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Children and Young Persons Bill [HL]

Volume 697: debated on Thursday 17 January 2008

(Fourth Day)

All your Lordships are fully aware of what happens when there is a Division so I shall not read out that little bit again; it gets rather repetitive.

69: After Clause 16, insert the following new Clause—

“Advocacy for looked after children in the review of their care plan

(1) In section 26 of the 1989 Act (review of cases and inquiries into representations) in subsection (2), after paragraph (d), insert—

“(da) requiring the authority when seeking the views of the child to make arrangements for the provision of independent advocacy for the child;”.(2) In section 26, after subsection (8) insert—

“(9) For the purposes of this section, “independent” means that the person appointed is not connected with the local authority by virtue of being—

(a) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted;(b) an officer of the local authority; or(c) a spouse or civil partner of any such person.””

The noble Baroness said: I will also speak to Amendment No. 72 with which Amendment No. 69 is grouped and which also stands in my name. Both amendments are about independent advocacy for looked-after children. Amendment No. 69 concerns advocacy when their care plan is being reviewed and Amendment No. 72 concerns advocacy when significant decisions are being made about the care plan.

We have been briefed by Voice and the Children’s Society on this issue. Both organisations are concerned at the fact that looked-after children and young people continue not to be heard when decisions are made about their care despite successive legislation and guidance requiring a whole range of professionals to ensure that this happens. Research studies provide evidence that in practice authorities are failing to meet their duties in this regard. While many more children in care are actively involved in reviews and planning meetings than used to be the case, some professionals continue to make assumptions that children will not want to, or would be unable to, participate in reviews and planning meetings.

A 2006 CSCI report on children’s views found that many continue to be intimidated by the number of adults in meetings, find the language used difficult to understand and are not confident enough, or are not given enough time, to get their views across. Looked-after young people continue to tell us that their views are not being listened to and taken into account despite the existing responsibilities of the IRO to facilitate the child speaking at their review meeting and to ensure that the child understands what is going on.

In a paper by Boylan and Braye, one young man is quoted as saying:

“You ain’t got a say in what’s going off—everybody’s talking about you and not to you”.

In stark contrast, Chase noted in a 2006 paper the following view from a young person who had an advocate from the organisation Voice. The young person said:

“Before I had an advocate social services and I were talking at cross purposes and I wasn’t getting proper help … the advocate improved the communication between all of us … she gave me some power back”.

Isn’t that significant—she gave me some power back? He continued that,

“all the others, teachers, social workers etc were talking amongst themselves but no one was talking to me, they were not involving me or explaining anything to me”.

By supporting children in reviews and planning meetings, professional independent advocacy empowers them to have their views taken seriously, as required in law. A professional independent advocate makes sure that children understand what is happening to them, helps them to navigate the system and supports them in understanding their rights.

The need for high quality, professional independent advocacy will be further heightened by the commitment in the Care Matters White Paper, taken forward in Clause 8 of this Bill, to strengthen the statutory framework so that a local authority cannot place a child out of authority unless it is satisfied that such a placement is in the child’s best interests. We have had numerous debates on that issue. Although we are wholly supportive of this measure, with the caveats about children’s welfare, it will inevitably result in a significant number of placement changes, especially for those already placed out of authority. It must be recognised that looked-after children, particularly those with communication impairments, about whom we talked yesterday evening, are particularly vulnerable during times of change.

The existing statutory right in relation to complaints has had only a limited impact. That is in part because the number of looked-after children making complaints remains low. Many children simply do not understand that they have a right to complain and do not know that they have a right to an advocate to support them through the process. Anyway, children and young people do not want to have to resort to a complaints procedure before they can get the support that they need to get their views over. They would rather have support at an early stage and therefore avoid the problem escalating and avoid having to come into confrontation with the people who care for them day to day. I believe that better outcomes and potentially long-term cost savings can be achieved if independent advocates are involved and support children to be involved far earlier in the decision-making process.

As I mentioned yesterday when we were talking about another amendment, a survey of advocacy services across England carried out by the Children’s Society in 2006 found that a quarter of advocacy providers reported that they had not been able to respond to a referral from a disabled child at all. It is quite clear that the most vulnerable children are not getting the advocacy that they need and they are the ones who need it most. I hope that the Minister will look kindly on these amendments and I beg to move.

The amendment makes an important point and I look forward to hearing what my noble friend the Minister has to say in response. During the years when I was privileged to be director of Oxfam, one thing that I learnt, among many others, about assistance to those who are vulnerable and in need is that one of most important contributions that can be made is advocacy. It is essential to be able to see things from the standpoint of the person who is being helped. Again—I do not apologise for repeating the point—no one questions the good will and commitment of so many of those who are trying to help and who give their lives to such work, but it is essential to ensure that central to considerations is what the children themselves believe. Some of the most vulnerable and disturbed children have difficulty in putting forward their own position. In recent work that I have done on immigration and asylum, I have sometimes blanched at the predicament of the youngster faced with the array of complicated administration and law. The amendment raises an important point and I hope that my noble friend will be able to say something reassuring.

We have great sympathy with these amendments and are most grateful to the Children’s Society and Voice for their time and patient explanations. We recognise the concern of children and young people that they fail to be heard when major decisions affecting their care are discussed. As the noble Baroness, Lady Walmsley, said, this leads to the wrong presumptions being made and to young people being intimidated. The idea of having an independent advocate to support a child’s individual case in the review of their care plan is certainly sound. The Children’s Society has worked out that this will cost in the region of £3 million. As it would, for us, be an uncosted spending commitment, we are unable to support the amendment. The Children’s Society and Voice understand our position. I hope that we will be able to look at this as part of our future policy work, but in the mean time I hope that the Minister will look favourably on what is an important amendment.

I support Amendments Nos. 69 and 72 and will speak to my Amendment No. 95A, which concerns a duty on agencies, such as children’s homes and foster care agencies, to provide children in their care with access to advocacy. I thank Her Majesty’s Government for introducing the right to advocacy for children making complaints and for introducing advocates for children in the secure estate. Many children have already benefited from these moves. I have heard from some of them at Voice conferences. I should say that I am a patron of Voice.

I need hardly add anything to what noble Lords have so eloquently said on this matter. This is an important set of amendments. As vice-chair of the Associate Parliamentary Group for Children and Young People in and Leaving Care, I hear each month from children in care how their wishes and rights are ignored. I am frequently reminded that care plans can be ignored. The Committee may wish to hear Mr Justice Munby’s observations in the journal Family Law in 2004. He said:

“The simple fact is that there are real problems affecting too many of the children in our care system. Too often their substantive rights under Article 8 are not respected as they should be. And too often these problems arise and continue because the children affected do not have the support and representation they should have and which, it might be thought, Article 8 entitles them to have”.

Article 8 imposes procedural safeguards. He continued:

“And the burden may extend in some instances to an obligation not merely to permit representation but even to ensure that parents—and particularly children—are properly represented when decisions fundamental to the children’s welfare are being taken”.

So there is a strong legal argument for the extension of the duties described here.

I shall hear and respect what I expect the Minister to say—he has said it before—about the importance of the independent reviewing officers, the independent visitors and the children’s councils in developing the voice of the child. Sadly, the situation is that, as we have heard time and again in Committee and as I know from listening to children, children require a strong, independent advocate whose focus is not on resources or local authority rules, who is a professional operating in a professional framework and who can take up the child’s concerns at the earliest stage possible. Neither a local authority social worker, nor an independent visitor, nor an independent reviewing officer can be enough.

I shall give a brief illustration of a recent case involving five children—three siblings and two siblings. They had come into care for some of the most serious reasons possible and life had become better for them. According to their reviews, they had lived happily for the previous five years in a large house near the sea, far away from the inner London borough that was their corporate parent. They all thought that they would live there until they were 18. Things changed one Monday afternoon. One of the boys, aged 12, rang Voice at 4 pm to say that their social worker had just visited and told them that they were all being moved the next day at 10 am to three separate homes. The foster carers had been informed two weeks previously that the children were being moved. This was not because of the quality of the childcare, parenting practice or, importantly, child protection, but because the foster carers were not co-operating with the borough. They were told, “Don’t tell the children; it will upset them”. A complaint was sent and I shall not go into further details.

The matter went to court and the judge found that the decision to remove the children from the care of the foster carers was procedurally unfair and perverse, because there was no consultation, no consideration of the harmful effect of removal from the placement and failure to consider or evaluate the children’s security in the placement and the progress that they had made. The judge found in the children’s favour, but the damage had to a large extent been done; the foster siblings now have no contact and believe that they are not together because of something that they have done. So it is important that we ensure that there is an independent advocate at earlier stages to ensure that children’s views are heard. If that were to happen, such cases would be unlikely to occur.

Amendment No. 95A, standing in my name, would place a duty on children’s homes and foster care agencies to provide access to advocacy. Sir William Utting concluded in his report People Like Us in 1997 that looked-after children need independent advocacy as a source of protection and as a means of making their voices heard within an otherwise closed system. An advocate can develop a relationship with a young person over time and engender the trust and safety needed for them to raise child protection issues and any other issues of concern to them in placement or elsewhere. The advocate will be able to offer support to the child, take up issues on their behalf as they arise and support them through the protection procedures or any other procedures that may be necessary.

My amendment would ensure that children had access to an independent advocate wherever they were placed—in a foster agency or in residential care. It would ensure that children could be supported in raising safeguarding issues and other issues of concern by an advocate who was independent of the care authority and the placement provider. I hope that the Minister can accept this amendment but, before I conclude, perhaps I may briefly reinforce what I expect will be said later about the need for children with disabilities in long-term residential care to have access to ongoing advocacy.

I am grateful to the Children’s Society for reminding me that there are more than 13,000 children with disabilities living away from home in England. New research from the Children’s Society found that, despite government guidance, a quarter of advocacy providers were not able to respond to referral from a disabled child at all. The most vulnerable children were the most excluded: two-fifths of providers said that they could not provide advocacy for children who did not communicate verbally. I hope that the Minister can say that he will introduce a duty on providers to ensure that appropriate advocates are visiting children with disabilities in long-term residential care. I look forward to his response.

I have previously declared my honorary interest in the Northern Ireland Association for the Care and Resettlement of Offenders. The association has for five or more years been providing lay advocates for children and young people in custody in the criminal justice system in Northern Ireland. That has proved beneficial and I am sure that the association would be willing to share its experience with those extending the advocacy principle to children and young people in England.

On the merits of the amendments, there is an urgent need for inarticulate children and young people to be represented. I would like to see the system starting off with those in custody of whatever kind, then going on to the 13,000 handicapped children just mentioned by my noble friend Lord Listowel, some of whom clearly have the greatest difficulty in making their views known or putting forward any kind of complaint. Finally, the new system might be extended to those who are in the generality of the care population.

I support all the amendments in this group. My noble friend Lord Listowel mentioned disabled children. I particularly mention learning-disabled children, because they often have a great deal of difficulty communicating and find it hard to express their wishes and preferences. In my opinion—and, I am sure, that of many Members of the Committee—independent advocacy is crucial to ensure that the child’s views are taken into account.

I particularly support Amendment No. 69 and echo what my noble friend Lord Rix has just said. One measure of how a custodial institution is working is the level of complaints. Frequently one would find that there were virtually no complaints in young offender institutions. People would say that the young people did not want to complain: absolute nonsense! When I found an establishment that was employing advocates, I saw that the complaints suddenly went up, along with a general understanding of what was happening. People were enabled to complain. The Committee must consider not just those with learning difficulties, but those who cannot communicate anyway. It is desperately important that advocacy is provided. Resources will be cited again, but this is a resource that must not be cut.

I certainly support these three amendments. Some areas have been gone over in discussion on previous amendments. I was particularly struck by the reference to Sir William Utting. Yesterday, I was accused of not looking back far enough, but I well remember all these issues being talked about in the 1970s—the lack of communication, the need for independent advocacy and so on. It is extraordinary that we have been arguing about this sort of thing ever since.

One of the previous amendments to which I spoke has given a definition of “independent” that might be accepted by and useful to the Minister. I thank Voice and the Children’s Society for all their work and for all the information that they have given us, which reinforces yet again, as other Members of the Committee have said, the fact that children are making it clear to us that they do not think that they have been heard. Last night, the Minister looked rather surprised at this and suggested that communication is getting much better. I hope that it is; I hope that the fact that our figures are a little out of time means that some of these things are already happening. However, I join my noble friend Lord Listowel in saying how important this whole area is if we are to move this thing on at all. I certainly agree that advocacy is crucial, as is specialist advocacy where there are special needs. Special needs include those who cannot communicate or have not learnt to communicate and merely listen to what is said to them, and sometimes not even to that.

Looked-after children and young people must be confident that their views are heard and they should receive effective support so that they can make their views known. The examples of poor practice mentioned by the noble Earl, Lord Listowel, are clearly of concern. We believe that the key issue is to improve the professional practice of social workers involved in the day-to-day conduct of children’s cases and of the independent reviewing officers who will be responsible for monitoring the case as a whole and overseeing the regular reviews of the care plan, taking full account and expressing the views of the child in care.

The role of the IRO is central to ensuring that the voice of the child is heard. Therefore, Clause 11 introduces a specific duty on the IRO to ensure that the wishes and feelings of the child are given due consideration in care planning. We are providing that duty for precisely the reasons set out by the noble Earl and the noble Baroness, Lady Walmsley. The Bill extends the responsibilities of IROs to monitor the performance of the local authority’s functions in relation to a child’s case, ensuring that they effectively oversee the care planning process so that it is fair and reasonable and gives proper weight to the child’s wishes and feelings. The IRO will support children’s active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care and making sure that children and young people are informed about their rights if they consider that they have been treated unfairly.

We have also committed to provide as part of these reforms, through regulations and guidance, that the particular communication needs of a child or young person are taken into account. We expect IROs either to have the skills necessary to elicit the views of those with communication difficulties or complex needs, or, in appropriate cases, to have access to specialist input from someone who does, in the way that I described in our debates yesterday.

We also recognise that there is an important ongoing role for advocacy and for access to independent advocacy to provide for complaints and to facilitate other representations about services provided to looked-after children. That is provided for under the current statutory framework: all looked-after children should already have access to advocacy services—that is, assistance by way of representation—to help them to pursue complaints and to make other representations about the services that they receive.

As to professional practice in this area, we recognise that there can be specific barriers to accessing advocacy. That is why, for example, we have been funding Voice, the organisation mentioned by the noble Baroness and the noble Earl, for the past three years, to extend access to its advocacy service for disabled children and other vulnerable looked-after children. I pay tribute to the work of Voice. Statutory guidance also makes it clear that we expect children to have access to advocates beyond the complaints procedure; for example, a child should be able to secure the support of an advocate in putting forward representations concerning any changes that may be required to the services that they receive.

The noble Earl’s Amendment No. 95A seeks to ensure that children and young people receiving or seeking services from a children’s home or a fostering agency have access to independent advocacy services. I am glad to be able to tell the noble Earl that the children in the categories covered by his amendment—namely, those receiving services from children’s homes and fostering services—will be looked-after children and will therefore benefit from the statutory framework that I have set out. We accept that practice in this area needs to improve. Elements of the Bill will ensure that that happens. We also support other improvements in professional practice that will meet the objectives set out in the debate.

I thank the Minister for his response and all other noble Lords who have contributed. When we started considering this Bill in Grand Committee, I said that our amendments fall into two categories: those that are probing and those that are Oliver Twist. This is an Oliver Twist amendment. We appreciate the rights that children already have for advocacy, but research makes it clear that there is further need. I do not think that £3 million is a lot of money; indeed, I happen to believe that this measure would be cost-neutral because of the improvement and greater stability that would arise from the child having a good voice. That is what the advocate is: someone to help the child with its own voice.

I was interested to hear what the noble Lord, Lord Ramsbotham, said about complaints in a prison. I used to know a sales manager at a large hotel group, who always said to me that a complaint is an opportunity, not a threat. When she got a complaint, she always dealt with it so generously that the complainant became a devoted customer of that hotel chain for the rest of his life. If you make advocates more generally available and easily accessible to children, you will get more complaints. Currently, there are complaints under the surface, which people are not making because either they do not know that an advocate is there to help them to make it or they are reluctant to make the complaint because of the relationship with the people who look after them day to day whom they might be complaining about, as I hinted earlier.

Does what the Minister said about IROs mean that an IRO can require the local authority to provide an advocate for a child in a particular situation if the IRO feels that that is the only or even the best way of helping that child to get its wishes and feelings over? Does that apply to any change in the child’s care plan? Perhaps the Minister would like to write to me about that.

I need to take further advice on the word “require”; the IRO can certainly recommend. If I can come back with further encouragement, I will do so.

I would be most grateful for a letter on the subject. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

70: After Clause 16, insert the following new Clause—

“Access to information for post-care adults

After section 26A of the 1989 Act insert—

“26B Duty to keep records

(1) It shall be the duty of every local authority and voluntary organisation that looks after or provides accommodation for a child to maintain such records as prescribed by regulations.

(2) Regulations may provide for the transfer of records held by a voluntary organisation to another voluntary organisation or local authority.

26C Duty to provide access to records

(1) A post-care adult has the right, at his request, to receive from the local authority or voluntary organisation holding his care records—

(a) all the information relating to his personal history;(b) all relevant information relating to his family history.(2) Subsection (1) above does not apply to a request for information in circumstances where the local authority or voluntary organisation is authorised by regulations to withhold the information or any part of it.

(3) Regulations may provide for local authorities and voluntary organisations to provide appropriate support, including information and advice, to post-care adults.

(4) The regulations may provide for the circumstances in which the local authority or voluntary organisation holding the records may arrange for another local authority or voluntary organisation near the post-care adult’s home to provide access to the records and support.

(5) In this section “post-care adult” means a person aged 18 and over who has at any time been in the care of, or looked after or accommodated by, a local authority or voluntary organisation.””

The noble Baroness said: I have not troubled the Committee with my views until now, principally because I have been involved in other, more complex matters on a different Bill. I have followed the proceedings and read many of the arguments that have been put by noble Lords on all sides. They are about recognising the effects of care on people throughout their lives. This amendment falls squarely within the purpose of the Bill.

I ask noble Lords to imagine three scenarios. The first is that you, as an adult, sit in a room at a desk opposite someone who has a file, in which they have information that you do not know. That information is your identity and they will not let you see it because they cannot, or they think that they cannot. The second scenario is that you, as an adult, have written to the authority that cared for you when you were a child and you receive in your post one day a letter that tells you something that you have never known before—the name of your mother. The letter says that it can tell you that because she is dead. The third scenario is that you go as an adult to see the voluntary organisation that looked after you when you were a child. You sit down with the people there and talk to them about the fact that you need to piece together various bits of information in order to understand your identity and what happened to you as a child. They say, “I understand that. This is a very difficult issue for you. Here is someone who helps lots of people who are in your situation, and we will sit with you while you read through this file. We will talk to you now, and we will remain in contact with you in the future. You can talk to us at any time about how you feel about what you have learnt”. I did not invent any of those scenarios; they have all happened to people. That is why this amendment stands as it does.

Requests from adults who were in care for information about records of their childhood are retained by local authorities and governed by the Data Protection Act. That Act is rather clumsy and difficult; it is frequently interpreted in vastly different ways, some of which I have just outlined, by different authorities. It presents particular difficulties for people who were in care, because it draws a distinction between what is regarded as personal information—data that relate directly to that person—and what it calls third-party information. Crucially for former care adults, third-party information is frequently deemed to include the names of the other people in their family—their parents and their siblings. That means that when former care adults apply to find out information about themselves, they can be given the barest information: “You entered care on this date. You left care on the following date”. Crucially what it does not tell them, apart from their identity, is their family history—key things that people want to know, such as who they are, what their identity is and, principally, why they ended up in care and why this happened to them. There may be very good reasons why it happened, but the adult is not always allowed to know.

A survey was carried out in 2005 by Professor Jim Goddard and Julia Feast, who works for BAAF. Their report, A Childhood on Paper: Accessing the Child-care Files of Former Looked After Children in the UK, shows the problems with the Data Protection Act and its different interpretations, which make it difficult for professionals to know what they are and are not allowed to say and for the former care adults themselves to get information that the rest of us would take for granted. For other people who have been in different types of care, legislation has long recognised this problem. People who are adopted can now find that personal information, as can people who are in permanent fostering arrangements.

There is case law on this matter. A primary example is the Gaskin case, which went to the European Court of Human Rights. If anyone wishes to understand quite how gruesome the implementation of current policy can be, I recommend that they read the dreadful case of Graham Gaskin. That is the legislation to which the Government currently cling. I am glad to say that many of the charities now do not. Many of the charities that were the big providers of care have long since realised that they have an ongoing duty to the people for whom they cared often a very long time ago. They have a policy of giving people whole, open access, with support, to their care records. The problem is principally with local authorities.

This is a subject that the Minister and I have discussed several times. We often come back to the fact that many of these records no longer exist. Local authorities’ children’s homes have been reorganised many times in the period to which we are referring. Records disappear. They get chucked out in filing cabinets. This amendment is not an attempt to conjure up information that no longer exists, but it asks for a standard of service to be provided by authorities, even in cases where information does not exist, whereby people who seek information are treated properly and with respect. People can come to terms with the fact that their records no longer exist, but they do so better if somebody sits them down and tries to explain to them how that came to be, rather than if they simply receive a letter to that effect in the post.

This amendment would not require more resources, which is crucial in view of some of the discussions that we have had. It would not require authorities to hire anybody else or to set up any expensive new system. It would simply require them to have a policy of openness; it would place a duty on them not only to maintain their records but to make those records open to those who wish to inspect them. It would also bring all bodies up to the level of the best because it would allow voluntary organisations and statutory authorities to transfer information. Former care adults will often find that they were in care in different places at different times and a frequent stumbling block is that one organisation will tell them what happened to them and another will not or cannot.

The amendment would give people the right to have information relating to them and to their family history. It contains a provision, similar to the one that pertains in adoption law, that if it would be dangerous to give that information to an individual, the body has the right to refuse. That is a form of protection that authorities need to have because some of the people whom we are talking about go on to lead very disturbed and chaotic lives. Revealing some of that information to them might lead them to seek some kind of vengeance. In that case, there is a power of discretion. The amendment does not specify how, but it would require authorities to carry out this service in a sensitive and meaningful way. It is not appropriate to give people letters containing the most important personal information. I hope that the Minister will look favourably, this time, on a small but highly significant matter to thousands of people, some of whom are now very old. I beg to move.

In his reply, will the Minister say whether some of this information could be made available under the Freedom of Information Act? That may be a theoretical possibility, but it would not surprise me if it is not known to the people who could benefit from it. On those grounds, it is probably wise and desirable to incorporate something of this kind.

I fear that my response to the noble Baroness will be the same as the one that I gave the last time we debated the issue. The Government’s position has not changed. We believe that the appropriate statutory framework already exists to ensure that adults who were looked after can access their case records. First, there is already an obligation to keep records. Regulation 8 of the Arrangements for Placement of Children (General) Regulations 1991 already requires local authorities and voluntary organisations to open a case record for each child whom they place. Details of what must be kept are set out in Regulation 8(2) and amplified in guidance. Local authorities are already required to retain records for 75 years after the date of birth, or for 15 years after death if the child dies before the age of 18.

Secondly, there is, as the noble Baroness said, existing entitlement under the Data Protection Act for adults who were in care to have access to the personal data in their records. As she said, information relating to other persons must be handled in accordance with the principles of the Data Protection Act, and there is room for the exercise of discretion by the local authority to disclose information relevant to the individual’s understanding of the issues that they face because of their experience of being looked after. There is also provision for individuals to apply to the Information Commissioner if they are unhappy with the local authority’s response.

There will, of course, be individual cases of adults who are trying to piece together information about their time in the care system several decades ago and who cannot do so because the records are incomplete. Sadly, no new legislative provision can address that. I say this with some feeling as a former child in care whose entire records over 13 years in care were destroyed when I sought to gain access to them. I am not one of the very old category of people in care whom the noble Baroness mentioned, but, alas, that is the past. I am glad to be told, however, that record keeping is now more consistent and the guidance clearer than it was in previous decades, as the Children Act 1989 set a better framework than existed previously.

The integrated children’s system to which I referred yesterday and the detailed resources that have been produced to support it aim to improve record keeping still further. The ICS covers all children who are looked after, including those who are placed for adoption. I know that my response will not satisfy the noble Baroness, but I hope that it at least testifies to improved practice in this area.

It would be hard not to have some sympathy for this amendment. Who could argue with the noble Baroness, Lady Barker, that people should be treated properly and with respect? Could at least that aspect be taken up in training so that, whether the information can or cannot be given, it is done with sensitivity?

I absolutely accept that. I understand that it is covered both by guidance and by the ICS. The noble Baroness is absolutely right about the difficult and often traumatic experiences of former looked-after children as they seek access to records that are or are not available; she is right that they should be given proper personal support. That is covered by guidance. It is, as I found myself, the practice of good local authorities and it should become universal practice.

I thank the Minister for his response. It is as I rather imagined it would be. One reason why I keep returning to this matter again and again is to make the point that the guidance and the existing statutory framework are not working. There is a huge variation between departments. The Minister talked about the use of discretion around personal data. What scope do local authorities have to exercise discretion? What can they say and what can they not say? It clearly varies from authority to authority. The Minister said that there is guidance, but there is huge variation: people in one local authority are invited in and given sessions with trained social workers who talk them through the difficulties and the fact that their records have disappeared, whereas people in the neighbouring authority get a letter. Clearly the guidance is not working. I do not imagine that the Minister will change his mind, but I wonder whether he will accept that there is a need to review the way in which the current guidance is being implemented to see whether it can be improved.

Because of the revisions that we have undertaken to make to guidance under the Children Act, we will review that. I will personally ensure that we take account of what the noble Baroness has said as we review it next time around.

I thank the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 and 72 not moved.]

73: Before Clause 17, insert the following new Clause—

“Appeal to the Special Educational Needs Tribunal

(1) In section 325 of the Education Act 1996 (c. 56) (appeal against decision not to make statement), after subsection (2) insert—

“(2A) If the child referred to in subsection (1) is looked after by the local authority the child himself may appeal to the tribunal.”

(2) In section 326 of that Act (appeal against contents of statement), after subsection (1) insert—

“(1ZA) If the child referred to in subsection (1) is looked after by the local authority the child may himself appeal to the tribunal.””

The noble Baroness said: I will also speak to Amendment No. 101, which is in my name and that of my noble friend Lady Walmsley. The purpose of the amendments is to enable children in care to appeal in their own right, first, in Amendment No. 73, to the Special Educational Needs and Disability Tribunal and, secondly, in Amendment No. 101, against a placement move.

On Amendment No. 73, the Bill does not address the issue facing those looked-after children with special educational needs who wish to appeal to the special educational needs tribunal, SENDIST. Currently, children in care do not have anyone who is sufficiently independent from the local authority in a position to act for them in tribunals. Therefore, they are being denied access to appeals. This is a significant issue for looked-after children, because almost a third—28 per cent—have a statement of special educational needs, compared with just 3 per cent of children generally. Looked-after children with special educational needs are even more vulnerable and have considerably poorer educational outcomes than other children with special educational needs. There is all the more reason, therefore, for them to have a proper assessment of their needs.

Yet the evidence shows that local authorities often fail children with special educational needs in a number of ways. They refuse to make statements or make inaccurate statements with vague or misleading information about provisions that they are legally obliged to provide. They also make bad school placement decisions. Without adequate recourse to SENDIST, those problems are compounded. As things stand, however, looked-after children have no proper recourse to SENDIST. The Government recognise that the situation needs to be addressed. In the Care Matters White Paper, they promised to,

“issue strengthened guidance to carers and those with parental responsibility setting out how they can support children in care with SEN, including their right to appeal. Where carers experience difficulty supporting a child or young person’s appeal we will ensure that Independent Reviewing Officers (IROs) advise those who appeal to SENDIST on behalf of the children in care”.

While those measures represent a step forward, they are not an effective solution to the problem. The proposal for revised guidance seems to imply that it is required only for foster carers and does not address the needs of children placed in residential care. There is a real problem here. To challenge decisions by a local authority, the authority itself would need to go to the tribunal and, depending on the complexities of the case, invest in alternative professional opinions or reports to challenge decisions that it had already made. Again, the reference in the White Paper to independent reviewing officers advising carers is a helpful start to increasing the viability of tribunal appeals in relation to children in care, but alone it will not make more funding available or compel an appeal to be brought.

Clause 17 introduces a statutory requirement for a designated member of staff for children in care. This is a welcome step, which will, I hope, lead to earlier and quicker identification of children in care with special educational needs and to better record keeping and evidence gathering in relation to statementing. However, such individuals would not have rights to appeal under the current system. If they considered that a child needed a statement or that the contents of a statement needed to be appealed, they would need to refer the matter back to the social services department. In addition, such teachers will be employed by local authorities and will still lack the level of independence that would ensure that appeals were brought where necessary.

We move the amendment on behalf of the Children’s Society. It believes that looked-after children with special educational needs in residential care should be granted an entitlement to appear in their own right, as is the case in Scotland for young people aged 16 and 17. In addition, it believes that those children should be granted a statutory right to independent advocacy to support them in doing so.

Amendment No. 101 also relates to the child being able to appeal in its own right. The purpose is to enable application to the court for Section 8 orders in relation to children in care. One of the most frequent issues brought by children and young people to independent advocacy services relates to their being moved from placement to placement when that is not in their care plan and is against their wishes. Clause 10 provides the need for review before children are moved to alternative accommodations, but we do not believe that that offers strong enough protection. We would like to see a new legal provision that permits children with sufficient understanding, and others, to apply to the courts to prevent a placement move. We believe that that could be done through an amendment to Section 8 of the Children Act 1989, allowing children to seek leave to the court to apply for a Section 8 order. There are four types of order: a contact order, a prohibited steps order, a residence order and a specific issue order. It has always been an anomaly that these orders cannot be made in respect of one of the most vulnerable groups of children in society—looked-after children. The amendment would extend that right to those children.

The amendments are wholly consistent with what children and young people have been saying to the Children’s Rights Director for England and they very much reflect the advice that Dr Roger Morgan has been giving on these matters. I beg to move.

I support the amendment. Its relevance can be succinctly established: are we about empowering these young people and children, enabling them to develop a sense of their own worth and personal significance, or are we, by a host of arrangements that are in place, doing the reverse and continuing a culture in which the child inevitably comes to see himself as a passive player in a system? I believe that the latter situation is why so many of these children and young people go on to difficult futures and too often end up in detention centres, in prison or whatever. If we really believe that the challenge is to develop the personality and feeling of significance of the individual concerned, we need to ensure that all these aspects of policy reflect that. The amendment picks one highly relevant issue.

Section 22 of the Children Act 1989 places local authorities, and therefore independent reviewing officers, under a duty to promote the educational achievement of looked-after children. As part of this, they should pay particular attention to the needs of those with special educational needs and promote their interests, including their educational interests, to the fullest extent.

The noble Baroness is concerned that children in care may have less effective access to the Special Educational Needs and Disability Tribunal because, as she said, their social workers, as employees of local authorities, might be unlikely to appeal against their own authorities on behalf of such children. Let me say clearly that, if this were the case and appeals were not being made to the tribunal on behalf of these children when they should be, that situation would be unsatisfactory and would need to be addressed. We know that some cases are appealed by local authorities on behalf of children whom they look after. The issue is whether this is not done in other cases where it should be to best serve the interests of the looked-after child.

In October, when the former Education and Skills Select Committee of another place published its report on special educational needs assessment and funding, I announced that we would be conducting research into parents’ experience of the SEN assessment, statementing and tribunal system. We will ask researchers to look at the position of those caring for looked-after children with SEN, including local authority social workers, and whether they are reluctant to appeal to the tribunal and, if so, why that might be. In the Care Matters White Paper, we announced that we had asked Ofsted to report on the progress of children in care with SEN in 2009-10 and that we would consider whether the arrangements for appeal to the tribunal on behalf of children in care should be reviewed. On the basis of these two reviews, we will wish to consider the case for extending the right of appeal in the way that the noble Baroness suggests, but we believe it right to wait for this further information and advice before we take a step with such radical implications as that set out by the noble Baroness.

I am grateful to the Minister for that response. Do I take it that this also applies in relation to Amendment No. 101 and the whole question of children in care having the right to appeal in their own right against a placement? The SENDIST issue is separate from the other one that I raised of children being able to appeal in their own right; it concerns independent advocacy.

I am sorry. I should have replied separately on Amendment No. 101. The bulk of the noble Baroness’s remarks concerned the first amendment in the group, which is what concentrated my mind.

Our view is not the same in that respect. Section 8 orders, other than residence orders, do not apply in respect of those children who are in the care of the local authority under a care order. There are good reasons for that. For such children, parental responsibility has been conferred on the local authority through the making of the care order. The making of arrangements for contact and for placement of a child who is in care is part of the local authority’s statutory duties in respect of that child. Once the family courts have made an order to place the child in the local authority’s care, it is right that the local authority has the ongoing statutory responsibility to plan for that child’s care.

The Children Act 1989 is predicated on the basis that the courts are to decide whether the grounds for making a care order are met. If so, beyond the making of the order, it is for the local authority, rather than the courts, to exercise responsibility for the supervision of the care order. The role of the independent reviewing officer is important here in monitoring the local authority’s implementation of the care plan.

Other important safeguards are already built into the system to meet the objectives set out by the noble Baroness, particularly the duty to allow reasonable contact with parents and others and the requirement to take account of the child’s wishes and feelings and those of his parents in taking decisions about placements and contact. A child who is the subject of a care order is, of course, also entitled to apply for a care order to be discharged and for a contact order under Section 34 of the Children Act 1989, and the IRO has an explicit duty, set out in regulations, to help the child to obtain legal advice to do so. Recourse to the full range of Section 8 orders is therefore not necessary. We do not go so far as the noble Baroness on this issue but we believe that there are already sufficient safeguards in the system.

I am grateful to the Minister for his response. On the SENDIST issue, we are somewhat reassured by what he said. I hope that the review will look at the anomaly that exists at present and make proposals in relation to it. On the Section 8 orders, I will read again what the Minister said, which does not seem fully to meet the issues that we are raising here, so we may wish to bring the matter back. However, I will read through the response carefully and consider it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Designated member of staff at school for pupils looked after by a local authority]:

74: Clause 17, page 14, line 4, leave out from “must” to “(“the” in line 5 and insert “ensure that a member of the staff at the school is designated”

The noble Baroness said: I shall also speak to Amendments Nos. 75 and 76, which are grouped with Amendment No. 74. The amendments are all about the designated person in the school to be responsible for the welfare of looked-after children. First, may I say how much we welcome the fact that the Government have now agreed to put that on a statutory footing? However, what concerns us is dealt with first by Amendments Nos. 74 and 76, which should be seen as linked and which seek to remove from Clause 17(1) the words,

“designate a member of the staff at the school”,

and to insert different words so that the clause would read that the governing body of a maintained school must,

“ensure that a member of the staff at the school is designated”.

We think that it is for the head teacher to make such staffing decisions. The head teacher knows what is required, knows the people available to do the job, knows their qualifications and their characteristics, and should be the one to carry out the task, overseen, as are all other major decisions in the school, by the governors. That is why we tabled Amendment No. 76, which would designate a governor to carry out that role.

Amendment No. 75 is a probing amendment, not an Oliver Twist amendment this time. We wonder what sort of person the Government have in mind when setting up this statutory duty to have a designated person. The amendment says that it should be a teacher, but we are not necessarily totally wedded to that. It is important that the person should have the appropriate status in the school and the appropriate power to bring about change, if that is what the looked-after children attending the school need. The qualified teachers on the staff tend to have that status and power.

The other issue is training. The designated person must have the appropriate training to be able to understand the needs of a looked-after child. Subsection (2) states:

“The governing body must ensure that the designated person undertakes appropriate training”.

Given that 28 per cent of looked-after children have a statement of special educational needs compared with 3 per cent of children generally, will it be insisted on in regulations that that training must include training in special educational needs? That is most important, whether or not the person is a qualified teacher, particularly given that even qualified teachers, unless they are specialists in this area, have relatively little training in special educational needs during their initial teacher training qualification course. Many of them fortunately continue their professional development by learning about SEN. Given that every teacher is a teacher of special needs, every teacher should do that. It is, however, particularly important that this designated person, whether or not they are a teacher, has that sort of training. I hope that the Minister will be able to reassure me that subsection (2) includes that.

This is an opportunity for the Minister to explain to the Grand Committee what sort of person the Government have in mind and what qualifications and qualities they will have. I beg to move.

It strikes me that this is potentially a very helpful amendment to allow my noble friend to be able to fill in a little more of the picture that he has in mind. Let me make one observation in Grand Committee that I made on Second Reading. While it is obviously essential to have someone who has the ultimate specific responsibility of ensuring that things are happening, that should not become a substitute for the culture in a school. It seems to me that there is a cultural issue here that affects all staff. Therefore, it is absolutely crucial that in teacher training, in-service training and the rest there is constant emphasis on the special responsibilities and needs in this area. Sometimes in society we like to have someone to blame when things go wrong and to say that they were specifically responsible when something did not happen. That person is never going to be able to achieve all that should be achieved creatively and imaginatively unless they are working with a well informed and committed bunch of colleagues.

We support the amendments. An essential element of improving the quality of care for looked-after children is improving their education, so we support the proposal that someone with the appropriate status should be designated to be responsible for looked-after children to ensure that they are given any extra support that is needed at school. We want to make certain that looked-after children are given the same chances at succeeding as their peers, and this requires some extra help. Even knowing that there is someone there could be an important resource. Given that the key to this is bettering the children’s educational prospects, perhaps the person best designated to do this would be a teacher, as they need to be able to assist looked-after children in their educational plans and they should be properly trained. For a similar reason, we support the further amendment that a member of the governing body be designated to monitor the scheme. That adds a useful area of oversight, which will secure high standards of care and support and ensure that a designated teacher for looked-after children does not get ignored by a school’s administration.

I very much support all three amendments. This gives me the opportunity to ask the Minister a question. If he does not have the answer now, perhaps he could write to me. Given, for all the reasons that we have heard about, how important it is to get the earliest possible help of one sort or another to children who are in need—certainly those who go into care—does the basic teacher training course pay enough attention to this area? In other words, does it give teachers enough training to be able to help to diagnose such things at a very early age—not necessarily diagnose them themselves—and pick up signs that they can then refer to a specialist? I would be particularly grateful if we could look at that. Otherwise, I intend to table an amendment on Report.

Secondly, I support the governor idea. I declare an interest as president of the National Governors’ Association; I have been involved with governing bodies ever since we had a body called the National Association of Governors and Managers, which goes back a long way. The points that have been made by all noble Lords who have spoken are crucial. The culture of the school certainly needs to take account of all the areas that we have been discussing, and the members of the governing body perhaps need to have extra support. The idea might well be tried out in the pilot schemes of the social work practices, if it is not happening already, because there, within an area, there would be the sort of resource that we are looking for, so a governor from the school could have that sort of contact with specialists in these areas. This comes back to the point that, after prevention and early diagnosis, resources are crucial. What we are asking schools to do is so important that we must also ask the Minister—I know how committed he is to all these areas—for extra resources to see that this is not just another thing that has to be met out of whatever resources the school has.

I hope that on two of the three points raised by the noble Baroness, Lady Walmsley, I can give her complete satisfaction and that, on the third, I can satisfy her that our approach is appropriate. She asked whether the designated person with responsibility for promoting the educational achievements of looked-after children would be a teacher. It is our firm intention that that person should be a teacher. We intend to achieve that by regulations under Clause 17(3). She also asked whether the training would be for real. Clause 17(2) introduces a strong legal requirement that the governing body,

“must ensure that the designated person undertakes appropriate training”.

That is as strong as it gets in terms of new legislative requirements. I can assure the noble Baroness that this will be underpinned by guidance to spell out what it should mean in practice. For example, we will look at whether there should be accredited national training, which is what we have done in the case of special educational needs co-ordinators where we are improving the national training requirements following the Education and Inspections Act 2006.

I was not saying special educational needs training; I was talking about training appropriate to the role of the designated teacher in respect of looked-after children. Some element of that would have to deal with special educational needs children, but I would not want the noble Baroness to think that they should undergo the same training as SENCOs; rather, they would have to undergo training that is specific to their function as the designated teacher with responsibility for looked-after children.

On Amendment No. 76, we agree with the noble Baroness that school governors play a significant role in this area. It is right that they should pay full attention to promoting the educational achievement of looked-after children, but we believe that Clause 17, as drafted, supported by statutory guidance, will ensure that that happens. We intend to make it clear that the governing body should expect to receive a regular report on the work of the designated teacher and on outcomes for looked-after children who are pupils at the school.

The noble Baroness, Lady Howe, asked whether we could improve initial teacher training in this regard. There is massive pressure on time in initial teacher training, particularly on the PGCE course, where very little time is spent in a higher education institution, but we regard this as an important area and we will look to see what improvements we can make in initial teacher training to promote awareness of the needs of looked-after children.

I thank the Minister for his reply. I am pleased that he is able to confirm that subsection (4), I presume, will ensure that the governing body receives regular reports on this matter. Whether it does so through a designated governor could, I suppose, be left to the governing body itself, but as long as that gets done—I suppose that subsection (4) will ensure that it will—I will be quite satisfied. I thank the Minister for the clarity of the rest of his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 75 and 76 not moved.]

[Amendment No. 77 had been withdrawn from the Marshalled List.]

Clause 17 agreed to.

Clause 18 [Entitlement to payment in respect of higher education]:

78: Clause 18, page 15, line 26, at end insert—

“( ) Section 104(2) of the 1989 Act (orders and regulations under that Act subject to negative resolution procedure) does not apply to the first regulations made by each of the appropriate national authorities which contain provision made (whether alone or with other provision) under section 23C(5B)(b) of that Act and—

(a) no such regulations may be made by the Secretary of State unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament; and(b) no such regulations may be made by the Welsh Ministers unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, the National Assembly for Wales.”

The noble Lord said: Regulations that will be laid under subsection (5B)(b) will define what “higher education” means for the purposes of this clause. They will therefore define in what circumstances a local authority will have to make the payment; that is, which courses of study will trigger a payment to a care leaver. Given that these regulations will effectively set the ambit of the delegated power by defining the total liability of local authorities in terms of these payments, the Delegated Powers and Regulatory Reform Committee recommended that regulations under this subsection should be subject to the affirmative resolution procedure on the first exercise of the power. Subsection (5B)(b) reflects an almost identical power in Section 28(1) of the Teaching and Higher Education Act 1998, which was subject to affirmative resolution. The Government are therefore happy to accept the recommendation of the Delegated Powers and Regulatory Reform Committee. I beg to move.

On Question, amendment agreed to.

Clause 18, as amended, agreed to.

[Amendments Nos. 79 to 81 not moved.]

Clause 19 [Assistance to pursue education or training]:

[Amendment No. 82 not moved.]

[Amendment No. 83 had been withdrawn from the Marshalled List.]

84: Clause 19, page 16, line 30, at end insert—

“( ) The appropriate national authority may by regulations, make provision about the arrangements for relevant children and former relevant children to live with a former foster parent.”

The noble Baroness said: Amendment No. 84 stands in my name and that of my noble friend Lady Walmsley. The purpose of this amendment is to enable young people to stay with their foster carers between the ages of 18 and 21. The Care Matters White Paper indicated a desire to enable young people between the ages of 18 and 21 to stay with their former foster parents; it said that pilots of such schemes would be run in 2008. We believe that the provision of stable placements for young people making the transition into adult life—both those going into further or higher education and those needing more intensive support—could make a massive difference to their life chances. Indeed, we had a lengthy debate on these issues yesterday. Many young people in care will have experienced significant disruption to their lives and they are likely to need additional help and support to enable them to succeed educationally and to make a successful transition to adult life. Despite this, children in care are often required to leave their foster carers before they are 18. Children in care, despite their vulnerability, are leaving care at a younger age than most other young people have to leave their families, which they do on average at about the age of 24.

At present some local authorities operate an unregulated form of supported lodgings arrangements to enable foster carers to continue to provide a placement for that young person post-18, but there are no guarantees of any support for the foster carer or for the young person. However, many local authorities do not provide even this option. We believe that every local authority should enable the provision of placements for young people between 18 and 21. We welcome the pilots, but we believe that it will be necessary to introduce regulations informed by them to resolve several issues and to avoid the myriad interpretations of the scheme across local authorities that may prevent foster carers from being able to provide these placements to young people desperately in need of support.

Adequate consideration must be given to the more complex issue of continuing to provide residential care for young people older than 18. Many questions are raised. Will the local authority be required to provide a service for these young people between the ages of 18 and 21? How will housing benefit be assessed for the former foster carer and the young person? What will be the required level of support from the local authority? Will former foster carers be entitled to support from a supervising social worker? What allowances will they receive to cover the cost of care for that young person between 18 and 21? Will former foster carers retain their status as foster carers if they are not also fostering others aged under 18? If so, does this mean that they will not have an annual review? Will there be provision for care planning and decision-making? Will independent reviewing officers have a role in reviewing care plans post-18?

We are not calling on the Government to detail specific regulations at this point, as we understand that these would be guided by information from the pilots. As we believe that new regulations will be required to make these important proposals work across the country, we are convinced that the Bill should give the Secretary of State the power to introduce regulations in this area prior to effective rollout but after the pilots have been evaluated. I beg to move.

These amendments are key parts of the theme of increasing stability for looked-after children. This is especially important during the stage at which a child is making the transition into adult life. Whether for a child going on to higher education or for a child who still needs intensive care, support during the transitional phase can make an enormous difference. There are some supported lodging arrangements that occasionally enable foster carers to provide a placement for a foster child post-18, but these are unregulated. More important, there is no guarantee of support for the foster carer of the young person.

Our amendment in this group would extend the foster carer status to those former foster carers who continue to look after a child post-18. That means that they would be entitled to the training and benefits that come with the status of a foster carer. It would not necessarily mean that they would continue to receive the financial benefits that a particular placement entitled them to—although that would be ideal in a world of infinite resources—but it would allow them to access the more general benefits that come with the status of a foster carer, such as training, support from the local authority or social worker, an annual review and an easier way to continue their legal insurance. We want to avoid the current situation in which children are being cut off from care and support too early, with the risk of reversing what might otherwise have been a successful placement.

Having listened to a young person who left care at 18 and had access to her foster carer for six hours a week, I can say how valuable she felt it was just to talk on the telephone and spend a little time with her. That brings up the issue of resources for the range of placements that we discussed earlier. Obviously, young people staying in their foster carer’s home past the age of 18 could put pressure on the availability of placements. The Minister said that he would reflect on the 2005 report on the cost of foster care and see how the Government have since resourced the requirements laid out there, which were costed at an additional £700 million per annum. I look forward to the Minister’s reply.

I support everything that has been said on the amendment. I have only one small addition to make. It sometimes seems that we address these issues in a terribly clinical way. I want to mention the reality, which is that a genuine affection often develops between a fostered child and the foster parent. That is hugely important to a child who has perhaps grown up in his early youth in unstable situations. This is an argument for ensuring that the foster carer can be put in a position to afford to give some continuing care to the child.

I apologise for not being here earlier today. I support the amendment. The Government are hugely to be congratulated on wanting to assist children in care through university in their post-care phase. However, to enable them to go back to their foster parents and be part of the foster family, in a similar situation to that of other children with their own parents, would be an added asset to that which the Government are already providing. I hope that they think that this is a good idea; I very much support it.

As several noble Lords have said, young people without parental and family support are exposed to greater risks than others are. It is therefore not surprising that care leavers are overrepresented in some of the most vulnerable adult groups, including young parents, prisoners and the homeless. Precisely to tackle this issue, we intend to run the pilots described by the noble Baroness, Lady Sharp, which will support arrangements to allow young people to remain with their former foster carers when they are no longer in care. Such arrangements will, in certain circumstances, include support from the local authority in the form of payments to the foster carer. These young people will be able to stay with their carers until they are 21. The intention is to create an environment where young people can move on at a time of their choosing with the right support, in precisely the way described by the noble Earl.

We hope that these pilots will give us a better understanding of the possible practical and financial barriers, including such issues as the tax status of carers and how, if young people are remaining longer with former foster carers, local authorities manage to develop new fostering capacity to offer placements to younger children entering care. The pilot period is intended to give us the time needed to develop practical solutions so that we are able to make it standard practice for young people to leave their final placement in a more gradual way in the future.

The noble Earl asked about funding for the pilots. We are providing £1.5 million each year for three years to support them. The noble Baroness, Lady Sharp, was particularly concerned about the legal basis for and regulation of the pilots. Carers of 18 to 21 year-olds are not foster carers and are therefore not legally treated as such. We will consider whether and how these carers should be regulated, which will of course be an important issue. It could be achieved through the powers in the Care Standards Act 2000. Extensive amendments are planned to the 2000 Act in the Health and Social Care Bill, which was introduced in another place on 15 November. That Bill would permit registration of carers of 18 to 21 year-olds, or any other particular group of adults, and regulation of their activities by the new Care Quality Commission. There is therefore no need for any additional powers to regulate that type of care.

As for wider changes concerning the rollout of foster care practice beyond the age of 18, it would be premature to legislate around foster carer status further at this stage. We want to be in a position to evaluate the pilots to assess how best to arrange such provision for both carers and care leavers in the future.

I think that the Minister was having a word with his officials, but one of our concerns was that, if carers do not have that status, that could negate their legal insurance. The Minister must look into that before the pilots are rolled out.

I thank the Minister for his reply to my question. I am afraid that I may not have been quite clear. Earlier in Committee, I referred to the report The Cost of Foster Care, produced in 2005 by BAAF and the Fostering Network. I apologise for this, but I am not clear whether the Minister said that he would write to me about that report’s figure of an additional £740 million needed each year to ensure a proper range of foster placements. If the Minister would be kind enough to show me in due course how the additional funding since then has met the needs laid out in that report, I would be most grateful.

I am extremely grateful to the Minister for his reply. Am I right in interpreting him as saying that, under the Health and Social Care Bill currently being considered in the other place, there is the power to introduce regulations that would enable foster carers to continue to look after young people up to the age of 21?

As I understand it, it is not as straightforward as that. The Bill would permit registration of carers of 18 to 21 year-olds or any other particular group of adults. However, that is done by treating them as a separate group, not simply by extending their status as carers of under-18s.

Is the situation that, technically, they will not be fosterers but former fosterers? Is it that they are in the position of befriending persons who have been in care but are not in any way in loco parentis in the eyes of the law? Perhaps to regard them as “befrienders” and former fosterers would be more accurate.

I am sorry—I am taking further advice. They cannot be categorised as foster carers because the children are not looked after, but they would be subject to regulation as carers. That is the distinction between the status of those caring for over-18s and the status of those caring for under-18s.

Therefore, if they are categorised as carers, might there be some provision for payment to them, for example?

In that case, as I said, the power to make regulations in this Bill is unnecessary. This is a mild amendment that would merely give the Government power to introduce such regulations for the appropriate national authority, if necessary. Is the noble Lord really saying that, in fact, regulations will not be necessary because we would already have that power under the Health and Social Care Bill?

Then we will probably not bring this amendment back at Report, although we will perhaps consider these matters a little further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 agreed to.

85: After Clause 20, insert the following new Clause—

“Statements: looked after children

In section 324 of the Education Act 1996 (c. 56) (statement of special educational needs), after subsection (8) insert—

“(8A) Where a statement specifies a school or type of school that would result in a child not being ordinarily resident with their parent, the child is to be a looked after child for the purposes of the Children Act 1989 (c. 41) from the date the statement is implemented, unless the authority decides that it is not in the child’s best interests be a looked after child.

(8B) In determining the child’s best interests for the purposes of subsection (8A) the authority must have specific regard to the likelihood of the child’s parent maintaining regular and ongoing contact with the child during the placement.””

The noble Lord said: The amendment would introduce an important safeguard: promoting the safety and well-being of disabled children living away from home. I am grateful to the three Members of the Committee who have added their names to the amendment, thus giving me cross-party support.

Currently, disabled children in 52-week residential school placements do not have the protection of looked-after status. These are some of the most vulnerable children and young people in society. They are in effect living away from home permanently; they are mostly a long way from their family home and often parents can find it difficult to visit them. We know that disabled children living away from home are more likely than others to be abused, because research shows that, in general, disabled children are more than three times as likely to be abused as other children.

Looked-after status acts as an important safeguard for those children who do not live with their families. It means that a plan is drawn up which considers all of the child’s needs, including arrangements for them to keep in contact with their families wherever possible. There is a legal requirement that a designated social worker visits regularly and formally reviews how the child is getting on at set intervals. That gives an extra level of protection that I am sure we would all want for all children living away from their parents.

Without looked-after status, those safeguards simply do not exist. For disabled children in residential special schools, the law says that the school should review a child’s statement of special educational needs annually. However, research published by the Joseph Rowntree Foundation shows that many local education authorities do not attend these meetings and, when they do, they tend to focus only on the child’s education, not on their other needs. This does not promote the welfare of the whole child, which is what children and young people who are living away from their families need.

Of course, some parents whose disabled children are placed away from home do have the time, resources and capacity to visit their children frequently and regularly. My amendment therefore gives discretion to local authorities so that, when they are certain that a child enjoys ongoing contact with their family, looked-after status is not necessary.

While I welcome the Bill’s new measures outlined in Clause 16, which propose an annual visit to children in residential placements, I am concerned that they will make little practical difference. They are dependent on Sections 85 and 86 of the Children Act 1989, which require home authorities to be informed when children are in long-term health or educational settings. However, government-commissioned research shows that this is not happening. As a minimum, we need guidance to remind health and education services of their notification duties. However, what we really need is for these children to have full looked-after status. After all, is one visit a year enough to protect a vulnerable child with severe learning disabilities and, perhaps, no speech? Why should disabled children have a lesser level of safeguarding protection than other children placed away from home?

Mencap, the organisation of which I am proud to be president, has a long-standing relationship with Sunfield School, a residential special school in Worcestershire for children with severe and complex learning disabilities. The school insists that all children placed there have looked-after status and the regular visits and monitoring of the child that this brings. This is not done to stigmatise the child’s family, but simply to recognise the fact that the child’s family is not there. The child is cared for by the school, not by the parents. Sunfield School feels that, without this, children are more vulnerable because they are far away from home and have little involvement with their families. The school takes the issue very seriously and the amendment would ensure that other schools and local authorities would follow its excellent example.

The amendment is not just about safeguarding, it also tackles the issue of accountability. Residential placements of 52 weeks are expensive. Do you want to spend £100,000 on average each year on a residential placement for a child and not want to be regularly updated about how that child is progressing? In response to my speech at Second Reading, the Minister stated that the issue of looked-after status should depend,

“on the assessment of the particular needs of each child and the nature of their disability”.—[Official Report, 26/11/07; col. 1097.]

We agree that each child’s individual needs should be paramount. This is why the amendment would give local authorities the freedom to decide on looked-after status based on whether it is in the child’s “best interests”. But the crucial difference, if the amendment were to be accepted, is that looked-after status would automatically be conferred on the disabled child placed away from home, unless their best interests prove that to be unnecessary.

I hope that our shared desire to safeguard and protect some of the most vulnerable children will mean that the Minister is able to offer government support for the amendment. I beg to move.

I added my name to the amendment in the hope that the Minister will grasp this opportunity to get rid of one of the anomalies regarding disabled children and looked-after status, because it seems a bit daft that a child who is away from home for the whole year does not have looked-after status while sometimes a child on a short break does. These are the most vulnerable children and giving them that status might bring with it rights, such as they are, to advocacy, and would perhaps strengthen the right to have a communication aid, if necessary, because then a duty would be imposed on the local authority to gain the child’s views and feelings. In many cases they cannot do that unless they have a communication aid. For all those reasons, and the many reasons eloquently outlined by the noble Lord, Lord Rix, I support the amendment.

I, too, support the amendment and, indeed, the noble Lord, Lord Rix, explained it eloquently as he always does. Many parents struggle from one end of the country to the other to visit their children in 52-week residential care. It is important to point out that the amendment does not impose some prescriptive shackle on local authorities’ provision of care, because, where a child does have that contact with their family, the local authority is under no obligation to consider the young person as looked after; but, as the noble Lord, Lord Rix, said, too many children have no visits and we must be very mindful of their welfare. So I hope that the Minister can look favourably on the amendment.

I warmly support the amendment and congratulate noble Lord, Lord Rix, on introducing it. It seems that when we are dealing with the vulnerable and those at risk in our society, we need belt and braces. We cannot allow there to be gaps into which people may possibly fall. I hope that the noble Lord will forgive me for using such a crude phrase, but this amendment is essentially about belt and braces.

For that reason I very much support it. I am tempted to make one observation that I hope Members of the Committee will take seriously. I sometimes worry about those in the private sector who are dumped in residential boarding schools and whose parents totally fail to support them in any full sense while they are there, beyond feeling that they are in the school. Perhaps we should look at that area at some time.

I, too, lend my support most fervently to this amendment. I have beaten the drum on previous occasions for the principle that responsibility for children should never be regarded as a fragmented exercise, but rather as a unified matter. This is an example where the fields of education and social services share a responsibility. In many of the cases that I came across as a judge—and I am sure that the experience of the noble and learned Baroness, Lady Butler-Sloss, is much superior to mine—and in criminal jurisdiction, I was shocked by the number that involved disabled children who had been gravely abused and taken advantage of in these situations. Therefore, even if there is an element of double banking of care and concern, the amendment is wholly justified.

In determining the appropriate level of support for each child, we should not have a single, automatic response to cover all situations and, in particular, we must be careful not to undermine the voice of the parent in cases where a child is placed away from home. We need a flexible legal framework for the provision of services in a way that is capable of responding to individual need and of being adapted to the particular circumstances of each family. The most effective solution is to strengthen the framework under which local authorities are notified of, monitor and supervise all children who are placed away from home, regardless of whether the placement is for educational, health or other reasons.

Under Clauses 15 and 16, there will be an improved regime of arrangements for placing authorities to notify the local authority concerned of the placement of a child in long-term residential accommodation. More significantly, they introduce the requirement for the local authority in which the child is ordinarily resident to visit and maintain contact with the child for as long as the placement lasts. This will mean that the child will be subject to regular visits by a representative of the local authority and will ensure that a child’s needs are met, not just at the point of placement but in the event of any change of circumstance during the placement.

However, we remain of the view that where the local authority is involved in the placement decision and is contributing to the funding of a child placed away from home, the child should normally be looked after. Only in cases where, having undertaken an assessment of need, the local authority is satisfied that there is a high ongoing level of parental support for the child, do we believe that looked-after status should not apply. This position is already set out in guidance, but we intend to set it out further in statutory guidance.

I thank the Minister for that reply. He said that there would be “regular” visits from representatives of the local authority. Can he qualify that by giving me an idea as to the number of visits? Are two visits “regular”—or three? It is a slightly ambivalent word.

We will set this out in guidance, but it will depend on the circumstances of the child and the degree of parental involvement, which is one of the key factors. I am informed that we would expect visits to be, on average, once every six months at least.

I am not sure that once every six months is sufficient. I would hope that eventually the guidance might say that it should be once every three months. I am grateful for the response that the noble Lord has given. I will consult my many colleagues on whether to come back to this matter on Report, because they have all spoken in support of this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

[Amendments Nos. 86, 87 and 88 not moved.]

Clauses 22 to 25 agreed to.

89: After Clause 25, insert the following new Clause—

“Scope of inspections by the Chief Inspector

In section 147 of the Education and Inspections Act 2006 (c. 40) (inspection of premises in connection with adoption and fostering functions) after subsection (2) insert—

“(2A) The Chief Inspector must consider the promotion of the welfare and safety of a child when carrying out the inspections mentioned in this section.””

The noble Baroness said: The purpose of our amendment is to broaden the scope of what is taken into account during the inspections of children’s homes. Our amendment changes the provisions of Section 147 of the Education and Inspections Act 2006 that relate to adoption and fostering functions. This seemed like the most logical place to amend that Act, as I assumed that this section’s broad scope would include children’s homes. I ask your Lordships’ forgiveness if I have attempted to amend in error or in the wrong place, but I hope to have support for the spirit and intention of this proposed change.

Essentially the amendment would place a duty on the inspectors to make inspections about more than just the number of beds a children’s home provides and the average cost of meals per child per day. I know that the Minister will say that that is not just what the inspectors do, but there is a fear out there that it is very much a tick-box exercise. Our amendment would obligate inspectors to take a more holistic approach and consider the promotion of the welfare and safety of the child when carrying out inspections. We recognise that inspectors will report on circumstances where children are being harmed or endangered. However, as we understand it, there is no statutory duty to consider the real aims of children’s homes—promoting a child’s well-being—when they are inspected.

I point out that this refers only to the inspection already carried out in the provisions of this Bill. We have no intention of mandating inspections of foster parents’ homes or the like. We intend this amendment to apply to the institutional premises connected with these types of care provision—namely children’s homes. I beg to move.

I support the amendment. I am sorry that it is there, but I am not surprised, because when, in the context of the Criminal Justice and Police Bill, we were able to prevent the Government from forming the monster inspectorate of criminal justice, custody and whatever, and allow the retention of independence in inspection of prisons and probation, it was precisely because experience had shown that it was much better to have single-issue inspectorates to focus on particular aspects that could form conglomerates and inspect particular experiences. In speaking on that matter, I was minded of the inspection of safeguarding children, in which I had readily become involved when the then Chief Inspector of Social Services had been charged with doing that. She asked all the associated inspectorates to join her, because they each had a different aspect to bring, and therefore there would be a holistic outcome. Education and prisons inspectorates joined, and so on.

My worry about this monster, the CIECSS, is that actually it is education-based and education-focused. Under its remit, education is the main task of that chief inspector. I am concerned that this amendment refers to something that would have naturally fallen under the Chief Inspector of Social Services, had it been there, and then need not have been seen as necessary. However, it is required, because the current arrangements leave people to doubt that the new arrangements allow that focusing on this very important aspect. Indeed, I suspect that, had the old arrangements continued, the current Chief Inspector of Social Services would have been noting with great care the points made throughout our Committee proceedings, many of which he would have felt it incumbent on him to monitor in future. I wonder whether those issues could be monitored by a CIECSS, which would have so many educational distractions from the supervision of all these aspects of care.

In the interests of time, I edited my notes so much that I have edited that point as to be incomprehensible. So I thank the noble Lord, Lord Ramsbotham, for filling in the gaps that I left.

I support the amendment and thank my noble friend for the inspirational reports from the joint chief inspectors on safeguarding children. I was particularly grateful for the attention that their last report drew to the situation for children in Yarl’s Wood detention centre, which was extremely helpful.

When the Commission for Social Care Inspection had responsibility for children’s homes, what I heard when visiting several children’s homes at the time was how helpful the inspectorate was to those homes. It was giving advice, for instance, about the key worker role in homes and how key workers should seek to spend one evening or some regular time each week with the child, perhaps doing the washing up together or playing ping pong; doing some sort of informal activity that would help the child to bond with their key worker. That is so important, and is the sort of thing that a good inspectorate could help to expand.

I highlight the continuing lack of capacity in many children’s homes. The Government set a target that 80 per cent of staff in children’s homes should have NVQ level 3 in childcare. Level 3 is very basic indeed. Unfortunately, some time ago that target had not been reached. How much progress has been made towards achieving that target? Perhaps it no longer exists; I know that it was a difficult target to reach. That sort of capacity needs to be built. I have been informed by people in this area that they are concerned that the new inspection regime is not permitted to concentrate on giving recommendations rather than saying whether there is a pass or fail.

I quite understand why the noble Baroness, Lady Morris, has tabled the amendment. I rather suspect that the Minister will reply that all elements of the Every Child Matters agenda have to be inspected for, and that is how it is all covered. I understand that there is a feeling out there that if it is not spelled out they do not inspect for it, and I am sure that this is where the amendment is coming from. I very much support the spirit of the amendment. It is an important aspect of what these places do.

There is no disagreement whatever between the noble Baroness and me. The issue is whether existing legislation achieves the objective that she has set out, and we believe that it does. Section 119(1) of the Education and Inspections Act 2006, read with Section 117(2), sets out the factors to which the chief inspector must have regard in performing her functions. The first item on the list is,

“the need to safeguard and promote the rights and welfare of children”.

This is a core responsibility of Ofsted and of the chief inspector, and it applies to all the inspection functions carried out by Ofsted, including those mentioned by the noble Baroness. Children’s homes, which the noble Baroness mentioned, are inspected twice a year. The duties of the chief inspector are as I have set out and the chief inspector has a power to inspect more frequently if she has reasons for concern.

In addition, the existing national minimum standards for fostering services, against which fostering services are inspected, already provide a clear framework for safeguarding and promoting the welfare of looked-after children placed with foster carers. Section 4 of those standards focuses specifically on “securing and promoting welfare” and includes detailed standards related, for example, to protecting children from abuse and neglect, promoting their development and health and promoting their educational achievement.

Similarly, Section 2 of the national minimum standards for adoption agencies focuses on,

“securing and promoting children’s welfare”,

related, for example, to ensuring that children are placed with suitable and approved adopters who can best meet their needs and keep them safe.

Ofsted, with other inspectorates, also inspects how services for looked-after children contribute to their well-being when undertaking joint area reviews under Section 20 of the Children Act 2004. After the programme of joint area reviews ends in 2008, the Government will continue to inspect services for looked-after children at local authority area level, under arrangements for comprehensive area assessment set out in the October 2006 local government White Paper Strong and Prosperous Communities.

We take the view therefore that the existing duties of the chief inspector meet the concerns raised by the noble Baroness.

Before the Minister sits down, may I check with him about the role of the inspectorate? Am I mistaken in what I have been told—that it is simply to check that whatever institution is being inspected is meeting the standards required, or is there also a requirement that it should give advice? Should it ask how this can be done better? Have you thought of trying it this way? Have you looked at what so and so is doing? My understanding is that the inspectorate is not required to do that; it is simply told to judge the institution against the standards and say whether it fails or passes. I should appreciate clarification from the Minister on that point.

I shall probably need to come back to the noble Earl with more detail on precisely what happens but this is an inspectorate, not a consultancy. Therefore, he is correct to say that its role is to inspect against standards. But the very nature of the process of inspection means that advice and support will be given. Therefore, I do not think that there is a hard and fast distinction as drawn by the noble Earl. However, I shall write to him with a fuller account of how Ofsted sees the position and I shall encourage the chief inspector to engage directly with him.

I was given some rather depressing anecdotal information about recent reports on a body that was not doing very well. One report after another had been extremely negative and it would have been very helpful for the organisation to have been told what it might do. When it asked, the inspectorate told it that its job was purely and simply to inspect and that it was not there to tell the organisation how it might do better. Can advice be given to the inspectorate that, without moving into the consultancy area, it could reassure the relevant organisation or at least suggest guidelines on what it might do?

Following on from that, when the prisons inspectors were asked to take part in the first inspections of secure training centres we discovered that our approach, which was based on the aim of the inspection being to help the establishment improve its operational efficiency—it was conducted in the form of a free consultancy—was very different from the rather “tick box” approach that was offered. The latter might have produced a result that could then be league-tabled but it did not help the establishment to move forward. We tried very hard to feed our approach into the other inspectorates when they inspected custodial or residential establishments because the staff needed that help. As my noble friend Lord Listowel mentioned, an inspectorate can share its experience of practice in other places or spread good practice. However, the existing structures do not seem to have that procedure built into them.

The best response I can give is to draw the chief inspector’s attention to the remarks made in the Committee this afternoon. I am sure that she will be more than ready to engage with noble Lords who raised those concerns.

I am most grateful to the Minister for answering the amendment so fully. I am also grateful to all Members of the Committee who participated in the debate. The noble Lord, Lord Ramsbotham, is absolutely right—it is the fear of simply a tick-box exercise that concerns people. The comments of the noble Earl, Lord Listowel, and the noble and learned Baroness, Lady Butler-Sloss, about sharing best practice are hugely useful. I am most grateful to the Minister for his commitment to draw the chief inspector’s attention to this matter because there are concerns in this area. Indeed, it is because there is concern about the quality of inspection of some of our children’s homes that we raised this matter in the first place. Many are excellent but others leave a great deal to be desired. That concern is exacerbated by the number of homes that have recently closed, as was highlighted recently in the Children & Young People Now magazine.

There are clusters of homes in some of our seaside towns where the children cause much anxiety in the community and almost literally run riot. We heard earlier in Grand Committee about the depressing number of children who go missing from local authority care. Therefore, we must do all we can to ensure that inspectors paint a true picture and flag up issues of concern about the welfare of these vulnerable children, and that they are properly in tune with what we want our children’s homes to do. But for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 agreed to.

90: After Clause 27, insert the following new Clause—

“Power of Registrar General to supply information to national authorities

(1) The Registrar General may supply information to which this section applies—

(a) to the Secretary of State, or(b) to the Welsh Ministers,for research purposes.(2) Information supplied under subsection (1) to the Secretary of State or the Welsh Ministers may be disclosed by them—

(a) to any other person if the disclosure is for research purposes; and(b) to a Local Safeguarding Children Board for the purposes of its functions.(3) This section applies to any information that—

(a) is kept by the Registrar General under any provision made by or under an enactment; and(b) relates to the death of a person who was or may have been under the age of 18 at the time of death.(4) “For research purposes” means for the purposes of any research that is being or may be conducted or assisted under section 83(1) of the 1989 Act.”

The noble Lord said: This government amendment relates to the powers of the Registrar-General to supply information about child deaths to the Secretary of State or Welsh Ministers as appropriate. It complements provisions in the previous clause about registrars supplying information to local safeguarding children boards. Boards in England already have a duty under Regulation 6 of the LSCB Regulations SI 2006/90 to review the deaths of all children normally resident in their area and, where appropriate, to undertake serious case reviews under Regulation 5 of those regulations. Arrangements for reviews in Wales are currently under consideration. In order to fulfil their responsibilities effectively, local safeguarding children boards require as much information as possible about child deaths. That information can be obtained from a number of sources, including registrars and the Registrar-General. Under Clause 27, we require registrars to supply information about child deaths to local safeguarding children boards in a timely manner. Under Clause 27A, we are providing the Registrar-General with a power to supply to the Secretary of State or Welsh Ministers information he receives under any enactment about the death of a person who was or may have been under the age of 18 years at the time of death.

Providing a power rather than a duty will enable the Registrar-General to exercise his discretion about when to send the information to the Secretary of State or Welsh Ministers and about the format he sees fit to use. Information provided by the Registrar-General to the Secretary of State or Welsh Ministers is intended to be able to be shared with local safeguarding children boards to ensure that boards receive information about all deaths registered in England and Wales or, where a certificate is issued to the effect that a death is not required to be registered in England and Wales, in relation to persons who were, or may have been, under the age of 18 at the time of death. That includes those deaths of children that occur abroad that are not registered in England or Wales and where the fact of death is known to the Registrar-General. I beg to move.

On Question, amendment agreed to.

Clause 28 [Research etc. into matters connected with certain statutory functions]:

91: Clause 28, page 23, line 19, leave out “section 13 of”

On Question, amendment agreed to.

Clause 28 agreed to.

[Amendments Nos. 92 and 93 not moved.]

94: Before Clause 29, insert the following new Clause—

“Registration of foster carers with the General Social Care Council

(1) Section 55(2) of the Care Standards Act 2000 (c. 14) (interpretation) is amended as follows.

(2) After subsection (2)(d) insert—

“(e) is a foster parent;”.”

The noble Baroness said: In moving Amendment No. 94, I shall also speak to Amendments Nos. 96, 97 and 98. Amendment No. 96 is tabled in the name of the noble Baroness, Lady Morris of Bolton, and I am grateful to her for agreeing to group it with my amendments, not only because it will help us to save time but because without her amendment, to which I have added my name, Amendment No. 98 would not be quite so possible.

Amendment No. 94 relates to the registration of foster carers. Foster carers have long called for the introduction of a national registration scheme for them through the General Social Care Council, as is available for many other members of the children’s workforce. Registration would provide a major boost to the status of foster carers and improve the respect and treatment that they receive from other workers. Registration would also allow for the introduction of a code of conduct, for expectations regarding continuing professional development and improving the safeguarding of children, and for increased portability of approval within the children’s workforce. Taken all round, it would be a good measure. The GSCC is very willing to have this additional group of members, and it would improve the professionalisation of foster carers, which we would all like to see.

Amendment No. 97 is about responsibility delegated to foster carers by the local authority. The 2002 fostering regulations require all fostering services to enter into a foster placement agreement, which should include the circumstances in which it is necessary to obtain in advance the approval of the responsible authority for the child to take part in school trips or to stay overnight away from the foster parent’s home, but not for other everyday issues.

It is important to note that there is no standard formula for how a foster placement agreement is supposed to operate. According to people whom I have spoken to on Fosterline, most foster carers would not be aware that it existed, and there is minimal enforcement of it. However, the key point is that there is massive confusion about what responsibility local authorities can delegate to the foster parent and how they should do so. The problems of overnight stays were massively improved by the issuing of statutory guidance. The Government could perhaps now look at how foster placement agreements work and what circumstances they cover in the review of the fostering regulations next year. It could be that a commitment from the Government to produce guidance under Section 7 of the Local Authority Social Services Act 1970 might be an appropriate way of filling in this gap. Foster parents need to know what they can decide about in everyday little matters relating to their foster child and what they have to refer back to the local authority. It cannot be very efficient for foster carers to keep running back to the local authority and thereby causing a delay on matters on which they could easily and safely take the decision themselves. I would be most grateful if the Minister could tell us whether there is an intention to look at this in the review that is coming up.

I want to leave Amendment No. 96 to the noble Baroness, Lady Morris. However, I am glad that she is trying to split, very transparently, the actual fee that is paid to the foster carer for doing the work of fostering the child and the allowance that is paid to cover the expenses of looking after that child. Amendment No. 98 is about making sure that if a foster parent is accused of an allegation they can continue to receive the fee, because in those circumstances the child will have been taken away from them so they are no longer entitled to the allowance. That is natural justice. It is about being innocent until proven guilty.

The possibility of an allegation being made against them is a constant fear for foster carers. Due to the nature of the children and young people placed with them, and the often fraught relationships between foster carers and birth parents, unfounded allegations are, sadly, a regular occurrence. An allegation is often used as a way of trying to break a placement, or is due to a misunderstanding of everyday behaviour which, before the child entered care, had been a prelude to abuse. Surveys have shown that around a third of all foster carers will face an allegation during their fostering career, and the vast majority turn out to be unfounded.

Government timescales for the resolution of allegations, set out in the Working Together guidance, desirable though they are, are routinely being missed in allegation cases against foster carers. Working Together states that 80 per cent of allegations should be resolved in one month, 90 per cent should be resolved in three months and all cases should be resolved in a year. Research by Swain in 2006 has shown that 50 per cent of allegation cases last longer than three months and one in 10 last longer than a year—in some cases several years. To compound matters, in a third of all allegation cases where some or all children have been removed—which is really the de facto suspension of that foster carer from their job—almost all foster carers have their fostering income cut, and 46 per cent have their income stopped completely.

Research has also shown that 60 per cent of foster carers facing allegations are not receiving the access to independent support during an allegation that they desperately need and which they are required to receive under the current national minimum standards for fostering services. The amendment would protect foster carers from the immense financial hardship that can accompany an allegation investigation, and it would give local authorities greater incentive to resolve investigations within an acceptable timescale. If they are continuing to have to pay the very small fees that some foster carers get, it certainly makes it a very good thing that they speed up their investigations. We really need to keep these foster carers, and if there is an ongoing case against an innocent person, for all the reasons that I have outlined, they will obviously have lost the allowance because they have lost the child. If they lose the fee as well, they will have to get another job.

We are desperately short of foster parents, and we are paying them only a very small amount. It is against natural justice that they should be seen as guilty because their retention fee—as I would call it—has been taken away from them while the allegation is heard. If we can reach the target of 80 per cent resolved within a month, the payments that we are talking about will be very small. I hope that the Minister will be able to reassure me that we will not lose a lot of foster carers because of financial expediency—they have no income and have to get another job. We will lose them, and that would be extremely sad. Amendment No. 98 would be possible if the split sought by the noble Baroness, Lady Morris, were put into place. I beg to move.

The amendments relate to the registration, regulation and payment of foster carers and seek to clarify the very welcome provisions on foster care in the Bill. According to the Fostering Network, foster carers have long called for the introduction of a national registration scheme for foster carers through the General Social Care Council. Such registration is already available to many other members of the children’s workforce. The logic is that registration would be a boost in the status of foster carers and would improve their treatment and the respect for them.

Amendment No. 96 relates to the publication of the payments that foster carers receive. At the moment, there are vast discrepancies between different local authorities and independent providers. Not only do the remuneration payments, or what are often called fee payments, differ, but the allocation to cover the costs of fostering also varies immensely. Our amendment seeks to arrange for the publication of payments made to foster carers, and we also seek assurances that the publication will be comprehensive, providing a breakdown of what is actually covered and the different criteria for each scheme. Otherwise, the publication of payments would not be useful as a mode of comparison.

Amendment No. 97 would empower foster carers to have more responsibility in decisions about their foster child. Children in foster care are often prevented from having what other children simply take for granted—school holidays or even haircuts—because of insurmountable red tape and the delays of bureaucracy. We therefore support the amendment.

Finally, the last amendment in the group ensures that payment continues to be made to foster carers against whom there have been allegations of wrongdoing until there has been an assessment of the claim. This is simply a question of innocent until proved guilty, as the noble Baroness, Lady Walmsley, said, and we are happy to support it, especially as a large proportion of foster carers will face allegations at some point. It will also encourage local authorities to resolve allegation claims quickly, as the noble Baroness, Lady Walmsley, said. It is not as though we have an unlimited pool of foster carers.

I support Amendment No. 94 on the registration of foster carers with the General Social Care Council. It is overdue and is good for prestige and professional reasons, and we should give a good deal of attention to it. It would be to the medium-term advantage, and we should do it.

I shall also speak briefly to Amendment No. 96 in the name of the noble Baroness, Lady Morris. It is important for good financial practice as well as for allegations that we should distinguish clearly between payments to meet the full cost of caring for a child and the fee. The financial officer of any public company would not like to make a single payment for two totally different purposes without making it clear what they were and how they were differentiated. I therefore support the amendment. If that is not done, there is a temptation to defer adjusting the payment for the full cost of caring for a child by saying that the total amount of money is reasonably right for the time being. That is what happens in this world. It is most important to differentiate between those two items. The full cost of caring for the child should be specified and can therefore be adjusted when it should be adjusted.

In the context of Amendment No. 94, can the Minister say what progress there has been in the registration of residential child care workers—the staff who work in children’s homes?

I shall come back to the noble Earl with a specific answer to his question.

On Amendment No. 96, the national minimum allowance for foster carers, which we announced in July 2006 and which has been warmly welcomed by foster carers and their organisations, was introduced to help to ensure that no foster carer was out of pocket as a result of caring for a looked-after child. Our good practice guidance, which was published alongside the national minimum allowance, was intended to support fostering services in improving their payment systems. In addition, the recent White Paper Care Matters includes a further commitment aimed at improving transparency around payment systems and foster carers’ eligibility for payments; that is, their allowances and their fees. We announced in the White Paper our commitment to require all fostering services to publish details of their payment structures for foster carers in relation to the task undertaken by carers and the level of training required. It is essential that every fostering service provider has in place an effective policy on payments to foster carers and that that policy is available to carers. By requiring local authorities to publish full details of their payment structures, including allowances and fees, we will ensure that that is the case and therefore meet the objective of this amendment.

Amendment No. 98 seeks to ensure that foster carers continue to receive a fee until a qualifying determination has been reached. Where a fee is paid, a decision by the fostering provider to cease payments pending formal termination of approval, as the noble Baroness said, leads to a sudden loss of income, and that can be difficult for carers to manage. There may be a number of reasons why that happens. It may be that an allegation of abuse has been made against a foster carer and an investigation is taking place. In those cases, it may be appropriate for a fee to be paid until there is a qualifying determination. I fully take on board the points that the noble Baroness and other noble Lords have made about the need for the timely investigation and determination of such complaints. We believe that this is an issue of great significance to foster carers, and we will be looking at the timescales for allegations as part of our review of the national minimum standards for fostering providers with a view to promoting best practice in this area.

However, there may be other reasons why a fostering provider makes a decision not to continue to approve an individual as a foster carer. For example, the welfare of a child may have been put at risk in some way by the carer’s actions, or it may be that the foster carer, or an adult member of the fostering household, has been convicted of an offence which would automatically bar him or her from fostering. In such cases, it may be entirely inappropriate for the carer to continue to receive a fee until such time as the decision to discontinue a carer’s approval has been formalised, taking account of any recommendation by the fostering panel.

Amendment No. 94 seeks to bring foster carers within the group of social care workers registered by the General Social Care Council in England and the Care Council for Wales in Wales. Foster care is a truly unique occupation, and foster carers are substantially different from other groups that are registered and regulated by a central body. Therefore, we are not sympathetic to proposals for a national registration scheme. The fostering services regulations and national minimum standards set out clearly the basis on which an individual should be approved as a foster carer and the comprehensive range of information that must be taken into account in deciding whether an individual is suitable to be a foster carer. They also set out the Government’s expectations of the fostering service and its carers in improving outcomes for individual children.

Under existing legislation, carers’ performance must be reviewed regularly, and the Government have funded the Children’s Workforce Development Council to develop a set of training and development standards for foster carers that illustrates clearly the standards expected of every foster carer. These standards were published in May 2007, and we have already announced our intention to link them with the revised national minimum standards for foster care to improve the training and development that all foster carers receive. This framework is appropriate, and we would not wish to change it at present.

Finally, on Amendment No. 97 on the delegation of responsibility to foster carers, it would not be appropriate for the Government to prescribe centrally the precise circumstances in which responsibility should be delegated to carers, as this will depend on the needs and circumstances of the individual child. Schedule 6 to the Fostering Services Regulations sets out, for example, the matters that should be covered in the foster placement agreement, which the responsible authority must enter into with the foster carer before a child may be placed with that carer. These include the circumstances in which the carer must obtain in advance the responsible authority’s approval for the child to take part in school trips or to stay overnight away from the carer’s home.

The placement information record, which should be completed for all children living away from home, details the arrangements for meeting the child’s needs where responsibilities are divided between a number of people. It must, for example, set out where the responsibility lies for taking a child for routine medical or dental treatment or for giving consent for medical treatment. Existing legislation and statutory guidance are clear about how the local authority’s duties in respect of looked-after children should be discharged and about the need for clarity around the delegation of responsibility.

I thank the Minister for his reply, and I thank other noble Lords for taking part in the debate. I am disappointed that he rejects the suggestion that foster carers can register with the General Social Care Council, as it would be an advantage. I will have to see how the current framework actually pans out.

On Amendment No. 98, I understand what the Minister said about the situation that pertains if a member of the foster carer’s household, or even the foster carer themselves, is convicted of something that would make them ineligible to be a foster carer. In that case, the person is immediately disqualified from being a foster carer. In that situation, unfortunately, I can see why the fee would have to be stopped. However, the Minister also mentioned the situation in which the foster carer has behaved in such a way that puts the child at risk. Surely that is something to be determined by those who are looking at the allegation. There may have been an allegation that the person has behaved in that way, but the matters around that will have to be determined through the proper procedure, which might take a few weeks.

Naturally, if the parties concerned accept it, they will not object to having their fee removed, I suppose. The fee is removed from many foster carers while the allegations are being investigated, and it does not seem right that a local authority should simply be able to opt out of paying them. It is a self-defeating policy, because the local authority will then have the expense of recruiting more foster carers. Even when that foster carer may be found innocent, as many are, they have already flown the nest and got another job. I accept part of what the Minister said, but I am still concerned about another part of what he said, and I might want to bring the matter back on Report.

The Minister’s remarks on Amendment No. 97 are yet another example of what has happened many times in this Grand Committee when he has read out what the current situation is and cited the legislation, the regulations, the guidance and all the rest of it. Yet Members of the Grand Committee know that it is not happening. Listening to what he said about what should be in the fostering agreement, I was puzzled how any foster carer might be confused about what decisions they can and cannot take. Yet they are. They ring the fostering advice line for advice about what decisions they can take. They are greatly frustrated about not being able to take the sort of quick and fairly insignificant decisions that most parents would take without thinking twice. Local authorities might need further guidance on how regularly to refresh the mind of the foster carer about what exactly is covered in the foster caring agreement.

I accept what the noble Lord said about localism, that it makes sense for some of these decisions to be decided locally and that that is appropriate given the particular circumstances of the child. That makes a lot of sense to me, but the fact remains that some foster carers are confused and frustrated by the situation. And yet the noble Lord tells me that it is all there in black and white. However, this is not the first time that this has arisen. Many such situations have been mentioned by Members of the Grand Committee. However, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

95: Before Clause 29, insert the following new Clause—

“Adoption targets

(1) The Secretary of State shall not impose numerical targets for the number of children in local authority care who are to be adopted.

(2) The Secretary of State shall not offer local authorities financial incentives for increasing the rate of children in care who are adopted.”

The noble Baroness said: Adoption is often the solution to much of the difficulty that a child might face in care. It can provide stability, continuity and above all a genuine sense of being part of a family. Yet adoption is not always the solution. Though it is often the best possible scenario in many circumstances, it is not always in the best interests of the child. Numerical adoption targets do not have any regard to these nuances, and they risk sacrificing the interests of the child while also contributing to the creation of a negative impression of social workers.

Centrally imposed targets can result in rushing vulnerable children into adoption when it might not be in the best interests of the child. There is a risk that not enough is being done to try to work with families at risk to keep them together. Attaching financial incentives to adoption placements drives up the number of adoptions, but in situations where it might not be appropriate. Therefore, we propose this amendment to scrap centrally imposed adoption targets and the financial incentives attached to them, which are not always in the best interests of the child. I beg to move.

I have heard the concerns of a provider of adoption services that children who should not have been placed for adoption are being so placed, and that the consequent placements are breaking down because they are not right and are not well supported. If the Government wish to continue with these targets, they must think more carefully about how they will support the families and ensure that decisions made about children’s placements are appropriate, because it is terrible for the child to be promised a placement with a family and for that placement to then break down. However, one has to applaud the Government for being successful in securing many more adoption placements.

That was precisely the reason for the initial target which we set in 2000. However, I am glad that I can entirely meet the noble Baroness’s concerns on these issues. The national adoption target for England, announced in 2000, ended in March 2006 and there are no plans to reintroduce a similar target.

Under the new performance framework outlined in the 2006 local government White Paper, local authorities will, from 2008-09, report performance on a much reduced set of 198 cross-government indicators in a new national indicator set. Local area agreements will be at the heart of the new performance framework and, other than the DCSF statutory education and early years targets, will be the only vehicles through which central government can agree targets with local authorities. The local government White Paper commitments mean that government will agree targets with local authorities only against indicators drawn from the national indicator set. From April 2008, there will not be a national indicator measuring the number of adoptions of children from care, so the Government will not, under the terms of the new performance framework, agree targets to increase adoptions from care with local authorities, which is the point underlying the second part of the noble Baroness’s amendment.

I respectfully suggest that in so far as the nomination of such a target is concerned—I appreciate that it is no longer the current procedure—it seems to me that the Government must be getting very near to a most dangerous line. I totally applaud the attitude that the Government have taken generally towards adoption and I applaud the fact that they sensitively accept that in many cases the welfare of a child will be best served by being adopted rather than being in care or, indeed, in a succession of care placements over very many years.

Adoption often enables a child to be fully integrated into a loving family which, with the best will in the world, may not be possible under the care system. It seems to me that the Minister is now saying that each case turns on its own facts. Given the general precepts that the Government have wisely published, if it is the case that local authorities say to the Government, “This is the situation in our area. This is the amalgam of the situation that we are dealing with in relation to a number of cases, and this is the ultimate figure”, provided those figures move from local government to central government, rather than as a precept from central government to local government, the situation is perfectly wholesome and proper. Does the Minister agree with that?

I am still trying to absorb precisely what the noble Lord is asking me to agree to. Is it whether local authority targets themselves are justifiable where they do not follow from any instruction from central government?

Where there is no target as such. A scientifically calculated phenomenon should be a current either moving from local government to central government or from central government to local government. In so far as local government says to central government, “We appreciate the principle that you have enunciated and agree with it. This is the situation in our area and this is the amalgam of the cases that we are dealing with which we consider to be appropriate to be the subject of adoption, not as a target, but as a calculated fact”, I am sure the Minister can see the distinction. They are not targets. They are not matters moving from central government to local government, but rather in the other direction—the moving as a category of collected facts which represent the current situation in the estimation of the local authority. I hope I am not splitting hairs, but to my mind that is something very different from a target that has been calculated in relation to some set phenomenon.

Now I understand the point. I accept that that would be very different. However, I restate that it is not the Government’s intention to set a target, however one might frame it in terms of the evidence base on which it is drawn.

I thank the Minister for his reply. I sometimes reel under his replies, and then I remember that I read somewhere in a profile of him that he speaks at 100-and-something words a minute and realise why I have to go back and read everything again in Hansard. I thank him for what he said about the national targets.

I shall say something about local targets, as the Minister raised them. There is a feeling out there—we read about it every now and then in our newspapers—that some children are removed from parents and put up for adoption when that should not happen. That gives social workers a bad image. When we did our social workers’ commission, social workers felt very strongly that any targets—we chose national targets, but even locally driven targets—that took away their autonomy to work to find the right placement for a child did not help in setting a positive image for them doing the proactive work they want to do. Seeing as we are not quite as pressed on time as sometimes, I wonder whether the Minister may like to comment on that, even though it is not in my amendment.

All I can say is that the Government do not impose, and have never imposed, adoption targets for individual local authorities. We do not have a view on whether it might be appropriate for an individual local authority to have an internal target. If the noble Baroness is asking me to reflect further on that, I shall be happy to do so, but I have stated our position.

I would be most grateful. I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95A not moved.]

On Question, Whether Clause 29 shall stand part of the Bill?

I think that this is the appropriate moment in the Bill for me to raise questions about privately arranged fostering. As I understand it, private fosterers are supposed to be registered or at least notified to the local authority.

I am in a little difficulty. I do not believe that the noble Lord has chosen the appropriate place to raise this issue because there is no specific amendment before the Committee.

I have not given formal notice, but I have given notice to the Minister’s officials. I hope that is helpful, and perhaps I may continue. I understand that privately arranged fosterers are supposed to be registered or notified to the local authority. In practice that does not always happen. There may be frequent instances where it does not happen. What checks are made or can be made, and what are the powers of enforcement with regard to privately arranged fostering?

The background to this is that there are considerable worries about private placements for fostering being used as cover for the trafficking of children who, when they get to their private foster carers, may be prepared for domestic slavery in some shape or form or for much worse forms of exploitation. I would be very grateful for anything that the Minister can say about this, given that I am pretty sure I raised the matter at Second Reading.

I will write to the noble Lord with a fuller explanation of the Government’s position on the issue. As he is aware, the strengthened notification scheme in respect of private fostering introduced by the Children Act 2004 has had only two years of operation, so it has not been in operation long enough for us to assess it properly. Therefore I cannot give the noble Lord that which I believe he is seeking, which is our assessment of the effectiveness of the new regime in its entirety. I will provide any preliminary information that I can of the effects we believe have flowed from the strengthened notification scheme introduced in 2004.

Clause 29 agreed to.

While I am on my feet, perhaps I may make the position clear by reading from the Companion. It states:

“If there is no italic notice on the marshalled list warning of a debate, any Member who wishes to speak on ‘clause stand part’ should inform the Lord in the Chair”.

I hope the noble Lord will accept that.

[Amendments Nos. 96 to 98 not moved.]

Clause 30 [Independent review of determinations relating to adoption]:

99: Clause 30, page 25, line 40, leave out “a national authority” and insert “an appropriate Minister”

On Question, amendment agreed to.

Clause 30 agreed to.

Clause 31 [Extension of period allowed for making regulations under section 45 or 46 of the Children Act 2004]:

100: Clause 31, page 26, line 4, leave out ““seven”” and insert ““five””

The noble Baroness said: Amendment No. 100 relates to Clause 31, which takes us back to the debates we had in the Children Act 2004 about private fostering. That is what the noble Lord was raising and, arguably, he should have raised the issue under this amendment. Clause 31 changes the sunset clause. Under the Children Act 2004, a register of private fosterers was to be set up under Section 45 in relation to England and under Section 46 in relation to Wales. Section 47 states that if the regulations relating to that register have not been laid within four years of the passing of the Act, which would be November 2008, Sections 45 and 46 would fall. Clause 31 extends the four years to seven to take the provision through to 2011.

These Benches feel that the Government have been somewhat dilatory in getting such a register set up and in issuing these regulations. Only 10 per cent of private fosterers are currently registered. There are ten months between now and November 2008. It seems reasonable to add an extra year and make it five years instead of seven years. That will give the Government practically two years in which to get the regulations written and the register up and running. We feel that that is perfectly adequate. They should really have got a move on with this issue, and we would like to see them getting a move on with it. Therefore, our Amendment No. 100 proposes that instead of seven years it should be five years. I beg to move.

We have always taken a great deal of care about the registration of private fostering. We have moved amendments on it. We thought of doing something on the Bill to bring forward a register now. We listened with care to what the Minister said at Second Reading, and can understand some time delay, but think it unnecessary to extend the provision to seven years. Therefore, I support the amendment.

I certainly support the amendment. A reduction of two years should give plenty of time. The other matter going through my mind was the issue raised by my noble friend about what may have been happening with fostering. The Act was passed in 2004, and the reason for not being able to give details about how the process is working out is that only two years have gone by. This concern about the trafficking of children—trafficking of people generally but certainly of children—for sexual exploitation has not been on everybody’s agenda for very long, but the figures we are now beginning to hear about are very concerning. This issue has built up over a short time, yet the Minister feels we need more time. How much more time are the Government going to need before they can give some real figures and say what effect—successful, I hope—the process has had?

I can say how much more time we need to take a decision. That is precisely the three years we seek in the Bill. As to why we are seeking this additional time, I should make clear that we are not signalling that we have abandoned the idea of introducing registration, but that we need more time to see whether the current notification system is working. Before deciding whether to introduce a registration scheme, we need to assess fully the notification system. To do that we will need advice from the relevant experts. We will need to look not only at practices in different types of area and in authorities with high, medium and low levels of notification, but also to try to understand what prevents people in various situations notifying arrangements to their local authorities. We need to grasp the question of whether a registration scheme would encourage or deter private fosterers coming forward to the authorities. We are anxious not to deter fosterers from coming in where we need them. This will require further sophisticated research to be commissioned by the Government, and that is why we need the extra time.

I thank the Minister for his reply, but it is not very adequate. What has changed between 2004 and now? Four years were adequate in 2004; other than the fact that the department has not got around to issuing the regulations, what has changed? It seems to us on these Benches that an extra year gives it two years from now to get such a scheme up and running. In 2004, during the passage of that Bill, it was decided to set up a registration scheme. I do not see why the Government are now running away from that same scheme. It seems to us perfectly reasonable. I will withdraw the amendment for the moment, but we may well bring it back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

[Amendment No. 101 not moved.]

Clauses 32 and 33 agreed to.

102: After Clause 33, insert the following new Clause—

“Responsibilities of parenthood

(1) In section 10 of the 1989 Act (power of court to make section 8 orders), after subsection (9)(b) insert—

“(ba) in relation to residence orders, whether or not the person with whom it is proposed that the child should live is likely to be able and willing to accept the responsibilities of parenthood in relation to the child;”.(2) In section 8 of that Act (residence, contact and other orders with respect to children), after subsection (4) insert—

“(4A) In this Part “the responsibilities of parenthood” means, in so far as is practicable and in the best interests of the child, the safeguarding and promotion of the child’s health, development and welfare, and the provision of direction and guidance to the child in a manner appropriate to his age and development.””

The noble Lord said: Amendment No. 102 is about the responsibilities of parenthood. The noble Lord, Lord Judd, apologised profusely to me and to the Committee for the fact that he has had to leave to get to Cumberland for an appointment. He has shown his enthusiasm for my amendment by promising to put his name to it if I bring it back on Report, which I hope I shall not need to do.

The amendment would clarify and embed in law the responsibilities that a person assumes when they accept the responsibility of caring for a child who will live with them as the result of a residence order. In my view, the responsibilities are the same as those of any parent who has their child living with them. Curiously, the responsibilities are not clearly set out in law in England, although they are in Scotland. When a child is taken into local authority care and is placed with a foster carer or put into a children’s home, or where a child after the separation of his parents is sent to live with one of them, surely the same responsibilities must be relevant. It is critical for the child and for the parents of that child with whom he is not living that the child receives the parenting that he needs. We all know that parenting is fundamental to all aspects of a child’s well-being, including his education. The present position leaves uncertainty, which is potentially bad for the child and for the concerned adults. In the amendment, I propose that we should insert into the 1989 Act the relevant wording from Section 1 of the Children (Scotland) Act 1995.

In many ways, I would have preferred it if it had been possible to insert this text into Section 1 of the 1989 Act, but unfortunately I am prevented from doing so by the Long Title of the Bill, which refers only to amending Parts 2 and 3. This will be only a preliminary step in my campaign. The wording of the amendment is taken more or less directly from the wording of the Children (Scotland) Act 1995, which states that,

“a parent has in relation to his child the responsibility … to safeguard and promote the child’s health, development and welfare … to provide, in a manner appropriate to the stage of development of the child … direction … guidance”.

It is simple, it is non-prescriptive and it is reasonable. It is not over-detailed, and it is a good definition of the responsibilities of parenthood. It is no more than every child deserves and it is no more than the adults who care about that child’s welfare are entitled to expect. I beg to move.

Throughout all our discussions on the Bill we have focused on the responsibilities of those in the children’s workforce and the local authorities when family life breaks down and a child is taken into care. However, there is a gap, which I am very pleased to see that the noble Lord, Lord Northbourne, is trying to fill. That is why I was happy to put my name to the amendment.

There is no statutory description of the responsibilities of parenthood. Understanding those responsibilities and having them enshrined in law lays down an important standard. It allows for a framework to appreciate situations where a relationship may have ended, but responsibilities to the child have not. So, as I said, we are very happy to support the amendment.

I very strongly support the amendment. There is no definition of parental responsibility other than in Section 3 of the Children Act 1989, which sets out the responsibilities of a parent and does not actually say what is meant by it. This is one occasion, if I may put it like this, where Scotland is ahead of us. The fact that it is in statutory form in Scotland is a good indicator to us, because the Scots are very keen on child welfare, that the wording there would be appropriate for us.

There are a number of court decisions on what is meant by parental responsibility. That is absolutely useless for most people because you have to trawl through the cases. What is needed—and I very much endorse the amendment of my noble friend Lord Northbourne—is not only a clear recognition in statute, of the importance of the parental position but is a clear and simple definition of what parental responsibility actually means.

It may be that it was not needed in 1989. I remember being very much involved in 1987-88 in giving advice on the Children Bill and then going around the country, on what we used to call road shows, training the judiciary and the lawyers on how to work the Children Act. This point did not come up then, but I think that, nearly 20 years later, the rather unhappy experience we have seen through the courts and particularly for social services, the Probation Service and, indeed, the criminal justice system, shows that some understanding of what is really meant by parenting needs to be in primary legislation. For those reasons I support the amendment.

I, too, very strongly support the amendment tabled by my noble friend Lord Northbourne. As has already been mentioned, it produces a definition which we have been searching for. Certainly at the back of my amendments yesterday about adding the responsibility of care for those in custody was that somebody should be exercising the responsibility of a parent on behalf of the people in custody.

Currently I am involved with the development of a suggestion about a new type of administering custody, which is much more localised. The first part of that study has been trying to establish what would be the ethos of an establishment like that. It all boils down to this: what are you going to be doing in loco parentis? Therefore, I think it is extremely important that the provision should be replicated. It is unfortunate that it was not in the Children Act 1989 because it took, if noble Lords remember, a judicial review brought by the Howard League to get formal acceptance by the Government that the terms of the Children Act 1989 applied to those in custody, which previously was denied. Therefore I strongly support the amendment and hope that it will be accepted.

As somebody who wanted to define the word “near” in relation to schools and “independence” in relation to IROs, I suppose noble Lords would expect me to support this amendment because it deals with the definition of something much more important than either of those. I do so in particular because if a judge in the family courts as eminent and experienced as the noble and learned Baroness, Lady Butler-Sloss, thinks that this would be a useful device to have in legislation for judges in the family courts, that is quite good enough for me. I only regret that in such a provision it is not possible to put in the words “love” and “happiness”, which are the things that most parents want to give to their children. If you ask any new parent: “Do you want him to be a footballer, a judge, a shopkeeper or a builder?” the answer always is “No, I just want him to be happy”. Regrettably, you cannot really add that in legislation. However, it sounds to me like a very useful amendment, as far as it goes, so I support it.

I agree that it would be particularly splendid to have the word “love” in there somewhere, but we must take what we have. The wording is absolutely right: completely spot on. I cannot imagine why—

I am most grateful to my noble friends for flattering me on the wording, but it is taken straight from the Scottish Bill. I take no credit for it.

I accept that, but my noble friend deserves credit for finding it and putting it to us in this way. I ask the Minister why this was not part of our law in the past; we also had that opportunity. What were the reasons for not accepting this wording? I assume and hope that he will look favourably on the amendment, even if only to come back with his own. It would take something for the Minister to want to reject such a well phrased amendment, and I very much hope that he is not going to.

I have not the slightest doubt that the noble Lord, Lord Northbourne, does the interests of children and young persons a great service with the amendment. I appreciate that there may well be arguments over the proposed subsection (2), because it is difficult to define all the elements concerned, even the quantifiable ones. Elements like love, affection and loyalty are unquantifiable and can therefore never be the subject of definition in law.

I accept that the content of the proposed subsection (2) appears most sensible and comprehensive. However, since it cannot be totally comprehensive, I suggest that if these words were amended—I appreciate that they were taken from Scottish statute—they should say “shall include” instead of,

“means, in so far as is practicable”;

in other words, they should be descriptive and inclusive rather than exclusive. In the circumstances, therefore, if the 1989 Act were to be amended in this way, it would, in the words of Dr Johnson, concentrate the mind wonderfully. Whether Dr Johnson would approve of anything coming from north of the Tweed is another matter.

I am swayed by the debate to say that the Government will consider this further and come back on Report with our view of whether there is a case for further amending the Children Act 1989. I am particularly swayed by the points of the noble and learned Baroness, Lady Butler-Sloss. However, I need it to be firmly understood that this is not a commitment that the Government will introduce a change; we will consider whether there is a case for it.

As the noble and learned Baroness knows, the approach to parental responsibility taken by the Children Act 1989 itself implements a Law Commission recommendation. The Law Commission did not consider it practical to include a list of what comprises parental responsibility. Such a list would, in its view, have to change from time to time to meet differing needs and circumstances. That was its view then, but we are happy to take further advice, including from noble Lords. I will say on Report whether we believe that it would be appropriate to move on this matter.

The suggestion of the noble Lord, Lord Elystan-Morgan, would be infinitely preferable to the Scottish definition, because “include” does not exclude other things that one cannot define. I suggest to the Minister before Report that that would be a better way of expressing it, and it might be a little less unacceptable—I do not want to be negative—to those advising him.

As I say, we will have to consider these matters. I simply note that already in the course of 10 minutes we have had rival views as to what should be in such a definition. The noble Baroness, Lady Walmsley, has already proposed a significant extension of the 1995 provisions in Scotland.

Although I have indicated that we are prepared to look at this further, I stress that this needs to be in the context of us starting off believing that the status quo is acceptable.

I am most grateful to the Minister. I have the utmost confidence in the ability of him and his department to produce the right solution. I did not consider making any change to the Scottish Act because, in however many years there have been since 1995, there has been quite a lot of time for the Scottish Act to go wrong. If it has not gone wrong, that is a pretty good argument for sticking with it. I am happy to see what happens at the next stages of the Bill. I am most grateful to all those who have contributed. If I had the proportional support from the whole House that I have had from this Committee, we could give the Government a hiding, but we shall see. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 34 to 38 agreed to.

Clause 39 [Commencement]:

103: Clause 39, page 28, line 1, leave out “28” and insert “(Power of Registrar General to supply information to national authorities)”

The noble Lord said: In moving Amendment No. 103, I shall also speak to Amendments Nos. 104 to 107. The amendments concern the commencement of the provisions in the Bill in relation to Wales. They ensure that the commencement of those provisions reflect fully those matters devolved to the Welsh Assembly Government. I beg to move.

On Question, amendment agreed to.

104: Clause 39, page 28, line 3, after “bringing” insert “subsection (1A) of”

105: Clause 39, page 28, line 5, after second “section” insert “15 or 16”

106: Clause 39, page 28, line 5, leave out “27 or 28”

107: Clause 39, page 28, line 6, at end insert—

“( ) Before making an order bringing section 27 or (Power of Registrar General to supply information to national authorities) into force, the Secretary of State must consult the Welsh Ministers.”

On Question, amendments agreed to.

Clause 39, as amended, agreed to.

Clause 40 agreed to.

Schedule agreed to.

Bill reported with amendments.

The Committee adjourned at 5.04 pm.