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Legislative Assembly 27 February 2014 LEGISLATION

LEGISLATION

The Protection from Harassment Bill 2014:

This Bill has been published in the Gazette and does not require a first reading. The second reading featured an explanation by the Honourable Chief Executive Mr Keith Padgett.

Note: The echo prevented accurate transcription of this explanation.

KP: Mr Speaker, Honourable Members, on the 20th of January the Magistrates Court ruled in the case of the Crown Vs Kevin McLaren the Protection from Harassment Act 1997 which is United Kingdom legislation is not bound by the law in the Falkland Islands. However, the Interpretation and General Clauses Ordinance provides for the application of certain United Kingdom legislation here in the Islands. In particular Section 78 of the Ordinance provides for some laws to apply through a process known informally as automatic updating.

According to the revised edition of the laws the Protection from Harassment Act 1997 does apply because it augments two other UK laws which already apply in the Falkland Islands based on Section 78.2 of the aforementioned ordinance.

However, the judgement determined that this position is not correct and that the provisions of the Protection from Harassment Act 1997 are not incorporated into Falkland law as an augmentation to either the Offences Against a Person Act 1861 or the Public Order Act 1986 or both.

This Bill seeks to address the situation by introducing legislation to ensure the position which is believed to have existed for some time is recognised. It does not amount to any change of policy. It will simply put the law back in the position it was widely believed to be in prior to the decision of the Magistrates Court.

In particular it does not reflect the (starting) provisions which have more recently been afforded in the UK. This is because those positions were not applying through automatic updating of UK legislation.

In summary, the Bill specifies conduct which amounts to harassment, provides for its prohibition and specifies the penalty of committing the offense. It also provides for a victim to bring civil proceedings where there has been harassment and for the Court to award damages to the victim for anxiety or any financial loss resulting from it. There is also a provision for the Court to grant an injunction to restrain the defendant from pursuing any such conduct.

The Bill goes on further to provide for the prohibition of duct which puts other people in fear of violence and provides for the offence of racially or religiously motivated harassment. It outlines different defences a person accused of the offence may bring as well as the penalties applicable for the offence.

It also provides for the Courts to make a restraining order against the defendant so as to stop the defendant from continuing the conduct which amounts to harassment or causes fear of violence.

Finally it provides for non-application of this Bill where the (Governor) can certify any conduct particular to harassment related to national security, the economic well-being of the Falkland Islands or for the prevention or detection of serious crime.

I beg to move the Bill be given a second reading.

NG: I second the Motion

There was no debate and the Bill was dealt with by the Short Procedure and passed.

The Children Bill 2014:

This Bill was presented under a Certificate of Urgency and had not been Gazetted. Therefore it required a first reading.

KP: Mr Speaker, this Bill is being presented under a Certificate of Urgency to allow it to come before the House today rather than to leave it to the end of March when it had been scheduled. I propose the first reading of the Bill.

MS: I second the Motion.

There was no objection to the Motion and the Bill was read a first time.

KP: Mr Speaker, Honourable members, this Bill is intended to repeal and replace the existing Children Ordinance which dates from 1994. The existing Ordinance is based on the United Kingdom legislation from that time although a significant gaps, which are thought to reflect a wider relevant resources available in the Islands then. The Ordinance has not been amended since to reflect either changes to UK law in practice nor to reflecting crude resources in the Islands. For example the Social Services Team has developed significantly over the last 20 years.

The new Bill restates the text of the existing ordinance with some minor modifications but also includes substantial new provisions which are intended to bring the law up to date. The need for the law to be updated was identified some time ago and confirmed by the Lucy Faithful Foundation Child Safety Review which was agreed by Executive Council in September last year.

The fundamental purpose of the Bill is to improve Child protection, practice, procedure and standards in the Falkland Islands. The content of the new Bill is based on equivalent provisions for the United Kingdom. However, not all United Kingdom equivalents are included. A staged approach means that the Bill reflects what are believed to be the appropriate standards required for Child Protection in the Islands at this time.

More complex regulations which is involved in special guardianship has not been included. This needs to be kept under review to ensure that we maintain an appropriate standard of Child Protection now and into the future, in particular as our community changes and develops.

I will first summarise the key areas of change caused by the Bill. In part 1 of the Bill, Clause 5 would provide for unmarried but registered birth father to automatically have parental responsibility for their child.

Parental responsibility is the phrase used to refer to the legal rights duties, powers and responsibilities which a parent has in relation to a child. The existing law requires such (in-live) fathers to make application to the Court for parental responsibility.

Part 3 of the Bill is entirely new and would make provision for support including accommodation funding by the governing of children in need of such support. Importantly this will provide a legal framework to provide early help to families to prevent future crisis. It also imposes a duty on the Government to identify and assist disabled children and to maintain a register of disabled children.

Part 6 of the Bill is entirely new and will introduce some regulation for the fostering of children so that the Government is aware of any children that are in the community with non-family members. In this context fostering means the living in care of a child under 16 for more than 28 days by a person who is not the childs parent or close relative.

Part 7 of the Bill is also entirely new would provide a statutory basis for the Safeguarding of Children Board which currently operates on a non-statutory basis. The key objective of the Board is to co-ordinate Government Functions for the purposes reflecting the safeguarding and promoting the welfare of children in the Falkland Islands.

The Children Bill 2014:

This Bill was presented under a Certificate of Urgency and had not been Gazetted. Therefore it required a first reading.

KP: Mr Speaker, this Bill is being presented under a Certificate of Urgency to allow it to come before the House today rather than to leave it to the end of March when it had been scheduled. I propose the first reading of the Bill.

MS: I second the Motion.

There was no objection to the Motion and the Bill was read a first time.

KP: Mr Speaker, Honourable members, this Bill is intended to repeal and replace the existing Children Ordinance which dates from 1994. The existing Ordinance is based on the United Kingdom legislation from that time although a significant gaps, which are thought to reflect a wider relevant resources available in the Islands then. The Ordinance has not been amended since to reflect either changes to UK law in practice nor to reflecting crude resources in the Islands. For example the Social Services Team has developed significantly over the last 20 years.

The new Bill restates the text of the existing ordinance with some minor modifications but also includes substantial new provisions which are intended to bring the law up to date. The need for the law to be updated was identified some time ago and confirmed by the Lucy Faithful Foundation Child Safety Review which was agreed by Executive Council in September last year.

The fundamental purpose of the Bill is to improve Child protection, practice, procedure and standards in the Falkland Islands. The content of the new Bill is based on equivalent provisions for the United Kingdom. However, not all United Kingdom equivalents are included. A staged approach means that the Bill reflects what are believed to be the appropriate standards required for Child Protection in the Islands at this time.

More complex regulations which is involved in special guardianship has not been included. This needs to be kept under review to ensure that we maintain an appropriate standard of Child Protection now and into the future, in particular as our community changes and develops.

I will first summarise the key areas of change caused by the Bill. In part 1 of the Bill, Clause 5 would provide for unmarried but registered birth father to automatically have parental responsibility for their child.

Parental responsibility is the phrase used to refer to the legal rights duties, powers and responsibilities which a parent has in relation to a child. The existing law requires such (in-live) fathers to make application to the Court for parental responsibility.

Part 3 of the Bill is entirely new and would make provision for support including accommodation funding by the government of children in need of such support. Importantly this will provide a legal framework to provide early help to families to prevent future crisis. It also imposes a duty on the Government to identify and assist disabled children and to maintain a register of disabled children.

Part 6 of the Bill is entirely new and will introduce some regulation for the fostering of children so that the Government is aware of any children that are in the community with non-family members. In this context fostering means the living in care of a child under 16 for more than 28 days by a person who is not the childs parent or close relative.

Part 7 of the Bill is also entirely new would provide a statutory basis for the Safeguarding of Children Board which currently operates on a non-statutory basis. The key objective of the Board is to co-ordinate Government Functions for the purposes effecting the safeguarding and promoting the welfare of children in the Falkland Islands.

Secondly a number of less significant areas of change will also be given effect under the Bill, which I will touch on briefly.

Part 4 of the Bill duplicates existing powers to make clear supervision orders in relation to children but also contains some new elements in particular Clause 49 will impose a duty on the government to produce a plan for the future care for a child when such an application is made to the Court.

Clause 54 will empower the court to make Education Supervision orders which are specifically focused on a Child of Compulsory School Age who has not been properly educated.

Schedule 3 which supplements part 4 of the Bill will also restrict the Courts powers to require a child who is the subject of a supervision order to be ex-owned or treated outside of the Falkland Islands to ensure that the law reflects constitutional protections or freedom of movement.

Finally, in relation to Part 4 Clauses 57, 58, and Schedule 4 will empower the Court to exclude a person from a family home to protect a child from significant harm in connection with an interim order for secondary care of a child.

Part 5 of the Bill which duplicates existing powers to protect children through a process of assessment and emergency protection orders also contains new provisions. The first of those is to impose a duty on the Government to make enquiries in relation to childrens certain circumstances in particular when there is a reasonable cause to suspect the child is suffering significant harm or is likely to suffer it as is contained in Clause 69,

Clause 70 would empower the Court to include additional requirements in an emergency protection order require the disclosure of a childs whereabouts and also allowing the entry and selected places for children.

Part 8 of the Bill largely repeats existing miscellaneous sections but contains new elements which supplement existing provisions in relation to supervision orders and circumvent the new sections in Part 6 about fostering by empowering the Court to issue warrants for search entry in connection with those two things.

Parts 9 to 11 of the Bill contain technical sections about regulations, UK Legislation and the repeal of the existing Children ordinance and would also make new provision with the effect that regulations made under equivalent English Law should be held regard to by way of guidance and in the making of our own regulations under Falkland Islands law. I beg to move the second reading of the Bill.

MS: I second the Motion

KB: Does any Honourable member wish to speak to the Motion? (There was no reply.) The Motion is that the Bill be read a second time. Is there any objection to passing that Motion? (There was no objection.) The Bill will be read a second time.

MS: Mr Speaker, Honourable members, the policies that underlie this bill have not yet been discussed by Honourable members. That is because we wanted to move this process on as quickly as we could and there are practicalities between delivering the policy advice and drafting the legislation but were best served by bringing all things together.

So I think for anybody listening to this today might wonder what happened to the policy debate. It hasnt yet taken place. There are a number of issues that underlie this Bill about the relative responsibilities of the State and parents about the responsibilities of the Crown or Government to intervene in certain circumstances and whether that infringes on peoples fundamental freedoms, Court or not, and a whole plethora of things like that need to be discussed and debated.

The underlying principle, of course, is that children must be protected and in that, we will all be one. But there is no single way of doing it and just adopting legislation thats been put in place by others isnt always the best way of doing it for us. But we will take significant guidance from the way that the law is developed in the United Kingdom to inform our own discussions.

And so there are some very important principles of what our community is like in this Bill and the extent to which we believe as a community that the Government has the right and the responsibility to intervene in certain circumstances. So that being the case, I would like to propose that the Children Bill 2014 be remitted to a select committee comprised of all Elected Members of Legislative Assembly under my chairmanship. We then can discuss and debate policy issues and the legislation at one. And it is proposed that the first meeting, if this is agreed, be next week on Monday afternoon.

BE: Mr Speaker, Honourable members, I would like to second the Motion. I think it is very much important Bill and as the Honourable Mike Summers says we havent had an important policy discussion and I think bringing it forward as a matter of urgency and putting it before the Select Committee gives the opportunity for everyone to discuss it in more detail and also for the public to hear that debate.

Thank you.

KB: The Motion is that the Childrens Bill 2014 should be submitted to a select committee comprised of all the members of legislative Assembly and under the chairmanship of the Honourable Mike Summers.

There was no objection and the Bill was submitted to a select committee of the elected Members of Legislative Assembly.



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