full range of ways in which children can have a voice in decision-making regarding their future is considered and used consistently. The noble Baroness, Lady Noakes, asked when that will take place. We are already working on a consultation paper and we hope to begin consulting around the end of this year. Therefore, creative work is being done on that.

During Grand Committee, my noble friend Lady Thornton was concerned whether we were needlessly consulting. I want to make two points about that. First, we shall not consult on whether children are able to be separately represented. As I hope I have made clear, that is already provided for in the current system. We want to address the concerns raised in the debate and in a scoping study that we have already undertaken with organisations representing children to inform the scope of full consultation.

In summary, it seems to us that those concerns fall into two broad categories. First, that the existing arrangements are not used consistently. It may be that we need more specifically to define the types of case in which a child should be separately represented, or a CAFCASS officer appointed. If so, we already have the necessary powers to do that. Secondly, we have focused too narrowly on legal representation and have not taken account of the fact that children experiencing family breakdowns may have very different needs. That point was made by the noble Baroness, Lady Howarth.

A child may need information or advice about how to raise concerns with his parents, for example, or about the legal process and what it means. He may simply want a friendly face to talk to and to support him through the process. We must consider whether we need a greater variety of tools to ensure a flexible system in which children of all ages and levels of maturity have the opportunity to express their views and to be heard in a manner in which they feel comfortable. That is what we want to consult upon.

Existing legislation already provides for children to be separately represented in any family proceedings and for the definition of "specified proceedings" to be extended by rules of court. Therefore, we have what provision we need in that area. But we want to ensure that we make the best use of those wide powers so that the system works as effectively and as efficiently as it can. I agree with the noble Lord, Lord Campbell of Alloway, when he says that we can always make good better.

I believe that we will be able to achieve the best outcome only if we consult fully especially with children and their families. I do not believe that we have moved away from the consensus we have in relation to children; we are working creatively and constructively with all those who seek better to manage disruption in children's lives so that there is a better outcome. And we thank all those organisations because without them, our policy would not be as robust as it currently is.

I assure noble Lords that these areas are covered and that the consultation will be productive. I can reassure the noble Baroness, Lady Thomas, that we are compliant with international conditions. I will explore them now if she wishes, or I can write to her.

My Lords, before the Minister sits down, is it true that while courts can apply to CAFCASS under Section 9(5) for the help of a children's guardian, it is at the discretion of CAFCASS whether or not it provides a guardian? Perhaps the Minister could write to me. It would be helpful.

My Lords, I shall certainly write to your Lordships on any specific provisions, but certainly I have never known a situation where a court has ordered that there be a report and a report has not, in due course, been provided. Of course it sometimes happens that there are delays in relation to allocation, but I have never known a report to be refused. The court has to come to an informed judgment as to what is in the best interests of the child, and if it needs a report to do so, one is usually forthcoming. In my experience, most people find it difficult to say no to judges when so ordered.

My Lords, the Minister has given a full response but, in many respects, it was very similar to much of the briefing she has already supplied to us. I read the briefing with care but I did not always find it entirely satisfactory. We believe that this is a very important matter. We wish to register its importance to us and to the children who will be the subject of this Bill—not the subject of disputes between parents—and who will be conveyed, in effect, from one family to another. This is a very special case. For those reasons, despite the generous allocation of time we have been given and the great expertise of the Minister, I wish to test the opinion of the House.

moved Amendment No. 102A:

My Lords, for many years I have looked forward to having the chance to speak to an amendment roughly like this one, in circumstances roughly as promising as these.

The problem is an old one, going back for many centuries. People have always liked to turn a blind eye to it; on occasion, it is slightly harder to turn a deaf ear to it. That is illustrated by a London 17th-century by-law, discovered by C.V. Wedgwood, which stated that domestic violence was to be forbidden after 9 p.m. because of the noise that it created. I regret that that attitude is not altogether dead. People do not like to think about domestic violence, and if we do not like to think about something, we like to think that it does not exist. For example, in the 1996 case of A v N, the Court of Appeal criticised a mother for making "flimsy objections" to a father's contact with the child. The flimsy objections were that the father had committed a very serious assault on the mother, for which he had served a prison sentence. There is nothing particularly flimsy about the walls of most of our prisons.

It is such readiness to sweep such violence under the carpet and to take no notice of it that makes this amendment necessary. I know that the Government are tabling their own amendment, which I welcome warmly so far as it goes. It makes clear that it may harm children if they witness harm to their mother. However, that does not meet the principal problem that the amendments are supposed to address; that is to say, not all courts are taking sufficient trouble to assess whether there is a serious risk of harm. There have even been cases in which contact, sometimes even unsupervised, has been granted to people who are on the sex offenders register. Such contact should not happen.

The underlying indifference to the interests of the child was shown in the case of In Re H and R, in which it was ruled that the required standard of proof to show that contact would pose a risk was higher than the ordinary balance of probabilities. For centuries we have had a male-based law, and I do not refer solely to the composition of the judiciary, because I have great admiration for the higher judiciary, although I look forward in due course to its having a better gender balance. Much more serious is that the law has been made by men for men since the beginning of legal memory in 1189, and, I imagine, for much longer. There is a whole male-based culture here. One can understand, if one thinks only of the man's interest, the reasoning of the decision in In Re. H and R. Although the case did not involve a criminal charge, there was an accusation that the person had done something criminal.

However, that case did not go like the case that I remember reading about in the Evening Standard when I was a boy. A man was tried for murder and acquitted. The Daily Express then said that he had done it. He sued the Daily Express for libel, but, because of the reverse burden of proof, he lost that case. That taught me a great deal about the law.

In a case such as this, one would have expected the same sort of effect of reverse balance of proof. If the amendment in the name of my noble friend Lady Barker, which the House has just carried, had been law then, and if the child had been represented in that case, the judgment might not have happened.

As it is, the man's interest, which is a perfectly legitimate interest, is given a primacy over the interests of the child. That is risky and inherently improper. It does not meet the equality of arms principle of Article 6.1 of the European Convention on Human Rights.

I have some figures about how freely contact is granted. In 2001, the courts granted 55,030 contact orders and refused 713, even though, according to the Association of Chief Officers of Probation, 16,000 of those cases involved domestic violence. I am not for a moment arguing that every case that involves domestic violence should lead to a refusal of contact. That would be a mercilessly rigid approach. However, I propose that in every case in which there is domestic violence, the extent of risk must be considered before a contact order is made and before it is decided whether that contact order should be supervised or unsupervised.

Because that does not appear to be happening at the moment, we believe that further action is needed. That action must be taken through the statute book in a form that ensures that actual consideration is given to actual risk. As the noble Baroness, Lady Gould of Potternewton, said, there must be a checklist. It cannot be exhaustive, because some of the forms of domestic violence that have been heard of beggar the imagination. I recall one case from the local women's refuge almost next door to me of a child who had been regularly buggered by his grandfather with a knitting needle. Who would have thought of specifying that in a checklist? There must be flexibility. However, we do not need just flexibility, because you cannot have flexibility until you have something to flex. There has to be something on the statute book that directs Her Majesty's judges that, although in all normal circumstances contact is likely to be good for the child, the child's safety must be paramount. It is not good for a child to be put at gross physical risk or to be put in a situation in which he or she can be used as a decoy to lead a man to somebody who may want to murder the child's mother.

I understand that there were 30,000 cases under the Protection from Harassment Act 1997 in London last year. I had a small walk-on part in helping to get that Act on the statute book. I am glad that I did so, because it seems to be used regularly in defence against a violent ex-partner. The moment when the man is most at risk of committing violence is usually the moment when the woman says that she has had enough. That is also the moment at which the man wants to apply for an order for contact.

On one occasion, a man making the application was violent in court to the extent that the judge had to adjourn the court. He still got his contact order. If nothing else proves that not enough care is being taken in this area, that case alone does so. I am proud to support the amendment.

My Lords, I shall speak to Amendment No. 102B in my name.

"This is a poem for you to see

About this man trying to get Cicely

I want you all to read this loud and clear

Then you'll know why he is my biggest fear

He touched me where I knew he shouldn't

I wanted to run away but I just couldn't

Then when I said 'Let me go'

He blocked the door and said "No'

He said 'If you tell mother what I have done

I'll shoot her with this gun'

I love Cicely with all my heart

Please don't let this man tear us apart".

Those are extracts from a poem written by a 13 year-old girl who is terrified that the man who touched her and brutalised her mother may go on to do God knows what to her four year-old sister. The poem talks about how they escaped. I have changed the names in the case, although there has been some media coverage of it. Now, because the mother refused to let her abusive ex-partner have unsupervised access to the younger sister and went into hiding to protect the child, she may be about to have four year-old Cecily granted residence with this man. If it comes, the judgment cannot be challenged. There is no redress if this small child is abused and her life is wrecked. In that case, the system will have failed her in the most appalling way. The older child's views have not been taken into account in this case. Can we be content with a system that produces that outcome?

That is one of many cases that demonstrate the damaging effects of the 1995 ruling in In Re H and R on child sex abuse. That case, along with others, has diluted the effect of the Children Act 1989, which no longer works to protect children as originally intended. As recently as last week, I met a woman who told me a horrifying story. She separated from her violent partner three years ago, but the father obtained an order for supervised contact with her child, despite the child having witnessed the violence and, it is suspected, having also been mistreated. The mother had resisted and opposed contact because the child was so terrified and traumatised.

In the end, supervised contact was granted. At this point, the mother decided to try to make the best of the situation and to normalise the contact as far as possible. As a result, contact was extended and eventually became unsupervised and for longer periods.

Then, over a period of months, the child became withdrawn and troubled and started to behave in an inappropriate sexual manner. It emerged that the child had been sexually abused by the father as soon as unsupervised contact was granted. Social services and the police were involved. Charges were brought against the father, but they were dropped because of the age of the child, although there is no doubt that the child has been abused. The mother and the family are now involved in rebuilding that child's life.

That case raises some serious questions. The father can return to court at any time to apply for renewed contact with the child. He has not been placed on the child abuse register. The family have the issue hanging over them for as long as it takes. There is nothing they can do about that. There is no redress to the courts about what has happened to that child. Nothing can be done about the decision that was taken. The supervised contact that took place was woefully inadequate. I cannot believe that the Government can be content that that could happen to a child. How can these things happen in this rich and civilised country, with its sophisticated legal system and legal rights guaranteed? There is a growing anxiety, even desperation, that despite all the safeguards that are supposed to be there, children are being exposed to abusive parents by courts granting residence and unsupervised contact without taking proper account of the dangers to which they are exposing them.

In Grand Committee, my noble friend the Minister pointed out that these matters are already covered in the Children Act 1989 and said that our amendments would gloss or interfere with the fundamental principle that the welfare of the child is paramount. To my simple mind, that fundamental principle has already been undermined by case law. We are seeking to remedy that situation.

The case of In Re O, on the imposition of conditions for contact, states that contact is almost always in the interests of the child. To my knowledge there has been no research that suggests that contact with a violent parent is beneficial to a child. In fact, authoritative statements were made on the issue by Dr Sturge and Dr Glaser, who were commissioned to write a report about contact and domestic violence for use in the appeal courts. They described domestic violence as a,

"very serious and significant failure in parenting".

They stated that,

"the research is entirely consistent in showing the deleterious effects on children of exposure to domestic violence",

and that,

"children are affected as much by exposure to violence as by being involved in it".

They said that, in other words,

"there should be no automatic assumption that contact to a previously or currently violent parent was in the child's interests; if anything, the assumption should be in the opposite direction".

There is no question but that my noble friend the Minister and her colleagues are hard at work on trying to remedy this situation. There have been attempts to improve legal protection for children in contact arrangements, and good practice guidelines have been issued to judges. However, figures from the Judicial Statistics for England and Wales suggest that those actions have had little effect. If the courts were placing greater emphasis on child protection as a result of the guidelines, one would expect an increase in the number of cases in which the courts refused contact. To date, however, there has been a decrease in the number of cases in which contact has been refused. The Minister did not accept that point as evidence when I made it in an earlier debate. I still believe, however, that the violence involved in so many marital breakdowns demonstrates the need for greater care when making contact arrangements. If the Minister believes that the rebuttable principle outlined in this amendment is not the right route, will she give us some indication of what the Government believe is the right one?

The law and the system are not working for some children. As the noble Earl, Lord Russell, said, some judges are making contact orders even after a parent has been violent in court. Women's Aid has told me of two cases in the past month in which contact was granted although the fathers had been violent in court. It is breathtaking to think that a judge could decide to allow a young child to be alone with a man who displays such lack of control even in court. It is no wonder that many parents—most of whom are women—and their children feel that the law protects judges rather than children. These vulnerable parents, and even more vulnerable children, feel that the current situation is both unfair and unbalanced.

I am grateful to the NSPCC, Women's Aid and NCH Action for Children for the material they have supplied and for their campaigning work on this issue. I am also grateful for the letters and information on the issue provided by the Lord Chancellor's Department.

I have heard my noble friend the Minister say on several occasions that the strength of our system is that each case is considered on a case-by-case basis and that all contact arrangements are considered on a child-by-child basis, which is as it should be. However, why do we keep hearing of things going so terribly wrong for some children? How can the arrangements be working on a child-by-child basis when we continually hear about cases in which things have gone so wrong? I should therefore like to ask a few more questions. When will we see the results of the reviews? Will the Government legislate on the issue if the results of the reviews warrant it? When will the Government take action to strengthen supervised contact arrangements?

There is support across the House for Amendment No. 102B. I thank the noble Baroness, Lady Noakes, and other noble Lords for their support on this issue. I am looking for movement by the Government on strengthening protection for these children.

My Lords, I apologise to the House—I did not realise that these two amendments were grouped. I wish to support Amendment No. 102B, but not Amendment No. 102A, for a reason that I shall give in a moment.

I do not know whether your Lordships have seen the report in The Times today about the decision of the European Court of Human Rights. The point was taken that our domestic law concerning the protection of children from abuse was defective, but that the local authority—and we are concerned here with local authority treatment under Section 8—did not know and was therefore, under certain articles, not liable. However, it was liable because it did not have in place a proper system of administration. The only reason that I refer to the case is that the domestic law was defective. One has only to read The Times report to see that that is so.

I do not want to take a long time arguing law. However, the point of this amendment is that it does plug a gap in our domestic law. It does so—I say this with respect to the noble Baroness, Lady Scotland, if I could claim her attention for half a second—without in any way conflicting with the principle established in In Re W that the welfare of the child is the paramount consideration. It does not conflict in any way whatever; it is a totally different matter. The amendment is establishing in domestic law a remedy for the abuse of a child. It is not connected directly or exclusively with adoption. I do not have much more to say to Amendment No. 102B. However, if it were put to a Division, I would certainly be compelled to support it.

The reason why—with respect to the noble Earl, Lord Russell, and others—I cannot support proposed new Section 8A is that it proposes—I do not wish to be offensive—nannying the court. The amendment is telling the court to do the sort of thing that it would do in any event. I am rather against that. I am rather in favour of leaving it to the court to have regard to these types of principles—which are all totally right, totally justified, very well drafted and extremely well expressed.

My Lords, in general, I have the deepest sympathy with the feelings of the noble Lord, Lord Campbell of Alloway, about nannying the courts. However, we have between us quoted a number of cases in which the court was behaving as if it were in need of a nanny.

My Lords, I do not want to indulge in a philosophical argument, because I would be bound to lose it, but it seems to me that there is no reason for having an overriding nannying provision because the court makes a mistake here and there. Courts, even with an overriding nannying provision, are known to make perverse judgments, but that is why we have an appellate system.

I am sorry—it is perhaps a defect of my life and upbringing—but I really cannot take Amendment No. 102A. However, if Amendment No. 102B were put to a Division, I would be bound to support it.

My Lords, noble Lords have made a powerful case for changing the statute law to improve protection for children where contact is considered. We certainly support the thrust of these amendments. Children must be protected from risky contact arrangements. I do not believe that there is any disagreement about the welfare of the child being paramount in contact cases, but there is profound disagreement about whether the law as currently practised achieves that standard. I say to my noble friend Lord Campbell that if the courts need nannying to avoid making errors, I for one would support nannying the courts.

I have no first, second or even third-hand experience of the impact of domestic violence on contact cases to share with noble Lords. However, I have been impressed by the strength of feeling expressed by many working at the sharp end with abused families, in particular the NSPCC and the Women's Aid Federation. Those organisations strongly believe that the current position is unsatisfactory.

I appreciated the briefing meeting organised by the Minister a few weeks ago, when she expressed the view that the legal framework was—I believe I quote her correctly—"as good as it gets". The noble Baroness outlined the many practical steps that have been taken to improve current procedure. However, many of the initiatives that she explained to us have been in train for some considerable period of time; indeed, for more than 10 years. In Grand Committee, I recall that the Minister said that the guidelines,

"seem to be seeping their way through the system".—[Official Report, 15/7/02; col. CWH 340.]

It is perhaps this lack of urgency that is most worrying.

I have just a few questions for the Minister. First, will the noble Baroness say whether the Lord Chancellor's Department is currently satisfied with the way that the guidelines are operating, or whether there are any concerns in that respect? If there are concerns, will she say what the Government intend to do about them, and when? Secondly, will the noble Baroness say what information the Lord Chancellor's Department collects about contact cases? For example, do these show whether initial contact decisions have, in practice, caused problems involving child safety? If such data are not collected, will the noble Baroness say why not and how she can be sure that the system is operating as desired? Thirdly, can the Minister point to any specific improvements that will be made within a relatively short time-scale—say, by 2004? Can she say what practical changes we will be able to identify?

I know that the Minister will make the case powerfully that the existing legal framework is fine, and that many actions are underway. However, if she does not come forward with some positive, tangible, and timetabled actions to allay the concerns of those at the coalface, it will be difficult to resist the conclusion that changes in the law, such as those proposed by these amendments, will indeed be required.

My Lords, before my noble friend sits down, perhaps I may clear the hurdle of nannying for a moment. If my noble friend will be good enough to look at Amendment No. 102B, she will see that it provides a totally new, much needed, and highly satisfactory procedure. There is no question of nannying: it provides something that is missing. However, Amendment No. 102A is just pure nannying.

My Lords, I do not wish to become too caught up in this battle about nannying. However, given the ambiguity of some of the recent court cases, which have led to quite considerable problems—and speaking with many years' experience as a juvenile court chairman—I believe that there might well be some advantages in having, as it were, a checklist upon which to concentrates one's mind.

I support both amendments, though I suspect that they will be amalgamated in some way in the long term. We have heard some horrendous stories. It is quite clear from the briefings that we have all attended that there is considerable unease and concern among practitioners about the continuing harm that is being caused to children as a result of these access or residential visits that have been authorised by the court.

It is only fair to mention the really worrying anecdotal evidence of a number of children's violent deaths, which have recently occurred during such visits. It is rumoured that the number is around 15. One of the other concerns is that it is almost impossible to obtain figures in this respect from the relevant authorities. In answer to the questions posed by the noble Baroness, Lady Noakes, I hope that we may begin to receive some answers from the Minister. One survey carried out in 1999 of 130 parents showed that 76 per cent of children were abused during contact visits; that is, 10 per cent sexually, 15 per cent physically, and 62 per cent emotionally.

Clearly, the Government's decision to define the concept of "harm" to include witnessing violence to others—a child being subjected to emotional as well as physical and sexual harm—will help. But, frankly, I doubt whether it will settle the vital question of whose best interests are paramount: the child's or the parent's. It is the very strength in this Bill's premise, which states that the child's best interests have to be paramount in all these matters, that seems to me to indicate that it is vital to include the amendments being discussed on the face of the Bill. Of course, one understands the Government's reluctance to act before the consultation process is complete, but, apparently, it has already taken a long time. Surely one child harmed while this ambiguity is allowed to continue is one too many.

I have one final point to make. As I understand it, the Bill provides for the wishes of the child or children involved to be conveyed to the court, by, one hopes—in view of previous discussions—an advocate, who, where necessary, is independent of all parties. But, again, surely there should be a specific right on the face of the Bill for young people of an appropriate age to express their wishes directly to the court concerned, if they so wish. As I see it, that would be provided by way of new Section 8A(g) in Amendment No. 102A. I hope that the Minister will give us some satisfactory pointers to something more urgent being done.

My Lords, I most strongly support the thrust of these two amendments. Noble Lords have given some horrendous examples of such cases; and, indeed, I could give some further examples. Far too many children are being sent back to parents, who are causing them profound damage. However, I cannot support the amendments. It seems to me that they are not closely worded, and that they do not create the right framework within which to address these problems.

I have a particular objection to the use of the word "abuse", which is not defined in the Bill. I do not know whether it is properly defined elsewhere. It is an emotive word. Any discussion on this subject should include a much more precise definition of what we are talking about. Some noble Lords may respond by saying that we all know what we mean by the word "abuse"; but, no, we do not. There is a great range of opinion as to what abuse is—everything from slapping a child right through to the most terrible sexual and physical abuse. I support the noble Baronesses, Lady Gould and Lady Noakes, in their argument that something must urgently be done, but I do not believe that these amendments are the right vehicle to achieve that aim.

My Lords, I shall start by thanking all noble Lords who have made quite passionate contributions to this debate. I should especially like to commend the efforts made by two of my noble friends; namely, my noble friend Lady Gould, who moved the first amendment in this group, and my noble friend Lady Thornton.

The most impressive part of the debates in relation to this Bill is the level of commitment and the unanimity of view as to the nature of the problems. The only disagreement is perhaps the way in which we should seek to address them. Here, again, I entirely understand the spirit behind these two amendments. We all want to see a situation in which children are safe, both in their homes and in the relationship that they have with their parents if the latter separate. I am not able to accept these amendments, but that does not mean that I do not believe that things need to change. A number of noble Lords have given quite graphic examples of cases where such relationships have clearly gone wrong.

The Women's Aid Federation (England) (WAFE), the NSPCC and others are right to ask that we learn from the tragedies of the past, that we question inconsistencies of practice and that we take all possible practical steps to protect children from harm. I have no disagreement whatever on this point with either of my noble friends or, indeed, with anyone who has spoken. We are at one on this issue.

The Children Act 1989 makes the welfare of the child the court's paramount consideration. I hear everything that has been said about how case law may have adversely affected that or, by interpretation, undermined it. However, it is our belief that the import of the Act has not been undermined and that the paramountcy of the welfare principle remains untarnished. In Re H and R, which I believe the noble Earl, Lord Russell, mentioned, reiterated what the position has always been in relation to the balance of probability; namely, the more serious the allegation, the greater the weight, on the balance of probability, that the court can be satisfied that something is proven. Obviously, it is important that if an allegation of some severity is made, there must be some evidence to substantiate the fact that it has actually occurred.

My Lords, does the Minister agree that the trouble with saying that the principle of the welfare of the child remains paramount is that this principle does not bite on those people who do not like to think that such things happen and who are, and always have been, extremely numerous?

My Lords, I think that it does bite; the question is whether it bites hard enough. It is incredibly important that we make sure that the principle bites hard enough. The noble Earl referred to past incidents. A number of noble Lords may have fought the culture which has failed to recognise that child abuse occurs, has failed to recognise that domestic violence is a scourge which needs to be removed, and has failed to give mainly women, but also children, the protection they need. I agree with the noble Earl that that blindness has to be eradicated. Those who refuse to see must be made to see. There is no disagreement between us on that matter.

The Children Act obliges the court to consider all harm that a child has suffered or is at risk of suffering. That includes physical abuse, sexual abuse and the impairment of health or development. The government amendment to that definition of harm, tabled in the other place, makes clear that that includes harm caused to a child by witnessing the ill-treatment of others. We know that children can be harmed by witnessing violence. The Court of Appeal stressed that in the case of In Re L and others in June 2000.

The court can already attach conditions to orders it thinks necessary to ensure that the child is not at risk, for example, by deciding that the contact be indirect, restricted to letters and cards, or that it be supervised. The court can order a local authority to investigate the child's circumstances if it thinks that the child may be at risk of significant harm such that a care order might be required. It can also make orders for the protection not only of the child but also of a party to the case in any family proceedings regardless of whether an application for such an order has been made. For example, the court can make a prohibited steps order under the Children Act preventing a person taking a step in relation to a child, including contacting him or her. It can also make a non-molestation order under the Family Law Act 1996. If a court—

My Lords, I am obliged to the noble Baroness. The noble Baroness is saying that the proposed new subsection (3) in Amendment No. 102B is totally unnecessary because of what she has just said. The noble Baroness nods her head. I am grateful for that clarification.

My Lords, it is not just the courts that need to be involved. A number of other agencies, not least those who practise the law and give advice, need to be robust and to understand what the provisions actually stand for. The help and assistance of many agencies is needed—I refer to the police, social services and others—to create the safety net. Some of the examples that my noble friends gave made me wonder what the lawyers were doing. It also made me wonder whether my work would not be better placed not at this Dispatch Box but back at the Bar. The tools are there but they need to be used by people who know how to wield them.

The court is already obliged to consider the risk posed to a child if an order is made. Indeed, it can make an order only if it is satisfied that that is better than making no order at all. It also has the powers to make orders to protect those it believes to be at risk, even if no application for such protection has been made. The anxieties expressed today concern the extent to which the provisions we are discussing are being exercised consistently in practice. Many of us would wish that by a stroke of a pen or by adding a provision to a Bill we could make things better and that that would be the end of the process. However, we all know that it is not the end; in fact, it is the beginning. Unless all of those who operate in the system understand and take advantage of the provisions, we work in vain. We must improve the practice.

The amendment proposed by my noble friend Lady Thornton and the noble Baroness, Lady Noakes, would introduce a presumption into the Children Act that where a person has ill treated a child or another person, that person should not have residence or contact with the child unless the child consents and the court is satisfied that the child will be safe. I wish to deal first with the matter of the child's consent. One of the most tragic and poignant aspects of children who are abused by a parent is that often they love that parent. If the child is asked whether he or she wishes to see the parent and to live with him or her, the tragedy is that they will often say yes. Why do they say that? It is because they love the parent but hate the abuse. Often the child will say—

My Lords, I find it difficult to remain seated. I acknowledge that the point the noble Baroness has just made is often the case. I did not make a speech as I felt that many noble Lords had made the points that I wished to make. I am concerned about those children who say very definitely that they do not wish to return to the abusing parent. Just before I came into the House I received a telephone call about a child who has been placed back with his abusing father following a complex case. The child ran away to his mum. His mum rang social services as she realised that an order existed but she wanted the child. As a social worker I sympathise with the noble Baroness's comments as regards being here rather than out in the field. Social services said that as there was an order they would not make an assessment and that the child should be sent home. We are keen to address situations where the child says that he or she does not want to go back to a particular parent.

My Lords, I absolutely understand that. However, the noble Baroness will be aware that in framing legislation we seek to catch both those situations. We catch those who do not want to go back and who say clearly and powerfully, "I do not want to go" and we catch those cases where the child says, "Please let me go back because it is the only thing that I know". Those two cases are conjoined in the child's wishes.

My Lords, I hope that noble Lords will forgive me for intervening again. I am responsible for persuading my colleagues to put these words into the amendment. The noble Baroness, Lady Howarth, read my mind exactly. This was meant to be a necessary but not a sufficient condition.

My Lords, I absolutely understand that. The proposal is qualified by the provision that,

"the court is satisfied that the child will be safe".

If the court disagreed with the child, it would exercise its discretion to so order. One would then return to the question raised by my noble friends Lady Thornton and Lady Gould and reinforced by the noble Baroness, Lady Howarth: is one giving proper voice to the child's wishes? Is one dealing with that properly? This is not perhaps the most felicitous way in which to deal with the issue.

The equivalent presumption of contact is not proposed when there are no allegations. My noble friend Lady Gould touched on that point. I shall be frank with the House: I am not in favour of presumptions. The one thing that I learnt from my practice in family law is that no two cases are alike. I shall give two examples. A father may have injured a child in a road traffic accident, and he therefore becomes a Schedule 1 offender. He is caring and loving and has a supportive relationship with his children. The question is: why should there be a presumption in such a case that there should be no contact with him? The other example is that of a father who loves his children and who has never been violent to them but who opposes the children living with their mother because he is angry about the breakdown of their relationship and, as a result, actively seeks to turn the children against her. Those examples are the two ends of the scale. Why should one have a presumption of no contact in his favour and the other have a presumption that there should be contact?

Those are difficult issues. I entirely appreciate that the amendments respond to much more serious cases than I have just described, including neglect; they do not respond to the matters at the small end. However, a provision would catch both. The court would have to say, in relation to both, "No presumption" and it would have real difficulty separating the two if it wanted to. Inconsistencies would be created. There are likely to be legal arguments about the cases in which the presumption applies. A contested two-tier system could be created when dealing with child contact applications, which may add to delay and conflict, neither of which is in the interests of children. The only criterion that should apply is: what is in the child's paramount best interest?

The Children Act 1989 makes the welfare of the child the court's paramount consideration. I cannot think of a better criterion. The amendment tabled by my noble friend Lady Gould proposes a check-list for the court that will apply when it considers whether a child will be safe. We are going to consider all of those matters in the consultation process. They will be at the root of what we will examine. I hope that she is reassured on that count. These issues exercise the minds of all those who participate in this field. The group that has undertaken much of the consultation has representatives on it from a broad spectrum, including judges, lawyers, non-governmental organisations and charities working with children. Those who have been intimately involved are participating and helping us to craft something that is, we hope, of worth and importance.

Not everyone who would meet the definition of "abusive party" in Amendment No. 102B would be violent or pose any risk to their children. I entirely understand that the amendments were intended to help to better protect children. One poor outcome for children of separating parents is conflict. The more conflict that there is in families—physical or otherwise—the worse the outcome for children. We want to minimise that.

Having a check-list for Section 8 orders could also lead to some confusion, as I have outlined. It is not the test imposed by Section 1(3) of the Act. That requires the court to consider how capable each party is of meeting the child's needs. It is the child who comes first. The requirement of the child to consent in Amendment No. 102B cuts across the welfare principle itself. The law rightly requires the court to come to an objective determination—assisted by child-welfare experts, where appropriate—about what is in the child's best interests. Consent requirements are not consistent with that.

The Government are focusing on four key areas. First, we are focusing on tightening court rules and importing some of the key messages from surveys of the best practice guidelines produced by the Children Act sub-committee of the Lord Chancellor's advisory board on family law. We are working closely with members of the judiciary, the magistracy and the legal profession and with child care professionals, the police and organisations representing the interests of children, families and the victims of violence. It is fair to say that our stakeholder group achieved a good degree of consensus at its last meeting on 9th October about what needs to change. There is a sense of urgency about this work. To ensure that we can make rapid progress, it divided into smaller teams, each of which will develop proposals for change in areas such as improving information for the court and making findings of fact. We hope to consider a package of reforms by the end of the year, although the group made it clear to us that it must have the time that it needs to get this right.

The second area is specialisation. The president of the Family Division has recently taken on responsibility for the ticketing or authorising of most family judges in the county court. At district judge level, a new ticket has now been introduced for those dealing with disputed private family law including contact applications. We take very seriously the comments made by my noble friend and other noble Lords about consistency. It is not enough to have superb delivery and performance in relation to the higher courts if that is not uniformly adopted in all courts. As a noble Lord said earlier, if one child is abused, that is one child too many. There will always be a risk but we are doing everything that we can to limit the nature of that risk. The president is currently reviewing all those judges who are—or perhaps should be—sitting in family work to ensure that they have the appropriate experience and training to deal effectively with family cases. The president recommends minimum sitting levels to ensure that judges maintain their expertise. Once they get their ticket, that is not the end of the matter; they will have a proper opportunity to keep that experience fresh.

We have a precedent in this regard. The president has already completed the review with regard to judges dealing with adoption. New arrangements for specialist adoption centres and specialist judges at county court level were launched in October and November last year. We have consulted those who have gone through the adoption process at specialist centres to find out whether the system is working. We have been delighted by the positive response. We want to learn from the specialist adoption centres about improving the way in which we handle other family business, including child contacts and domestic violence.

That specialisation is being followed through in other areas. Those who provide publicly-funded legal services in family cases must meet minimum standards if their contracts are to be renewed. The Law Society in partnership with the Solicitors' Family Law Association and the Family Law Bar Association have produced a best-practice protocol for family work. It includes best practice for screening and taking forward cases involving domestic violence. Again, that is linked to the training of family solicitors and to standard-setting for family work. Therefore, no longer in the publicly funded sector will there be a generic practitioner who is unable to carry out the work properly in specialised areas such as family work.

Thirdly, I turn to training. Effective training of all those in the family justice system is key if we are to achieve the type of culture change that we should all like to see. For example, the president is working closely with the Judicial Studies Board on judicial training. Domestic violence is now included in all family seminars, conferences and training for the judiciary. The Judicial Studies Board is also working closely with the Magistrates' Courts Committees to support the development of training in the subject of domestic violence. I hope that, if the noble Baroness, Lady Howe, is still sitting, she will receive the benefit of that.

I turn to the subject of support services for families. In partnership with child contact centre services and funders, we are mapping the demand for, and provision of, child contact centres as part of the development of a national strategy. We are also facilitating child contact centres which seek to develop standard definitions of services and a standard referral process in order to ensure that families are referred only to services which meet their needs, especially in terms of levels of supervision.

However, we recognise that the issue also involves a change of culture—it is a matter of changing hearts and minds. It is not easy to change culture, but we recognise that we need to see changes in this area as part of a wider policy on child protection and on tackling domestic violence. The vast majority of families resolve disputes concerning contact and residence without resort to the courts. Therefore, we need to ensure that advice and support services work, too. The changes are of critical importance, but they are changes to practice and performance. I hope that I have said enough to persuade your Lordships that we are doing all that is feasible as quickly and as speedily as we can.

I shall now answer specifically some of the pointed questions raised by the noble Baroness, Lady Noakes. We are currently surveying contact orders in 12 courts in order to consider issues such as the rates of enforcement, whether the courts are using options such as supervised, indirect contact, the rates of domestic violence, and findings of fact. We hope that the results will be available in January.

The definition and referral of contact centres should be completed by the end of the year. The safety stakeholder group's work on changes to secondary legislation—that is, the information available to the court, the automatic triggers, and a further investigation and check—should also be available by the end of the year. The development models of supervised contact should be available at about that time, too. The second survey of guidelines on domestic violence and contact analysis should be available shortly, and that will be fed into the safety group. We are working as fast as we can. As I said earlier, the stakeholders have said that they must have, time to make a considered and informed judgment before they make recommendations. We agree with them because we want to get the matter right.

I say to both my noble friends Lady Gould and Lady Thornton that, if we need primary legislation, we shall reconsider the matter. But we believe that this measure should cover the situation. If it does not, then of course we shall have to look again.

We have tried to take on board everything that noble Lords have said in relation to this issue. It is amazingly important. We are determined that the protection given to the children of this country is as robust and as sound as possible. We rely on all those who participate in the field to help us to craft a system which will achieve that. However, it will be delivered not only by the courts and by legislation; it will be delivered by practice on the ground with all participants playing their part—that is, the police, social services, lawyers, social workers, courts and health workers, who see the aberrant effects of some of the dysfunction caused by breakdown. We all need to participate in the process to ensure that the practice on the ground is as we should like it to be and so that we no longer need to feel shamed by some of the examples referred to today.

My Lords, I thank the Minister for her detailed and thoughtful reply to the debate. It has been an extremely serious and important debate, and I thank everyone who participated in it. I am sure that my noble friend was aware of the strength of feeling around the House in relation to this issue and the fact that it was felt that something needed to be done to redress the problems of so many children.

I want to pick up a point raised by the noble Lord, Lord Campbell of Alloway. I do not particularly want to return to the subject of nannying. I simply want to say to him that in 1968 the New Zealand courts decided that a checklist would be helpful to them. It was not a question of nannying; the courts believed that a checklist would be right in helping to protect children. The fact that they produced one so many years ago is a great credit to them. Perhaps it is a pity that we are only now reaching this position.

The Minister said that the only disagreement lay in the way that we seek redress to an unsatisfactory situation. I am sure that that is right. She outlined many of the ways in which she is seeking to redress the situation. She said that the tools are there to be used but that perhaps they are not being used correctly. I appreciate all the work that is being done by the Lord Chancellor's safety stakeholder group in order to redress some of these very serious problems.

I was particularly taken by the Minister's words which referred to the fact that case law may have undermined the Children Act. I believe that indicates that there is now some recognition that the Children Act has been undermined by subsequent case law.

I was particularly pleased to hear my noble friend say that, if primary legislation is required, then action will be taken. Many of us believed that that would not happen and that the possible need for primary legislation would not be recognised.

As the debate has proved, this is a complex and serious issue. I shall study my noble friend's reply, for which, again, I thank her. In the meantime, I beg leave to withdraw the amendment.

moved Amendment No. 102C:

After Clause 111, insert the following new clause—

My Lords, I confess that I was puzzled by an amendment that sought to remove guardians who are generally believed to be rather a good thing. I am glad to hear that that was not the intention of the noble Lord. As I now understand with a greater degree of clarity the purpose of the amendment, I ask the noble Lord whether I can take this issue away and return to the matter later. I hope that I shall be able to give the noble Lord a more comprehensive response in the interim.

My Lords, I could not have had a better response from the Minister. At least she has not turned me down flat. I am pleased with that response. I beg leave to withdraw the amendment.

moved Amendment No. 103:

My Lords, I rise to support the amendments in the group. I first welcome Amendment No. 104, which repeats the requirement for financial support within support services for special guardianship in the same way as for adoption support services. Of course, that leaves open many questions about the level and scope of financial support for guardianship and about parity of provision around the country. But I am glad that there is explicit recognition that special guardianship support services include financial support.

We on these Benches support Amendment No. 103. The issue of the voice of the child is one that we have considered more than once in connection with the Bill. The answer is usually that we have to trust the Government to get the matter right either by regulations or by court rules. It would be so much more satisfactory if we could see this on the face of the Bill.

I also associate these Benches with the remarks made by the noble Lord, Lord Clement-Jones, in connection with Amendment No. 105 and the position of the birth parents. Special guardianship does not sever the legal relationship between birth parents and their children but creates an additional relationship. The birth parents may well require support services—not necessarily very extensive ones—but they are a part of the child's life and should be supported where necessary.

Amendments Nos. 106 and 107 are sensible ones. They ensure that the most obvious categories of people needing special guardianship support services—the child and the special guardian—will be entitled to an assessment. It is just nonsense to leave that to regulations.

I find myself almost at a loss for words on Amendment No. 108. As with adoption support services, I cannot comprehend a framework which provides for the assessment of needs but then allows for discretion to meet those needs. Either the Government are serious about support services or they are not.

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for bringing these matters back to the House for further consideration. I do not doubt the importance of the matters he raises or his concern; in particular his concern to ensure that birth parents and grandparents are appropriately considered in relation to special guardianship orders and support services.

I am grateful to the noble Lord for repeating many of the words that I used in Grand Committee. He will not be surprised to know that I found them fairly persuasive. The short answer to many of his points is that special guardianship orders are new. Therefore, we have sought to give ourselves greater flexibility than we have in the Bill in relation to adoption orders, both to allow us to have a widespread consultation in 2003 on the very issues that the noble Lord and the noble Baroness have raised, but also in the light of experience when the special guardianship orders come into operation. That is why we have left a number of matters to regulation. It gives us flexibility in the future.

I am very glad that the concept of special guardianship orders has been widely welcomed. All noble Lords feel that this is a considerable advance. In particular, we think they could be used for some older children, who may, for example, be being looked after in long-term foster placements, who do not wish to be legally separated from their birth parents, but who could benefit from greater legal security and permanence.

We also believe that special guardianship may apply to some children being cared for on a permanent basis by members of their wider family. Some minority ethnic communities have religious or cultural difficulties with adoption as set out in law. Again SGOs may well be appropriate.

The new order is intended to offer more than a residence order in terms of the security it brings and the support services to be made available. It is designed, as I have said, to be flexible enough to work in a range of situations.

I have listened carefully to the noble Lord, Lord Clement-Jones. As regards Amendment No. 103, I understand his wish for an independent view to be expressed to the courts. Perhaps it would be helpful if I explained the process that will be gone through before a court makes a special guardianship order.

New Section 14A sets out who may apply for a special guardianship order and the process for making an application. A person in whose favour a special guardianship order is made is described as a "special guardian".

Applicants must give three months' written notice to the local authority of their intention to apply for the order. The local authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. We intend to set out in regulations the matters to be covered by the report. It is intended to use these regulations to ensure that there is an appropriate process for assessing the suitability of prospective special guardians.

We shall consult on how the assessment process should work. However, it is envisaged at this stage that statutory guidance will require the results of earlier relevant assessments to be taken into account; for example, where the applicants are approved foster carers.

The court cannot make an order unless it has received a report of this kind covering the suitability of the people concerned to be special guardians. The involvement of the social services department in the process, and the requirements we make on what the report to the court should cover, will ensure that issues of the welfare of the child and their interests are investigated and reported to the court.

In addition, the Government intend to provide in-court rules that a CAFCASS officer be appointed in appropriate special guardianship proceedings. This too will be set out in court rules.

As I have made clear, we plan to consult thoroughly on the content of these rules, including when a CAFCASS children's guardian should be appointed. At this stage, and subject to consultation, we envisage that a CAFCASS officer is likely to be appointed in most cases where the court is considering making a special guardianship order. We shall want to consider carefully the circumstances when a CAFCASS officer should be appointed in cases where the court is considering varying or discharging a special guardianship order, particularly where this is with the consent of all the parties. That is why we need some flexibility.

It might not be appropriate or necessary to appoint the child as a party and have a children's guardian in cases where the application is for a variation of the terms of the special guardianship order—again—which is agreed by all parties. We would expect the child's views to be sought out and taken into account on all such questions. But it would not be necessary for a children's guardian to be appointed for that to happen. There are other routes to ensure that the court has the child's views.

Currently, children's views are generally put before the court in private law Section 8 proceedings within the CAFCASS officer's report on matters relating to the welfare of the child. Special guardianship orders will also be private law proceedings. The Lord Chancellor may make regulations specifying matters to be dealt with in any report. In addition, the court can make particular directions as to matters to be included in the report. Currently, for example, the officer must report on whether he considers that the child should be made a party to proceedings.

As my noble friend Lady Scotland intimated, the Government will shortly be undertaking wider consultation on how children are represented in private law Children Act proceedings. As she said this afternoon, the aim will be to try to find the best conduit for the child's voice, so that children's views may be heard and taken into account by the court in the most effective manner.

I understand why noble Lords may be keen to write into the Bill a presumption one way or the other. I simply counsel a degree of caution. We are dealing with a new order, with no direct current experience on which to draw. We must carefully consider what is proportionate and appropriate for the child in terms of separate representation and participation. But I have given considerable undertakings carefully to consider the consultation. Under the Bill as drafted, we have flexibility to make regulations and court rules. I assure the House that, in the light of our experience of such orders, we shall in time consider whether we have the provision right or need to make further adjustments.

I turn to the question of support services. Just as support services are important to adoption orders, they are clearly important to special guardianship orders—on that I have no disagreement with the noble Baroness, Lady Noakes. I return to the question of financial support. The noble Baroness, Lady Barker, emphasised in Committee the important role of financial support. We agree. That is why, just as we have for adoption support, I have tabled an amendment, Amendment No. 101, to make clear that the range of support services that local authorities must provide will include financial support.

Amendments Nos. 105 to 107 seek to pre-empt some of the consultation that we want to undertake during the next year or so. The combined effect of the amendments would be twofold. First, they would insert birth parents into the list of those who could request an assessment. Secondly, they would provide that all those listed in subsection (2) had a right to request an assessment for special guardianship support services, in the same manner as Clause 4 provides for adoption support.

I want to make clear to the noble Lord, Lord Clement-Jones, that I do not rule that out as a final outcome, but I am hesitant to go down that route at this stage. There is not the same strong case as there is for adoption that in every case where a special guardianship order is made we must provide specialist services for birth parents. Special guardianship is different to adoption. For a start, it will not involve the same type of lifelong permanent legal separation and transfer to another family. We know of the fundamental and unique issues to which that gives rise for birth parents and the need for specialist services to address them. The lifelong implications of adoption is one reason why it is appropriate to provide an automatic right to assessment for all those set out in Clause 3(1).

By its very nature, special guardianship does not raise the same issues. There may be circumstances in which there is separation, but in many cases there will not. Indeed, we anticipate that there will be contact in the vast majority of cases. We cannot say for certain that in every such case we should provide a right of access to specialised support services. The consultation may conclude that it would be appropriate to develop specialist services and provide a right to request access to them for all parents of children under special guardianship orders—or indeed, for grandparents, to take the point raised by the noble Lord, Lord Clement-Jones. But we cannot stand here and say for sure that that should occur in every circumstance.

The body of evidence simply does not exist for special guardianship orders. That I why I plead with the noble Lord to recognise that we are undertaking genuine consultation. We will listen carefully and have the future flexibility in the Bill as drafted to make adjustments as we proceed. The same argument applies to Amendment No. 103.

Finally, I turn to Amendment No. 108. I should spare the House from repeating what I said last week on Report about support services, but the argument is the same. The provision should not be written into primary legislation, because that would mean that special guardianship services would inevitably have priority over services for children looked after by local authorities, for older people and for vulnerable adults.

As ever, noble Lords know how keen I am to give as much discretion as possible to local authorities. In that, I look to the Liberal Democrats for support. There must be some discretion. However, I also spoke last week about the additional resources that we are ear-marking for support services and the methods that we shall undertake to monitor and manage the performance of local authorities. That applies as much to support services for special guardianship orders as to adoption support services. I reiterate what I said last week: there is no point changing adoption practice and introducing special guardianship orders if we cannot satisfy ourselves that local authorities will do the right thing. We will ensure that they do.

My Lords, I thank the Minister for that passionate reply. He clearly feels strongly about this part of the Bill—as do we on these Benches. I am grateful to him for taking us through his arguments.

On Amendment No. 103, the Minister came as close as he could without changing the primary legislation to conceding our case. He said that what we described was likely in most cases, but that he wanted to leave some leeway in cases in which it was not appropriate. His example was perfectly reasonable. If that is how it works in practice, we shall of course be satisfied. The issue is whether that provision should be in the primary legislation.

The Minister relied heavily on the existence of consultation. I agree that it is perfectly possible for consultation to cover many aspects of special guardianship. But enshrined in Amendments Nos. 106 and 107 in particular is an important principle that should be established in the Bill: all those who are subject to special guardianship should be assessed by their local authority for special guardianship support services. We feel strongly about that.

Amendment No. 108 is a rather different kettle of fish. I do not want to rehearse our previous arguments on adoption support services. Of course there must be some level of discretion; we have no disagreement on that. Resource is a major issue that I do not want to follow through its full course now. Although I shall withdraw the lead amendment, No. 103, we shall move Amendments Nos. 106 and 107 when the time comes.

We welcome Amendment No. 104 so far as it goes, but it still means that financial services will be contemplated only after an assessment. To get to that stage, there must be an assessment, and that is what we want to see.

moved Amendment No. 104:

moved Amendment No. 106:

My Lords, there being an equality of votes, in accordance with Standing Order 56, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to, unless there is a majority in favour of such amendment, I declare the amendment disagreed to.

moved Amendment No. 109:

Page 66, line 40, after "accommodation" insert "with their families"