Before we start, I remind the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell sounds and will resume after 10 minutes.
Clause 8 [Provision of accommodation in its area for children looked after by a local authority]:
[Amendment No. 27 not moved.]
28: Clause 8, page 6, line 6, leave out subsection (2)
The noble Earl said: My intention in proposing to remove this subsection is to allow a general debate on the implications of the requirement on local authorities to place children locally, save in exceptional circumstances. I hope that it will be helpful if I raise two matters. First, as I indicated at Second Reading, I am concerned that the imprudent application of this clause might result in the loss of vital good-quality specialist provision. Secondly, I am anxious that good-quality foster placements near to a child’s home but in a neighbouring local authority should not be lost.
In the past, efforts to encourage local authorities to place more children in borough appear to have resulted in disruption to placements. The policy is right in principle, but it is the practice that matters. Guidance on this clause needs to be carefully drawn and its implementation must be carefully monitored. I understand that in Wales, where requirements to this effect are in place, there has been disruption to proximate out-of-authority placements. I am awaiting detailed information on that and will forward it to the Minister as soon as I receive it. I was grateful for the Minister’s reply at Second Reading, but further reassurance would be welcome.
Three years ago, a letter was sent from the DfES, as it was then, to local authorities requiring them to place children within a 20-mile radius of their home, unless it was against the interests of a child to do so. I paraphrase the letter, but it was explicit that local authorities should avoid disrupting out-of-authority placements. None the less, some local authorities appear to have interpreted it as meaning that they should pull the plug on out-of-authority placements.
A questionnaire from the National Centre for Excellence in Residential Child Care found that 24 per cent of respondents had experienced such premature removals. Fifty per cent of commissioners and 79 per cent of providers agreed that, when commissioning, price was a more important motivator now than two years ago. Half the voluntary and independent providers reported reduced occupancy and two-thirds said that they were receiving insufficient referrals. It is therefore essential that we see the guidance in draft as soon as possible. Can the Minister say whether we might see it before Report?
This occurrence adds all the more weight to the request by my noble friend Lord Laming that local authorities should be obliged to produce a commissioning strategy for their looked-after children. Local authorities need to be proactive rather than crudely reactive. I welcome what the Minister said on an earlier day in Committee about the improvements being planned for commissioning and those that have already been undertaken. I look forward to meeting some of his advisers during the passage of the Bill to discuss this further.
Specialist provision can be more costly in the short term. Children are often prematurely withdrawn from such services. A child appears to be better, and the local authority therefore removes him. In fact, the removal of the symptoms may be only the first stage of addressing the fundamental needs of a traumatised child. The National Society for the Prevention of Cruelty to Children service for young abusers in north London, albeit a non-residential service, has often had such experiences.
The Mulberry Bush School in Oxfordshire provides residential care for the most troubled children. I have visited the school, which has very good Ofsted reports. A documentary to be broadcast later this year shows children arriving who kick, punch and spit at staff. They often need to be restrained by more than two staff members. The programme shows how, over time, the children’s behaviour changes. There is a particularly touching scene of a child’s bedtime, when his carer holds him tenderly. The Mulberry Bush is so well respected that I doubt whether this clause would impact on its clients commissioning its services. However, the institution illustrates the value of highly specialist residential provision.
If local authorities avoid using out-of-authority specialist residential provision in future, there is the danger that some children will experience increased levels of multiple placement breakdown, something about which we are all most concerned. Will the Minister seek to monitor this by introducing a mechanism to check how many children have more than five, 10 and 12 placements each year? I welcome the Government’s PSA target on ensuring that children have no more than three placements a year, but as I understand it there is no lever on local authorities. It does not really matter much to the child how many more times over the limit they are placed, whether it is four, five, six or seven times. If the limit of three is exceeded, there does not appear to be any mechanism to prevent the child from being shifted around. It would be helpful to know how this is monitored. I welcome the reduction in the number of children who experience more than three placements a year and I look forward to hearing the Minister’s reply. I beg to move.
I should like to speak to Amendments Nos. 29 and 31 in my name. I thank the noble Baroness, Lady Walmsley, for supporting them.
We very much welcome the aspect of this Bill that attempts to keep children in care close to home. It is encouraging to see the Government recognising the importance of keeping a child in their local area as a way of increasing stability and continuity of care. It can only be a double blow to the child to be put into care and then to be removed from the only stable things in their life. The familiarity of surroundings, friendships and ties to the local community can soften the blow of being taken into care and make it easier for a child to handle the difficult transition with more confidence.
However, we have some concerns. First, as it stands, the threshold for determining when a child must be kept in a local area is weak. The Bill states that care should be within the local area unless the authority is “satisfied” that there is no local accommodation. We feel that, if the Government are serious about keeping children close to home, they need to make a more robust statement of this purpose in the Bill. Our Amendment No. 29 would tighten the language and remove the possibility of local authorities wriggling out of their duties; it would ensure that children are kept in the area unless that is inconsistent with their welfare.
We are also concerned that, as drafted, this clause could be interpreted to keep a child locally when their best interests would be better served away from home. We are particularly anxious about children and young people with severe and complex disabilities, who require extremely specialist care that many local authorities simply cannot provide. Of course it would be wonderful if every local authority could provide every specialist need, but that is sadly not the case. I think that the Committee will agree that we need the clause to cover exceptional circumstances. A child should not be denied access to the care that they need because of geography. I am sure that the Minister will point out that that is not the point of this clause at all, but we want to ensure that need, not cost, is driving provision.
I have so far spoken only about the welfare of a child and, in particular, the need for an exception for disabled children. In Amendment No. 31, we have included safety as well. There are a host of reasons—gang pressure, abuse, traumatic family environments and trafficking—where keeping a child in the local area would be dangerous. We want to ensure that there is provision for children to be placed out of local areas when there are situations that would make it genuinely unsafe for a child to stay there.
Before I finish, I should like to touch on the plight of trafficked children. I know that the noble Baroness, Lady Walmsley, spoke about them earlier this week, but I want to talk about them in a slightly different context. I want to talk about children who are trafficked into our country and those who are trafficked within our borders. Their cases are tragic and we should give them all the support that we can. However, that is not an easy task. The nature of their situation often leads to them being not just traumatised but, where they have been trafficked for sex, highly sexualised and confused between genuine affection and abuse. This makes them difficult to place with most foster carers, so they are put in hostels or in bed-and-breakfast accommodation, where they just disappear. According to an article in the Guardian in September, more than 180 children recently trafficked into the UK have vanished without a trace from social service care. I wonder whether the Minister can tell the Committee what the Government are doing to ensure that those cruelly exploited children are placed in the most appropriate setting.
I believe that the figure given by the noble Baroness came from the Government. I am not sure that it is 180—it may have been 160—but the Government have certainly said that something in the region of that number of trafficked children have gone missing in the past year to 18 months. It is an extremely serious matter. I must declare an interest. I belong to the All-Party Group on the Trafficking of Women and Children, so I very much endorse what the noble Baroness has just said.
Perhaps I can make a separate point about accommodation outside the area. Another group of children who are particularly difficult to place are those who have been sexually abused over a long period. Sometimes they are very young children. I have a vivid recollection of a little girl of five, whose case I dealt with. She went to see a child psychiatrist who was not an enthusiast about child sexual abuse—he was not at all sure that it really happened very much. The girl ran in and sat on his lap, although she had never met him before. She then lay down, opened her legs and said, “Would you like to see what daddy did to me?”. He was converted in an instant. The point is that she could not go to any ordinary foster family because she would be a danger to the father and to the boys in the family. One has to bear in mind that, in exceptional circumstances, highly sexualised children must have very careful treatment, which may well have to take place outside the area.
I have some amendments in this group: Amendments Nos. 32, 33, 34 and 46. Despite physical appearances today, there is not a yawning chasm between me and the noble Baroness, Lady Morris of Bolton, but that is a matter that I shall redress in the correct forum.
My Amendment No. 32 is a different way of approaching the issue covered by Amendment No. 29 in the name of the noble Baroness, Lady Morris, and my Amendment No. 33 is a different way of approaching the issue covered by Amendment No. 31, also in her name. On Amendment No. 33, we would simply like a recognition that there may be cases involving specific safety concerns, as have just been outlined, which make a placement within a local authority not in the child’s best interests. That is why we propose the addition of safety as a criterion in Clause 8.
Amendments Nos. 34 and 46 define what we mean by welfare. Kevin Brennan MP, Parliamentary Under-Secretary of State for Children, Young People and Families, speaking on 9 October 2007, made it clear that the Bill would not prevent access to specialist services for children with complex and acute needs. He said that,
“the needs of each individual child must come first. We will ensure that out of authority restriction is not absolute, as we recognise that some young people will have needs that require them to be placed at a distance”.
Although we recognise that and welcome the Bill’s focus on ensuring that local authorities provide appropriate placements that are consistent with the child’s welfare, we would like more clarity on what we mean by “welfare”. In some cases, out-of-authority placements may be the most appropriate. As drafted, the Bill states that the Secretary of State will define the requirements with which local authorities must comply before placing a child out of their area. We believe that further clarification is required in the Bill, which is why we have provided our own definition of welfare. Noble Lords will note that it includes physical and mental health as well as appropriate educational outcomes; support for the child’s social, emotional and behavioural needs; safeguarding requirements; and the stability of the care placement.
We would place a similar definition of welfare in Clause 9, because we are concerned that a lack of flexibility and understanding of the circumstances of children with complex needs could result in a decision to place a child in an inappropriate placement, simply because it is near to the school, which is the subject covered by Clause 9. That might be the school where they are currently registered. It is of course easier to leave them there—whether or not they are actually attending, which might also be an issue—regardless of whether the school is able to provide the specialist support that the child needs. That is why we propose the same definition of “welfare” in Amendment No. 46 as in Amendment No. 34.
These amendments overlap and support one another, which re-emphasises the significance of the issue. What attracted me to them, having myself been part of a Government in the distant past, is that I have always worried a little that, whatever the good intentions, how the policy is to be fulfilled and what its specifics are need to be looked at in some detail. Sometimes there is a certain amount of frustration among those delivering in the field. They do not doubt the good intentions and positive attitude of the Government, but they do not believe that what needs to be done in terms of action and specific circumstances has always been clearly thought through. I am therefore always tempted to support amendments that try to be specific in their implications. I hope that my noble friend will feel able to look seriously at what is being argued.
I, too, support these amendments, whose provisions vary across several clauses and have been referred to in previous debates. I particularly wished to put my name to the amendment of the noble Baroness, Lady Walmsley, because one is increasingly looking at weasel words that would give an organisation or local authority that had other reasons, such as resources, for not going down a route an excuse to do so. If ever there were two such words, they are “reasonably practicable”. When you remove “reasonably practicable”, the phrase reads:
“The duties imposed”—
in relation to accommodation—
“are … to be performed only in so far as their performance is … consistent with the welfare of the child”.
That is surely what we want, not,
“reasonably practicable and consistent with the welfare of the child”,
particularly given all the needs that we have heard about and the difficulty of placing individual children for more than understandable reasons. I very much support all the amendments because of what we have heard, and continue to hear, about the details of some of these appalling cases. We are all horrified by the number of missing children, whatever it is. It is quite beyond belief.
Clause 8 and this group of amendments enable us to discuss two important issues. I suggest that it will be important to keep them separate in our minds. The first, from the child’s point of view, is continuity of friends and relatives when he or she is being placed, either in the same local authority area or close to it. The second is the stability of the placement itself.
In London and other large conurbations, a much better and more satisfactory placement may well be available just over the edge of the boundary of the particular local authority. I am sure that the Minister has that in mind and I hope that he will continue to keep it there.
At Second Reading I said that stable placements of children were worth their weight in gold, which is why I welcome paragraphs (d) and (e) in Amendments Nos. 34 and 46. They emphasise the long-term stability of the potential care placement and the consequent mental and physical health of the child. I am sure that we all agree that long, stable placements provide the environment in which the child’s mental and physical health can be cared for, preserved, maintained and improved. On those grounds, I support what my noble friend Lord Listowel said about a possible mechanism for looking at placements that have failed to last and have broken down for one reason or another. Perhaps the mechanism could look into the causes of the breakdown as well as simply the administration of it.
I support the two points made by my noble friend Lord Hylton; namely, the stability and continuity of placement. There is another reason, which has not yet been mentioned, for sometimes not placing a child near to home. I speak particularly of teenage children. If they have become involved with a gang or a group to which in lieu of a family they have dedicated their loyalty, unless they are moved away, they simply will not have the opportunity to break the bad habits and bad behaviour to which they have committed themselves.
I am mortified that the noble Baroness, Lady Walmsley, regretted only the growing chasm between herself and the noble Baroness, Lady Morris. I thought that she would be far more concerned about the growing chasm between herself and me. I greatly regret that she is so far away and I wish that she was closer. However, her words carry equal force wherever she delivers them from within the Grand Committee.
Greater stability and continuity are our objectives, which are clearly shared by all noble Lords who have spoken in the Committee today. In respect of the noble Earl’s Amendment No. 28, we are committed to reducing the number of inappropriate out-of-authority placements and to encouraging provision of a range and choice of suitable-quality accommodation within each local authority area that is capable of meeting the needs of the children that it looks after.
The noble Earl asked about data on placement stability and whether we could publish data on those who are moved five, 10 or 15 times a year. We currently have national indicators on three or more placement moves and long-term placement stability and we publish those statistics. However, national data collection captures information on every placement move, and the extremely high levels of placement disruption to which he referred are counted. I shall write to him with the information that we have in a form that may be useful to him.
The latest figures show that 34 per cent of children are placed outside their local authority area. This rate has increased in recent years. Because of this high level—we believe it to be unacceptably high—we think it right to strengthen the duties on local authorities to help to reduce the current reliance on distant placements, both outside the local authority or at some distance within it. Children have told us that they can feel isolated in distant placements and miss contact with their friends and local communities. Local authorities find it harder to be attentive corporate parents to children who are in distant placements and they have less leverage over the relevant services in that area.
In general, children placed out of area do less well than those placed closer to home. We know that children placed out of their local authority area are more likely to achieve poor outcomes and to be in very expensive placements, which are spot-purchased and do not always justify their costs. For all those reasons, we have the provisions set out in Clause 8.
However, there will always be children for whom a placement outside their local authority area is the right placement; that is, children with needs that can be met only in very specialist placements or those who may need to be moved away from their home area for their own protection or for the reasons set out by the noble and learned Baroness, Lady Butler-Sloss. Some of these children are the most vulnerable looked-after children of all. That is why we have included in Clause 8 the new test, which we believe to be robust; I say that in respect of the remarks made by the noble Baroness, Lady Morris, about new subsection (7A). An authority would have to act reasonably in the judgment that it makes, which is a high threshold in terms of the way in which it exercises its judgment under that subsection.
To ensure that local authorities exercise this discretion appropriately, we shall use the power in new subsection (7B) to set out a process in regulations to scrutinise the decision to place out of area, to ensure that the authority has properly considered all the local options and whether out-of-area placement would meet the child’s assessed needs, and to ensure that arrangements have been made to deliver the services that the child needs. The noble Earl, Lord Listowel, asked whether we would allow Members of the Committee to see a draft of the guidance on the placing of children before Report. I am afraid that I cannot help him in that regard. As we have already said publicly, our commitment in respect of the revised Children Act 1989 guidance is to produce it by 2009, so it will not be available shortly and certainly not by Report.
On Amendment No. 31, we share the concern that the location of a placement near to the child’s home should not be the sole consideration when deciding on a suitable placement. The statutory framework already reflects that. Section 22 of the Children Act 1989 places local authorities under an overarching duty to safeguard and promote the welfare of looked-after children. By virtue of this, whenever a decision is taken that concerns an individual looked-after child, the local authority has a general duty to safeguard and promote the child’s welfare. New subsection (7C) restates the existing presumption in Section 23(7) of the Children Act 1989 that usually it will be in a child’s interests to place them near to home. This duty to place near home takes effect under Clause 8 subject to the duty to place in the authority’s area, reflecting the fact that the authority responsible for looking after the child will be better able to co-ordinate other services within its area that the child might need from other local agencies, including education and healthcare providers.
However, this presumption will be rebuttable. The overriding duty of the authority will be to ensure that the placement is consistent with its general duty to safeguard and promote the child’s welfare. Furthermore, the effect of the limitations on the duty set out in new subsection (7E) of reasonable practicability and being consistent with the child’s welfare is to ensure that the local authority is under no duty to perform the impossible and is able to take into account a range of factors in addition to placement location. These might include whether the local authority can place together siblings who might have different homes, whether the proposed placement would enable the child to remain at the same school and, of course, whether the support that could be offered by the specific foster carer or children’s home is consistent with the child’s welfare.
On Amendment No. 32, we accept that specific legal duties must not have the effect of creating perverse incentives or reducing the flexibility that local authorities need to make decisions that take proper account of local circumstances and priorities. There may be situations where it is simply not possible for a local authority to place the child near his or her home or with siblings. All the remarks that I have just made in respect of the amendment tabled by the noble Baroness, Lady Morris, apply.
On Amendment No. 33, it is obviously essential that every looked-after child be kept safe and protected wherever they are accommodated by the authority that is responsible for their care. Clause 8 does nothing to detract from that. It might not, for example, be consistent with the child’s welfare to place a child near his or her home if he or she was at risk of abuse from a family member. Local authorities are under a general statutory duty, set out in Section 11 of the Children Act 2004, to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children. The statutory guidance, Working Together to Safeguard Children, published in 2006, sets out the actions that local authorities need to take to ensure that children’s welfare is safeguarded.
On Amendments Nos. 34 and 46, any decision that touches on the welfare of a child will necessarily involve consideration of a wide range of factors, some that are particular to the child and his family situation and some that are of universal relevance. I agree that those highlighted by noble Lords are vital to the interests of children and young people. However, we do not believe that it is either desirable or necessary to specify a definition of a child’s welfare in primary legislation. The term “welfare” is not currently defined in legislation. However, it is well understood by the courts, local authorities, social workers and other practitioners involved with looked-after children. In common usage, “welfare” means the well-being, happiness, health and prosperity of a person. In the context of the Children Act 1989, it requires consideration of both the child’s short-term and long-term needs.
Our view is that, by specifying a definition in primary legislation, we may end up with a narrower definition of welfare than we currently have. That would limit the choices that a local authority can make in a way that may be detrimental to a child’s overall welfare. Furthermore, Section 10 of the Children Act 2004 places local authorities and their partners under a duty to co-operate to improve the well-being of children, as defined by the five Every Child Matters outcomes. Those outcomes cover the aspects of welfare that the noble Baroness highlighted as important and apply as much to looked-after children as to other children.
To repeat, we will set out in the revised Children Act 1989 guidance the key factors that we expect a local authority to take into account when making care placement decisions and performing its various duties under Section 23. We also intend to leave local authorities the scope to take into account additional factors that may be relevant to a particular child. That guidance will cover the factors highlighted by the amendments. On that basis, I hope that the Committee will be content with the Government’s position.
I understand that the Minister may not be able to answer my question about trafficked children now, but I know that there is real concern. I was speaking to Inspector Nick Kinsella of the excellent Human Trafficking Centre in Sheffield. When the centre rescues these children, it has a problem with finding appropriate accommodation for them. If the Minister could write to say what the Government are doing to look at that pressing issue, I would look forward to receiving his response.
I will certainly study the noble Baroness’s remarks with care. We published the UK Action Plan on Tackling Human Trafficking last March. It contains a comprehensive strategy to improve the identification and safeguarding of child victims of trafficking and to reduce the risk of their going missing. If there is more that I need to add, I will do so.
[The Sitting was suspended for a Division in the House from 4.17 to 4.27 pm.]
Before the noble Earl, Lord Listowel, does so, may I ask the Minister a question? Will all the issues that I mentioned in my definition of “welfare” be covered in the guidance to which he referred and will additional flexibility be given to local authorities to take account of other issues?
I thank the Minister for his reply. I look forward to hearing further details of those young people whose placements break down more frequently than three times. I emphasise again that the danger with the current system is that it is cheaper to keep children in foster placements. The most vulnerable and traumatised children may find themselves being moved from one foster placement to another and then another. Unless one keeps a strong eye on those children who are moved to five, six, seven or eight placements, one could severely harm those most vulnerable children as they go through the care system until eventually they end up in the right, perhaps more expensive, specialist placement. We do not want to put them through that. I look forward to receiving the information, but we need to look at what pressures might be put on local authorities to ensure that, when these numbers start building up, prompt action is taken to place the child in the right placement, which, as I say, may be a more expensive specialist placement. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 to 34 not moved.]
Clause 8 agreed to.
[Amendments Nos. 35 and 36 not moved.]
Clause 9 [Provision of accommodation which is near to looked after child’s school]:
[Amendment No. 37 not moved.]
38: Clause 9, page 7, line 2, leave out “schools” and insert “educational institutions”
The noble Lord said: I am conscious that the amendment brings together various threads in my noble friend’s varied and extensive responsibilities, so I particularly hope that he will be able to respond positively. I place on record the fact that I have had very helpful discussions with some of those working with the children and young people to whom the amendments apply. I have found their commitment, based on their insight and experience, utterly convincing. I am also speaking to Amendments Nos. 38 to 42 and Amendment No. 45. I shall be interested to hear what the noble Baroness, Lady Walmsley, says about Amendments Nos. 43 and 44, because they seem to be very much in harmony with what I am proposing.
Under Clause 9, local authorities are required to make arrangements for a child whom they are looking after to be accommodated near to the school at which the child is a registered pupil. As far as it goes, this is to be welcomed; it may go some way towards addressing the instability that looked-after children experience in their education. Annual education statistics have clearly demonstrated the wide gap in performance between looked-after children and the wider child population across all key stages. For example, in 2006, 58 per cent of looked-after children of the appropriate age achieved level 2 at key stage 1, compared with 85 per cent of the general population of that age group. At key stage 2, 47 per cent achieved level 4, compared with 81 per cent of the general population. At key stage 3, 30 per cent achieved level 5, compared with 74 per cent of the wider population. At key stage 4, the inequalities persist, with 12 per cent of looked-after children achieving five or more A* to C grades at GCSE, compared with 59 per cent of the general population.
It is widely acknowledged that instability in a looked-after child’s placement is one of the key barriers to their receiving uninterrupted education provision and therefore to their achieving their potential. While the provisions under Clause 9 are welcome, a number of questions remain. First, it is unclear what categories of educational establishments are included under the clause, apart from the provision that pupil referral units be altogether excluded. The purpose of the amendment is to gain clarification from the Government on which educational establishments will be included. For example, will the provisions cover maintained nursery schools, academies and special schools?
Secondly, in the Care Matters White Paper, the Government recognised that many young people are leaving care at 16 when they may well be ill prepared to live independently and where such a transition can have a negative impact on the child’s education and training. The White Paper also proposes pilots to better involve young people aged 16 to 18 in decisions around their leaving care and to allow young people to remain with their foster carers until the age of 21. With this emphasis on allowing looked-after young people to stay in care beyond the age of 16, should further education colleges at which such young people may be receiving educational provision really not be included under Clause 9?
Finally, as I have just explained, new subsection (9B)(a), to be inserted by Clause 9, states that,
“‘school’ does not include a pupil referral unit”.
This raises considerable concerns. I hope that my noble friend can clarify precisely why PRUs are not included. They provide education to children of compulsory school age who, because of exclusion, illness or other factors, are unable to attend a mainstream school. Like other children, a looked-after child who has had difficulties in mainstream education may well be receiving education in a PRU. Placement in accommodation far away from this establishment could have a negative impact on a child’s educational achievement and experience. Indeed, it could almost be argued that those children are, by definition, more in need of nearby provision than are others.
To sum up, will my noble friend take the opportunity of Grand Committee to clarify exactly which educational institutions will be included under the Clause 9 provisions? Will he indicate whether further education colleges will also be included under Clause 9 to reflect the Government’s intentions to allow looked-after children to stay in care beyond the age of 16? Will he explain why pupil referral units have been excluded from the Clause 9 provisions? I beg to move.
I give general support to Amendments Nos. 38, 42 and 45, and I will speak in particular to Amendments Nos. 43 and 44, which are in my name and that of my noble friend Baroness Walmsley.
As the noble Lord, Lord Judd, spelt out, Clause 9 of the Bill, to which all these amendments relate, will amend Section 23 of the Children Act 1989 to ensure that local authorities are required to make arrangements for the child to be accommodated near their school. As the noble Lord, Lord Judd, explained, it is important to clarify what is meant by “school” in this context, particularly in a world in which we have a proliferation of different types of school. We have particular sympathy with the spelling-out of what types of school they should be, although we do not go along completely with the points made by the noble Lord about pupil referral units. Normally, a pupil is at a referral unit only for a short period. If they are to go back to their mainstream school, it is important that, rather than being moved, they stay where they are in order to be accommodated back into their mainstream school. We also think that nursery schools need not necessarily be maintained ones; this could apply to any form of nursery school. With those provisos, we support the amendments.
We are particularly concerned about access for looked-after children to these new diploma courses, which are often run in collaboration between schools and colleges. It is essential to ensure that children in care are not restricted in the opportunities that are available to them. They often have lower attainment, as the noble Lord, Lord Judd, explained, than the average of their peer group at key milestones in their school careers. They are especially likely to be among those pupils who find little stimulus in the present secondary school curriculum, particularly the GCSE courses in which low attainment—for example, a pass below grade D—is often perceived as a failure. They are therefore particularly likely to benefit from the new diploma courses to be run alongside the existing GCSE and A-level qualification framework. It is vital that young people receive support and guidance to assist them in making important decisions for entry to qualification routes that meet their aptitudes and aspirations and provide a means of progression to future stages of learning.
Equally, it is important that the courses pursued are not overly specialised, so that young people do not become locked into narrow occupational tracks without developing transferable skills for entry into different learning pathways. It may be that, having achieved the first stage of diploma studies, which will give them a level 1 or level 2 NVQ qualification, they would best proceed to further education courses offering a BTEC or a City and Guilds qualification, or something of that sort. In that respect, access to a further education college is just as important as access to school. I very much endorse what the noble Lord, Lord Judd, said, about further education colleges.
Amendment No. 43 gives us a definition of the word “near”. In page 7, line 3, a new subsection (7G) is inserted into Section 23 of the 1989 Act. It states:
“The arrangements must enable a child to live near that school or (as the case may be) one of those schools”.
We seek through the amendment to probe the Government as to what “near” might mean. When we sought guidance, we came up with the fact the 1996 Act contains a definition of walking distance. Section 444(5) of the 1996 Act states:
“In subsection (4) ‘walking distance’—
(a) in relation to a child who is under the age of eight, means 3.218688 kilometres (two miles), and
(b) in relation to a child who has attained the age of eight, means 4.828032 kilometres (three miles),
in each case measured by the nearest available route”.
We have suggested that that might be the definition of what is near. The Minister may well come back to say that it is extremely difficult to do that. On the other hand, I bring to his attention the fact that new subsection (7G) provides two get-outs for the local authority. One is the weasel words “reasonably practicable”, which means that, where it is reasonably practicable for them to be within walking distance, they should be. That is the essence of what we want. However, we feel that the term here is very vague and we want clarification.
I have just been informed that it is the birthday of the noble Baroness, Lady Morris, today. If I may say so, greater love hath no woman than that she lay down her birthday for a Grand Committee. We are delighted that she is with us today.
My noble friend Lord Judd is right to say that what he was asking about in respect of Clause 9 is not defined in the Bill, but I can give him almost all the reassurance that he seeks and I hope that I can give him an adequate explanation of one of his concerns; I will look further at a second one. In respect of schools, in Clause 9, we take the word “school” to have its normal accepted use, as meaning an educational institution at which a child is a registered pupil. The expression includes all maintained schools, including special schools and maintained nursery schools, non-maintained special schools and independent schools, which includes all academies, city technology colleges and city colleges for technology and the arts. That meets almost all the concerns of my noble friend.
On PRUs, my explanation is precisely the one given by the noble Baroness, Lady Sharp. We gave careful consideration to whether pupil referral units should be included. We took the decision that the new provision should not apply to PRUs on the ground that such placements are, by their nature, intended to be temporary. They are specifically organised to provide education for children who would not otherwise receive suitable education because, for example, they have been excluded. We would expect a local authority to take all necessary steps to ensure that children are reintegrated in a mainstream school as soon as possible, which is almost always consistent with their welfare, and we believe that a statutory impediment to such reintegration may work against their welfare. That is why we have not put PRUs in the category of schools.
In respect of further education, some children in key stage 4 attend courses at institutions in the FE sector. However, almost all 14 to 16 year-olds in the general population who attend courses at FE colleges will be registered at a school and we have no reason to suppose that the same is not true of looked-after children. The only case that would not be caught by this new restriction on school moves is that of a looked-after child who is moved from one institution to another within the FE sector and who is not a registered pupil at a school. The size of that group is likely to be very small and we believe that we can address those cases through statutory guidance to local authorities, rather than by introducing the additional complexity in the provision that would result from the practical difficulty of identifying with sufficient legal certainty the trigger for the duty in the absence of a common registration system in the FE sector. The guidance would also cover 16 to 18 year-olds, explaining clearly that we expect “school” in this context to encompass relevant further education institutions. However, I take my noble friend’s point about the importance of FE and of looked-after children with FE placements being properly catered for. I shall reflect further on his comments before Report.
It is true that the effectiveness of Clause 9 in improving educational stability depends on the interpretation of the word “near”. However, the meaning of “near” will properly vary with the particular circumstances of the child, including his age and any special educational needs or disability that might affect his ability to travel. We do not think it appropriate rigidly to define “near” in the Bill. The importance of preserving stability at school needs to be balanced against giving local authorities sufficient flexibility in the choice of the location of the care placement to ensure that it is a good one that can meet the child’s care needs. A local authority may find that the placement that best meets a child’s wider needs and enables the child to remain at his existing school is not within walking distance of the school. The noble Baroness’s amendment would prevent the local authority from making such a placement, even where it would otherwise be within reasonable travelling distance, and we do not believe that that would be in the best interests of the child. The word “near” is not defined in the Bill, but that is deliberate; we expect local authorities to interpret it reasonably, taking account of all the factors in the case.
I thank the Minister for his characteristically sympathetic reply on my amendments. I found what he said very encouraging. I shall go away and study it in detail, but it seems to me that what he said meets the anxieties that I expressed. I just make the point—I think that I have already made it this afternoon—that sometimes the use of generic language can leave an area of doubt, and therefore some specificity in what is meant by a term can be helpful. I ask him to think about that. I know that there is a nice balance to be struck, because the argument the other way is that, if we start putting in the detail, something gets left out to which it should apply. I understand that point, but there is a happy medium. I am sure that my noble friend will carry out his undertaking to reflect positively on what has been said and see how far he can meet it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 to 46 not moved.]
Clause 9 agreed to.
[Amendment No. 47 not moved.]
Clause 10 [Review of child’s case before making certain alternative arrangements for accommodation]:
48: Clause 10, page 7, line 35, at end insert—
“(8C) Where a local authority has made other arrangements for the accommodation of a child, and these arrangements cease to have effect before the child attains the age of twenty-one, the local authority must carry out a review in accordance with regulations under section 26, and provide alternative arrangements for accommodation in order to safeguard the welfare of the child.””
The noble Baroness said: In moving Amendment No. 48, I shall speak also to Amendment No. 55. A common theme of amendments to the Bill, particularly those that we shall come to later, is that young people leaving the care system are still insufficiently supported to enable them to make the transition to independent adult life. The Bill brings many improvements. Clause 10 provides that a local authority must undertake a statutory review of the child’s case if it is considering moving him from local authority foster care to accommodation of a type that involves making other arrangements, such as living independently in rented accommodation or a supported hostel or having residential employment. This probing amendment proposes that the local authority must also undertake a statutory review if the placement breaks down before the child reaches the age of 21 and that it must make alternative arrangements for the accommodation of that child if that is necessary in his best interests.
Despite some improvements, far too many young people still leave care at too young an age and almost all will be living independently by the time they are 19, compared to 23 or 24 or even later for most young people who live with their families. The current care system does not allow for an interim status. Children are either in care or looked after or they are living independently and supported under the provisions of the Children (Leaving Care) Act 2000. That contrasts with the experience of most young people, who do not leave home in a single act; the normal transition is graduated and is characterised by frequent returns to the family home and continuing support from parents and carers. Many young people will go away to college for a period and come back during the holidays—bringing their washing with them, which is only one of the continuing supports that those young people get.
Research published by A National Voice in 2006 called There’s No Place Like Home surveyed 581 people, some of whom were care leavers and others were housing professionals. The key findings were that half the young people felt that they had no real choice in the accommodation offered to them on leaving care; 29 per cent did not feel safe in their accommodation; and about one-third felt that it did not meet their needs. I acknowledge that it is not feasible for local authorities to replicate exactly the experience of gradually leaving home that most families have. However, I believe that they could do more to ensure that children who leave care for independent living, particularly those who leave at a young age—before 18—do not drop into a spiral of moves of accommodation because of a single mistake or the failure of a particular placement. A requirement for the independent reviewing officer to undertake a review if an independent living placement breaks down would help in examining why the placement failed and in ensuring that any new accommodation was suitable and that the young person received the sort of support that he needed in order to minimise the risk of further breakdown. We do not want these young people to land up homeless, which happens far too often.
Amendment No. 55 would insert a new clause entitled “Preparation for ceasing to be looked after”. It is a probing amendment, which would extend the age of an eligible child under the Children (Leaving Care) Act 2000. The local authority is currently under a duty to advise, assist and befriend an eligible child with a view to promoting his welfare when it has ceased to look after him, but an eligible child is aged only 16 or 17 and has been looked after by the authority for a prescribed period of time. This amendment would ensure that a local authority provided this sort of support to the child right up to the age of 25. I must say that I find that my children still require that sort of support, and they are getting on for 40.
We were briefed on this amendment by Barnardo’s, which feels that not only should young people be able to remain in care until they are 21 but that the age of eligibility for services under the Children (Leaving Care) Act 2000 should be extended to 25. Young people should have the right to a personal adviser, a pathway plan and the same degree of care and protection as they would have if they were still in care or if they were at home with their own family. I beg to move.
First, I thank the Minister for wishing me a happy birthday. It was not published in the paper. Kate Moss’s birthday was published, but not mine; I cannot think why. I could not think of nicer company to spend my birthday with.
We welcome Amendment No. 48. If a local authority makes arrangements for a child’s accommodation and this, for whatever reason, ceases to have effect, it is only right that it should be reviewed. It is often young people in this transitional phase who step through the cracks of care provision. We think that extending the review mechanism to apply to young people of up to the age of 21 would help to prevent this from happening.
I completely share the concern of the noble Baroness, Lady Walmsley, that young people who leave care should be provided with the help and support necessary to prepare them for the responsibilities of life as young adults. The Children (Leaving Care) Act 2000 already imposes duties on local authorities to allocate a personal adviser, to maintain a pathway plan and, in particular, to keep in touch with all former relevant children until they are at least 21 years of age, and in some cases longer, while they remain in an approved programme of educational training. Clause 19 includes provision to enable young people entitled to care-leaving services who request the support to continue to be supported by a personal adviser beyond their 21st birthday where they have not yet achieved basic educational qualifications, where they remain in education or training, as now, or where they decide to resume education or training.
Amendment No. 48 covers accommodation. My department, along with Communities and Local Government, is funding research as part of the wider national youth homelessness strategy to inform good practice guidance on housing and children’s services co-operating to prevent homelessness. The findings from this research will be available in April and will inform new guidance on interagency co-operation to support young people and families with children who are homeless or at risk of homelessness. We are continuing to work with voluntary organisations that support care leavers to build on the Care Matters White Paper commitments to promote and spread best practice in providing supported accommodation services for care leavers.
The implementation of a young person’s pathway plan should avoid homelessness. However, where such arrangements break down, the homelessness legislation provides an essential safety net, where necessary. Under that legislation, adults aged 18 to 21 who were formerly in care have priority need. We therefore believe that the amendment is unnecessary, given care leavers’ existing entitlements and the range of services available to them from children’s services teams as care leavers and from other agencies that provide services to vulnerable adults in general.
Amendment No. 55 attempts to redefine the Children Act’s definition of “eligible children”; namely, those children aged 16 and 17 who remain looked after and who are entitled to, in addition to other services, leaving-care support and, in particular, assistance with planning their transition to adulthood. It would not be logical to widen the definition of eligible children to include young adults up to the age of 25 as proposed by the noble Baroness. That is because the legal definition of “eligible child” can refer only to someone under 18—that is, a child—who remains looked after by the local authority. Young persons aged 18 to 25 could never be legally defined as children because they have reached legal adulthood and, as adults, can no longer be looked-after children. For that reason, it would not be possible to accept the amendment as drafted. However, it is right that care leavers should continue to receive assistance from, and to be supported by, the local authority that looked after them. The focus should be to enable and to support the young person as an adult rather than to do this on their behalf.
The legal framework for supporting care leavers under Sections 23A to 24D of the Children Act 1989, as amended by the Children (Leaving Care) Act 2000, provides for proportionate interference in young people’s lives to ensure that they are not cast adrift by the local authority formerly responsible for their care and that they receive the services that they need to the extent that their welfare requires it. Their individual needs will vary from case to case, but we believe that these young adults should be treated as adults and should not be subject to decisions taken on their behalf by a local authority in the way that this amendment, perhaps unintentionally, would bring about. I hope that, having heard these reassurances, the noble Baroness will think that our policy is correct.
I thank the Minister for his explanation of Amendment No. 48. Notwithstanding all the entitlements to housing that the noble Lord listed, I wonder why so many young people who have been in care land up homeless. Given what the Minister said, it seems amazing that any young person leaving care could land up homeless, but the fact is that they do. However, I shall look carefully at what the noble Lord said and decide whether to bring this back later.
On Amendment No. 55, of course I accept the Minister’s statement, which is quite true: somebody aged 25 cannot be described legally as a child. But the problem with support arrangements for those older than 18 is that they have no formal structure. Moreover, there are so many pressures on local authorities and they have so many things to do for young people under 18 in care that they probably have little time to devote to a 25 year-old who needs a bit of support. That is the problem. However, I again thank the Minister for his comments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
49: After Clause 10, insert the following new Clause—
“Provision of communication aids for looked after children in the review of their care plan
In section 26 of the 1989 Act (review of cases and inquiries into representations) in subsection (2) after paragraph (d) insert—
“(dd) requiring the authority, when seeking the views of the child, to make such arrangements as it considers necessary for the provision of alternative and augmentative communication support, communication aids and speech and language support services to a child with a communication impairment;”.”
The noble Baroness said: I will also speak to Amendment No. 50, with which Amendment No. 49 is grouped. Both amendments are about alternative and augmentative communication support. Amendment No. 49 would provide for communication aids to be made available to looked-after children in the review of their care plan, when the local authority has a duty to seek their views. Amendment No. 50 is about communication aids and speech and language support for those children in a situation where decisions are being made about them.
All children have a right to communicate their views, but what if the child cannot speak clearly or even at all? The local authority has a duty to seek their views but it cannot fulfil that duty properly unless some help is provided. It is important that children should have access to essential communication aids; it should be a basic right for young disabled children who are looked after. Without these aids, it is not possible for the local authority to carry out its duty to seek children’s views. As with advocacy, IROs and visitors will not be effective unless disabled children have a right to the aids and equipment that they need to communicate their wishes and feelings.
In December 2006, the Children’s Society found that more than 40 per cent of those surveyed said that they could not provide advocacy for children who did not communicate verbally, and more than a third said that they could not provide advocacy for autistic children. This provision is not expensive, apart from the high-tech equipment required for those individuals at the very top end of the range of needing help, which could cost up to £5,800. However, there is a wide range of difficulties. For example, sign-supported speech does not involve any equipment costs at all, although it has training implications and so on. There are also costs involved with insurance and ongoing support.
Scope has estimated that around 15,000 people have the highest communication support needs in the UK. Not all those are looked-after children, but quite a lot of looked-after children have these problems—Scope’s estimate is that the figure is about 7.5 per cent. Meeting those needs currently accounts for 4.4 per cent of the budget. I am not sure where those figures come from, but there are young people who are not able clearly to communicate their views simply because of the lack of a small or maybe a larger kind of support with their communication. Provision of these communication aids is important for their basic rights and to enable the local authority to carry out its duty. I beg to move.
I cannot understand why the Every Disabled Child Matters campaign has not been in touch with me about this amendment, but I can fully understand that it has been handed to the noble Baroness, Lady Walmsley. I am sure that all of us support the amendment. Speaking from first-hand experience, I know the great difficulties that disabled children have with communication and the enormous variety of support that is now available for those children. I only hope that the Government will accept the amendment or at least the spirit of it.
I do not know what the cost implications of this would be, but I know that the noble Baroness, Lady Walmsley, is right to raise such an important issue. The noble Baroness hosted an excellent reception last year on this subject. When one talked to the amazingly dedicated teachers who educate children with the most complex disabilities, it became obvious that the communication aids and support for these children are vital. However, provision is patchy and often when the aids break down there are no funds to mend them, so those children stop communicating. It would be like taking away our speech. The Children Now Manifesto published last year included the right for disabled children to have communication support. It said:
“Without the ability to communicate we cannot explain what we want or share our thoughts. Children with speech and other communication impairments who lack the right support or equipment are effectively gagged”.
It went on to say that the Government do not measure how many children are in this situation. Can the Minister give an assurance that the Government will collate figures on this so that we can fully understand the scale of the problem and look for ways to redress it?
I support the amendment. Again, I am somewhat surprised that we have not heard more details of this problem. In the considerable move that the Government have made to make available a range of digital hearing aids—although that has not gone quite as far as many of us would like—there is a particular priority for children. We are talking not just about aids but about very specialist trained teachers, for which there must be resources if these young people are to be kept included in our society.
I support the amendment. For the past eight years, I have been trying to do something about speech, language and communication support for young people in custody. I merely mention the fact that John Bercow is currently leading a review of this. I hope that this group of people will be added to the list of those whose arrangements he is looking at, because it seems to me that this is a priceless opportunity that must not be missed.
There is an existing statutory duty on local authorities to ascertain the wishes and feelings of children whom they look after before taking any decision that affects the child and to give due consideration to those wishes and feelings. It is necessarily implicit in that duty that, where the child has a communication impairment, the local authority should ensure that those tasked with performing this duty have the necessary skills or the right support to do so and that the child is provided with the means to articulate his or her wishes and feelings. This would include the provision of communication aids in appropriate cases.
The Bill builds in further safeguards in this respect. In Clause 11, for example, we are requiring all local authorities to appoint a named independent reviewing officer for each child. This IRO will enhance the personal accountability and individual responsibilities of each IRO and will build in a presumption that every child has a right to a consistent relationship with one professional who keeps his or her care plan under review. Clause 11 also imposes on the IRO an express duty to ensure that the young person’s views are given due consideration at each review of their case.
We made it clear in the Care Matters White Paper that we would, as part of the greater support offered to looked-after children, introduce a requirement for IROs to spend time with each child prior to any review so that the IRO personally establishes the child’s wishes and feelings about the issues to be covered at the care planning meeting. We will ensure through statutory guidance that children with communication difficulties or complex needs are supported either by an IRO with the skills necessary to facilitate care planning and to elicit the views of children with communication difficulties or complex needs, or through an IRO who has access to specialist input from someone who has these skills to ensure that the child’s views are elicited and put forward effectively.
Where a communication aid is specified in the educational provision section—part 3—of a statement of special educational needs, the local authority is obliged in law to provide it or to ensure its provision. This of course includes all looked-after children with statements. However, we recognise that this provision is not always well managed, which is why, as the noble Lord, Lord Ramsbotham, just mentioned, we have commissioned a review of services for children with speech, language and communication needs, led by John Bercow MP, to advise the Government on how best provision can be mirrored in all areas, so that every young person up to the age of 19 gets the support that they need as early as possible. I will ensure that John Bercow sees the report of today’s debate, so that he can take full account of it. His report will come in the summer, with an initial report in March. I know that he will be very receptive to comments that Members of the Committee wish to make to him directly.
I thank the Minister for his reply, but it occurs to me that, even though an IRO who has the necessary skills to be able to understand the child might be provided or a third party might be required to help, most children would prefer to speak for themselves. Therefore, more attention needs to be given to the provision of these communication aids, not just at the moments when the children are having to speak to an IRO or someone of that nature, but all the time. As the noble Baroness, Lady Morris, said, when the equipment provided breaks down and there is not enough resource to mend or replace it, that takes away the child’s voice. I do not think that anyone in this Committee would like to have their voice taken away; we are all far too fond of our voices. I am sure that it would be terrible to be put in that position. Clearly, there are not enough resources. There are children who are not able to communicate with advocates because they do not have the appropriate communication aids, as is clear from the responses of the advocates. There is a problem, the extent of which it is quite difficult to gauge, although there are individuals for whom it is a personal tragedy. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
51: After Clause 10, insert the following new Clause—
“Recording the child’s wishes and feelings
(1) The 1989 Act is amended as follows.
(2) In section 17 (provision of services to children) after subsection (4A)(a) insert—
“(aa) record in writing the child’s wishes and feelings; or(ab) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings; and”.(3) In section 20 (provision of accommodation for children: general) after subsection (6)(b) insert—
“(c) record in writing the child’s wishes and feelings; or(d) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings.”(4) In section 22 (general duty of local authority in relation to children looked after by them) after subsection (4) insert—
“(4A) Following an ascertainment under subsection (4)(a) the local authority shall record in writing the child’s wishes and feelings or why it has not been reasonably practicable to ascertain the child’s wishes and feelings.”
(5) In section 47 (provision of services to children) after subsection (5A)(a) insert—
“(aa) record in writing the child’s wishes and feelings; or(ab) record in writing why it has not been reasonably practicable to ascertain the child’s wishes and feelings; and”.”
The noble Baroness said: This amendment concerns recording the child’s wishes and feelings, which is rather appropriate in the light of what the noble Baroness, Lady Walmsley, has just said. It would introduce a new duty on local authority social workers to record in writing the child’s wishes and feelings or, where it has not been possible to find out what these are, the reasons for this. That is in relation to the provision of services for children, including accommodation, and decisions made by the local authority with respect to looked-after children.
The amendment would ensure closer compliance with Article 12 of the Convention on the Rights of the Child, which grants all children the right to express their views and have them given due weight in all matters concerning them. It is clear that current practice does not adequately ensure that children’s views are listened to or recorded. An online survey of children conducted by what is now the Department for Children, Schools and Families in autumn 2006 found that almost one-quarter of respondents—23 per cent—who had a social worker said that they felt that they “never” had their views taken into account. Inspectors of foster care services have also noted that children do not always feel confident that their views are listened to.
The amendment would ensure that all children in care are consulted where decisions affecting them are made. It would also ensure that there is evidence that every young child is asked their view, even if they do not participate in care reviews. That is important in the light of government statistics for the year ending 31 March 2006, which show that only 8 per cent of children aged between four and nine expressed their views in their statutory review meeting, compared with 18 per cent of those children who were rather older. It looks as though more encouragement or specialist ways of getting those youngsters to express their views is necessary.
Finally, the amendment would ensure that care notes present a fuller picture of the child’s life and progress. That would not only enable new staff to develop a better understanding of a child’s views but also help to avoid the missed signs that have been the hallmark of inquiries into children’s deaths from Maria Colwell to Victoria Climbié. I also have concerns that in the training of teachers—I hope to bring this up in an amendment on Report—more attention may need to be given to how you look for signs that could cause problems in future.
It is surprising that a similar amendment was rejected during the passage of the Children Act 2004, on the somewhat strange grounds that entries made into electronic recording systems would not count as writing and that visually impaired social workers might not be able to record a child’s wishes in writing. Those seem rather extraordinary reasons for rejecting the amendment. They would be even less reason to reject it in today’s world. It is certainly unclear whether a visually impaired social worker would not have other methods of communicating. Quite a number of them are rather good—rather better than I am, I have to say—on the internet, and so on. Anyhow, it seems extraordinary that we are still left with this situation. May we please have some guarantee that “writing” is writing, whether it is recorded in an e-mail or whatever? The view that I have heard is that that should count as writing and as a proper method of recording the wishes and feelings of the child. I beg to move.
My noble friend Lady Sharp and I have added our names to the amendment, which was proposed to us by not one children’s organisation but six, ranging from organisations of young people themselves through to campaigning organisations working on their behalf—the British Youth Council, the Children’s Rights Alliance for England, the National Children’s Bureau, the National Council for Voluntary Youth Services, Save the Children and the National Youth Agency. We listened to them because, between them, they have enormous expertise in helping children and, especially in the case of the British Youth Council, of knowing exactly what young people want.
In the amendment, we are trying to enshrine best practice in legislation. To me, it would seem to be best practice to note the child’s wishes and feelings when having significant conferences with them. It is quite clear that case notes of that sort might have helped to avoid the missed signs and the drift that happened in the cases of Maria Colwell and Victoria Climbié, which the noble Baroness, Lady Howe, mentioned. It really is best practice to note these things. You cannot misinterpret or misremember something if it is written down clearly at the time. That is the important thing; it has to be done at the time.
There is undoubtedly an unanswerable case for the precept that is represented by the amendments and I do not think that anyone could gainsay anything that has been said by both noble Baronesses and articulated by the half a dozen or so distinguished children’s charities. The case against such an amendment is, broadly speaking, that it is probably not appropriate time and again to overclutter a statute with detail of this nature. I think that that might well be the Minister’s attitude to the amendment.
My next point is relevant not only to this amendment but to the vast majority of amendments that are proposed to the Bill. In my speech on Second Reading, I referred to what lawyers and no doubt other persons call the green baize door syndrome. That is the door that comes down on a child’s life when a care order is made. He is handed over to the care of the local authority, the door comes down and, with very few exceptions, the court has no authority to supervise beyond that point what happens to that child. In 1995, if I remember rightly, the matter was challenged in the courts; it went through the Court of Appeal and came to the House of Lords. The Court of Appeal had suggested that a court could perhaps preserve a concurrent authority to oversee what was happening to that child by introducing a system of what it described as starred milestones. “Not so”, said this House. “When statute allows a body that is recognised by statute to take over full responsibility, you have to trust that authority. You cannot day by day look over its shoulder to see whether it is doing its duty”.
Sitting in the jurisdiction of family matters, I often felt that a court would dearly like to have that authority, but not because it wanted to interfere or snoop day in, day out at what is happening in local authorities, which in the main I have no doubt are conscientious and are worthy of trust. There are situations that no human agency could possibly foresee that may well develop in relation to a child where a court would feel that it was only right and proper that it should be able to have that authority.
If one looks at the situation in law prior to the Children Act 1989, often in those cases you had wardship. It was the very conflict between wardship and care that made the Act in the first instance an absolute necessity, as a result of the case of Liverpool Corporation V A. In wardship, you had the High Court judge in the situation of parens patriae, who was able at each stage to overview what was happening to the child and to intervene constructively if necessary. That is not now possible.
The logic of the decision of this House may well be such that it is not possible for there to be anything of the nature of starred milestones and that, even if you had legislation, it might not be utterly appropriate. As a family judge, I felt that when a care order was made and one dispensed with the services of the guardian ad litem, a bridge between the child and the authority was inevitably destroyed. There was often such a relationship between a guardian ad litem, a child, the family and the local authority that one felt that only good could come from prolonging that relationship in some way. That, again, is not possible, save in exceptional circumstances where one deals with a contact matter or something of that nature.
I apologise for making a very obvious point, but it is something that we should bear in mind as a background to considering how much we should spell out in statute. If concurrent authority was vested in a court to be able to supervise from day to day what happens to a child, if needs be, this measure would not be necessary. However, that power is not there, which is a powerful consideration in relation to this and, indeed, other amendments.
I could not help but think back to before the Children and Young Persons Act 1969 when exactly that situation occurred with regard to juvenile courts. Social services, education authorities, the police and the other officers of the court all worked together in the best interests of the children. I am not suggesting that it is possible to go back to that scenario. Nevertheless, it is desirable to try to work out some way in which the best aspects of that activity can be taken into account.
I warmly support the amendment. I am sure that all Members of the Committee agree that the intervention of the noble Lord, Lord Elystan-Morgan, was not only powerful but also moving. I hope that I may be allowed to digress. I am inclined to separate people into those who in any task set their minds to preventing themselves from learning any more because they think that they know it all and those who have clearly learnt from their lifetime. Not for the first time, we have had the privilege of hearing what the noble Lord has discovered and learnt in his lifetime. I try to be at least an apprentice in that school.
For nine years I was national president of YMCA England. We did a lot of work with young people, many of whom were in care, detention centres or prison. I repeatedly saw—I saw it for myself; it was not just something that I was told, although I was also told it repeatedly—youngsters struggle to develop a sense of identity, a sense of being in control of their own lives and a sense of having responsibility for their own lives. There is tremendous kindness and commitment among many of those who carry professional responsibilities on our behalf. We must never drift into a situation where we implicitly seem to be lining up against them. It is totally unfair to do that, because they are often deeply committed and give their whole professional life to such work. We dabble in it a little, but they give their whole professional life to it.
Of course, in any large body of people there are different levels of performance. For those who are doing the job in the spirit in which we would like to see it done, this amendment is in no way threatening, because they are already implementing its provisions. I am sure that the noble Baroness, Lady Howe of Idlicote, agrees with me that they may find it a little irritating to have to write out something yet again; they are often doing the job so well that this business of writing things out becomes a bit irksome. However, it seems to me that they have absolutely nothing to fear or to feel threatened by and no criticism whatever is implied.
For those who strive a little more to achieve that qualitative level of performance, an amendment of this kind could help, but it will certainly be important for the child because, if something is written down, the child will know that it is on the record, even if it does not prevail in the final analysis. Sometimes children, like all of us, are capable of saying that they were not listened to when in fact they mean that what they wanted was not complied with totally. Nevertheless, it is important to have in place a system that demonstrates to the child the strengthened performance and which helps those carrying out the responsibility on our behalf. I congratulate the noble Baroness, Lady Howe, on having introduced the amendment and I hope that my noble friend can respond positively.
We welcome this amendment. Although people are working hard to provide the best possible care for children, there is no substitute for the opinions of a child or a young person on their experience of care. The child should be at the forefront of policy making and a child’s voice should be listened to and carefully recorded. I had hoped that that would happen in best practice. In an organisation with which I used to be involved, we used to say that if something is not written down it has not happened. I shall listen to what the Minister has to say before making a final decision on whether I think that this should be brought back on Report and whether it should be in the Bill. I thought that the noble Baroness made some powerful arguments.
Since the publication of the Framework for the Assessment of Children in Need and their Families in 2000, the Government have been developing the integrated children’s system, or ICS, which is an extensive programme to ensure that local authorities manage their information about children in need and looked-after children in a systematic and consistent manner. This programme is supported by dedicated grant funding to every local authority. The framework and the related government circulars about the implementation of the ICS were issued under Section 7 of the Local Authority and Social Services Act 1970, which means that local authorities are legally obliged to act under it. The ICS captures all the processes of assessment, planning, intervention and review that are essential in working effectively with vulnerable children and families to enable them to achieve positive outcomes.
In respect of this amendment, the ICS sets out the essential information requirements and how these must be managed. This includes specifying that parents and their children must be engaged and involved in the assessment and planning processes and that their views must be recorded. I can assure the noble Baroness, Lady Howe, that “recorded” does mean “in writing”.
I have before me the form that needs to be completed. It is entitled “Child/Young Person’s Care Plan”. There is a section on views, and section 20 states:
“What are the views of the child/young person about the plan? Please record any areas of disagreement”.
There is a space for that to be recorded in writing. Section 21 asks:
“To what extent have the wishes and views of the child/young person been obtained and acted upon? If it has not been possible to act upon the child/young person’s views, please state why”.
Then there is a section that needs to be completed. I believe that that meets most of the concerns of the noble Baroness.
To improve the practice further, as I mentioned in respect of the previous group of amendments, Clause 11 strengthens the functions of independent reviewing officers who are responsible for scrutinising each looked-after child’s care plan. Following this Bill, as part of the revised functions of the IRO, the Children Act 1989 will be amended so that IROs ensure that any ascertained wishes and feelings of the child are given due consideration by the local authority. One aspect of this strengthened IRO role will involve detailed scrutiny of how the authority has performed its care planning duties. Any authority would be unable to discharge these competently unless it had a robust approach that ensured that its officers recorded children’s views. I completely accept the force of the points made by the noble Baroness, but we believe that the system is in place and that the existing legal structures, as supplemented by provisions in the Bill, are adequate for the purpose.
I thank the Minister and Members of the Committee who have taken part in the debate for their comments. It is puzzling that there appears to be quite a large gap between the perceptions of children in care on whether their views are listened to and what actually happens. I do not have the figures with me as I have just handed in my papers, but there is quite a big gap between what children perceive and what, by definition, should happen automatically, of which children should be fully aware. Perhaps the Minister could tell me whether modern methods of communication are used and whether “writing” is still writing. It is important that matters are written down and are in people’s own handwriting. Presumably they are sending one another e-mails all the time, as we are all being encouraged to use those forms of communication.
So we have moved on somewhat from the discussions that took place in 2004 and we are all modern and up to date. I gave the reason why the amendment was rejected on the previous occasion. As long as we have moved on, I shall leave it at that. I want to read in detail what has been said. I am very glad that at least the structure is there; I am less happy about the fact that that will be complied with in a way that means that, when the green baize door has been shut, the children are very much a part of what happens within the local authority’s views, resources and so on. However, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved.]
54: After Clause 10, insert the following new Clause—
“Care prevention through minimum entitlement to short breaks
(1) Section 6 of the Carers and Disabled Children Act 2000 (c. 16) (right of carer to assessment), is amended as follows.
(2) In subsection (5) after “the 1989 Act” insert “provided, however, that where as a result of the assessment it is satisfied that it is necessary to meet the needs of the person with parental responsibility by the provision of a carers break service, then it shall be under a specific duty to provide or secure the provision of such a service”.
(3) After subsection (5) insert—
“(5A) Subject to any directions given under subsection (3) a local authority shall be satisfied for the purposes of subsection (5) that it is necessary to meet the needs of the person with parental responsibility by the provision of a carers break service where a failure to provide such a service would or could result in that person’s caring role becoming unsustainable.
(5B) For the purposes of subsection (5) a carer’s break service is a service provided to a child which enables the carer to take a break from his caring responsibilities.””
The noble Baroness said: The amendment stands in my name and the names of my noble friend Lady Walmsley and the noble Lords, Lord Rix and Lord Judd. It would create a specific duty on local authorities to provide short breaks as a care prevention measure. The duty would apply only where a parent or carer was, or would be, unable to continue caring for a disabled child.
Parents tell us that regular, reliable and appropriate short breaks help to keep disabled children and their families out of the care system. Families who get such breaks describe them as essential in helping them to sustain their caring role. This is what one family has written:
“I am fortunate to finally receive respite. What a wonderful relief. One night a week we can be a normal family. Go to the cinema, pub or for a meal or just be. No strict routine, no bathtime, no struggle to medicate, no getting up four or five times in the night. Bliss”.
Breaks can be provided in a variety of ways: within the family home, through accessing community facilities or by the child staying overnight with another family or in a residential setting. The report from the parliamentary hearings on services for disabled children stated that,
“the lack of short breaks was the biggest single cause of unhappiness with service provision”.
That was in the submissions from parents to the hearings.
On Monday last week, the noble Lord, Lord Rix, received a letter from the Minister, which he very kindly copied to us all, telling us that the programme set out in Aiming High for Disabled Children is to begin with 21 pathfinders. As I understand it, those pathfinders are to be pilots for a three-year transformation in short breaks for disabled children. This has come as a result of an additional £370 million to develop a step change in the provision for short-break services for the years 2008 to 2011. The Every Disabled Child Matters pressure group—it is for that group that we are arguing this amendment—welcomes this vital investment, but it is clear that families also need and deserve a legal minimum entitlement to breaks to prevent unacceptable local variations in service provision. New funding is very welcome but, without a legal right, there are real concerns that those families most in need will continue to miss out on the short breaks from caring that they so desperately need in order to sustain their caring role. That will continue the unacceptable situation in which those families who shout the loudest get the most support.
As the majority of the new funding is weighted to the 21 pathfinder areas, without a change in the law families will be at the mercy of a postcode lottery, with access to breaks being largely dependent on where they happen to live rather than on their level of need. Without a change in the law, there is a risk that this three-year funding package will be seen as a one-off project. Creating a right to short breaks would ensure that the £370 million was invested as the start of a long-term strategy finally to give those families with severely disabled children the support that they need to keep caring for their children and to keep those children out of the care system. Without that right, at the end of the three years’ funding, we may end up with short-break provision that we can no longer afford to staff.
The Children and Young Persons Bill provides a critical opportunity to remedy the gap in the legal framework for families with disabled children and to keep more disabled children with their families out of the care system. Following an assessment under the Carers and Disabled Children Act 2000, the amendment would impose a specific duty on local authorities to provide short breaks for families who provide a substantial level of care already on a very regular basis.
While on the subject, I ask the Minister to clarify in guidance the distinction between short breaks as a regular, planned family support mechanism, where full parental responsibility is retained, and those short breaks that are effectively a family placement mechanism in crisis or in emergency situations where looked-after children status is needed. It is important that the entitlement to short breaks on a regular respite basis does not increase the number of those classed as looked-after children. I beg to move.
I warmly welcome the joint announcement made by the Minister and the Minister for Care Services on Monday to launch the start of an intended transformation of short-break services to disabled children and their families. I also thank the Minister for writing to me on Monday.
The financial commitment that the Government have made so that local authorities and health agencies can substantially improve short-break services for disabled children and their families over the coming years is truly significant. The additional funding provided by the Department of Health demonstrates a commitment to a joint approach that has long been needed. However, this is only the first step on a long journey. The year 2011 will be with us in the blink of an eye and there is no guarantee that this funding will continue after that date at the same level or, indeed, at all. What is certain, however, is that families with disabled children in 2012 and 2013 will have just as great a need of short-break services as families do today.
At Second Reading, I referred to the legal opinion prepared on behalf of the Every Disabled Child Matters campaign that suggested that the right to short breaks already exists in law. I hope that the Minister will now be in a position to clarify the legal position. If what the opinion states is not the case, I hope that he will have reconsidered his opposition to a new legislative requirement on local authorities to provide a minimum level of service to families in the greatest need, a duty that this amendment seeks to establish.
The need for short-break services does not go away once the child moves into adulthood and out of the childcare system. Parents and carers of adults with learning disabilities continue to struggle without regular support. This needs to be given priority and financial commitment. I realise that this is outside the remit of the Bill, but it is an important issue for the Government to take on board.
Providing short-break services is an issue close to my heart. I first introduced the Disabled Persons and Carers (Short-term Breaks) Bill in your Lordships’ House 12 years ago. The issue has not gone away, nor will it. After all this time, we are ready for change. We must fill this gap and ensure that legislation includes an entitlement to short-break provision for those children, adults and families who need it.
The subject of the amendment is vital. Members of the Committee have spoken to it most eloquently, so I will not rehearse the points already made except to say that access to short breaks can make all the difference between families coping with their disabled children and those children being taken into care.
A couple of years ago, I visited the Red House charity in Bury. The stories of the families whom I met were extraordinarily moving. A common plea from all of them was to be able to have some respite from the exhaustion of looking after their much loved children. However, they also wanted to be able to choose where their children went for short breaks, so that the children were looked after by people whom they knew and trusted. The families wanted to be able to care for their own children; they simply wanted some support to help them.
We are of course aware that there are cost implications. As a party, we are looking at how we could implement a single assessment process in order to improve the wide variety of social services that disabled children require. Currently, over a quarter of spending on families with disabled children is wasted on the assessment process and so never reaches the pockets of those who need it most. If the system were simplified, more money would be available for services such as short breaks. In short, people should not have to fight to get the support that they deserve.
If we have any sense of social solidarity whatsoever, every Member of the Committee should ask themselves about the kind of life that we take for granted and see just how much of it many of these carers are missing because of their devotion and commitment. We have a real job in responding to that and in ensuring that they have a chance to live a little more fully. Of course, many of them find immense fulfilment in their commitment to the child—or disabled adult, in many circumstances—but we must be quite certain that we do not just take what they are doing for granted. The second point, which we are repeatedly making in our deliberations, is that this makes economic sense. If the whole thing breaks down because the person cannot cope any longer, what will the costs be? In economic terms, prevention is much better than coping afterwards.
I took the liberty a moment ago of referring to my time as national president of the YMCA. I remember once being asked to visit with my wife a residential holiday provided by the YMCA and a number of other agencies involved with young people. I was shocked to discover how much responsibility was falling on sometimes very young people who effectively became the principal carer. Under those circumstances, everything that I have said is doubled in its significance. What are we doing to the young person concerned? We are depriving them of their childhood, their full adolescent life and the rest. If we are going to take this important amendment seriously, we have to look at it in the fullest sense and recognise that, although there is a challenge with all carers, it is disgraceful how far as a society we have failed to face up to the predicament of young carers.
As Minister with responsibility for disabled children, I have no cause dearer to my heart than improving the support for families with disabled children, including short breaks. This is not just a pious aspiration; in fact, few causes commandeer more new government funding than short breaks. The figures that the noble Lord, Lord Rix, and the noble Baroness, Lady Sharp, referred to speak for themselves. More than £300 million of new government funding is being provided over the next three years in respect of short breaks. Indeed, at the moment hardly a new document is published by my department that does not introduce new funding in this area. The Children’s Plan, which was published last month, included £90 million of new capital funding in this area. We are investing substantially in improving—indeed, transforming—the quality of provision for all the reasons that noble Lords so eloquently set out about the life chances and the quality of life of children and families in the categories that we are discussing.
The issue is whether the law should be changed in the way envisaged by this amendment. My response comes in two parts. The first part is on whether there is an existing enforceable right to short breaks in English law. That was the issue raised by the noble Lord, Lord Rix, at Second Reading, when he conveyed to me the legal opinion provided to the Every Disabled Child Matters campaign. It makes two arguments in support of its view that an enforceable right to short-break care already exists in English law. I undertook to him that I would respond in Committee, so I hope that the Committee will bear with me if I am unusually lengthy in my remarks.
The first argument set out by the Every Disabled Child Matters campaign is that a disabled child who has been assessed by the local authority as in need of residential short-break care under Section 20(1) of the Children Act 1989 has an enforceable right to such care, although it is recognised that this is likely to apply only to families in crisis or potential crisis. The opinion contrasts the test in Section 20(1)(c), where the local authority has a duty to provide accommodation for any child in need in its area if the carer is prevented from providing the child with suitable accommodation and care, with the test in Section 20(4). In Section 20(4), the local authority has the power to provide the child with accommodation if it would safeguard and promote the child’s welfare, even though the child’s parent is able to provide the child with accommodation. The opinion argues that the enforceable duty under Section 20(1)(c) is triggered,
“if a parent is able to provide a child with accommodation, but is not able to provide accommodation that is suitable to the child’s needs, or is unable to provide suitable care”.
In those circumstance, in its view,
“she is ‘prevented …. from providing him with suitable accommodation and care’ and the duty will arise under s20(1)(c)”.
However, our considered view is that Section 20(1)(c) is not broad enough to encompass the provision of short-break services. Rather, we take the view that Section 20(4) should be the basis for a local authority to provide short-break care, but there is no entitlement to it.
The opinion argues that a child may have an enforceable right to short-break care at home under Section 17 of the Children Act 1989 read in conjunction with Sections 2 and 28A of the Chronically Sick and Disabled Persons Act 1970. The services that may be provided under these provisions include, under Section 2(1)(a),
“practical assistance for that person in his home”.
It is our view that Section 17 read with Sections 2 and 28A of the 1970 Act would not provide an enforceable right for the provision of short-break care. The concept of practical assistance in the home is quite different from the concept of short-break care.
The opinion accepts that a local authority must necessarily consider its available resources when assessing the needs of a particular disabled child and its family following the Barry case. It also accepts that, even where a specifically enforceable right to short-break care exists, a local authority is probably permitted to have in place eligibility criteria to determine the level of need at which it will provide services. We accept and agree with this argument.
We therefore do not believe that there is an existing enforceable legal right to short breaks, nor do we consider that the best way to improve short-break provision is through the imposition of a new duty. The existing statutory framework affords local authorities the necessary flexibility to respond appropriately to the assessed needs of children who meet the criteria for services set out in Section 17 of the Children Act, including disabled children.
However, as I said at the outset, we are not content with current short-break provision—far from it. We wish to see a transformation in that provision, which is why we are making more than £300 million of new funding available over the next few years. I stress to the Committee that that funding is ring-fenced. It is very difficult to get that kind of funding ring-fenced in local authority budgets, but we have taken that step to ensure that this funding leads to a transformation in the quality of short-break provision and does not simply substitute for other local authority expenditure. Last May, in our Aiming High for Disabled Children: Better Support for Families document, we set out our objectives for the additional £370 million of additional funding. In the press notice referred to by the noble Lord, Lord Rix, which we put out on Monday, we set out how we intend to take forward the rollout both of the pilots over the next two years and of the nationwide short-break provision thereafter.
The noble Baroness, Lady Sharp, said that there was a danger that this funding would promote a postcode lottery and would favour some areas more than others. I think that she misunderstands the nature of the rollout. The 21 pathfinder areas that will receive the bulk of the funding in the first two years are the pathfinders to the rollout of the full short-break provision in year 3. The rollout of that full provision will benefit all local authorities. The escalation of the funding reflects this. In the next financial year, there will be £15 million of revenue funding to support predominantly, but not exclusively, the pilots. As we extend the piloting, this will increase to £80 million in 2009-10. That increases to £185 million in the third year, 2010-11, as we go national. It is absolutely our intention that there should be consistency in the national provision of transformed short-break services. The rollout that we set out in the press notice on Monday taking forward Aiming High for Disabled Children seeks to secure that.
We are piloting for precisely the reasons given by the noble Baroness, Lady Morris. We need to ensure that we get the quality of short-break service that delivers on the expectations of parents, which means getting assessment processes right. As the noble Baroness said, often they are not fit for purpose at the moment. This also means ensuring that the quality of the short breaks themselves reflects best practice and that local authorities have in place, or commission, the effective infrastructure needed to deliver short-break provision. Of course, it will take time for them to get that in place and they need to look at best practice models as they do so.
Only this morning I chaired the ministerial implementation group taking forward the short-break policy. On that group we have leaders of primary care trusts, local authorities and many of the charities that do outstandingly valuable work in this area. I chair the group jointly with my honourable friend Ivan Lewis, a Minister in the Department of Health, which brings together the two departments in a close partnership relationship. We are absolutely committed to seeing that this huge investment of public funds leads to a transformation in short-break services and to a consistency of provision between local authority areas. I hope that, on that basis, Members of the Committee will not think that we need to impose unduly rigid provisions in statute when what matters is the reality on the ground. The reality on the ground is that we are investing more than £300 million to bring about a transformation in services over the comparatively short period of three years.
I am grateful to the Minister for his lengthy response regarding the legal position. Listening to it, I fear that I probably have to accept his department’s assessment. That is unfortunate, but there we are. However, I am still anxious about when the funding stops. I am delighted that it is earmarked and that it will be used in pathfinder areas to find out how well the programme works and to ensure that it works well when it is spread throughout the country. However, it is still possible that in 2011 the whole thing may come to a shuddering halt. Even though best practice has been established, if there is no money to continue that best practice, what then is the position?
I thank the Minister for his lengthy reply. I also thank other noble Lords who participated in this debate. I echo the noble Lord, Lord Rix. We need to look hard at the Minister’s reply to consider whether we want to pass up this opportunity to make such provision a legal duty. We have an opportunity in the Bill to impose a legal duty on local authorities because, given the Minister’s response to the questions that the noble Lord, Lord Rix, raised at Second Reading, it is fairly clear that currently there is no legal duty. We have an opportunity now and we shall need to consider whether we want to bring this matter back in order to establish a legal duty.
I take some reassurance from what the Minister said about the current programme. If there is no legal duty, it is appropriate that the money should be ring-fenced, because that means that the money will get through to providing short breaks. I also take on board what he said about the rollout of the programme and about the necessity of the pilots in establishing best practice. Looking at the figures that he has produced, I see what he means about the extra money later on. We will need to read carefully what the Minister said. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 55 not moved.]
Clause 11 [Independent reviewing officers]:
55A: Clause 11, page 8, line 21, at end insert—
“( ) A local authority must ensure that the independent reviewing officer appointed under this section is sufficiently independent.
( ) In this section “sufficiently independent” means—
(a) having minimal connection to the local authority in question;(b) having not worked for the local authority in question in the last ten years;(c) being previously unconnected to the particular child in question; and(d) having no conflict of interest.”
The noble Baroness said: The Bill makes welcome provision for independent reviewing officers to review the cases of looked-after children in a particular local authority. This is a step in the right direction. Independent review of individual cases is an important way of ensuring that children and young people are receiving the care provision they need. Our only concern is that in order for this to be as effective as the Minister intends, we need assurances that reviewing officers will be truly independent. Our amendment defines “independent” as having minimal connection to the local authority, including not having recently worked for that authority or having any connection with the child whose case is being reviewed. As it stands, the Bill does not have sufficient provision to ensure independence. While seeking to provide a robust appointment procedure for IROs, we feel that Amendment No. 59 is too rigid in specifying who must be consulted, including trades unions and local authority associations. If we want IROs to work, local authorities will need some flexibility. I beg to move.
I hope my noble friend will look at this amendment carefully because if what the noble Baroness has been arguing is well applied and well developed, it will be an additional service to the local authority, as it will have at its disposal an objective view of what is being done and how it is being done which it can take into account in the development of its services. I do not want to get into a contentious area, but in the age of leagues and passing and failing in which we live, it is unfortunate that one inevitable consequence is that people see external reviewing and the rest as a bit threatening. If that is done in the right way, it can be extremely supportive and helpful in ensuring that the local authority is not only doing what it thinks it is doing, but is doing it as effectively as it can.
I support the amendments, especially Amendment No. 58, in my name, and those of the noble Lord, Lord Judd, and the noble Baronesses, Lady Walmsley and Lady Sharp. In our amendment, we have tried to give a concise definition of independence. It goes further than the definition in Amendment No. 55A. It is crucial that there is a really independent voice on these matters. There cannot be any criticism that a particular path has not been followed because of problems that a local authority may be having.
Certainly, people from whom I have had briefing have some concerns about CAFCASS and the creation of a national IRO service, or to move the IRO function to CAFCASS. The CRAE, which is an amazing organisation of children’s bodies, is concerned about this and believes that there should be no more delay in guaranteeing for every looked-after child a highly experienced professional, independent of the local authority, who will monitor its actions, including on human rights.
We keep coming back to human rights. It is crucial that this aspect is fully taken into account and given a full airing in everything that is happening between local authorities and children. I shall leave it at that; I know that the Members of the Committee whose names are also on the amendment will have other things to say.
I speak to Amendments Nos. 58 and 59, and give notice that I shall not be moving Amendment No. 60.
We endorse the words of the noble Baroness, Lady Howe. It is vital that the independent reviewing officer is just that—independent—and therefore not a member of a local authority or associated with it in any way, or a member of or associated with the organisation that provides residential care for the child. Amendment No. 55A covers much the same ground and we have sympathy with it, but our names are attached to Amendment No. 58 and I therefore place my emphasis on that.
On Amendment No. 59 and whether Clause 12 should stand part of the Bill, we have doubts about Clause 12 as a whole. It enables the Secretary of State to establish a new body to discharge the independent reviewing officer’s functions. This undermines the commitment in Clause 11 to establish the existing statutory framework for independent reviewing officers in order to achieve improvements in the outcomes for looked-after children.
The case is not made for setting up a new body. It has been suggested to us that the experience of dealing with a number of such moves, including transfers of staff to CAFCASS, the National Care Standards Commission and Ofsted, has demonstrated that they cause considerable destabilisation of existing local authority staff and their services. The new bodies often take quite a few years to settle down. Moving creates increased bureaucracy, with yet another agency with its own management structure, accountability and ways of working—and, of course, it requires yet more resources to run. Such decisions should therefore not be taken lightly. Clause 12 should not stand part of the Bill, and the Government should focus on building and strengthening the role of independent reviewing officers within local authorities.
However, should Clause 12 stand, Amendment No. 59 proposes two conditions. First, it proposes in new subsection (10) that before setting up such a body the Secretary of State should consult widely among local authorities and the independent reviewing officers themselves, as well as other professional bodies involved with looked-after children and independent reviewing officers. Secondly, new subsection (11) says that the Secretary of State should commission a wide-ranging review of how the whole independent reviewing officer set-up is working under Clause 11. As indicated, it takes time for any such changes to bed down. Any such review could take place only once this had happened. It is also important that rigorous criteria are set for any evaluation which would consider the impact of Clause 11 on the role, powers and autonomy of independent reviewing officers.
Perhaps the Minister would be kind enough to help me with a couple of questions. First, with regard to calculating how many independent reviewing officers are needed, is it possible to calculate how much time IROs give to individual looked-after children and from that how many we need nationally? We want to be assured that there are enough to go around. Secondly, what will the relationships be between the IROs and the social work practices? Will they be monitoring them under some sort of contract monitor, as it were, or will they be monitoring the performance of the local authority and therefore be one step removed from the social work practices?
I support the two amendments dealing with the independence of the reviewing officers. It seems to be fundamentally important that they should be fully independent and that they should have no conflicts of interest. Having said that, perhaps I could ask the Minister one or two questions about how they have worked in practice up to now, and whether the Minister thinks that enough suitable people can be found to undertake this very important role. I understand that IROs have existed since the 1989 Act. In that long period, have they been able to make helpful recommendations about the breakdown of placements, which my noble friend Lord Listowel and I have talked about already this afternoon? Secondly, have they ever been asked to look into disappearances from care, which was also raised earlier today by the noble Baroness, Lady Morris of Bolton?
In addition to the provisions of Clause 11, we will set out in regulations a description of the IRO that specifies the qualifications and experience that the IRO must have and which will require the IRO to be independent of the management of the case in question. At the moment, there are about 1,200 IROs. The noble Earl, Lord Listowel, asked how many would be needed after the legislation is implemented. We are proposing to set out case loads for IROs and therefore how many IROs are needed in statutory guidance following the implementation of the legislation.
The Government will monitor progress closely. If, as we hope, the evidence shows that the desired change in the effectiveness of IROs can be achieved through the new framework introduced by Clause 11, then that is all well and good, for precisely the reasons given by the noble Baroness, Lady Sharp. However, it is right to have the option of exercising the enabling power in Clause 12 to establish a new national IRO service, which is entirely independent of local authorities, should that be necessary because of the important role that IROs play in ensuring effective outcomes for looked-after children.
I assure the noble Baroness that if the Secretary of State were to consider exercising the powers in Clause 12, the department would consult all the relevant stakeholders, including local government, IROs and their representative organisations, looked-after children and their parents and carers, CAFCASS, Ofsted, the Children’s Commissioner for England, the Children’s Rights Director and the Courts Service regarding any such proposals that might come forward.
However, before even getting to that stage, a proper review of the impact of Clause 11 to establish in what respects, if any, it had failed to have the necessary impact in transforming local IRO services would be necessary. Such a review would necessarily include the views of stakeholders and professionals on the effectiveness of the reforms introduced by Clause 11 and the statutory guidance, and would reflect the experience of children and young people as well as their parents and carers.
Furthermore, there is the provision that Clause 12 can be brought into operation only within seven years of the Bill being passed, otherwise it will cease to have effect. Seven years gives us the appropriate amount of time in which to assess the impact of Clause 11, decide whether we need to introduce further changes to the way in which the IRO functions and, if necessary, the right lead time for CAFCASS to establish a national service. Taking all those factors into account, we believe that Clauses 11 and 12 get the right balance between seeking to improve the existing IRO service, without going towards a national service that could have the bureaucratic implications that the noble Baroness, Lady Sharp, set out, while having the backstop power to establish such a national service if the IROs do not prove sufficiently independent and effective to perform the important tasks with which they are charged.
I thank the Minister, although he seemed to reply to everyone but me. I wonder what he might say about the fact that IROs should have minimal connection to the local authorities in question. I know he said that they would be independent of the management of the case, but for us that is a very important point.
I thank the Minister for his response and all other Members of the Committee for taking part. On an earlier amendment, when I raised the possibility of triggering a review if a child had more than three social workers in any one year, the Minister said that he did not think that it was necessary to have that in the Bill because it might be that the IRO, when reviewing a case, could bring that to mind. But if the IRO was independent only of the management of the case, but was employed by that authority, he or she may be very loath to say that the practice of the authority is wrong.
I was involved in the trust at a teaching hospital, and I know that when we did complaints reviews, the fact that one of us belonged to the hospital always meant that there was a question mark in the minds of the people who sought redress; namely, that we were not giving them the proper due consideration that we should. Even though we were as objective as we possibly could be, in their minds we would always come down on the side of the hospital, and I can understand why.
This issue is causing great concern to a lot of organisations. Therefore, I ask the Minister, between now and Report stage, to look at whether IROs should be truly independent of the local authority, rather than independent just of the management of the case. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
56: Clause 11, page 8, line 25, at end insert—
“(aa) monitor the compliance by the local authority with their human rights obligations in relation to the child’s case;”
The noble Baroness said: The purpose of the amendment is to introduce an express duty on independent reviewing officers to monitor the human rights compliance of the local authority in relation to an individual child’s case. I know that the Government have acknowledged that IROs are not doing that. They are not sufficiently monitoring or protecting the human rights of children and young people in care, which was the intention when the IRO regulations were first introduced in 2004. Of course, we very much welcome the further strengthening of the IRO role in the Bill through Clause 11. However, that major omission persists in the absence of any express duty on the IRO to monitor the compliance of the local authority with its human rights obligations.
The provision in the Adoption and Children Act 2002 for IROs to refer cases to CAFCASS is described in the Explanatory Notes to the Bill as,
“a remedy for this problem”,
and the expectation is that IROs will identify potential human rights challenges. There has been much debate about the factors affecting the likelihood of referrals being made by IROs to CAFCASS, but the fact remains that no human rights proceedings have yet been brought by CAFCASS following a referral from an IRO.
The DCSF describes the role of IROs in the Young People’s Guide to the Care Matters White Paper as,
“making sure that children get their rights”.
We believe that these roles will not develop into the kind of professionals needed by children and wanted by Ministers and others unless monitoring human rights compliance becomes a clear and express duty and the postholders receive human rights training and guidance. It is notable that the DCSF has not issued any specific guidance on the Human Rights Act and other human rights instruments to IROs. The CAFCASS confidential advice line for IROs and managers received only 13 inquiries from IROs in a period of 20 months. As I said earlier, none of those has led to a case. That could be due to a lack of awareness by IROs of this important service. One way of making them aware of it is to put an express duty in the Bill and ensure that that is backed up by training in how to carry out that duty. I beg to move.
I support everything that has been said so lucidly and with such conviction by the noble Baroness, Lady Walmsley. Earlier, when I mentioned the green baize door, I may have given the impression that there was simply no window in that door at all. As far as the court is concerned, there is no window, but, of course, a window was created as a consequence of the remarks made by the House of Lords in its judgment in Re S. As noble Lords will know, that led directly to the reforms that were added to the Adoption and Children Act 2002, which led to the regulations of 2004. Everything that the noble Baroness said was underlined very clearly by the House of Lords.
I do not want to give the impression that the House of Lords was insensitive to the needs of children in this regard; it applied what was a classical rule. I suppose it was inevitable that it came to the conclusion that it reached. In so doing, it expressed concern and was disturbed by the fact that children with no adult to act on their behalf may not have any effective means to initiate a challenge. A challenge would have been lawful, but there was no court to initiate that challenge. The child was entitled to initiate the challenge. The IRO is the trustee of the child and it seems to me that inevitably the IRO, if one were to follow the spirit of this pronouncement, must regard himself or herself as being in a position to review the totality of the situation of that child.
We strongly support the idea that local authority provision of care should be compliant with relevant human rights legislation, but we are not certain that the IRO is the appropriate person to do this. I agree with the noble Baroness, Lady Walmsley, that it is a question of having sufficient training to monitor human rights law compliance. Can the Minister explain what steps the Government are taking to ensure that compliance occurs?
Respecting the human rights of looked-after children and young people is a fundamental aspect of good corporate parenting, and indeed it is unlawful for local authorities, as “public authorities” within the meaning of the Human Rights Act 1998, to act in a way which is incompatible with any of the rights and fundamental freedoms set out in the European Convention on Human Rights.
As the noble Lord, Lord Elystan-Morgan, said, the role of the independent reviewing officer was introduced by the Adoption and Children Act 2002, partly in response to concerns expressed by the House of Lords in the cases of Re S and Re W about whether some looked-after children, with no adult to act on their behalf, had the means to initiate a challenge in the courts in respect of failures in local authority duties to the child. The IRO was always intended to have a role in supporting and enabling children to access independent expert legal advice in situations where there was a risk that their rights were being breached. For this reason, his statutory functions include referring the child’s case to a CAFCASS officer, if he considers it appropriate to do so. Clause 11 preserves this aspect of the IRO’s functions unaltered, while strengthening his capacity to discharge this effectively by giving him responsibility for overseeing the child’s case as a whole, instead of simply focusing on the review and highlighting his important role in making sure that the child’s voice is heard.
There is already a clearly established mechanism in place for the IRO to refer a case to the Children and Family Court Advisory and Support Service, if he considers it appropriate to do so. This power is not confined to cases where a child’s human rights might have been breached, although that is clearly one of the more important aspects of the referral function. However, we believe that the IRO’s functions in relation to the protection of the child’s rights are rightly ones of referral: the IRO is a trained social worker who will not necessarily have any particular legal expertise or experience. In our view, it is not the role of the IRO to monitor the human rights compliance of the local authority in relation to the child’s case, as the IRO does not have the skills and expertise necessary to carry out that particular function, although IROs should have the training necessary to alert them to cases that may raise such issues and the confidence to refer such cases to CAFCASS.
I should like to quote the words of the Family Justice Council in its response to the Care Matters consultation:
“The Council queries whether any IRO has the specialist qualifications and experience within the complex fields of European and domestic Human Rights law affecting children which would enable them to identify Article 6 or Article 8 breaches with confidence. It is for the court, not the IRO, to adjudicate upon potential breaches”.
However, I stress to the Committee that in our guidance under this clause we intend to take the opportunity to make it clear that referral by an IRO of a case to CAFCASS should no longer be seen as a last resort, but considered as a real option to ensure proper scrutiny of local authority decisions in cases where individual IROs believe that it is appropriate to escalate well founded professional concerns. We expect that this lower threshold for making referrals will result in a culture where IROs feel more confident and comfortable in referring cases to others and seeking expert legal advice on behalf of the child.
In addition, giving IROs a specific duty to monitor children’s cases for breaches of human rights ignores the importance of the IRO taking appropriate action in other cases of possible breach of statutory duty that might have equal or more practical importance for a child, even though they might not involve human rights issues. For those reasons, we do not feel able to support the amendments, but we attach great importance to the role of the IRO in identifying human rights breaches.
I appreciate the point that the Minister made. It would be utterly inappropriate to make it a rule that an IRO should be legally qualified and in a position to determine whether there was a prima facie case under the Human Rights Act. That must be right. It would limit the field enormously and point in an improper and wrong direction—an irrelevant direction—as far as the qualities sought in an IRO are concerned. On the other hand, to say that it is for the courts to determine ignores the point with regard to the green baize door. The courts are not able to look through the green baize door; the IRO is able and is charged to do so. It may well be that the answer lies in what the Minister has already suggested—that if the IRO believes that there is a breach of human rights law, it is not for him or her to adjudicate on the matter, but to consult CAFCASS. If an undertaking can be given that the IRO would consult CAFCASS and say, “I have deep suspicions about this case and would be grateful if you would formally consider it”, we would have the best of all worlds. Is that what is intended?
I think I need to consider this further before I give a specific answer. I have highlighted that we want to make it easier for IROs to refer cases to CAFCASS which they believe would be in the child’s best interests, but before I give a specific answer, I shall study the noble Lord’s words carefully and then write to him.
I hope the Minister can help me with a question about how human rights compliance would be ensured within social work practices. Can the local authority subcontract its duties to social work practices, or is there some other mechanism? A letter would be fine on that.
I thank the Minister for his reply and the noble Lord, Lord Elystan-Morgan, for his helpful intervention. It was not our intention to suggest that IROs should be legally qualified or that they should, in general, monitor the human rights compliance of the local authority in regard to looked-after children, but merely that they should be aware of the human rights of their charges—the children in their case load as individuals—and take action if those rights are being contravened. As the noble Lord said, they are not to adjudicate; they are to refer. The problem, to which our amendment was a response, was that it does not appear that that is being done and we are not convinced that the IROs have sufficient training even to do the referral job that they are supposed to do. However, I am much encouraged by what the Minister said about lowering the threshold for intervention by the IROs if they suspect that the child’s human rights might be being contravened, although they are not able to adjudicate on the matter. I will read with considerable care what the Minister said before deciding whether to bring this back on Report, perhaps worded in a different way to avoid the confusion I mentioned earlier. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
57: Clause 11, page 9, line 6, at end insert—
“(1A) After section 25B of that Act (which is inserted by subsection (1)) insert—”
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
[Amendments No. 58 not moved.]
Clause 12 [Power to make further provision concerning independent reviewing officers]:
[Amendment No. 59 not moved.]
[Amendment No. 60 had been withdrawn from the Marshalled List.]
Clause 12 agreed to.
Clause 13 [Duty of local authority to ensure visits to looked after children and others]:
61: Clause 13, page 10, leave out lines 33 to 37 and insert—
“(b) a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.”
The noble Lord said: It is necessary for me to move this government amendment to respond to the advice of the Delegated Powers and Regulatory Reform Committee of the House. The committee was concerned that Clause 13(1)(b) as originally drafted was not sufficiently specific and that its scope was wider than intended. Our policy intention in originally drafting Clause 13 was to ensure that local authorities remained in touch with children who were previously looked after by them, but who lost their looked-after status as a result of being sentenced to custody. The Delegated Powers and Regulatory Reform Committee did not consider that this intention had been properly reflected in the clause as drafted. Therefore, the amendment narrows the scope of the power so that it is more targeted, and limits the possibility of it being exercised in an unnecessarily intrusive way. I beg to move.
On Question, Amendment agreed to.
62: Clause 13, page 10, line 37, at end insert—
“(c) a young person aged 18 to 21 who is classified as relevant by their local authority”
The noble Baroness said: In moving Amendment No. 62, I also speak to Amendment No. 66. The purpose of Amendment No. 62 is to place a duty upon local authorities to ensure that visits to, and contact with, looked-after children and others continue after the young person leaves care until they reach the age of 21. This amendment is supported by the National Leaving Care Advisory Service. I commend that organisation for its work on an issue of considerable importance to many of us.
The majority of looked-after children will cease to be looked after by the age of 18. Our assumption is that at that young age they will move from their foster family or care home into supported accommodation, with very little support. At present, local authorities have considerable discretion over their visiting policy for care leavers. In east London, for example, the policy is for young people automatically to move on from their social worker to somebody called a “personal adviser” at the point when they move from their foster parents or care home.
I shall refer to just one typical example to illustrate how incredibly destructive that policy is. A young person in care—like all his peers, no doubt—had a terrible start to life and, doubtless, a number of unhelpful changes in placement. At the age of 15 he happened to find a placement where at last he could put down some roots and develop. Of course, until some firm foundations are in place, a young person simply cannot develop normally. But at the age of 18 he had to move from that accommodation, away from the best family he had ever known. At the same point, his social worker no longer continued working with him. He asked the social worker, “When will I see you again?”. The answer was “Never”. Can that possibly be right? Of course not. A short time later, this young person was involved in drugs and crime—at what cost to society?
A related issue which renders all the more important ongoing social work input between 18 and 21 is that the majority of young people will probably move from a foster family, who have had training over the years, to a voluntary sector organisation. I know that such organisations do a wonderful job, but I am told that many of the staff who look after these particular young people will be rather less well trained than those the young people have been with previously. I am told that many of these staff will find it very difficult to cope with the depth of disturbance of the young lad I have referred to and that of thousands of others like him.
The National Leaving Care Advisory Service rightly argues that, in order to secure their successful transition to adult life, local authorities should guarantee care leavers that they will have regular visits by somebody they know up to the age of 21. I am sure that the Minister is aware of the work of the organisation YoungMinds on young people leaving care. BAAF also expresses its concern:
“a major component of the Care Matters agenda for 18 to 21 year olds is missing from the bill”.
The amendment would ideally support another to extend foster care beyond the age of 18. Whether or not the Government are willing to reconsider that issue, however, it is of the utmost importance that young people do not have a change of home, the loss—for many—of a family environment and, at the same time, the loss of the professional social worker upon whom many have come to depend.
Amendment No. 66 refers to Clause 14; I think that this is a slightly odd and somewhat confusing grouping. That amendment ensures that a person’s appointment as an independent visitor to a relevant young person need not cease until the young person reaches the age of 25. I emphasise that the independent visitor is, of course, quite distinct from the local authority representative who would visit the child.
In his helpful response to the Second Reading debate, the Minister referred to the aims of the independent visitor proposals. He made it clear that there is no requirement on the local authority to continue to provide an independent visitor to relevant and formerly relevant children, and suggested that there is no reason why a local authority could not choose to continue the arrangement. I must say that there is a little matter of relevance here: in view of the enormous pressure upon local authority resources, we can be quite sure that if there is no requirement to provide independent visitors, the great majority of local authorities simply will not do it.
The rationale for Amendment No. 66 has several strands. First, on average, young people leave their family home at the age of 24, as my noble friend Lord Listowel pointed out in a previous debate. Even then we can assume that they rely heavily on the support of their families in the years ahead. All of us who are parents know well that when life gets really tough, the young person—and the not-so-young person—returns to the nest. They phone up, they come and visit and they may even live at home for a while. But, of course, a looked-after child who is unable to return to their family of origin when they leave care will not have any of that support.
Secondly, we have already referred to the high proportion of children in prison who have been looked after. According to the Youth Justice Board, nearly 70 per cent of young children released from custody are re-convicted. The lack of consistent support for relevant young people in the years when they are most prone to criminality must surely play a significant role in those figures.
Thirdly, we know that looked-after children and young people are likely to have mental health problems. Likewise, care leavers’ outcomes in employment, education, housing and health indicate significant failings in their preparation and readiness for adult life. I understand that the initiative involving 60 organisations, called What Makes the Difference, has found that 38 per cent of young people with care experience believe that they were simply left to get on with it without any input when the time came to live independently. I find it hard to imagine the desolation of these young people when they are out there on their own, and there is suddenly, perhaps literally, nobody in the world to turn to.
I applaud the proposal of the National Leaving Care Advisory Service for a new transitional status for care leavers which envisages an accommodation and support strategy for them up to the age of 25. It seems to me that that is exactly what is needed. Amendment No. 66 relates directly to the second of the three elements in that transitional status. The independent visitor could provide an important element in the support strategy. I beg to move.
I enthusiastically support the amendment tabled by the noble Baroness, Lady Meacher. I have said before—and I do not want to become repetitive—that I always find the clarity and experience with which she argues her amendments commendable. What she has said stands in its own right.
The reasons I have leant my name to this amendment can be summed up under a couple of headings. The first is to remember that, in everything we are doing, we are trying to compensate for the absence of family. The noble Baroness, Lady Walmsley, referred in a cheerful aside to her own family experience and to her children being nearly 40. I am sure that that is not a unique experience. In saying that, we must try and translate ourselves into the young person’s position. Continuity is terribly important. It does not help to have theoretical arrangements in place which do not amount to a row of beans. The two amendments taken together are indispensable.
As I was arguing a moment ago on the previous amendment, we always have to face the social consequences, the cost, of not having done the right thing in time. All of us with experience of our own families know that people in that age group are at a terribly important stage in life. It is a tremendously important stage when people are getting launched into the real world. The amendments are important, and I look forward to what my noble friend has to say.
My noble friend Lady Sharp and I added our names to Amendments Nos. 62 and 66 tabled in the name of the noble Baroness, Lady Meacher, for all the reasons which I expressed earlier today in moving other amendments on the need for older young people to have ongoing support after they have left care. I shall not say any more about that. But, in the spirit of trying to be helpful and getting the debate moved on in the allotted time, we have also grouped Amendment No. 82 with those amendments, so I shall say a few words about it.
Looked-after children may have additional learning and behavioural needs. Indeed, special educational needs are more frequent in this group than in the normal population of children. It is important therefore that the provisions under Clause 19 refer to the SEN code and the transition post-16 plan, which is generally prepared for young people with a statement in year 9 of their schooling.
Paragraph 9.14 of the SEN code of practice says:
“The Transition Plan should draw together information from a range of individuals within and beyond school in order to plan coherently for the young person's transition to adult life”.
When first drawn up in year 9, a transition plan is,
“not simply about post-school arrangements. It should also plan for on-going school provision, under the statement of special educational needs as overseen by the LEA”.
This amendment would ensure that the planning process is carried out in conjunction with other agencies through transition planning, rather than by single agencies in isolation. Again, Every Child Matters has supported this amendment. In addition, assurances are being sought that young disabled people who have looked-after status will have access to personal advisers, because it was felt that paragraph 6.45 in the White Paper was somewhat confused on that point. Perhaps the Minister would respond to that in writing.
Transition to adulthood for disabled young people was described in the parliamentary hearings on services for disabled children as being like a black hole. I know that the Government have recognised that concern by allocating £35 million within the Aiming High for Disabled Children framework to fund a new transition support programme. However, the concern about outcomes for disabled young people in transition is magnified for those young people who are attending residential provision, many of whom are not in regular meaningful contact with their home authority because they may be some distance away.
This amendment requires local authority staff responsible for SEN transition planning and pathway planning for care leavers to collaborate effectively to ensure the best possible outcomes for young disabled people leaving care. Collaborative planning and multi-agency working is very much the fashion these days for very good reason and should be applied in this case.
The transitional stage of care is often one of the most difficult stages. Indeed, this stage of life can be a time of confusion, uncertainty and frustration for young people who enjoy considerable advantages, let alone for young people in care. During this time, when a child faces the vast insecurities of an uncertain future, we are uneasy that that support is stripped away. We do not want help to disappear just when it might be needed most.
How many young people between the ages of 18 and 25 will be eligible for visits under this proposal? The noble Baroness, Lady Meacher, talked about desolation, and I could not agree with her more. I very much take on board what she has said about being professionally trained, being known to a child and knowing what to do. However, under this section on independent visitors, there is a place for a long-term mentor. I know that Chris Waterman’s pamphlet deals with this. A mentor can go well beyond the age of 25 and be part of a young person’s life as he grows into adulthood with all the wonderful things that might happen to him. The training that is given to mentors is very important, and the Government are doing quite a lot in this area.
I am sorry that I do not immediately have to hand the statistics that the noble Baroness is seeking; I will see whether I can secure them for her. On Amendment No. 62, we are seeking to extend the entitlement to a personal adviser to care leavers up to the age of 25 where they continue or resume education and training. We are also supporting 11 local authorities that are participating in the Right2B Cared4 pilots, which are designed to give young people a greater say over when and how they leave care. Both policies are about improving the support that care leavers receive to more closely replicate that which reasonable parents might offer one of their children.
The Children (Leaving Care) Act 2000 already imposes duties on local authorities to allocate a personal adviser, maintain a pathway plan and, in particular, to keep in touch with all former relevant children until they are at least 21 years of age, and in some cases until they are at least 25, regardless of where they may be living. However, it would not be appropriate to introduce a specific, more formal and less flexible visiting requirement in the Bill for this group of young people as proposed in the amendment. We should respect the right of this group of young adults to determine the nature of the ongoing contact with their authority after leaving care. We do not believe that it would be appropriate to impose on local authorities a duty that is potentially intrusive and that may not be possible to perform where an individual had explicitly rejected that contact.
The problem that has been pointed out to me is not that the young person would not want a visit. The problem is that local authorities cease to give priority to finding people to perform those functions once the child has left care. The important point is that the child has a right to have such a visit. We will go on to another amendment where we talk about the continuity of the same professional. Does the Minister accept that a lot of young people do not receive regular visits simply because of the pressure on resources and so on? The priority simply is not there. In my humble opinion, there is a need to strengthen the provision to make sure that young people leaving care have access to the visits that they need.
Perhaps I ought to have made clear that I may not have got the wording of the amendment perfect. I propose that we have a discussion about this to see whether there is wording that would ensure that young people had access to visits if they wanted them. I take the Minister’s point.
Now that I understand what the noble Baroness is saying, perhaps I could reflect on it further and come back to her.
On Amendment No. 66, which seeks to extend the period of appointment for independent visitors until the young person reaches the age of 25, while we appreciate that the intention is to help looked-after children to make the transition to young adulthood by building on our proposals in the Bill, the effect of the amendment is much wider than that: it would require the local authority to continue the appointment of an independent visitor for any child leaving care in whatever circumstances—children who are reunited with their parents, children who are adopted from care, children who cease to be looked after before they reach their teenage years and “care leavers” in the sense that that expression is commonly understood. That potentially intrusive and costly service would have to be provided, regardless of whether there was any continuing need for it, well into adulthood. We are therefore not sympathetic to the amendment.
On Amendment No. 82, we appreciate the concern that disabled young people should not miss out on the enhanced entitlement to continuing personal adviser support for care leavers up to the age of 25 who wish to continue in or resume a programme of education or training. In response, I stress that the entitlement to a personal adviser is open to every former relevant child who requests help from his leaving care services to persist with or to resume education and training, including former relevant children with disabilities.
In respect of transition planning, Clause 19(5) specifies that the local authority’s assessment of the need for continuing leaving care support may take place in conjunction with a range of other assessments concerned with care leavers’ entitlement to wider services, including services provided to disabled young people by local authority adult social care services. We believe that this will in practice achieve largely the same effect as the amendment as tabled. However, in making the necessary revisions to regulations and guidance under the Bill, we recognise that it will be important that we take the needs of disabled young care leavers into account so that between the ages of 21 to 25 they have access to the same benefits under this clause as all other care leavers.
In addition, my department, with the Department of Health, will be taking forward the Transition Support Programme to embed joint team working across agencies and with adult services to provide a holistic approach and choice and control for all disabled young people. Underpinned by £19 million of additional resources, the change programme will initially focus on the 13 to 19 phase so that we instil a cultural shift in the way all services work together for successful transition planning for adulthood. So I believe that we are doing a good deal to meet the objectives set out in this amendment.
I thank the Minister very much indeed for his response, and I understand the comments that he made. I am grateful to him for suggesting that we can perhaps look at adjusting the wording before Report because an important principle is involved to which I hope we shall return on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
63: Clause 13, page 11, line 14, after “must” insert “—
The noble Baroness said: In moving Amendment No. 63 I also speak to Amendment No. 64. Here again there is potential for confusion. These amendments would ensure that local authority visits to looked-after young people and others are made by their lead professional, who must be a person known to the child or young person. It is important to be clear that we are talking about local authority visits in relation to Amendment No. 63.
In speaking to these amendments, I, along with the NLCAS, very much welcome the Government’s plan to formalise the arrangements for visiting children and young people in care. The amendments would ensure that the laudable aims of Clause 13 are fully achieved, providing the benefit intended to young people. If the clause remains as it stands, the discontinuity and confusion for the young people can be expected to continue. Again, I am grateful to the National Leaving Care Advisory Service for its help in drafting these amendments.
We can draw attention to the research findings of the NLCAS which highlight the importance of relationships in making the difference to outcomes for young people in care. Good relationships will provide the attachment that these young people so desperately need if they are to succeed. But scattered across all the briefings from organisations working in this field are the sad cries of young people about the large number of professionals with whom they have to deal and the high turnover of all these people with the result that, half the time, the young person does not really know who is who. If the legislation does one thing, it should build in continuity whenever possible.
However, I want to draw attention to the wording in Amendment No. 64. It makes clear that the person chosen as the visitor, representing the local authority, is the child’s lead professional, “except in exceptional circumstances”. Clearly, it may not always be possible for the child’s lead professional to be chosen as the visitor. I accept that any wording in a Bill must allow for exceptions. Paragraph (c) in Amendment No. 64 refers to the importance of the person being known to the child. The same provision is made for exceptional circumstances.
I hope this wording may discourage the Minister from recommending that the principles here would be perfectly satisfactorily dealt with, or better dealt with, in regulations. The principle of continuity is so important to the interests of looked-after children that I hope we will all agree that these amendments, which are designed to achieve that objective, should be in the Bill.
The only other issue to which I want to refer is the impact of the amendments on children in the criminal justice system. We know that 46 per cent of children in prison have been looked after at some time. The Youth Justice Board recognises the visits measures as those with the most direct connection to the youth justice system. The point here is that Clause 13 is designed to ensure that appropriate visits are undertaken for children in care who enter custody. That is welcome, but young people who go into custody are at particular risk of losing contact with their lead local authority professional, or people in the system who they know. The amendment therefore has particular importance for the many looked-after children who go into custody. It responds to the concerns of the Youth Justice Board that, under the new legislation, local authorities do not absolve themselves of responsibilities regarding children in care when they are brought into contact with youth offending teams. I beg to move.
In supporting the noble Baroness, Lady Meacher, on these two amendments, I shall keep my remarks very short in the interest of trying to get another group of amendments in before we have to stop. It is most important that those people should be registered social workers and that they should be known to the child in the interests of the continuity, the importance of which the noble Baroness has outlined so ably.
Again, in the interests of speeding things up, I will just say that we very much support the amendments. It is vital that a child is visited by their main social worker or lead professional—the person who knows and understands them—wherever possible. Many problems that young people face are because that has been lacking. As the noble Baroness, Lady Meacher, said, the principle of continuity is so important. As I said, we therefore very much support the amendments.
Regular visits by a social worker to looked-after children have rightly been identified as one of the key mechanisms to ensure that a child's needs are met and that the care plan remains appropriate. The amendment moved by the noble Baroness, Lady Meacher, is intended to define more precisely which staff in local authorities should carry out the new visiting duties under the clause. We agree with her that it is important that children are visited by people who they know and who have been involved in planning their care. We will make clear in guidance that that should generally be the case.
However, we do not believe that it would be helpful to be prescriptive in the Bill as to which staff in a local authority can carry out that very important representative role. For example, it may be appropriate for visits to be made by other members of children's social work teams under the supervision of a qualified social worker. At certain points in a child's life, the most appropriate person may be a personal adviser or another member of staff employed by the local authority, especially where a child or young person is moving into a different stage of their life and requires the support of someone with different skills and experience.
At times, it may also be necessary for an experienced member of staff to visit the child, even where they are not previously known to the child—perhaps because the child has indicated that an urgent visit is necessary and the familiar representative is unavailable, perhaps due to leave or sickness. The circumstances in which that may happen cannot properly be described as truly exceptional but, in our view, it is more important that the child is visited regularly by a person with the appropriate skills to carry out the functions of the job, and that the authority is responsive to the child's request for support, than that visits are delayed until a visitor who is known to the child or previously involved in the child's case is found. Being unduly prescriptive in the Bill could work against the best interests of the child, so we do not feel minded to accept the amendment. However, we accept that the points made by the noble Baroness should constitute general good practice, and we will make that clear in guidance.
I thank the Minister for his response. However, I must confess that I profoundly disagree with him that any old person will do—it could be one person one time, a different person the next and someone yet again the third time. That is precisely the point of the amendments. I very much hope that we may be able to have further discussion on the issue before Report.
It is disastrous for a child to have an endless sequence of people visiting him or her. I must not prolong this as I know there is great pressure of time. I thank the Minister for his response. Perhaps we can have a discussion about these issues. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 64 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [Independent visitors for children looked after by a local authority]:
[Amendment No. 65 had been withdrawn from the Marshalled List.]
[Amendment No. 66 not moved.]
Clause 14 agreed to.
67: After Clause 14, insert the following new Clause—
“CustodyAssistance for looked after children in custody
After section 23ZB of the 1989 Act (which is inserted by section 14) insert—
“23ZC Assistance for looked after children in custody(1) This section applies to—
(a) a child looked after by a local authority who is taken into custody;(b) a child or young person being held in custody who was previously being looked after by a local authority;(c) a child or young person who has been released from custody but who was, prior to his or her detention, being looked after by a local authority; and(d) a child or young person—(i) who is of a description prescribed by regulations made by the appropriate national authority; and(ii) in relation to whom the regulations impose the duties in this section on local authority.(2) It is the duty of the local authority—
(a) to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);(b) to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies. (3) The duty contained in subsection (2)(b) only applies to a young person aged 18 years or over if that person seeks the relevant advice, support or assistance.
(4) The duties imposed by subsection (2)—
(a) are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;(b) are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is held in custody.(5) Regulations under this section for the purposes of subsection (4)(a) may make provision about—
(a) the frequency of visits;(b) circumstances in which a person to whom this section applies must be visited by a representative; and(c) the functions of a representative.(6) In choosing a representative, the local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative under this section.
(7) In this section—
“held in custody” means held in detention by the police, prison service or other court authority and “taken into custody” and “released from custody” shall be construed accordingly;“the appropriate national authority” means—(a) in relation to England, the Secretary of State; and(b) in relation to Wales, the Welsh Ministers.””
The noble Lord said: It is unfortunate that our time is almost up just as we are about to deal with this group. The last time we met time was short when we were about to deal with an important grouping on healthcare, which I suspect was similarly proscribed.
Much of what lies behind my amendment has come out in many other amendments, particularly those recently raised by my noble friend Lady Meacher, which is not surprising. Members of the Committee may remember that in the report entitled Managing Offenders, Reducing Crime, by the noble Lord, Lord Carter of Coles, a point was made that prisons and probation were silos and he wanted to try to bring the silos together. I did not dispute the fact that they were silos, but an unfortunate fact about custody—particularly prison custody—is that for too long it has been conducted in isolation from things such as healthcare. For example, it was not until 2004 that the NHS became responsible for healthcare in prisons and it is only recently that the departments running education have been responsible for education in prisons. Therefore, they have been isolated from what has been going on in the mainstream which has affected all those who go into custody.
When I was the chief inspector, I discovered to my horror that there was a Victorian idea that prison amounted to what they called a living death. Therefore, when you went into prison you lost all rights to citizenship, which included, for example, the right to vote. It seems to me that this Bill brings an opportunity to put right some things which, when inspecting prisons, I had seen were wrong. From my very first visit to a young offender institution I was appalled to see the treatment meted out to children. However, having very fortunately been introduced to the then director of the Association of Directors of Social Services—the very good director of social services for Portsmouth—I asked him to send one of his inspectors with me when we went to a juvenile establishment. She looked at the treatment and the conditions there and said that if that had been a local secure home it would have been closed because of the treatment of, and the conditions for, the young children.
That night, after the inspector had told me that, I met a former corporal of mine who was responsible for the reception of young people. Normally the shifts stopped at 8 pm, but he told me that he always stayed until at least 9 pm because people would arrive late. Sure enough, just before 9 pm, a van arrived from an exchange point at a young offender establishment, Glen Parva in Leicestershire. Among those who got out was a 16 year-old boy from Hull who had gone to court that morning. He did not know that he was to be put inside, but he was then put in a van and sent to Glen Parva and finally ended up in this place, Onley, near Rugby, just after 9 pm. No one knew where he was; he was in tears; he was confused and luckily this man began to talk to him and he let fly something which I had not appreciated before. Although, on occasions, it was possible to get in touch with the parents of such people, there was one group about whom they felt helpless and that was those who came from care because no one was responsible for them. Allegedly, when they went into care they ceased to have any right of access to the various things that care can provide.
I have raised this before, but all of us are very conscious of the intense humanity of the Minister, which he has demonstrated throughout the Committee and in other debates in the House. It is marvellous and we are thrilled about it. But I have to say to him again that I was enormously disappointed by the sentence in his letter of 3 December saying that the Government did not accept that young people in custody required to be looked after, or for the state to assume a formal parenting role for them. I submit that that is totally and utterly wrong, quite apart from being against the spirit of everything that has been raised in every amendment throughout this Committee. I was also slightly concerned by the Minister’s comment on Amendment No. 62 that young people lost status as a result of going into custody. That must be extinguished from every statute book in this country in 2008, and it ought to have been done before.
Looking at the amendments again as a result of what has been said, I was wrong to have put in that this applies only to a young person aged 18 or over, because I believe from what we have said that that ought to be extended. The purpose is to make certain that, when someone goes into custody, the person who has been responsible for them as their care officer before they go in should remain with them during the time that they are in there. That is given particular relevance by the Detention and Training Order conditions, which provide that very soon after a young offender goes in there is a case conference to which parents are invited. The Youth Justice Board will tell you that in about 60 per cent of cases a parent attends that case conference and therefore they are kept in touch with what is going to happen to the young offender. Then another important conference takes place before release. That conference should be attended by the person who has been overseeing what has been going on and who is going to oversee the important transition into society. That includes things like making certain that there is accommodation, that there is something to do and that drug treatment or healthcare is continued, in addition to what the youth offending team leader has to do as a professional responsibility. That is the human, care bit; that is what care is all about.
We have heard the figures relating to the number of people in custody who have experience of care. Some of them have had huge numbers of interventions over a period and there has never been any consistency to them. Custody is a very stressful time, and continuity of care is more important during the period of custody than at any other time that we have been talking about. That must go over.
This is not helped by the fact that, at present, thanks to overcrowding, young offenders are sent miles away from home. Here is an opportunity. The Minister for Children says that she wants to be responsible for the administration of justice for juveniles. Here is a case for supporting the fact that children should not be sent too far away from home so that they are not separated from their care worker, who must be helped to maintain conference with them. That is why I tabled the amendments. What I have found most interesting during this Committee is that so many other amendments have in a way led up to this one and have emphasised that this has been missing from the way in which we conduct things for far too long. I hope that we will be able to put that right in the Bill. I beg to move.
I rise to support the amendment and to speak to Amendment No. 68. In supporting the amendment, I immensely look forward to what my noble friend Lady Massey will have to say. When the noble Lord, Lord Ramsbotham, has spoken on these issues, it is a brave person who tries to say anything else, because he has so much experience and so much genuine commitment—I do not hesitate to make the point again that all that is underlined in its significance by the fact that he has a distinguished military career behind him. That is not altogether an expected starting point for someone who has done those things.
The more disrupted the life is, the more important continuity is and the more important stable points of reference become. Therefore, the amendment is crucial. We constantly speak about our objective being rehabilitation. Is it rehabilitation or not? How on earth will we maximise the prospects of rehabilitation if, at a very sad period of their lives, we subject people to further disruption? Obviously, there will be some disruption by their internment, but we ought to turn that as far as we can into an opportunity to strengthen the processes of continuity and support, not undermine them.
I could speak at great length on my amendment, or I could speak briefly. Obviously, I must do the second. First, I am immensely grateful for the extraordinarily good legal advice that I had on how the amendment should be drafted. I say thank you in a big way. The purpose of the amendment is something about which I feel at least as passionately as does the noble Lord, Lord Ramsbotham, on a whole range of issues of human policy. I have come to the conclusion that, until we make it abundantly clear that under no circumstances do people in those age groups who are going to be interned go anywhere but to a special institution designed for that age group, there will inevitably be processes of rationalisation that say, “In this case, we make an exception and we will lump them together where a place is available”, for whatever reasons.
That has gone on too long. Of course, I oversimplify and am in danger of distorting, but my starting point is that no one in that age group should be in prison. That is not a place in which rehabilitation of the young can be achieved. I have heard those whom I greatly respect on human rights and social policy say that to say never is not reasonable because there will always be exceptions. I am afraid that I have come to the contrary conclusion. I have come to the conclusion that if you have provision for exceptions, exceptions will too often become the rule of the day. Until we have that principle firmly established and laid down in black and white, we will never make sufficient provision for that to happen. Therefore, my second amendment is about that. I cannot say how strongly I believe it to be necessary.
Time is against us, but I rise to support Amendment No. 67 and to speak to my Amendment No. 79. I have the greatest respect for the two previous speakers, and they have said a great deal with which I agree. I welcome the new approach of the Government to youth justice. There is much to be gained from it, such as the amalgamation of various departments into the Youth Justice and Children Unit. On Amendment No. 67, I merely wanted to quote from the position paper of the Standing Committee for Youth Justice, which states:
“The treatment of children in trouble with the law should be underpinned by a commitment to children's human rights, as enshrined in the UNCRC ... Children who offend should be treated as children first. Youth justice legislation should be consistent with and complementary to all other legislation dealing with children”.
We are short of time, but we will return time and time again to the issue of children in custody, because it is very serious.
The purpose of Amendment No. 79 is to ensure that children and young people who have been detained in custody for more than 13 weeks and were not previously looked after by a local authority have access to the same level of support as children and young people leaving local authority care or accommodation. It ensures that support is provided for a vulnerable group of children. It amends the leaving care provisions in the Children Act 1989, which were inserted by the Children (Leaving Care) Act 2000.
Children who are detained in custody have very similar needs and vulnerabilities to looked-after children. Many of them will have experienced periods of being looked after before entering the secure estate. They need considerable support when returning to the community, as evidenced by the very high rates of reoffending, which have been quoted time and again. Seventy per cent reoffend within 12 months. It is a disgrace that we can put up with these figures. Children and young people in contact with the youth justice system have high levels of need across health and social care—we have discussed this over and over again. One-third of young offenders have a mental health need, and around half have problems with peer and family relationships. One-third have significant problems with education or work. Two-thirds of young offenders come from backgrounds where the family structure has broken down, and one-third have been looked after by the local authority at some point. Three-quarters of them have a history of temporary or permanent school exclusion, and poor attendance levels are also common. One-quarter of children and young people in contact with the youth justice system have learning disabilities, and there are high levels of speech, language and communication difficulties among them. They are indeed a very needy group.
Including these children in the definition of “relevant child” would place local authorities under a duty to appoint a personal adviser for them, to carry out a needs assessment on them and to develop a pathway plan based on their identified needs. The local authority would also be under a duty to provide accommodation and maintenance if they were needed and should provide assistance to achieve the goals set out in the pathway plan. Youth offending team workers’ powers are limited. The RAP project by the Youth Justice Board is still being evaluated; there are positive results, but it is in a number of pilot sites only and for people with mental health or substance misuse problems. It is quite limited. There is lots of evidence of poor planning pre-release and a lack of support once back in the community. YOP workers focus on offending issues, not always on wider welfare needs. They simply cannot do both. Once the licence is finished or the sentence completed, youth offending teams tend to close a case, regardless of whether the child and his family have ongoing needs.
We are talking about some of the most vulnerable children in society. They are likely to be children in need in accordance with Section 17 of the Children Act 1989, and they will need support to achieve well-being in the five outcomes in the Children Act 2004. Because of their age and the fact that they have been detained, it is extremely unlikely that social workers in children and families social care departments will take on their cases. It is therefore better to focus on the kind of support provided to care leavers. It is not necessarily a costly exercise. Overall, we are talking about a small number of children, and ultimately costs will surely be saved because it will assist in reducing reoffending and the need for further custodial sentences. It will help young people make a contribution to society. All children need support where appropriate. These amendments build that support into policy and systems. I stress that in the long term it will save money.
Children in custody are particularly vulnerable and the criminal justice system contributes to an added sense of estrangement and the feeling that there are no other options available. Then we throw our hands up in horror and wonder why so many young people reoffend. I was happy to put my name to Amendment No. 67 because I remember vividly comments made by the noble Lord, Lord Ramsbotham, in a debate in 2006 when he quoted from a publication entitled, Tell Them Not To Forget About Us. Too often, these children are forgotten, falling as they do between two systems. In the report, children expressed a real fear of being forgotten in the midst of the confusion. This amendment would ensure that they should not feel that fear again and would provide the continuity that may, as the noble Baroness, Lady Massey, said, go some considerable way to stop them reoffending.
I am sure the Minister will recall that I am a benevolent Member of the Committee and that I have been remarkably restrained in my interventions. On these amendments we are faced with a policy decision, which is quite simple; namely, should there be assistance in the interests of the child and the continuity of the supervision of his or her interests for looked-after children in custody? The case for that is strong and we should support these amendments.
I shall be extraordinarily brief, but it is crucial that enough of us are hugely in support of these amendments. This is the second time that we have been pushed on probably the two most important amendments. I shall make three points. First, it is vital that we support this group of children. We need to accept that the cost of rehabilitation has to be faced because we have failed up to this time. Secondly, the emphasis on prevention must be maintained above all. If we have failed, prevention of further reoffending, as the noble Baroness, Lady Massey, has said, is crucial. I support the amendment.
My name is on Amendment No. 79 and I should like to say a few words in support of my noble friend Lady Massey and the noble Lord, Lord Ramsbotham, who, as usual, has said everything. It is impossible to match his expertise or, indeed, my noble friend Lord Judd’s passion. The noble Baroness, Lady Howe, is mistaken when she says that it is the second time. I can remember at least 10 times in the past 10 years that we have talked about these issues and have said how important it is to deal with this group of children. It is not cost effective not to get this right.
I, too, support these amendments as strongly as I can. I do so for one reason. I believe that if we can have in this Bill something incorporating the content and purpose of the group, it will have the effect of reducing suicides in custody. Children and young people will be assured that they are not on their own and that someone who cares for them will come in.
I appreciate that time’s winged chariot is bearing down on us and I shall speak only for a brief period. All custody in one respect is an institutional irony. In this sense, a person’s conduct is so intolerable within the bounds of society that that person has to go outside the walls of society in the hope eventually that he or she will be able to come back and will be a more wholesome and acceptable member of that society. That is true of all prisoners of all ages. Of course, there are people who are so savage and dangerous that there is no place for them, save in custody.
There is also a dichotomy. I remember the maiden speech of the late Lord Lane, if only for the fact that I think that it was on the same day as I made my maiden speech in this House about 26 years ago. He was Lord Chief Justice of England and a lawyer of immense distinction. He said that in his view no person had ever been reformed by the fact of a prison sentence.
I remember thinking at the time: how does that square with Rule 1 of the Prison Rules 1964, which states that the first and dominant purpose of prison must be the reformation of the prisoner? That should still be our goal in appropriate cases and it most certainly must be our goal for children—whether we speak of it as rehabilitation or reformation, it comes to very much the same thing. To suggest that in some way children have lost status and thereby are to be pariahs in the system would be entirely wrong.
I have immense regard for the Minister, who is a person of massive humanity, great ability and considerable commitment. It would be unworthy of him if he were to reject the amendment on that basis. There may be other bases. I appreciate that with many of the amendments, one could say that, marginally, it might be better for it to be in the statute than not. This is no such case. These are not truncated adults. It may be argued that an adult has made a social contract with society that he does not want to have the rights of the citizen. You cannot say that of a child. We are imprisoning more children than any other country in western Europe. I said in the House some weeks ago that we are imprisoning more children than Germany, France, the Netherlands and Norway put together.
I, too, associate myself most strongly with the amendments. I should have been happy to put my name to any one of them. I have just one thought: is this about money? Will the Minister consider coming back to us with some estimate of what the proposals in the amendments would cost?
The noble Lord, Lord Ramsbotham—as do other Members of the Committee—brings huge experience and expertise on the issue of young people in custody. We appreciate that the intention behind the amendments is to seek to guarantee that local authorities provide the right kind of support to young people in custody whom they have looked after or who remain in their care. I stress that children who are looked after because they are the subject of care orders do not lose looked-after status when they enter custody. I emphasise that that is the context in which the remarks that I made in my letter to the noble Lord should be interpreted.
Local authorities share parental responsibility for that group of children and, like any reasonable parent, they should arrange to visit those children in custody and plan for their support in the community once the custodial part of their sentence comes to an end. We are making the visiting requirement explicit through Clause 13. Furthermore, as part of our wider Care Matters programme, when we revise the regulations and guidance to the Children Act 1989, we will be emphasising the responsibilities of local authorities towards the children in their care who are in custody; setting out basic standards for their support. For example, we will be requiring local authorities to convene a statutory review of the child’s care plan chaired by an independent reviewing officer prior to any child in care being discharged from custody. The purpose of that crucial meeting will be to make sure that there are proper, realistic arrangements in place to support the child when they leave custody—arrangements that include making sure that there is a placement available to them that can meet their needs. I believe that that goes some way to meeting the concerns set out by the noble Lord in his amendments.
Beyond that first group of children, other children acquire looked-after status by virtue of being remanded to or serving their sentences in accommodation provided by the local authority, under Section 21 of the Children Act 1989. That group of children will also benefit from the new duty on local authorities to arrange visits to all looked-after children under the provisions of Clause 13, which will apply to all looked-after children regardless of where they are living.
In addition, we have made clear our intention to use the delegated powers in Clause 13 to impose a requirement for local authorities to arrange visits to those looked-after children who lose that status when they enter custody—namely, those voluntarily accommodated under Section 20 of the Children Act 1989. This further change will ensure that these children continue to receive the support they need and that the local authority is aware of their likely needs when they are discharged.
We are determined that local authority staff visit and remain in touch with any child who has been in their care who enters custody, whether in a secure children’s home, secure training centre, young offender institution or prison. The purpose of these visits will be to assess the young person’s needs and establish the kind of continuing support that will be necessary to resettle the young person back into the community. For some young people this will involve ensuring that on release from custody they are provided with appropriate accommodation and continue to be “looked after” by the local authority. I hope, therefore, that the noble Lord will recognise that our new section has been designed to meet many of the objectives that he set out in Amendment No. 67.
In addition to visits these children will also be entitled to receive advice, support and assistance when they seek it. Once the Bill is enacted, officials from my department, the Ministry of Justice and the Prison Service will seek to develop policies to encourage greatly improved contact between looked-after and previously looked-after children in custody and their responsible local authorities.
I turn to aspects of Amendment No. 67 that differ from Clause 13. Where a young person aged over 18 is eligible for care leaving services, the local authority already owes a number of statutory duties towards them. All care leavers aged 18 to 21 must be provided with a pathway plan agreed by the young person and a personal adviser. A visit to the young person is necessarily implied by the personal adviser’s role in developing the pathway plan with the young person in custody, to have a face to face conversation about planning their resettlement. It will, of course, be essential that the personal adviser liaises with other agencies, including the probation services and housing services, about these resettlement issues.
I can tell the noble Lord that revision of regulations and guidance that apply to local authority services for care leavers will include additional emphasis on the particular responsibilities of local authorities for arranging the right kind of support on a multi-agency basis for care leavers who have experienced custody.
Finally, proposed new subsection 1(c) of Amendment No. 67 imposes a duty on local authorities to visit children formerly looked after who have been released from custody. We do not believe that it is necessary to extend the duty to visit in this way, since as I have explained, where children are the subject of care orders or where they are aged 16 to 18 and entitled to care leaving services as relevant children, the local authority will be responsible for their accommodation and maintenance and will be actively planning for their future into legal adulthood and beyond.
Where children who were voluntarily accommodated have lost their looked-after status because they have entered custody, one of the purposes of visiting them in custody will be to establish the kind of support that they will need on release. Depending on their needs, this could involve them becoming looked after again, which might be appropriate in certain circumstances, in which case the local authority will necessarily be involved to offer them accommodation and support on release; or it could involve supporting them in the community and again we would expect the local authority to work with their family, the youth offending team and other agencies in this case.
I turn to Amendment No. 68 in the name of my noble friend Lord Judd. I fully appreciate his concern that young people who are sent to custody should be placed in accommodation that is appropriate to their needs. The new clause proposes that anyone under the age of 20 who receives a custodial sentence should be placed in local authority secure accommodation; that is, in a secure children’s home. We do not believe that this specific proposal is either practical or desirable. The new clause would apply to a wide age range, considerably wider than that of young people who may be tried in the youth court and one effect would be to require that 19 year-old adults are placed in a children’s home, perhaps alongside 12 year-olds. No one would deny that a 12 year-old, even one who has committed a very serious crime, is a young and vulnerable child. In law, a 19 year-old is an adult. We do not believe that it would be realistic or practical to place children in the same setting as potentially dangerous adults, yet this would be one implication of my noble friend’s Amendment No. 68.
It is true that the new clause proposed by my noble friend enables the Secretary of State to make regulations, a power which could possibly be used to require local authorities to provide different establishments for different age groups. That would not be immediately practical, and the funding necessary to decommission much of the current secure estate in favour of completely new types of secure establishment that might resemble secure children’s homes would be considerable.
The volume of local authority secure accommodation has declined over recent years. There are currently somewhat fewer than 400 places in secure children’s homes in England and Wales. The majority of these are used by the Youth Justice Board to accommodate vulnerable young people who have been sentenced to custody. It would not be possible to accommodate all under-18s who are sentenced to custody in local authority secure accommodation, let alone the 18 and 19 year-olds which the new clause would also cover.
Since it assumed responsibility for commissioning and purchasing custodial places for under-18s in April 2000, the Youth Justice Board has created a diverse secure estate in which different types of establishment provide for different age groups and needs. We recognise that the balance of provision can be improved, with more accommodation specifically adapted to the needs of more vulnerable older boys in particular, and the Youth Justice Board is seeking to achieve this. But to move towards a single type of establishment to respond to the demands imposed by all children and young adults in custody under the age of 20 would be a retrograde and unnecessarily rigid provision.
The new clause would also make a number of amendments to existing legislation, with the aim of ensuring that young people are not sent to adult prisons. As my noble friend is aware—he took part in the debates—this was subject to extensive debate both in Committee and on Report on the Offender Management Bill, where my right honourable and learned friend the Attorney-General explained that all young people over 17 who are remanded to custody are technically in prison from a legal point of view, even though they are remanded to a young offender institution appropriate to their age group. To remove the power to place in prison, as in my noble friend’s amendment, would, I am informed, undermine the remand system and make it unworkable.
However, we very much share the concern expressed by my noble friend and other Members of the Committee that children and young people in custody need to be given the best possible chance of reform and rehabilitation. We agree that children who remain looked after, or who were looked after immediately before entering custody, should be provided with improved support on their release. Clause 13 seeks to deliver this objective.
I apologise for the length of my response, but hope that I have covered most of the points raised in the debate.
Once again my noble friend has, as the noble Lord, Lord Ramsbotham, said, illustrated his commitment, concern and compassion.
However, I am not convinced. We seem to be locked in a madhouse. We are about to expand the number of prisons available with huge sums of money. We know that prisons are not achieving the objective of rehabilitation that they should. A time when we are committing so much of the taxpayer’s money to building new prisons is surely the time to steer away from the finding ourselves trapped by the provision that we have inherited. It is time to say that some of this money should go into purpose-built secure units where people can receive the kind of attention and support that they deserve. My noble friend has alluded to it but, if I have been disturbed by nothing else, I have been disturbed by the number of self-harming and suicide cases with which we have been confronted in this age group.
Those are the extremes. We know that the situation is generally not helping the rehabilitation process. If we are to find new resources, it is time that we found them for methods that can tackle the task at hand.
There have been no suicides in local authority secure units, whereas there have been in other parts of the secure estate for children. It is well recognised that keeping those children reasonably near their homes is crucial for the success of rehabilitation. That is only possible if one has smaller units, such as local authority secure units. A teacher in a secure training centre described the provision of children leaving secure training centres as like falling off the edge of a cliff. There is much to be said for what the noble Lord, Lord Judd, suggests.
I tender a sincere and heartfelt apology to the Minister. When I heard the quotation from the correspondence with the noble Lord, Lord Ramsbotham, and the reference to status, I thought that there must be—I could not believe my ears—a reference to some loss of human status or of social status. That clearly was not intended and I hope that the Minister will accept the apology in the spirit in which it is tendered.
I am very grateful to the Minister for the care he has taken in answering and explaining what the Government intend to do. I will be much reassured when I see all that in the Bill and not just in a statement in Hansard. I thank all those who have spoken, particularly those who put their names to the other amendments: the noble Lord, Lord Judd, who spoke with his customary passion, experience and humanity and the noble Baroness, Lady Massey, who chairs the All-Party Group on Children with such wisdom and breadth. I am interested that both of them emphasised the context in which we were discussing the amendment; namely, the treatment of children in the criminal justice system as a whole and in one particular part of it. At this stage, I am happy to withdraw the amendment, but with the promise that I shall want to return to the issue on Report.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clauses 15 and 16 agreed to.
The Committee stands adjourned until 2 pm tomorrow afternoon.
The Committee adjourned at 7.46 pm.