My Lords, I find myself in a maelstrom of lawyers with no voice. My position is that we been asking two questions which do not necessarily have the same answer. When I read the response from the department about this proposal, it became clear that we are considering two different issues. One is whether a local authority has enough powers to move into a family and take action if it believes that there is significant harm or the likelihood of significant harm. Of course, the ADSS and everyone else will say that they do have enough powers because that is clearly so. The criticism comes when local authorities do not move when they have that capacity.
The question we are considering is when two people have been in a situation where a child has been harmed. Perhaps I may put a bracket around that thought for a moment while we remind ourselves of the time when, if a child was murdered and you could not prove which of two people had done it, both were acquitted. There was a huge campaign by the NSPCC to ensure that that could not happen; that is, if a child was dead and clearly it was one person or the other, both people involved were likely to find themselves found guilty until such time as there was greater clarification. We can close the bracket there and say, “Here we are: we find ourselves in a situation where there are two people involved, someone has committed harm and maybe killed the child”. Recently, I spoke to a serious lawyer and a previous Attorney-General, who I probably should not name at the moment, who said, “If there is the slightest margin that there is a risk that the child might end up dead, what action do you take?
My noble friend Lady Deech has made the speech which I would have liked to have made. She has made important points. This amendment will do no harm. This afternoon, your Lordships have had a real seminar on Section 31 of the Children Act and the level of thresholds. It is important that we take action that protects children if it does no harm. I am more concerned that action is not taken by local authorities than that they are likely to whip children into care. To use a word we heard earlier, the “presumption” that local authorities take children into care wantonly is just not true. In fact, it is very difficult to get your child into care if you want to. A great deal of work and assessment thresholds should be considered.
All we are saying is that to get to the threshold of Section 31 where there has been this risk and there is possible danger, the local authority should be enabled to take some action, which will not necessarily, as mentioned by the noble Lord, Lord Elton, result in the child being removed from home. In fact, it is unlikely, unless there are serious risks, that the child will be removed from home. The amendment will clarify this bit of law. Do not worry if you feel confused: sometimes I find it extremely confusing and, despite what their bosses say, quite a lot of social workers on the ground find it confusing, too.