House again in Committee (on Recommitment) on Clause 11.
20: Clause 11, page 8, line 21, at end insert—
“(6) A local authority must ensure that the independent reviewing officer appointed under this section is sufficiently independent.
(7) In this section “sufficiently independent” means—
(a) having minimal connection to the local authority in question;(b) having not worked for the local authority in question in the last ten years;(c) being previously unconnected to the particular child in question; and(d) having no conflict of interest.”
The noble Baroness said: Amendment No. 20 places a duty on local authorities to ensure that independent reviewing officers are sufficiently independent and defines this as: having minimal connection to the local authority; not having worked for the local authority for 10 years; being unconnected to the child in question; and having no conflict of interest. However, I acknowledge that 10 years may be too long, and am therefore willing to have a debate on the length of time deemed necessary to secure the amendment’s objectives.
We welcome the idea of extending the responsibilities of independent reviewing officers but seek with this amendment to ensure their effectiveness by making them truly independent and not just independent of the management of the case, which is the current position under the Review of Children’s Cases (Amendment) (England) Regulations 2004.
This system will work only if everyone is satisfied that the reviews conducted are impartial and come from a source unfettered by any hint of subjectivity. The Bill as it stands does not, in our opinion, have such provision. For example, in his extensive letter of 23 January, the Minister said:
“We intend to issue statutory guidance to the local authority emphasising that the IRO’s role should be to provide support and challenge to the child’s social worker to ensure that the voice of the child is heard and respected in the authority’s decision making, and particularly the importance of the IRO being independent in fulfilling this role”.
I can see the support bit working but to challenge a colleague is a wholly different matter. Likewise, what do IROs do if, when reviewing a child’s case, they are aware of budget restraints or know that their department is stretched to the limit? I am not for one moment suggesting that they will not do their best by that child but I am afraid that it raises the question of conflict of interest.
In his letter, the Minister pointed out that it is up to local authorities to decide whether to appoint IROs who are their employees, whether to contract with an agency or whether to make arrangements with another authority to swap cases for review purposes. As this will be an important driver to effect the much-needed change that we are all looking for, and to help us to ascertain how it works in practice, can the Minister tell us how many authorities undertake this review themselves?
Clause 12 gives the Secretary of State powers to establish national arrangements for the delivery of IRO functions if evidence suggests that IROs are not securing significant improvements for looked-after children. In his letter of 23 January, the Minister suggested that this function could be conferred on CAFCASS in addition to its existing functions. Although the Conservative Party is no longer declaring open war on CAFCASS, not least due to the current leadership of the noble Baronesses, Lady Pitkeathley and Lady Howarth of Breckland, and their excellent chief executive Anthony Douglas, it is clear from last week’s Ofsted report that CAFCASS still has more to do to recover from its disastrous start in life and therefore would be best concentrating on its core duties. Therefore, I suggest to the Minister that, unless it is the Government’s intention to invoke Clause 12 anyway, the best way of securing the success of Clause 11 is to ensure that IROs are truly independent. I beg to move.
I apologise to the noble Baroness, Lady Morris of Bolton, for not being here at the beginning of her remarks. I think that she knows why, although I am not sure that that exonerates me. I do not know why she sits on the Benches that she sits on, because this is a characteristically enlightened and progressive amendment and I support her in it.
It seems to me that, however you look at it, the case for the amendment is self-evident. First, I adhere very strongly to the old precept that justice should not only be done but should be seen to be done. Therefore, from the standpoint of reassuring everybody, it is good that somebody should be seen not to be involved with the body that is being reviewed. That seems self-evident. It is the same issue that has arisen in the past with the police, the prisons and all the rest. It is awfully misguided of those who will be reviewed to resist a measure of this kind. I understand it psychologically because there is always the possibility that there is an inherent threat in this and that the person is somehow going to be hostile, but I do not think that experience demonstrates that that is the case. Independent reviewers can be extremely helpful because they bring a different perspective and a free-standing judgment on what is happening and how the situation can be helped.
Having said that, I want to put a qualification on my own commitment: we have to face up to one cultural difficulty that has developed. I hope my noble friend will forgive my making the allusion, but it seems to me that we have got into a culture of passing and failing in reviewing. Taking the example of the old HM Inspectors of Schools, whom I deeply respected as one of the best things in Britain, that was not their approach at all; their approach was to help the school succeed. We would have to be very certain that, whoever does the reviewing, the task is to help people make a success of it, not to pass or fail or to play into the hands of the Sun, the Daily Mail or whatever—to call a spade a spade. With that proviso, the case for having independent judgment is powerful. I hope that my noble friend will be able to respond positively.
From these Benches, I shall speak in support of Amendment No. 20. I shall speak also to Amendment No. 23 in the absence of the noble Lord, Lord Elystan-Morgan. In relation to Amendment No. 20, we endorse all that has been said before. We feel very strongly that, although the Minister has made it clear that stress will be put on the independent role of the IROs, given that their function is to support and challenge the social worker to ensure that the voice of the child is heard and respected in the authority’s decision-making, it is particularly important that the IROs are independent in fulfilling that role. How can people who are employed and paid by a local authority act as the critical friend that they have to be on occasion? It seems to us that they ought to be what the name says—namely, independent. Given the need for these officers to be free to criticise the local authority if they feel that it has not fulfilled its duties in relation to the looked-after child, IROs should not only not be connected with the management of a case but also should not be connected with that local authority.
We had extensive discussion in Grand Committee on the issue raised by Amendment No. 23, on Clause 12 and whether and when it might be invoked. The Minister made it very clear that the department saw Clause 12 as a measure of last resort. Nevertheless, as the noble Baroness, Lady Morris, mentioned, in his letter to us the Minister makes it clear that there is a question of looking to CAFCASS to resolve some of those issues. We noted the not wholly uncritical report from Ofsted about CAFCASS last week and wondered whether it was an appropriate resort for these issues. When we had the discussion in Grand Committee, we were especially unhappy about the prospect of, in effect, nationalising the IRO service, with it being run centrally from Whitehall. That is why we support the amendment tabled by the noble Lord, Lord Elystan-Morgan, because it removes the offending line—subsection (2)(c)—which talks about appointing people to be IROs, and leaves the organisation, like the General Teaching Council, as an overseeing, accrediting and training organisation. We would be very happy to have such an organisation involved with the IROs, but we do not want it to be nationalised.
There are two reasons for speaking. The first is to comment on the amendment; secondly, I should like to say a brief word about CAFCASS—I think that that is appropriate. On the amendment, I thought that 10 years was a step too far but, to begin at the beginning, I should like to give local authorities an opportunity to prove whether they can give independence to the IROs. History is against us. I was the first chair of the independent panel, Guardians Ad Litem for London, which drew together guardians from local authorities so that there was a degree of independence. A guardian from one authority could be deployed in another simply because of the difficulties that had been caused by the guardian trying to criticise the work in their own local authority. In that instance, local authorities found a solution in London. It did not stand up throughout the country, which led to the pressure for the independence of the whole organisation and the creation of CAFCASS.
Was it St Augustine who said, “Make me good, but not now”? CAFCASS might be a good organisation to do this work were it needed, but not now. We know where we are. The Ofsted report did not come as a surprise to us; we know where we are in getting the organisation in order and what are the issues about practice. Practice is especially problematic in two areas; those are the two areas where we are grateful for the inspection, because it helps us to draw attention to the difficulties and to tackle them more robustly than we might otherwise be able to do. However, we look to our regulator to give us support and help, especially when the press picks up issues in the way that they do. I repeat, I think that the board knows exactly where it is in tackling those issues and I am grateful to the noble Baroness for commending our chief executive, who has been relentless in his work to improve the organisation and will be so in pursuing the work for the development of practice.
Should local authorities fail—I sincerely hope that they do not; there is every hope that they can find solutions to the independence question—no doubt CAFCASS will by then be in good health to be reconsidered.
I support the principle that lies behind the amendment; but I am by no means certain about the 10 years. Picking up what the noble Baroness, Lady Howarth, said, it crossed my mind when looking at the amendment that, although it is fairly clear that it would be premature to invite CAFCASS to take over the duties of the IRO, I believe that in due course it would be admirable for it if it is necessary to have a national service—but, clearly, not now. From my experience prior to CAFCASS, it seemed to be that around the country there were a considerable number of arrangements whereby social workers from one local authority acted as guardians for another.
I just wonder whether this could be an intermediate step and whether local authorities could at least be nudged into finding IROs from another local authority. If they cannot do that, perhaps the Government might consider requiring local authorities to find guardians from outside their own local area, for all the reasons that have been given already. Two points have been made, but I make them again briefly.
First, if you are paid by the same authority as the person whom you are challenging for incompetence, for negligence or for lack of sufficient care—whatever the reason may be—it is extraordinarily difficult to be a whistleblower if you propose to remain in that local authority for the rest of your working life with that particular person, who may be fairly senior and whom you really should blow the whistle on for the sake of the child. It is asking too much of human nature.
Secondly, if this is not asking too much of human nature, there will be a perception among the public, and particularly among the families and friends of the child who is the victim, that because the IRO is in the same local authority, that IRO has not taken enough trouble, even if they have. There are the two things at issue: whistleblowing, which is difficult; and perception. For this Government, transparency and perception are very important, so it is quite surprising that they seem happy to allow a reviewing officer to be independent. Just think of the word; how can you be genuinely independent of your own local authority? That is very difficult indeed. Why could not everyone look to see whether they can find an IRO from the adjoining local authority or even from further away? That would overcome the problem without the need for the amendment, or a simplified amendment, and would not put the burden on to CAFCASS unless or until it was appropriate for CAFCASS to take it.
I supported this amendment on a previous occasion, and it is back in Committee for very obvious reasons. I will not go into all those reasons again because almost everything has been said. However, I certainly remember the guardian ad litem days in London, which were one way of getting pretty effective independence. The critical friend role is crucial; you must be able to be independent to do that job properly for all the reasons that we have heard so far.
I also very much support Amendment No. 23 in the name of the noble Lord, Lord Elystan-Morgan, which ties in well. There could be a more national body that supplied the training and so on that might well be necessary.
Independent reviewing officers should have no vested interest in the case of a child whom they are appointed to review. The existing regulations stipulate that IROs should not be involved in the management of the case or be under the direct management of a person involved in the management of the case or of any person with control over the resources allocated to the case. The statutory guidance, under which local authorities must act, reinforces this requirement. It says:
“The independence of the reviewing officer is essential to enable them to effectively challenge poor practice in the review of cases”.
The guidance offers a number of models of independence. Two of these models are, I accept, models of IROs who are formally employed by the local authority in question: model 1 is for IROs who are part of the social services quality assurance function, and model 2 is for IROs in the chief executive’s department. Both models are predicated on the basis that the IROs will operate very distinctly from the people whom they are responsible for interacting with, and they could safeguard sufficient independence for the IROs to act.
However, I take cognisance of what the noble and learned Baroness, Lady Butler-Sloss, has said about the importance of looking at other models which have IROs entirely independently employed from the local authority for reasons of perception as well as practice. The third and fourth models promote those options. The third model is of external IROs who could, for example, be employees from voluntary organisations or sessional workers and the fourth model is of reciprocal arrangements under which neighbouring authorities make arrangements for their IROs to review each other’s cases. The fourth model of reciprocal arrangements is, for example, what takes place between Islington and Tower Hamlets at the moment. We are looking to see how we can strengthen and further encourage such models. We will seek to do so under the revised guidance following this Act.
I hope that we can move progressively in the direction which Members of the Committee have wished us to do; not only having a firm framework of expectations and rules, because this guidance is statutory, about IROs acting fully independently of the cases for which they are responsible, but ensuring that the models of their employment further safeguard that independence.
However, to put this debate in context, I should add that there is currently no consensus on the reasons why IROs have in some areas failed to have the impact on improving professional practice that we all wish to see. It is precisely for that reason we believe that there is insufficient evidence at present to determine whether we should move towards a national service. A strong case is made by practitioners in the field that the shortcomings we see now have a good deal to do with weaknesses in the training and support networks for IROs, the significant variation in caseloads and issues relating to the organisation of IRO services in terms of their training and support, rather than the issue of their independence.
I should also stress that the statutory framework under which IROs operate came into force only in September 2004. We believe that before undertaking any major structural reform, with the inevitable disruption that that would cause to services to children, we should see whether the strengthening measures in Clause 11 will have a real impact in improving outcomes for looked-after children. Of course, we have set in place the powers in Clause 12 should it be necessary to act after further consideration.
This is not simply the view of the Government, it is also the view of stakeholders, notably the Family Justice Council, which in its response to the Care Matters Green Paper said:
“The drastic step of relocating responsibility for IROs outside Local Authorities, for example, within CAFCASS or some other independent organisation demands serious consideration. However, the level of disruption and expense and the unlikelihood of any, or any sufficient increase in CAFCASS resources for the purpose, which such a course would involve is a strong argument against. Moreover, the issue of independence from the Local Authority, perceived or actual, is not, in the view of the Council, the central issue. Steps should be taken to see whether the current position can be improved, radically, before such a drastic course is adopted”.
That is precisely the Government’s strategy. In particular, we are strengthening the IRO role to ensure that there is greater scrutiny of the care plan for each individual looked-after child and supporting their active engagement with the care planning process, so that every care plan really takes account of and gives weight to each child’s wishes and feelings. That includes introducing a duty on the IRO to monitor the local authority’s performance of its functions in relation to the child’s case. That duty will extend beyond the IRO’s existing monitoring role.
To state again, we will address new statutory guidance to IROs themselves on the importance of maintaining their independent voice in care planning and how to perform their role more effectively, in particular how to identify and act decisively in cases where they may suspect that a child’s rights are being infringed or the local authority is otherwise in breach of its duties to the child.
In response to the earlier amendments moved by the noble Baroness, Lady Walmsley, I have remarks to make about training and strengthening the training regime in support of IROs. While fully accepting that the current situation needs significant improvement and that the independence of IROs is vital to the integrity of their function, we would not wish to go the whole way with the noble Baroness at this stage. However, we would not have put Clause 12 in the Bill if we did not think it important to have a power to move towards the completely separate employment of IROs from local authorities if the reforms commenced in 2004 and being advanced in this Bill do not have the desired effect.
As usual, my noble friend has put the case considerately and has tried to meet the arguments put forward, but does he not agree that there is an issue of public credibility at stake here? Of course we are all wary of the worst sensationalism seen in the tabloid press, but it is not just the tabloid press. In recent years too many indelible pictures have been put in the public mind of the treatment of children where things have gone terribly wrong in one way or another. It is becoming a sort of habit—we all hear comments about it among our friends and family—for a bewildered senior official to face the media and say, “We got it wrong”, and then try to explain the situation. This illustrates that there are grounds for anxiety about how far it is possible to generate the really incisive and effective action necessary to ensure that these things do not happen. We need someone who is not an enemy of social workers, who understands the demands and difficulties very well, but is freestanding and able to say, “Look, you people have got to tackle this. Here is where you are falling down”.
I understand completely the point my noble friend makes, but the issue here is not about the need for IROs to be independent of the management of the cases they are responsible for reviewing, but the precise steps we take to guarantee that independence and whether we should—if I may put it this way—be migrating to models that do not involve local authorities themselves employing IROs at all. I accept the strength of the case for that, and as I say, we wish to reinforce the guidance in that respect. However, the existing guidance is very clear:
“The IRO must be independent of the management of the child’s case and independent of the resources allocated to that case”.
The guidance also makes it clear that,
“IROs should not be directly line managed by a manager with responsibility for resource allocation to the case”.
Two of the four models that involve IROs being employed by the local authority they are reviewing involve, in one case, IROs as part of the social services quality assurance function and in the other, IROs coming from the chief executive’s department, thus keeping them clear of direct line management relationships with those they are responsible for reviewing. We are moving in the direction my noble friend wishes to see, but as I said at greater length in my earlier remarks, the question is whether a further major structural upheaval at the present time would be in the interests of the children we are dealing with. Our view, on the best advice, is that we should strengthen the requirements for IROs to operate in an independent manner, but not at the moment take steps that would effectively be a further revolution in the IRO service. That might have the effect of taking the eyes of many IROs off the ball in terms of promoting the interests of the children we are concerned about.
I was going to exonerate the noble Lord, Lord Judd. We had a good supper downstairs during which we continued the Committee stage of this Bill. However, I am not sure that I will do so now, following his remarks on my suitability to sit on these Benches. He is quite wrong about that; I am very much a Conservative. But he is absolutely right about the credibility of the process of independent reviewing officers.
I am most grateful to the Minister, as always, for his thorough explanation, and to all noble Lords who have spoken. He said that IROs should not have any interest in cases they are reviewing. However, they will have a vested interest in the local authority if they are employed by it, and we cannot get away from that. The noble Baroness, Lady Sharp, was right to ask how they could be a true critical friend if they were not independent of the local authority. As the noble and learned Baroness, Lady Butler-Sloss, said, it may be asking too much of human nature, but I liked her idea of nudging local authorities into swapping IROs.
I am pleased that the Minister has recognised there is further to go and that he will look at strengthening the statutory guidance on IROs. When he does, it will be important to make clear to IROs and local authorities that credibility is very important and that decisions should be seen to be independent. In Committee I mentioned that I was deputy chairman of a teaching hospital in the north-west and sat on a complaints panel. However thoroughly we reviewed complaints and despite the fact that I think that we came up with the right answers, the people who had made the complaints far too often simply did not believe us because we were part of the organisation about which they had a concern. So credibility and transparency is very important.
As the Minister has said that he feels that the Government are moving in the right direction, and Clause 12 is always a backstop, for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 21 had been withdrawn from the Marshalled List.]
Clause 11, as amended, agreed to.
Clause 12 [Power to make further provision concerning independent reviewing officers]:
22: Clause 12, page 9, line 27, after “functions” insert “in relation to England”
The noble Lord said: I shall speak also to Amendments Nos. 24 to 32, 55 and 71. These government amendments enable the full implementation of the policy of the Welsh Assembly Government in relation to independent reviewing officers. The amendments will confer on Welsh Ministers powers in relation to Wales identical to those conferred on the Secretary of State in relation to England. The Bill before Parliament provides powers for the Secretary of State to make national arrangements for delivery of IRO functions and related matters in England, either through a new body corporate or by conferring additional functions on CAFCASS if in future evidence suggests that IROs are not securing significant improvements for children in care. The Welsh Assembly Government would like to put in place similar arrangements for Wales. These amendments provide equivalent powers for Welsh Ministers to establish arrangements for delivery of IRO functions in Wales, either through a new body corporate or by conferring additional functions on Welsh Ministers.
The amendments provide for Welsh Ministers to exercise such a power by order, which will be laid in draft and approved by the National Assembly for Wales and, having been so approved, will be laid in draft and approved by a resolution of each House of Parliament before being made. I beg to move.
On Question, amendment agreed to.
[Amendment No. 23 not moved.]
24: Clause 12, page 9, line 35, leave out subsections (3) to (6)
25: Clause 12, page 10, line 7, leave out subsection (8)
26: Clause 12, page 10, line 9, at end insert “—
27: Clause 12, page 10, line 12, at end insert—
“(b) that the functions of the body must be performed in accordance with directions given by the Secretary of State.”
28: Clause 12, page 10, leave out lines 19 and 20
29: Clause 12, page 10, line 23, leave out subsections (11) and (12)
On Question, amendments agreed to.
Clause 12, as amended, agreed to.
30: After Clause 12, insert the following new Clause—
“Power to make further provision concerning independent reviewing officers: Wales
(1) The Welsh Ministers may by order—
(a) establish a body corporate to discharge such functions as may be conferred on it by the order; or(b) provide for the discharge by them of such functions as may be conferred on them by the order. (2) An order under this section may confer functions in relation to Wales in connection with any or all of the following matters (but no others)—
(a) the provision of training for persons appointed or to be appointed as independent reviewing officers;(b) the accreditation of persons as independent reviewing officers;(c) the appointment of persons as independent reviewing officers;(d) the management of persons appointed or accredited as independent reviewing officers.(3) An order under this section may, in consequence of the conferral of a function by the order, modify any provision made by or under an enactment—
(a) relating to independent reviewing officers;(b) where the function is conferred on the Welsh Ministers, relating to those Ministers.(4) An order under this section which establishes a body corporate may provide—
(a) that the body is to be subject to inspection by an independent inspector specified in or established by the order, and may for that purpose apply, with or without modifications, any enactment relating to the carrying out of inspections;(b) that the functions of the body must be performed in accordance with directions given by the Welsh Ministers.(5) In this section “accreditation” has the same meaning as in section 12.”
31: After Clause 12, insert the following new Clause—
“Orders under sections 12 and (Power to make further provision concerning independent reviewing officers: Wales): supplementary provisions
(1) The conferral of any function by an order under section 12 or section (Power to make further provision concerning independent reviewing officers: Wales)(1)(a) also confers on the recipient power to do anything which is incidental or conducive to, or designed to facilitate, the discharge of that function.
(2) An order under this section may authorise the recipient to charge fees for the discharge by it of any function conferred by the order.
(3) An order under section 12 or section (Power to make further provision concerning independent reviewing officers: Wales) may transfer property, rights and liabilities to the recipient (and may also provide that anything which might otherwise prevent, penalise or restrict such a transfer is not to do so).
(4) Where an order makes provision by virtue of subsection (3) in relation to rights and liabilities relating to an employee it must make provision for the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply to that transfer.
(5) An order under section 12 or section (Power to make further provision concerning independent reviewing officers: Wales) may require the recipient to establish a procedure for dealing with complaints relating to the discharge by it of its functions.
(6) In this section “recipient” means, in relation to a function, the body on which the function is conferred by the order in question, and for this purpose “body” includes the Welsh Ministers.”
32: After Clause 12, insert the following new Clause—
“Expiry of powers conferred by sections 12 and (Power to make further provision concerning independent reviewing officers: Wales)
(1) If no order has been made under section 12 by the relevant time, that section, and section (Orders under sections 12 and (Power to make further provision concerning independent reviewing officers: Wales): supplementary provisions) so far as it applies for the purposes of that section, cease to have effect.
(2) If no order has been made under section (Power to make further provision concerning independent reviewing officers: Wales) by the relevant time, that section, and section (Orders under sections 12 and (Power to make further provision concerning independent reviewing officers: Wales): supplementary provisions) so far as it applies for the purposes of that section, cease to have effect.
(3) “The relevant time” is the end of the period of 7 years beginning with the day on which this Act is passed.”
On Question, amendments agreed to.
Clause 13 [Duty of local authority to ensure visits to looked after children and others]:
[Amendments Nos. 33 to 35 not moved.]
36: Clause 13, page 11, leave out lines 20 to 22
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Independent visitors for children looked after by a local authority]:
[Amendment No. 37 not moved.]
38: Clause 14, page 12, leave out lines 20 to 24
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
[Amendments Nos. 39 and 40 not moved.]
Clauses 15 and 16 agreed to.
41: After Clause 16, insert the following new Clause—
“Duty to allow contact with siblings
(1) The 1989 Act is amended as follows.
(2) In section 34 (parental contact etc. with children in care), after subsection (1)(a) insert—
“(aa) his siblings;”.(3) In paragraph 15 of Schedule 2 (promotion and maintenance of contact between child and family), after sub-paragraph (1)(a) insert—
“(aa) his siblings;”.”
The noble Baroness said: I am bringing this amendment back because the debate we had in Committee indicated concern about this issue on all sides of the House. It is not that we doubt the Minister’s response; we accept that time and again guidance and directions make it clear that, except where it is not in the best interests of the child, high priority should be given to ensuring contact between a looked-after child and his siblings. Equally, it is clear from the evidence we have received that this is not happening. What is more, we also know that, when asked, the children themselves say that it is not happening but that it is one thing they would really like to happen.
We are forced, therefore, to ask whether guidance is enough. Have we got to a point where there is so much prescription, so many codes of practice, regulations and guidance, that the professional fails to distinguish one from another and pays scant attention to the law—especially when, as there usually are, there are 101 other urgent jobs to be done that have far higher priority than sitting down and reading through reams of instructions on how best to do the job you have been doing for the past 10 or 20 years? We know that attention is paid to the actual letter of the law, which is why we would like to see Amendment No. 41, with the principle of sibling contact, in the Bill. It is the least intrusive amendment we could find that nevertheless makes that point.
As the Minister said in his response to the series of amendments put forward in Committee, Section 34 and paragraph 15 of Schedule 2 to the Children Act 1989 already provide for contact orders and the promotion of contact between the child and his family. The amendments make it explicit that the family includes siblings.
The new amendments which the Minister brought forward to replace Sections 7 through 10 in the legislation give high priority to placement with family and friends, and particularly stipulate that, where practicable, brothers and sisters who are looked-after children should be kept together and looked after together. However, as we know, that is often not practicable and sometimes not judged to be in the best interests of the child. We have already discussed the degree to which the weasel words “reasonably practicable” can let local authorities off the hook. I do not want to re-enter that debate, but it is important to note that placement is one thing and contact is another. When siblings are not placed together, or indeed when some children are left in the parental home while others are looked after, contact becomes important. That is where the proposed amendment would kick in, putting contact with siblings on a similar footing to contact with parents.
I end by quoting the words in Grand Committee of the noble Lord, Lord Judd—I am sorry that he is not in his place to hear me quote him. He said—and it is so true:
“It is important that, wherever it can be done and the children so want it, every muscle should be stretched to ensure that the siblings can stay together. If that is impossible, not to have generous and practical arrangements for contact is a pretty sad state of affairs. It can also have very costly consequences”.—[Official Report, 14/1/08; col. GC 402.]
That is why we are pressing this little, but very important, amendment once again. I beg to move.
We moved a similar amendment in Grand Committee on the basis that stable relationships and family ties reinforce a sense of belonging and trust, which are among the rarest and most necessary features of a child’s experience in care.
The Care Matters White Paper reported that consultation with children and young people highlighted the importance of not separating siblings without a full assessment both of their views and of the implications of separation. I was reassured by the Minister in Grand Committee that the legislative framework to promote sibling contact already exists, through the Children Act 1989 as well as the Arrangements for Placement of Children (General) Regulations 1991, although I was concerned when he said:
“We recognise, however, that practice may often fall short of these legal requirements”.—[Official Report, 14/1/08; col. GC 405.]
I was also struck in Grand Committee by the comments of the noble Baroness, Lady Howarth of Breckland, who said that she felt exasperation that amendments on contact with siblings had to be tabled and felt that enough legislation was already on the statute book. We could all say amen to that.
Will the Minister therefore say a little more about the integrated children’s system and the need to record contact arrangements with siblings, as well as on the practicalities involved? What will happen if it does not happen?
I support the amendment in principle because it is obviously important that most siblings who are parted should have the opportunity to see each other regularly. I am not, however, entirely happy about the way in which the amendment is intended to be slotted into Section 34 of the Children Act. The Act states:
“Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with … his parents”.
If we were then to insert “and his siblings”, the separate matters of the welfare considerations of that child and the child’s siblings would arise. Whereas in a large number of cases it is highly desirable that children should see each other, there is a minority of cases in which it is crucial that they should not. Children are parted in certain cases by social workers for the best of reasons. One has therefore to allow for the majority of children who should see each other and the minority who should not. Consequently, if one were to insert the new paragraph, it would require something along the lines of, “subject to the welfare considerations for the child and for the siblings”.
I supported the amendment on a previous occasion, although the overall principle behind what is being proposed may need some alteration. Above all, however, the argument that the children themselves are not satisfied that their wishes in this respect are being listened to needs to be heard more. I take into account the fact that there may be a need to change some wording in the Children Act 1989, as my noble and learned friend just said. Nevertheless, more effort should be made to make generous practical arrangements—going back to the comments of the noble Lord, Lord Judd, about every muscle stretched. It was a good quote; the noble Lord was not here at that moment to hear it quoted, but he is now in his place, so he can now. I hope that the Minister will bear it in mind.
My noble friend Lord Judd left the Chamber and missed a remarkable tribute being paid to him. That will encourage him to stay put in future, in case someone is about to say some extremely nice things about him. He can take my word for it that the remarks were very flattering.
I think that we all agree on the importance of children living away from home maintaining links with parents, brothers, sisters and others who are important in their lives. The noble Baroness, Lady Sharp, said that guidance was not enough and, quoting my noble friend, that we needed the provision in the primary legislation. In fact, it is in primary legislation: paragraph 15 of Schedule 2 to the Children Act 1989 contains provisions for the promotion of maintenance of contact between the looked-after child and his family. In particular, it requires the local authority,
“unless it is not reasonably practicable or consistent with their welfare”,
“endeavour to promote contact between the child and … any relative, friend or other person connected with him”.
Relative is defined in Section 104 of the Act as including brothers and sisters, whether of the whole or half-blood and whether related by marriage or civil partnership. Siblings, however related to the child, and of course the child himself, can also apply for contact orders under Section 34 of the Children Act 1989. The independent reviewing officer is required by regulations to assist the child to obtain legal advice in connection with an application for a contact order.
These contact requirements, which as I say are in primary legislation, are further reinforced by the provisions of the Arrangements for Placement of Children (General) Regulations 1991. The schedule to those regulations requires local authorities to consider arrangements for contact and whether there is any need for changes in the care plan to promote contact which is consistent with the child’s welfare. This is echoed in the Review of Children’s Cases Regulations 1991, which require contact with the child’s family and others to be one of the matters considered at the regular six-monthly reviews of the child’s case. The accompanying guidance to the Children Act stresses the importance of contact between the child and all those connected with him or her. So it is in the primary legislation.
The noble Baroness, Lady Morris, asked me what the integrated children’s system does practically to see that the case practice of social workers has the effect of promoting such contact. Within the integrated children’s system care plan and placement information records, practitioners are required to record contact arrangements with siblings, including step and half-siblings, and the practicalities as to how this will happen. Guidance notes within the records emphasise the importance of this contact.
Having said all that, I know that many contact issues arise because it is not possible to place children together, either because the sibling groups are very large—hence the reasonably practicable requirement in the Bill; it is not a let-out clause but simply recognises the realities of the situation in terms of family structures—or because the needs of different siblings may conflict, as the noble Baroness, Lady Butler-Sloss, rightly noted. It is absolutely right that social workers and others engaged in these cases should have the discretion to take account of such factors, which is why the provision in the 1989 Act is set out as it is. In so far as there are shortcomings in practice in this area, it is certainly not because the requirements are not sufficiently strongly set out in primary legislation.
I am very grateful to the Minister for his detailed reply and much reassured by the fact that there is enough in legislation for this to be carried through. It is a matter of carrying it through into practice—and let us hope that practice improves. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
42: After Clause 16, insert the following new Clause—
“Access to information for post-care adults
(1) Regulations may make provision for the purpose of assisting post-care adults to obtain information held by local authorities and voluntary organisations in relation to their personal and family history.
(2) Regulations made under this section may authorise or require local authorities and voluntary organisations to provide appropriate support, including information and advice, to post-care adults who require it.
(3) In this section “post-care adult” means a person aged 18 and over who has at any time been in the care of, looked after or accommodated by a local authority or voluntary organisation.”
The noble Baroness said: I thank the Committee for the opportunity to revisit an issue that I raised at an earlier stage. At this hour I do not propose to detain the Committee for long, but I return to the issue for two reasons. First, I wish to signal my intention to continue to pursue the matter of access to records and to information on former-care adults until action is taken to improve to an acceptable level the standard of service to those adults. It is simply not good enough to recognise that standards of information-giving vary radically but to do nothing about it. It is wholly understandable that records may have been lost over the years. However, it is wholly unacceptable that identical information about a former-care adult and their family can exist in different places but that access to it may vary dramatically according to the policies, procedures and, crucially, the interpretation of the Data Protection Act that are adopted by each authority. I return to that issue.
Similarly, I return to variance in the availability of support to people seeking to find their care records and, crucially, to find out about their identity and care history. In our debate on 17 January, the noble Lord, Lord Adonis, agreed with me that there is a need to review the way in which current guidance is implemented. He said:
“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 round.”—[Official Report, 17/1/08; col. GC 587.]
At this stage and at this hour, I simply wish to ask the Minister when a review of the guidance is likely to take place. Will it include an assessment of the extent to which varying implementation of the Data Protection Act is consistent—or inconsistent—with Article 8 of the Human Rights Act? Will it include consultation with, in particular, former-care adults and professionals in the statutory and voluntary sectors?
I continue to raise this matter in the knowledge that noble Lords may be fed up with hearing me do so. It is crucial to people who are late on in their lives and who are still suffering from the effects of not knowing their family story or their personal history and, in some cases, having doubts about their identity simply because of the variance in practice about letting people have access to their files or explaining to them why the information does not exist. That is crucial to a small number of individuals who I believe deserve to be treated equally. They should not have to face some kind of postcode—happenstance—lottery that depends on whether the social worker that they happen to meet on a given day has an interpretation of the law that is different from that of another social worker. I beg to move.
My Lords, there can be no one in your Lordships’ House who does not support the intention of the noble Baroness, Lady Barker, and who does not admire her tenacity in pursuing this cause. I did, however, sympathise with the Minister when he said that the problem in many situations lies beyond the statutory framework and cannot be resolved in law because it relates to those who were in care at a time when records were not kept appropriately; he spoke of his own records, which were destroyed. There seems to be a world of difference between what the Minister is saying about the existing statutory framework, with the obligation to keep records and the Data Protection Act allowing post-care adults access to their records, and what is happening on the ground, where care leavers are being denied that access because they are told that the information is highly personal and that they cannot have access to it. The noble Baroness, Lady Barker, is right to say that there needs to be a review of this.
My Lords, I feel that I must support the noble Baroness, Lady Barker, simply because historically I sat on a committee that wrote the first set of guidance on access to social work records; that seems to be generations ago. It was quite clear at that stage that those who were the subject of records had every right to access them. There were, of course, complications in that you cannot have access to information about others. I remember supervising the dissection of records so that the correct information could be made available to those who had a right to access it while the other information that related to other members of the family was held back. What has happened in the intervening years bewilders me. I feel exasperated because I believe that the statute and the regulation exist to enable people to gain access to these records, if they are available. However, it is unforgivable that records should be lost because there are clear directions on how long the records of young people who have been in local authority care should be kept, particularly in relation to adoption cases, so those records should not have been lost.
I look forward to the Minister’s reply and support the noble Baroness in her campaign to ensure that those who need to know about their records have a right to access them.
I add my support to what has been said. The noble Baroness made an extremely effective case, even more so than last time, and has completely won my support. Clearly there should be a similar practice throughout the country. These records should be capable of being accessed everywhere, where they are available.
As I said in responding to the noble Baroness in Grand Committee, the issue here is practice on the ground, not the statutory framework, which we believe is appropriate.
Regulation 8 of the arrangements for the placement of children regulations already requires local authorities and voluntary organisations to open a case record in respect of each child they place. Details of what must be kept are set out in these regulations and accompanying guidance. Local authorities are required to retain records for 75 years after the child’s date of birth.
Under the Data Protection Act there is an existing entitlement for adults who were in care to have access to their personal information. Where the data controller cannot comply with a request for access without disclosing information that relates to another individual who can be identified, the data controller must comply with the request for access where it is reasonable to do so, even in the absence of the third party’s consent. And there is provision for individuals to apply to the court or the Information Commissioner if they are unhappy with the local authority’s response.
The integrated children’s system, to which I referred a moment ago in responding to the noble Baroness, Lady Morris, and the detailed resources which have been produced to support it, aim to improve record-keeping still further. There is also guidance which highlights the need for local authorities to handle these issues sensitively and to provide appropriate support whether or not the information is available, which was another issue raised by the noble Baroness, Lady Barker.
The noble Baroness asked me when the review of guidance under the Children Act would take place and whether there would be consultation. We are committed to introducing new guidance by the end of 2008. There will be full consultation on the guidance and we will work with statutory and voluntary sector organisations in developing it. I look forward to the noble Baroness encouraging all those who have a keen interest in this area to participate fully in that consultation.
I thank noble Lords who contributed to this debate. Now is not the time to go into a detailed exposition of what is personal information and what is third-party information. However, I thank the noble Lord, Lord Adonis, for answering my specific question, which was the reason for tabling this amendment. I understand that the review will take place this year. It is unfortunate that it will not—if I understood him correctly—examine how the Data Protection Act is being interpreted because that issue is at the heart of the problem. That is the excuse that many former-care adults come up against as regards why they cannot find information about their families. However, I hear what the Minister says. He may be assured that the Care Leavers’ Association and other organisations with which I have worked will most certainly take part in that review. I thank him for that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18 [Entitlement to payment in respect of higher education]:
43: Clause 18, page 15, line 18, leave out subsection (4)
The noble Lord said: I simply want to correct the record. I am told that the new guidance will be issued by the end of 2009, not 2008. I beg to move.
44: Clause 18, page 15, line 27, leave out subsection (6)
On Question, amendment agreed to.
Clause 18, as amended, agreed to.
Clause 19 [Assistance to pursue education or training]:
45: Clause 19, page 16, line 41, at end insert—
“(9A) 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: To ensure that the noble Lord, Lord Rix, has an opportunity to move Amendment No. 48 this evening, I will not move Amendment No. 45, but I will bring it back on Report.
[Amendment No. 45 not moved.]
46: Clause 19, page 17, leave out lines 1 to 3
47: Clause 19, page 17, line 32, leave out subsections (6) and (7)
On Question, amendments agreed to.
Clause 19, as amended, agreed to.
Clause 20 agreed to.
48: 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 from the date the statement is implemented, unless the authority decides that it is not in the child’s best interests to 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: I have retabled the amendment because of its crucial role in safeguarding and promoting the safety and well-being of disabled children living away from home. I am most grateful to the Minister for suggesting that it would be well worth my while to give this a repeat performance. I am also very grateful to the noble Baroness, Lady Walmsley, and other noble Lords who have postponed their amendments to Report stage. Unfortunately, if Report stage is within the next 15 days, I will be unable to be present, because I hope to be joining the ghosts of Bing Crosby, Bob Hope and Dorothy Lamour on the road to Morocco.
I will not tire your Lordships—although I am sure that most are tired already—by rehearsing all the arguments that I and others put forward on Second Reading and in Grand Committee. We should not underestimate the importance of the amendment. Disabled children living away from home in residential educational establishments are some of the most vulnerable children and young people in society. Given that, they deserve added protection when living away from home and it is vital that we amend the law to ensure that they have that protection.
I welcome the Minister’s suggestion in Grand Committee that there should be a requirement that children in long-term educational establishments should be visited at a minimum of six-monthly intervals. However, I do not believe that that will be sufficient for the vast majority of disabled children and their families. To most families, the best framework for providing the necessary levels of supervision and support is by using the existing looked-after status and system. We need to ensure that those who need that security get it. I hope that the Minister will be able to reconsider the amendment. I beg to move.
I supported the amendment in Grand Committee, although I can understand why the Minister was reluctant to have one solution to cover all children. The last thing that any of us would want is the state intervening where it is not needed and probably not wanted, especially in family life. The amendment allows for this. As I said in Grand Committee, it does not impose a prescriptive shackle, because where a child has contact with their family the local authority is under no obligation to consider the young person as looked after. As we are talking about the welfare of some of our most defenceless children and young people, who are often hundreds of miles from their families, as the noble Lord, Lord Rix, said, and given the strength of feeling in the Committee, I hope that the Minister will have another look at the amendment, which simply seeks to give such children the appropriate support and protection.
When we discussed this amendment in Grand Committee, my name was attached to it. The fact that it is not tonight does not mean that I have lost interest or do not support the amendment, but last week’s goings-on were so complicated that one way or another I did not put my name on it again. I support it as fervently as I did when we first discussed it. I share with the noble Baroness, Lady Morris of Bolton, the view that the Minister was right when he said:
“In determining the appropriate level of support for each child, we should not have a single, automatic response to cover all situations”.—[Official Report, 17/1/08; col. GC 603.]
However, he will notice that the amendment of the noble Lord, Lord Rix, is cleverly written and gives the local authority an opportunity not to take the child into care if that is not in the best interests of the child or if it is perfectly clear that the child will have plenty of visits from its parent, keep contact with its family and have the protection that those visits will give it.
What particularly concerned the noble Lord, Lord Rix, and me in that debate on 17 January was that the Minister, on further questioning by the noble Lord, suggested that children considered to be in care in these sorts of placements might have visits only once every six months. Neither of us felt that that would be quite enough for such needy children who were a long way from home. I do not know whether the Minister can give us any comfort on that, but that suggestion did not seem to be sufficient protection for a particularly vulnerable child, who not only cannot protect himself or herself but may not even be able to communicate with anyone, apart perhaps from very close family, if any abuse is taking place. Although staff in many of the establishments where these children are placed are absolutely wonderful and are saints, there are a very few awful cases, and it is from those cases that we have to protect children. So I very much support the noble Lord, Lord Rix, in bringing back this amendment and having another go.
I was not in Grand Committee when the noble Lord, Lord Rix, moved this amendment; I had to move off and do something else. I do not wish to detain the Committee; I simply want to say that in my experience these children have some of the greatest difficulties in terms of being isolated. If you are in a boarding school and your parents do not visit because they are poor and often very vulnerable themselves, and if you find yourself put in alternative placements not in local authority provision during the holidays because your parents are in difficulties, you are likely to have far more needs than, and yet not be assessed like, most children who find themselves accommodated or most of the children in care whom we have been discussing. Any child in an establishment who is without some sort of intervention and visitation is a child in need and yet has been abandoned. I support the noble Lord, Lord Rix, in his amendment.
I was glad to have the opportunity to meet the noble Lord, Lord Rix, to discuss this issue after the Grand Committee. Alas, the meeting was in the DCSF, not in Morocco, but I am open to offers on where we might continue these discussions in due course if someone other than the Government is paying.
I do not think that I will go down that road. When I met the noble Lord, I undertook to put on record the response that I gave him, which I think gave him some encouragement. I am glad to do that now.
The Bill includes provisions that build on and strengthen the existing framework under which local authorities are notified of, monitor and supervise all children placed away from home, regardless of the reason for the placement, whether the child is disabled or not, and whether the placement is an educational one or made by a health body. The role of local authority children’s services is to work with and support parents to care for their children in long-term residential placements, especially when we know that without this support parental contact with the child is likely to diminish over time.
The Bill, through Clauses 15 and 16, sets out to improve the performance of the current notification arrangements for placing authorities to notify the local authority concerned of the placement of a child in long-term residential accommodation. More significantly, those clauses introduce the requirement for the local authority in which the child is ordinarily resident to visit and to 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 it will ensure that a child’s needs are met not just at the point of placement but also in the event of any change of circumstance during the placement.
The noble Lord raised concerns that a minimum six-monthly visiting frequency may not be sufficient, particularly at the beginning of a placement. We would expect that when any assessment of the child’s needs is undertaken and decisions about the appropriate support and status of the child are being made, the frequency of visits should be part of that consideration. We further expect that the frequency of visits will vary depending on the circumstances of each individual case. For example, local authorities may need to visit a child more frequently during the initial stages of a new placement. If, as the child settles, a high level of parental involvement is evident, the local authority visits may become less frequent. It is essential that attention is paid to the needs of the individual child in making those decisions.
We certainly do not believe that the six-monthly minimum visiting frequency should be the maximum. We believe that in many cases, particularly in the early stages of placements, there will be a need for more frequent visits. We are committed to exploring and establishing best practice in this area and capturing it in statutory guidance, including how local authorities can best support continued parental involvement with a child in a long-term placement. We will take full account of the views expressed in the Committee as we draw up that guidance. I hope that that gives the noble Lord the reassurance that he was seeking.
I am most grateful to the Minister. I know that to a certain extent we stage-managed the response tonight, but I did not hear it in full across a cup of half-consumed tea at the department last Wednesday. I am most grateful for the assurance that he has given. I wrote down here, “Need for frequent visits”. The need for the frequency is slightly inconclusive, is it not? It is not definitive language. It does not say that it has to be at least every fortnight or every three weeks or whatever. However, I fully accept the good will with which the support is given from the government Front Bench. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 21 to 28 agreed to.
[Amendments Nos. 49 and 50 not moved.]
Clause 29 agreed to.
Clause 30 negatived.
[Amendment No. 51 had been withdrawn from the Marshalled List.]
Clause 31 agreed to.
52: After Clause 31, insert the following new Clause—
“Restrictions on making section 8 orders under the Children Act 1989
In section 9(1) of the 1989 Act (restrictions on making section 8 orders), for the words “any section 8 order, other than a residence order,” substitute “a contact order under section 8”.”
The noble Baroness said: We have 10 minutes so we might as well dispose of Amendment No. 52 so that we will not have to bring it back. The purpose of the amendment is to enable applications to the courts for three types of Section 8 orders in relation to children in care. They are prohibited steps, specific issues and residence. Of course, the latter is already permitted.
Looked-after children are the only children in the country excluded from these orders. This provision could be especially beneficial where the local authority is considering a placement move when the child believes it is not in his best interests.
When we debated this in Grand Committee, the Minister pointed out that:
“Section 8 orders, other than residence orders, do not apply in respect of those children who are in the care … 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 … 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 … The role of the independent reviewing officer is important here in monitoring the local authority’s implementation of the care plan”.—[Official Report, 17/1/08; col. GC 591.]
The Minister’s view was that there are therefore sufficient safeguards for the child.
We do not yet really know how well the IRO system will work with the new powers. I view the amendment very much as a last resort. If it was implemented, there would be few cases in which a child would take up this right to apply to the court. It is therefore a last backstop, to ensure that the child has some right to apply in his own right if he is very unhappy and feels that all the safeguards the Minister has put in place have fallen down in his case, and that he must object to a placement move or something of that nature.
I apologise for having said that I would not move the amendment, but we might as well dispose of it as we have plenty more to consider on Report. I hope that the Minister can give me a brief response. I beg to move.
As we discussed in earlier debates on the amendment there are good reasons why most of Section 8 of the 1989 Act does not apply to children in the care of the local authority under a care order. For such children, parental responsibility has been conferred on the local authority through the making of the care order. The local authority therefore has the ongoing statutory responsibility to plan for that child’s care, including in making arrangements for contact and for placement of a child.
The Children Act 1989 is predicated on the basis that the courts are to decide on the question of 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. However, it is not simply the independent reviewing officer who has a role in this regard, though we are strengthening the IRO in the provision set out in the Bill. There are also duties to allow reasonable contact with parents and others, and a requirement to take account of the child’s wishes and feelings—and those of his parents—in taking decisions about placements.
Robust protection is in place to deal with the issues raised by the noble Baroness. However, there could be serious issues of local authorities being frustrated in their exercise of statutory parental responsibility if parents, children in care or others were able to apply for prohibited steps or specific issue orders. The safeguards that we are currently building to guard against inappropriate placement moves are more appropriate than allowing applications for these types of orders to be made with respect to children in care.
54: Before Clause 36, insert the following new Clause—
“Minor and supplementary amendments to the 1989 Act
Schedule (Minor and supplementary amendments to the 1989 Act) (which contains minor and supplementary amendments to the 1989 Act, including amendments to Part 3 of that Act to substitute references to the Welsh Ministers for existing phrases which are to be read as including references to those Ministers by virtue of the Government of Wales Act 2006 (c. 32)) has effect.”
On Question, amendment agreed to.
Clause 36 [Orders, regulations and guidance]:
55: Clause 36, page 27, line 36, at end insert—
“(4A) A statutory instrument containing provision made under section (Power to make further provision concerning independent reviewing officers: Wales) may not be made unless—
(a) a draft of the instrument has been laid before and approved by a resolution of the National Assembly for Wales, and(b) having been so approved, has been laid before and approved by a resolution of each House of Parliament.(4B) As soon as reasonably practicable after the resolution required by subsection (4A)(a) has been passed, the First Minister must ensure that notice in writing of the resolution and a copy of the draft of the statutory instrument is sent to the Secretary of State.
(4C) On receipt of a draft of a statutory instrument under subsection (4B) the Secretary of State must as soon as reasonably practicable lay it before each House of Parliament.
(4D) Paragraph (b) of subsection (4A) ceases to have effect on the making of an order under section 105 of the Government of Wales Act 2006 (c. 32) bringing the Assembly Act provisions into force.
(4E) In subsection (4D) “the Assembly Act provisions” has the same meaning as in the Government of Wales Act 2006 (see section 103(8) of that Act).”
On Question, amendment agreed to.
Clause 36, as amended, agreed to.
Clauses 37 to 39 agreed to.
Clause 40 [Commencement]:
56: Clause 40, page 28, line 23, at end insert—
“( ) Section (Well-being of children and young persons) and this Part (except section 38 and the Schedule) come into force on the day on which this Act is passed.”
On Question, amendment agreed to.
[Amendment No. 57 not moved.]
58: Clause 40, page 28, line 26, leave out from “of” to “come” and insert “this Act”
59: Clause 40, page 28, line 29, after “sections” insert “(Well-being of children and young persons),”
60: Clause 40, page 28, line 36, at end insert—
“( ) Paragraph 4 of Schedule (Minor and supplementary amendments to the 1989 Act) comes into force on the same day as section 7(1) of the Carers and Disabled Children Act 2000 (c. 16) comes into force for the purpose of inserting section 17B into the 1989 Act in relation to Wales.”
On Question, amendments agreed to.
Clause 40, as amended, agreed to.
Clause 41 agreed to.
61: Before the Schedule, insert the following new Schedule—
“Children looked after by local authorities: supplementary and consequential provisions The 1989 Act1 (1) Section 105(1) of the 1989 Act (interpretation of certain expressions) is amended as follows.
(2) Omit the definition of “appropriate children’s home”.
(3) For the definition of “children’s home” substitute—
““children’s home” has the same meaning as it has for the purposes of the Care Standards Act 2000 (see section 1 of that Act);”
(4) For the definition of “local authority foster parent” substitute—
““local authority foster parent” has the meaning given in section 22C(12);”.
2 In Part 2 of Schedule 2 to that Act (children looked after by local authorities) for paragraphs 12 to 14 substitute—
“Regulations as to conditions under which child in care is allowed to live with parent, etc12A Regulations under section 22C may, in particular, impose requirements on a local authority as to—
(a) the making of any decision by a local authority to allow a child in their care to live with any person falling within section 22C(3) (including requirements as to those who must be consulted before the decision is made and those who must be notified when it has been made);(b) the supervision or medical examination of the child concerned;(c) the removal of the child, in such circumstances as may be prescribed, from the care of the person with whom the child has been allowed to live;(d) the records to be kept by local authorities.Regulations as to placements of a kind specified in section 22C(8)(d)12B Regulations under section 22C as to placements of the kind specified in section 22C(8)(d) may, in particular, make provision as to—
(a) the persons to be notified of any proposed arrangements;(b) the opportunities such persons are to have to make representations in relation to the arrangements proposed;(c) the persons to be notified of any proposed changes in arrangements;(d) the records to be kept by local authorities;(e) the supervision by local authorities of any arrangements made. Placements out of area12C Regulations under section 22C may, in particular, impose requirements which a local authority must comply with—
(a) before a child looked after by them is provided with accommodation at a place outside the area of the authority; or(b) if the child’s welfare requires the immediate provision of such accommodation, within such period of the accommodation being provided as may be prescribed.Avoidance of disruption in education12D (1) Regulations under section 22C may, in particular, impose requirements which a local authority must comply with before making any decision concerning a child’s placement if he is in the fourth key stage.
(2) A child is “in the fourth key stage” if he is a pupil in the fourth key stage for the purposes of Part 6 or 7 of the Education 2002 (see section 82 and 103 of that Act).
Regulations as to placing of children with local authority foster parents12E Regulations under section 22C may, in particular, make provision—
(a) with regard to the welfare of children placed with local authority foster parents; (b) as to the arrangements to be made by local authorities in connection with the health and education of such children;(c) as to the records to be kept by local authorities;(d) for securing that where possible the local authority foster parent with whom a child is to be placed is—(i) of the same religious persuasion as the child; or(ii) gives an undertaking that the child will be brought up in that religious persuasion;(e) for securing the children placed with local authority foster parents, and the premises in which they are accommodated, will be supervised and inspected by a local authority and that the children will be removed from those premises if their welfare appears to require it.12F (1) Regulations under section 22C may, in particular, also make provision—
(a) for securing that a child is not placed with a local authority foster parent unless that person is for the time being approved as a local authority foster parent by such local authority as may be prescribed;(b) establishing a procedure under which any person in respect of whom a qualifying determination has been made may apply to the appropriate national authority for a review of that determination by a panel constituted by that national authority.(2) A determination is a qualifying determination if—
(a) it relates to the issue of whether a person should be approved, or should continue to be approved, as a local authority foster parent; and(b) it is of a prescribed description.(3) Regulations made by virtue of sub-paragraph (1)(b) may include provision as to—
(a) the duties and powers of a panel;(b) the administration and procedures of a panel;(c) the appointment of members of a panel (including the number, or any limit on the number, of members who may be appointed and any conditions for appointment);(d) the payment of fees to members of a panel;(e) the duties of any person in connection with a review conducted under the regulations;(f) the monitoring of any such reviews. (4) Regulations made by virtue of sub-paragraph (3)(e) may impose a duty to pay to the appropriate national authority such sum as that national authority may determine; but such a duty may not be imposed upon a person who has applied for a review of a qualifying determination.
(5) The appropriate national authority must secure that, taking one financial year with another, the aggregate of the sums which become payable to it under regulations made by virtue of sub-paragraph (4) does not exceed the cost to it of performing its independent review functions.
(6) The appropriate national authority may make an arrangement with an organisation under which independent review functions are performed by the organisation on the national authority’s behalf.
(7) If the appropriate national authority makes such an arrangement with an organisation, the organisation is to perform its functions under the arrangement in accordance with any general or special directions given by that national authority.
(8) The arrangement may include provision for payments to be made to the organisation by the appropriate national authority.
(9) Payments made by the appropriate national authority in accordance with such provision shall be taken into account in determining (for the purpose of sub-paragraph (5)) the cost to that national authority of performing its independent review functions.
(10) Where the Welsh Ministers are the appropriate national authority, sub-paragraphs (6) and (8) also apply as if references to an organisation included references to the Secretary of State.
(11) In this paragraph—
“financial year” means a period of twelve months ending with 31st March;
“independent review function” means a function conferred or imposed on a national authority by regulations made by virtue of sub-paragraph (1)(b);
“organisation” includes a public body and a private or voluntary organisation.
12G Regulations under section 22C may, in particular, also make provision as to the circumstances in which local authorities may make arrangements for duties imposed on them by the regulations to be discharged on their behalf.”
3 In paragraph 21(5) of that Schedule (liability to contribute towards maintenance of looked after child) for “allowed by the authority (under section 23(5)) to live with” substitute “living with, under arrangements made by the authority in accordance with section 22C,”.
4 In paragraph 9 of Schedule 8 (accommodation of children during school holidays) in the second sentence of sub-paragraph (1) for “an appropriate children’s home” substitute “a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000”.
5 In paragraph 2(1) of Schedule 9A (exemption of certain establishments from Part XA), in paragraph (a) for “an appropriate children’s home” substitute “a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000”.
Criminal Justice Act 1991 (c. 53)6 (1) Section 61 of the Criminal Justice Act 1991 (provision by local authorities of secure accommodation) is amended as follows.
(2) In subsection (2) for “an appropriate children’s home” substitute “a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000”.
(3) In subsection (5) omit the words from “and” to the end.
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)7 In paragraph 5A(3) of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000 (requirement in supervision order to live with local authority foster parent for specified period) for “23(2)(a)” substitute “22C”.
Care Standards Act 2000 (c. 14)8 In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (2)(e), for “23(2)(a)” substitute “22C”.
9 In section 31 of that Act (inspection of establishments and agencies by authorised persons), in subsection (3)(b), for “23(2)(a)” substitute “22C”.
10 In section 43(1) (local authority services: meaning of “relevant adoption functions” and “relevant fostering functions” for paragraph (b) substitute—
“(b) “relevant fostering functions” means functions under section 22C of the 1989 Act in connection with placements with local authority foster parents or regulations under paragraph 12E(a), (b), (d) or (e) or 12F.”Adoption and Children Act 2002 (c. 38)11 In Schedule 6 to the Adoption and Children Act 2002 (glossary giving certain expressions used in that Act the meaning given by the Children Act 1989), in the entry relating to “local authority foster parent” for “23(3)” substitute “22C(12)”.
Sexual Offences Act 2003 (c. 42)12 In section 21 of the Sexual Offences Act 2003 (positions of trust) in subsection (3)(a) for “under section 23(2)” substitute “in accordance with section 22C(6)”.
13 In section 27 of that Act (family relationships) in subsection (5)(c) for sub-paragraph (i) substitute “—
(i) he is a person with whom the child has been placed under section 22C of the Children Act 1989 in a placement falling within subsection (6)(a) or (b) of that section (placement with local authority foster parent),(ia) he is a person with whom the child has been placed under section 59(1)(a) of that Act (placement by voluntary organisation),”. Children Act 2004 (c. 31)14 In section 49(1)(a) of the Children Act 2004 (payments to local authority foster parents) for “23(2)(a)” substitute “22C”.
Income Tax (Trading and Other Income) Act 2005 (c. 5)15 (1) Section 806 of the Income Tax (Trading and Other Income) Act 2005 (meaning of providing foster care) is amended as follows.
(2) In subsection (3)(a) for “23(2)(a)” substitute “22C”.
(3) In subsection (5)—
(a) after paragraph (c) omit “and”; and(b) after paragraph (d) insert “; and(e) an individual with whom the child is placed under a placement falling within section 22C(6)(d) of the Children Act 1989.”Childcare Act 2006 (c. 21)16 (1) Section 18 of the Childcare Act 2006 (meaning of childcare) is amended as follows.
(2) For subsection (5)(a)(i) substitute—
“(i) a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000,”.(3) In subsection (8)—
(a) in paragraph (a) omit ““appropriate children’s home”,”; and(b) in paragraph (b) after ““care home”,” insert ““children’s home”,”.Safeguarding Vulnerable Groups Act 2006 (c. 47)17 In section 53(7)(a) of the Safeguarding Vulnerable Groups Act 2006 (meaning of foster parent) omit “of section 23(2)(a)”.
Criminal Justice and Immigration Act 200818 In paragraph 18(3) of Schedule 1 to the Criminal Justice and Immigration Act 2008 (fostering requirements in youth rehabilitation orders) for “23(2)(a)” substitute “22C”.”
[Amendments Nos. 62 and 63, as amendments to Amendment No. 61, not moved.]
On Question, Amendment No. 61 agreed to.
64: Before the Schedule, insert the following new Schedule—
“Minor and supplementary amendments to the 1989 Act1 The 1989 Act is amended in accordance with this Schedule.
2 In section 17(4) for “Secretary of State” substitute “appropriate national authority”.
3 In section 17A(1) for “Secretary of State” substitute “appropriate national authority”.
4 In section 17B(1) for “Secretary of State” substitute “appropriate national authority”.
5 In section 21(3), after “Secretary of State” insert “, the Welsh Ministers”.
6 In section 22(7)—
(a) for “Secretary of State” substitute “appropriate national authority”;(b) for “he” substitute “the appropriate national authority”;(c) for “the authority” substitute “the local authority”.7 (1) Section 23 is amended as follows.
(2) In subsection (2), in paragraphs (a) and (f)(ii) for “Secretary of State” substitute “appropriate national authority”.
(3) In subsection (2A)—
(a) for the words “the Secretary of State”, in the first place where they occur, substitute “an appropriate national authority”;(b) for those words in the second place where they occur, substitute “that national authority”.(4) In subsection (5) for “Secretary of State” substitute “appropriate national authority”.
(5) In subsection (6) for “Secretary of State” substitute “appropriate national authority”.
8 (1) Section 23A is amended as follows.
(2) In subsection (3) for “Secretary of State” substitute “appropriate national authority”.
(3) In subsection (5)—
(a) for “Secretary of State” substitute “appropriate national authority”; (b) for “he” substitute “the appropriate national authority”.9 (1) Section 23B is amended as follows.
(2) In subsection (5) for “Secretary of State” substitute “appropriate national authority”.
(3) In subsection (7) for “The authority” substitute “The local authority”.
(4) In subsection (10) for “Secretary of State” substitute “appropriate national authority”.
10 In section 23D, in subsections (1) and (2), for “Secretary of State” substitute “appropriate national authority”.
11 In section 23E(2) for “Secretary of State” substitute “appropriate national authority”.
12 In section 24(5)(za) for “Secretary of State” substitute “appropriate national authority”.
13 In section 24B(6) for “Secretary of State” substitute “appropriate national authority”.
14 In section 24D, in subsections (1A) and (2), for “Secretary of State” substitute “appropriate national authority”.
15 In section 25, in subsections (2) and (7), for “Secretary of State” substitute “appropriate national authority”.
16 (1) Section 26 is amended as follows.
(2) In subsection (1) for “Secretary of State” substitute “appropriate national authority”.
(3) In subsection (2D) for “National Assembly for Wales” substitute “Welsh Ministers”.
(4) In each of subsections (3A), (3B), (3C), (4A), (5) and (6) for “Secretary of State” substitute “appropriate national authority”.
17 In section 26ZB(1) for “Secretary of State” substitute “Welsh Ministers”
18 In section 26A, in each of subsections (3)(a) and (4), for “Secretary of State” substitute “appropriate national authority”.
19 In section 27(3)(e) for “Secretary of State” substitute “appropriate national authority”.
20 In section 29(8)(c) after “Secretary of State” insert “, the Welsh Ministers”.
21 (1) Section 30 is amended as follows.
(2) In subsection (2) for “Secretary of State” substitute “determining authority”.
(3) After subsection (2) insert—
“(2A) For the purposes of subsection (2) “the determining authority” is—
(a) in a case where all the local authorities concerned are in Wales, the Welsh Ministers;(b) in any other case, the Secretary of State.(2B) In a case where—
(a) the determining authority is the Secretary of State, and (b) one or more of the local authorities concerned are in Wales,the Secretary of State must consult the Welsh Ministers before making a determination for the purposes of subsection (2).”(4) In subsection (4) for “Secretary of State” substitute “appropriate national authority”.
22 After section 30 insert—
“30A Meaning of appropriate national authority
In this Part “the appropriate national authority” means—
(a) in relation to England, the Secretary of State; and(b) in relation to Wales, the Welsh Ministers.”23 (1) Section 104 is amended as follows.
(2) In subsection (2) after “108(2)” insert “or one containing the first regulations made by the Secretary of State under section 23C(5B)(b)”.
(3) Omit subsection (2A).
(4) In subsection (3) omit the words “or 17(4)”.
(5) After subsection (3) insert—
“(3A) An order under section 17(4) shall not be made by the Secretary of State unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
(3B) Regulations under section 23C(5B)(b) shall not 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; but this does not apply if the Secretary of State has previously made regulations under that provision.”
(6) In subsection (4)(c) omit—
(a) the word “such”;(b) the words “as the person making it considers expedient”.24 After section 104 insert—
“104A Regulations and orders made by the Welsh Ministers under Part 3 etc.
(1) Any power of the Welsh Ministers under Part 3 or section 86A to make an order or regulations shall be exercisable by statutory instrument.
(2) Any such statutory instrument, except one made under section 17(4) or one containing the first regulations made by the Welsh Ministers under section 23C(5B)(b), shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.
(3) An order under section 17(4) shall not be made by the Welsh Ministers unless a draft of it has been laid before and approved by a resolution of the National Assembly for Wales.
(4) Regulations under section 23C(5B)(b) shall not 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; but this does not apply if the Welsh Ministers have previously made regulations under that provision.”
25 (1) Schedule 2 is amended as follows.
(2) In paragraph 1A—
(a) in sub-paragraph (3)(j) for “Secretary of State” substitute “Welsh Ministers”;(b) in sub-paragraph (4) for “Secretary of State, submit to him” substitute “Welsh Ministers, submit to those Ministers”. (3) In paragraph 17(7) for “Secretary of State” substitute “appropriate national authority”.
(4) In paragraph 19B, in sub-paragraphs (3) and (7), for “Secretary of State” substitute “appropriate national authority”.
(5) In paragraph 20(1)(a) for “Secretary of State” substitute “appropriate national authority”.
(6) In paragraph 25—
(a) for “Secretary of State” substitute “appropriate national authority”;(b) for “they” substitute “a local authority”.”
On Question, amendment agreed to.
The Schedule [Repeals]:
65: The Schedule, page 30, line 10, column 2, at end insert—
“In section 104— (a) subsection (2A); (b) in subsection (3), the words “or 17(4)”; (c) in subsection (4)(c), the word “such” and the words “as the person making it considers expedient”. In section 105(1), the definition of “appropriate children’s home”.”
“In section 104—
(a) subsection (2A);
(b) in subsection (3), the words “or 17(4)”;
(c) in subsection (4)(c), the word “such” and the words “as the person making it considers expedient”.
In section 105(1), the definition of “appropriate children’s home”.”
66: The Schedule, page 30, line 11, column 2, leave out “paragraphs 12(d) and (g) and” and insert “paragraph”
67: The Schedule, page 30, line 11, at end insert—
“Criminal Justice Act 1991 (c. 53) In section 61(5), the words from “and” to the end.”
“Criminal Justice Act 1991 (c. 53)
In section 61(5), the words from “and” to the end.”
68: The Schedule, page 30, line 12, column 2, at beginning insert—
“In section 5(1A), the word “and” immediately preceding paragraph (e).”
“In section 5(1A), the word “and” immediately preceding paragraph (e).”
69: The Schedule, page 30, line 23, at end insert—
“Income Tax (Trading and Other Income) Act 2005 (c. 5) In section 806(5), the word “and” after paragraph (c). Childcare Act 2006 (c. 21) In section 18(8)(a), the words ““appropriate children’s home”,”.”
“Income Tax (Trading and Other Income) Act 2005 (c. 5)
In section 806(5), the word “and” after paragraph (c).
Childcare Act 2006 (c. 21)
In section 18(8)(a), the words ““appropriate children’s home”,”.”
70: The Schedule, page 30, line 25, at end insert—
“Safeguarding Vulnerable Groups Act 2006 (c. 47) In section 53(7)(a), the words “of section 23(2)(a)”.”
“Safeguarding Vulnerable Groups Act 2006 (c. 47)
In section 53(7)(a), the words “of section 23(2)(a)”.”
71: The Schedule, page 30, line 27, leave out “Section 12” and insert “Sections 12 to (Orders under section 12 and (Power to make further provision concerning independent reviewing officers: Wales): supplementary provisions).”
On Question, amendments agreed to.
The Schedule, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at 9.53 pm.