My Lords, with regard to “have regard to”, there is no question that “have regard to” involves a responsibility to have regard to, and that it is not right to say that you can have an obligation to have regard to and ignore the thing altogether. On the other hand, if you have regard to, you are not bound to consider that as absolutely binding because there may be other circumstances that go in a different direction.
The noble and learned Baroness, Lady Butler-Sloss, pointed out that in the Children Act “have regard to” comes in one place but does not come in a different place. I am strongly of the view that in this particular case it is the latter aspect that should rule. In other words, it should not say “have regard to” in the first clause here; it should be a case of, “These are the things you have to do”, as in Section 17 of the Children Act, which lays down a general duty to do these things. I also agree with the view that one has to be careful not to make it overcomplicated, otherwise those who are trying to operate it will find it difficult to operate. We are duty bound to make it as simple as possible—and as effective as possible.
One thing about the amendment moved by the noble Baroness, Lady Howe of Idlicote, that I find difficult is the taking out of the local authority’s responsibility. I entirely agree about spreading responsibility to others, but I think that the local authority has a very particular responsibility. It is the local authority that takes children into care when it comes to that situation, and therefore it should be left with a general duty to do the things that are the corporate parenting principles—clear, effective and unqualified.
With regard to the other organisations—the noble Baroness’s amendment demonstrates how many there are, and there are one or two options to add a few more—I do not think that the situation is as precise and workable as the one for corporate parenting. I would very much like to see corporate parenting standing on its own as a general duty, clear and effective.
The idea that the local authority has to keep in touch with the natural parents is very important. It is true to say—although I hope this is improving—that there was a situation in which the local authorities were often ready to hand children back from care to a parent, with disastrous results. I am convinced that this jurisdiction and responsibility of local authorities is extremely difficult to exercise with complete success every time. There is no doubt that it is a very difficult jurisdiction. I was certainly conscious of that in 1988 and 1989, when we were putting the responsibility on local authorities in a way that was more definite than before. Some noble Lords will remember that there was a possibility of making children wards of court. In effect, that has been almost completely taken away by the duty on the local authority. Setting out the principles on which a local authority has to operate is extremely useful.
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I am not certain about the point on criminalisation. The criminal law stands as it is. It is the duty of the local authority to do what it can to prevent any children in its care falling into the hands of the criminal justice system. If that is what this means, I am all in favour of it.
As the noble Lord, Lord Ramsbotham, explained, there is sometimes the difficulty of getting the child to know what the position was in time for the child to act. That difficulty should certainly be avoided at all costs. But it is difficult to place a responsibility on the local authority to reduce the criminalisation if it does not mean something like that. So I would be glad to know more about exactly how it might be expressed. Otherwise, a good number of these amendments are for consideration as part of the proper basis for corporate parenting.