My Lords, I support the amendment as strongly as I may. The critical consideration to keep in mind here, as the noble and learned Lord, Lord Lloyd, has explained, is that what we are concerned about today is a threshold provision. The amendment would mean simply that in a small but very important additional category of cases, the court would have the jurisdiction and the power to investigate the case in depth and to consider whether in all the circumstances it should then make a care order or supervision order for the child’s protection. The small category of additional cases—again, the noble and learned Lord has explained this—is where it is established that some other child has already suffered significant harm, perhaps has even been killed, but the local authority concerned about some other child can demonstrate only the possibility, rather than the actual probability, that the perpetrator of that harm was someone who is now caring for the child in question—the child, that is, whose safety is presently under consideration.
As it happens, I was not in any of the string of cases in which the question of the true interpretation of Section 31(2) of the Children Act 1989 has arisen in recent years. Whether in the original House of Lords case I should have agreed with the majority view or with the dissenting minority view of the noble and learned Lord, Lord Browne-Wilkinson, and indeed of my noble and learned friend Lord Lloyd, does not matter. It is unnecessary to decide now which was the better interpretation of the language that Parliament originally enacted in 1989.
What is clear, as again the noble and learned Lord, Lord Lloyd, has explained, is that several judges who have had to grapple with this point, even if they felt bound by the original majority’s decision, have expressed serious misgivings about the consequences of that interpretation. In the case last year, Re J, to which again my noble and learned friend has referred, both the noble and learned Lord, Lord Judge, then the Lord Chief Justice and now a Member of this House, and the noble and learned Lord, Lord Neuberger, then Master of the Rolls and now President of the Supreme Court, agreed with Lord Justice McFarlane. His judgment expressed his trouble with the interpretation given to this section and described it,
“as a cause of concern amongst child protection agencies”.
What is certain is that the clause as originally enacted was not clear enough as to what Parliament then intended. The amendment of the noble and learned Lord, Lord Lloyd, or some comparable draft, would make it plain. It would solve the real and recurrent difficulty that this vitally important part of the law has got itself into, and it would produce a result that for my part I believe we should be striving for, which is to open the gateway to the court.
I repeat, this is only a threshold provision which would apply whenever a child is found to be at risk of being harmed, as must surely be the case when one of the caring parents is shown to have been a possible perpetrator of serious harm in the past. To anybody who is concerned that the court, following this amendment, would too readily take children away from a parent who only might have harmed some other child, I would say this is absolutely not the case. To quote subsection (2)(2A) of the proposed amendment,
“to infer that a child is likely to suffer significant harm”,
is to infer no more than that there is a risk of that child being harmed as surely there is if there is a real possibility that its carer has significantly harmed some other child. Crucially, it would then remain for the court, looking at all the facts of the case, to decide whether, under Section 1 of the 1989 Act, the child’s welfare is indeed best served by making a care or supervision order. I support the amendment.